Supreme Court

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


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.

10 On 9 November 2015, White J made an order dismissing the defendant’s

notice of motion. His Honour accepted that “the defendant’s non-appearance is

satisfactorily explained” but was of the view that “the facts upon which Ball J

found that there was a very strong case that the defendant has in the past

trespassed on the land and is likely to continue to do so unless restrained,

have not been challenged in any plausible way on this application”.


11 It is convenient to first set out a chronology of the history of interactions

between the defendant and the plaintiffs.

12 The evidence of Mr Geordie Bunting, the plaintiffs’ Senior Centre Manager for

NSW during the relevant period, is that for about four weeks in October 2014,

the defendant’s vehicle was continuously parked on the plaintiffs’ land in the

Coles car park. Mr Bunting has provided a photograph of the Car Parking

Terms and Conditions displayed on signs in the Coles car park which

relevantly provide as follows:

Adhere to Directions

4. You must adhere to all parking signs and directions and comply with all verbal or other directions given to us or any person authorised by us.

Hours of operation

5. You must not enter or remain in, or allow any vehicles or other property to remain in the car park other than during the hours of operation displayed on signs throughout the car park.

13 The hours of operation of the Coles car park are 6 am to 12 am. Mr Bunting

has also provided a photograph which appears to indicate that parking is

restricted to three hours.

October 2014 banning notices

14 Mr Bunting’s evidence in his affidavit of 26 October 2015 is that on 16 and 20

October 2014, Mr Peter Twigg, an employee of ACS Integrated Services

Providers (ACS) serving as Kellyville Plaza Centre Duty Manager, issued



banning notices to the defendant revoking any express or implied licence

allowing the defendant to enter or remain upon the premises. While Mr Bunting

accepted in cross-examination that he did not sign the banning notices (T15),

Mr Bunting stated that ACS “have our authority” to issue banning notices (T14).

15 Annexed to Mr Bunting’s affidavit are copies of the banning notices which

provide as follows:





I PETER TWIGG being a Manager/Representative of Coles Group Limited (Site Name) Kellyville Plaza (Business or shopping Centre Management) DO HEREBY REVOKE any expressed or implied licence allowing you to remain upon the premises of: Coles Kellyville Plaza, bound by (defined boundaries are) WRIGHTS RD AND YORK RD.

This TERMINATION OF LICENCE will operate and be enforced for a period of 12 months from the date of service upon you

16 The defendant stated in cross-examination that he did not accept the banning

notices from Mr Twigg (T63). The defendant indicated that in his view, Mr

Twigg could not issue banning notices because Mr Twigg was “a cleaner

employed by the different company” and had “no authority” to serve the notices

(T7, 66). The defendant made several allegations against Mr Twigg during the

hearing of this matter, including allegations that Mr Twigg put rubbish in the

defendant’s vehicle and has falsely alleged that the defendant has undressed

in public (T7, 55).

17 The defendant’s evidence is that Mr Twigg passed the banning notices to the

police (T63), and that the defendant told the police “that this is civil proceeding,

as a – as a civil proceeding police have no say in it” (T63-4). In the defendant’s

view, the landowner “did not even know” about the banning notices (T65).

18 It should be noted that Mr Twigg is no longer an employee of the plaintiffs and

that the plaintiffs have been unable to make contact with Mr Twigg aside from

serving him with a subpoena.



19 The plaintiffs indicated at the hearing of this matter that they “primarily rely on

the second set of banning notices” it seems on the basis of the unavailability of

Mr Twigg (T6).

Events subsequent to October 2014

20 Mr Bunting states in his affidavit that after the service of banning notices upon

the defendant by Mr Twigg, the defendant “temporarily removed himself and

his vehicle” but subsequently returned. Mr Bunting’s evidence is that the

defendant then attached a tarpaulin to the side of his vehicle. The vehicle is

“festooned with large printed signs/stickers”. The vehicle and tarpaulin are

evidenced by photographs annexed to Mr Bunting’s affidavit.

21 Mr Bunting’s evidence is that on 9 July 2015, a memorandum was sent to retail

tenants requesting that they contact security if the defendant is seen inside the

Plaza. In cross-examination, he gave evidence that he was aware of the

memorandum and that around this time, he attended the Plaza with a security

guard “to ensure that [the defendant] weren’t provided access to the centre”

(T17). His evidence is that he had “a responsibility to act on the – on the issues

which are brought to our attention from our customers and our retailers” (T18).

22 Mr Bunting’s understanding is that on 25 August 2015, the defendant was

convicted under s 4 of the Inclosed Lands Protection Act 1901 (NSW) and

fined $250 however the defendant has appealed the conviction. In this respect,

the defendant alleges that the car park is not an “inclosed land” within the

meaning of the Inclosed Land Protections Act 1901 (NSW) because the car

park has “is never, ever closed” and is not gated (T8, 57, 68-9). For the

purposes of the present proceedings, it is neither necessary nor appropriate for

me to decide that issue.

