Coles Group Property Developments Limited v Milovan (aka Michael) Stankovic - [2016] NSWSC 852

Supreme Court

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 Casson v Leichhardt Council [2011] NSWLEC 423; 186 LGERA 34 Cavric v Willoughby City Council [2015] NSWCA 182 Halliday v Nevill (1984) 155 CLR 1 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Lawrence v Fen Tigers Ltd [2014] AC 822; [2014] 2 All ER 622 Lets We Forget Pty Ltd v Westpac Banking Corporation [2005] 56 ACSR 126 Lord v McMahon [2015] NSWSC 1619 Namul Pty Ltd v Milovan Stankovic [2013] NSWSC 115 Newington v Windeyer (1985) 3 NSWLR 555 Owen v O’Connor [1963] SR (NSW) 1051 Reliance Finance Corporation Pty Ltd v Orwin Walshe & Ward [1964-5] NSWR 970 Ross v Lane Cove Council [2014] NSWCA 50 Shire of Narracan v Leviston (1906) 3 CLR 846 Street v Luna Park Sydney Pty Limited [2009] NSWSC 1 Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41; 150 FCR 110
Texts Cited:	Spry’s The Principles of Equitable Remedies (9th ed, 2014)
Category:	Principal judgment
Parties:	Coles Group Property Developments Limited (first plaintiff) ISPT Pty Ltd as trustee for the ISPT Retail Australia Property Trust (Kellyville NSW) (second plaintiff) Milovan Stankovic (defendant)
Representation:	Counsel: T Maltz (plaintiff) M Stankovic (self-represented) Solicitors: JBT Lawyers (plaintiffs)
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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWSC 852
Decision Date: 23 June 2016

CaseChat Overview and Summary

The case before the court involved a dispute between Coles Group Property Developments Limited and Milovan (aka Michael) Stankovic. The primary issue was whether Stankovic had trespassed on land dedicated for public use, and whether an implied licence to enter had been revoked. Additionally, the court considered whether Stankovic was protected by the Protocol for Homeless People in Public Places and whether a permanent injunction was appropriate, taking into account the potential hardship it might cause.

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.

Orders