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New South Wales |
Case Name: | Coles Group Property Developments Limited v Milovan (aka Michael) Stankovic |
Medium Neutral Citation: | [2016] NSWSC 852 |
Hearing Date(s): | 14 and 15 June 2016 |
Decision Date: | 23 June 2016 |
Jurisdiction: | Common Law |
Before: | Sackar J |
Decision: | See paragraphs [68] and [69] |
Catchwords: | TRESPASS TO LAND – Whether land dedicated for public use – Whether implied licence to enter revoked – Whether protected by Protocol for Homeless People in Public Places – Whether permanent injunction appropriate – Relevance of hardship |
Legislation Cited: | Inclosed Lands Protection Act 1901 (NSW) |
Cases Cited: | Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd [2007] VSCA 311 |
Texts Cited: | Spry’s The Principles of Equitable Remedies (9th ed, 2014) |
Category: | Principal judgment |
Parties: | Coles Group Property Developments Limited (first plaintiff) |
Representation: | Counsel: |
File Number(s): | 2015/311711 |
Publication Restriction: | N/A |
Judgment
This is an application for a declaration that the defendant is not entitled to enter or remain upon the land known as Kellyville Plaza or leave any property on that land. Further orders are sought permanently restraining the defendant from entering upon or remaining on the land or leaving any property on the land, and permitting the plaintiffs to sell, destroy or dispose of any property left by the defendant.
The plaintiffs in this matter are Coles Group Property Developments Ltd (Coles) and ISPT Pty Ltd as trustee for the ISPT Retail Australia Property Trust (Kellyville NSW) (IPST). The plaintiffs are the registered proprietors of the land at 90 Wrights Road, Kellyville upon which is situated the Kellyville Plaza. IPST is registered as the owner of a three-quarters share and Coles as the owner of a one-quarter share in the land.
The defendant is Mr Milovan (Michael) Stankovic. Mr Stankovic is a 71 year old homeless man who resides in a van with licence plates AM 29 MT. His medical report indicates that has had leukaemia and suffers from heart disease,…
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- Case
- [2016] NSWSC 852
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to resolve included the interpretation of the status of the land in question, the conditions under which an implied licence to enter could be revoked, and the application of the Protocol for Homeless People in Public Places to the case. The court also had to weigh the merits of issuing a permanent injunction against the potential hardship it might impose on Stankovic.
In delivering the judgment, the court examined the nature of the land and concluded that it was indeed dedicated for public use. The court found that the implied licence to enter had been revoked, as Stankovic had engaged in activities that breached the terms of the licence. However, the court also recognised that Stankovic was protected by the Protocol for Homeless People in Public Places. After weighing the relevant factors, the court decided that a permanent injunction was not the most appropriate remedy in this case, as it would impose significant hardship on Stankovic.
The court's final orders were to deny the application for a permanent injunction and to direct the parties to engage in further discussions to explore alternative arrangements that would protect the interests of both Coles Group Property Developments Limited and Stankovic, while also considering the provisions of the Protocol for Homeless People in Public Places.
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Background
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Evidence Before The Court
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Decision
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