Notice of 30 September 2015

23 Mr Bunting’s evidence is that on 30 September 2015, the plaintiffs served a

further notice on the defendant to cease trespassing. The evidence of Ms Clare

Jordan, a Senior Associate at JBT Lawyers, in her affidavit of 22 October 2015

is that she prepared the notice.

24 The evidence of Mr Hoare, a licenced process server, in his affidavit of 22

October 2015 is that the defendant refused to accept the document so Mr



Hoare affixed it to the defendant’s vehicle. Mr Hoare states that the defendant

then gave him a mobile telephone number. That telephone number appears to

be the same as the number displayed on the defendant’s vehicles in

photographs annexed to the affidavit of Mr Bunting.

25 The evidence of Mr Hoare is consistent with the defendant’s evidence in cross-

examination that he refused to accept the notice and that “the man come and

attempted to, to – that who delivery to, to actually stick on my, on, on my van”


26 It should be noted that the plaintiffs concede that there is an error in the notice

of 30 September 2015 with respect to the folio numbers but submit that it was

“clear to Mr Stankovic that he wasn’t welcome” (T115).

27 Ms Jordan states that on 1 October 2015, she telephoned the defendant on the

number obtained by Mr Hoare. Ms Jordan’s evidence is that when asked

whether he would move to enable the refurbishment works to be completed,

the defendant responded with words to the effect “100% guaranteed I will

move” and “there will be no delay on my side”. Ms Jordan states that when she

informed the defendant that the plaintiffs required him to move immediately, he

responded that he needed “about seven days” to pack and move. Ms Jordan

further states that on 7 October 2015, a paralegal employed by JBT lawyers

contacted the defendant by telephone. The defendant said that his truck had

had a flat battery and that he anticipated leaving by 9 October 2015.

28 Mr Bunting’s evidence is that the defendant then moved his vehicle on the

weekend of 10-11 October 2015 to a parking space closer to the Plaza

entrance. In this respect, the defendant gave evidence that he moved closer to

the entrance to the Kellyville Plaza because the police told him “people will

killing you here for $10 for drugs” (T58).

29 Mr Bunting’s evidence is that also on 15 October 2015, the plaintiffs then

organised for a tow truck to remove the defendant, his vehicle and his property

with security guards and local police in attendance. His evidence is that the

defendant eventually drove off the land but returned about 90 minutes later.

Two security guards attempted to prevent the defendant entering the car park

but the defendant drove the vehicle into the security guards, causing a minor



knee injury to one of them. Mr Bunting asserts that since the attempted

removal of the defendant, he has “repeatedly returned to the land with his


30 The evidence of Mr Bunting is consistent with the evidence of Mr Jacob

Lambkin, the Contract Manager for ACS in 2014-2015, who also gave

evidence at the hearing of this matter about the events of 15 October 2015. Mr

Lambkin’s evidence is that he cannot remember exactly who from Coles

organised the events of that day (T46), but that the police were called “because

you were told you were not allowed to re-enter the car park. We had security

there standing at the car park entries at the driveways to which you physically

drove forward and physically hit one of our security guards” (T49).

31 In cross-examination, Mr Bunting gave evidence that when the defendant

drove off on 15 October 2015, “there was a lot of items left behind” (T24). His

evidence is that certain belongings, including a damaged mobility scooter, are

still “on site at Kellyville” (T20). Mr Bunting stated that he received a report that

the defendant rode or drive his mobility scooter “into one of the ATM bollards at

the front of the centre” and that that is how the scooter became damaged

(T20). Mr Bunting stated that other belongings that were “considered rubbish”

or “considered a health and safety risk” were placed in a skip bin (T22).

32 I should note that the defendant was to some extent preoccupied at the hearing

of this matter by the damage allegedly done to his second mobility scooter that

remains at Kellyville Plaza. As I indicated at the hearing of this matter, the

defendant has not filed any cross-claim with respect to the alleged damage and

I do not propose to deal with it in disposing of these proceedings.

Complaints against the defendant

33 Mr Bunting’s evidence is that the plaintiffs have received verbal and written

complains about the defendant, including allegations that the defendant has

verbally abused persons with disabilities, driven his vehicle dangerously in the

car park, urinated in the car park gardens, undressed beside his vehicle,

accumulated rubbish that may pose a fire or safety hazard, and told customers

to shop elsewhere. Mr Bunting has also provided a letter from the Hills Shire



Council dated 18 May 2015 noting that complaints about the defendant have

been made to the Council.

34 Mr Bunting states that, when attending Kellyville Plaza on a weekly basis, the

defendant “abuses me and uses derogatory language to describe me” and “will

often tell people within earshot that I have breached the protocol regarding the

treatment of homeless persons”.

Defendant’s recent presence at the Kellyville Plaza

35 Mr Lambkin gave evidence that he saw the defendant in the Plaza via CCTV at

5:30am on 14 June 2016 (T41). Aside from CCTV, Mr Lambkin gave evidence

that he last saw the defendant in the Plaza “around two to thre

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