Store It Cheap Pty Ltd (ACN 129 800 022) v Yesil Holdings Pty Ltd (ACN 150 022 281)

[2012] VCC 2053

IN THE COUNTY COURT OF VICTORIA Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-12-06233

Store It Cheap Pty Ltd (ACN 129 800 022)	Plaintiff
v
Yesil Holdings Pty Ltd (ACN 150 022 281)	First Defendant
and
Yesil Foods Pty Ltd (ACN 150 022 281)	Second Defendant
and
Adem Ruhi Aydemir	Third Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	20 DECEMBER 2012
DATE OF JUDGMENT:	20 DECEMBER 2012
CASE MAY BE CITED AS:	Store It Cheap Pty Ltd (ACN 129 800 022) V Yesil Holdings Pty Ltd (ACN 150 022 281) & Ors
MEDIUM NEUTRAL CITATION:	[2012] VCC 2053

REASONS FOR JUDGMENT
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TRESPASS – trespass to land – Interlocutory injunction – balance of convenience

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Harrison	Jacka Lawyers
For the Defendant

HIS HONOUR:

1       I granted an interlocutory injunction in this a proceeding for the following reasons.

2       I considered that there was a serious question to be tried based in particular on the survey evidence that the disputed land belonged to the plaintiff. I applied the principles stated in Bradto Pty Ltd v State of Victoria[1].

[1](2006) 15 VR 65

3       I took into account that much of the relief sought was at least partially final and mandatory in nature. I took into account that that the first two defendants were only served yesterday and the third defendant not all justified.  No defendant appeared.[2] I did not consider that the balance of convenience justified granting most of the orders at this time.

[2]The Court was informed that the son of the third defendant attended the Registry of the Court this morning, but was unwilling to come to the courtroom because he said of an Intervention order. The Court was informed that the intervention order had expired. Attempts were made to locate him in and around the Court but they were unsuccessful

4       I  did however consider that the first and second defendants should  remove the goods and chattels from the disputed land for the time being.  I did so for the following reasons. First, there was expert evidence that the chattels included drums and containers that were in poor condition and which were leaking liquid, perhaps motor oil. The containers may have previously contained corrosive chemical. The soil may be contaminated or polluted. Secondly, the defendants appear to have substantial land on which to store these chattels until the dispute giving rise to this proceeding is finally determined. If the defendants are successful in the litigation, they may be able to return the items to the land at that point. It appears from photographs that that were exhibited to the plaintiff’s affidavit that  the defendants have equipment with which they can move the containers and drums around. Thirdly, although it appears that goods and chattels have been stored on the land by the defendants for some time,  the amount of goods and chattels stored appears to have increased recently and the plaintiff has only recently obtained its expert’s report.

5       I have given the defendants about four weeks to remove the goods and chattels. The defendants are at liberty to apply to the Court to vary that order during that time.