Coles kellyville plaza

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 1 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.

2 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.

3 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, type II

diabetes, arthritis and scleritis.

Background facts

4 Mr Stankovic appears to have resided in a property behind Kellyville

Woolworths until that property was sold following his being declared bankrupt.

Mr Stankovic remains of the view that that property was “illegally stolen” (T6).

5 In February 2013, Rein J made orders declaring that Mr Stankovic had no right,

title or interest in the Kellyville property and restraining Mr Stankovic from

entering the land or publishing or disseminating any material asserting that he

has an interest: Namul Pty Ltd v Milovan Stankovic [2013] NSWSC 115.

6 It appears to be common ground that the defendant parked his vehicle in the

Kellyville Plaza Coles car park on a relatively continuous basis from at least

October 2014 until around October 2015. His vehicle is now parked outside

Kellyville Woolworths, however Mr Stankovic continues to visit the Kellyville

Plaza on about a daily basis and in particular visits Gloria Jeans where he

charges the battery of his mobility scooter.

Procedural history

7 On 23 October 2015, the plaintiffs filed a Summons seeking interlocutory and

final relief.

8 On 28 October 2015, Ball J made an interlocutory order that the defendant

remove from Kellyville Plaza himself and any property in his ownership,

custody, possession or control, including his vehicle. His Honour further made

orders restraining the defendant from entering upon or remaining on any part of

the land, and permitting the plaintiffs to remove any of the defendant’s property

if the defendant did not comply with the first order (but not authorising the

plaintiffs to use force to remove any of the defendant’s property). The

defendant did not appear on that occasion.

9 On 2 November 2015, the defendant filed a notice of motion seeking an order

that the interlocutory orders made by Ball J be set aside. Mr Stankovic

enclosed an affidavit sworn 30 October 2015 in which he deposed that he was

a patient at Westmead Hospital on 28 October 2015.