“…every invasion of private property, be it ever so minute, is a trespass: Entick v Carrington[1]

 

Background Facts

The applicant owned Abell Point Marina at Airlie Beach, which provides berths for over 500 boats.  The respondent held a sublease of a berth at the marina for a term of 20 years from 14 July 2008.  It was a term of the sublease that any boat in the berth must “have dimensions appropriate to the Berth”.  The respondent berthed a boat known as “Pelicans”, which was described as a large motor yacht.  Pelicans was 22.8 meters long, and 5.8 meters wide.  This exceeded the width of the sublease by 10 cm and length of the sublease by 50 cm.

The proceeding sought injunctive relief, either to require the respondent to comply with certain contractual requirements as to the dimensions of a boat moored in a berth at the applicant’s marina, or to restrain the continued trespass of a boat protruding over the boundary of the respondent's berth.

The Dispute

On 26 July 2016, the applicant’s solicitors wrote to the respondent’s solicitors stating that Pelican’s width exceeded the dimensions that were appropriate for the berth.  On 1 August 2016 proceedings were commenced alleging trespass.

The applicant alleged that the act of berthing the Pelican was a trespass as it exceeded the area granted under the sub-lease.  Justice Jackson found that it was a trespass, as the length of the Pelican protruded into the common area of the marina.

The real issue was whether an injunction was an appropriate remedy, or whether damages should be awarded for the trespass.

The respondent argued that the applicant was estopped from alleging trespass, as the Pelican had berthed at the marina since July 2008, and it was only the change of ownership of the head lessor that had caused the issue.  The estoppel argument was disposed of, as “on the facts of the case…no case of estoppel is raised”.  There was no evidence of reliance or representation by the applicant that could sustain an estoppel.

The respondent alleged that the proceedings were motivated by ill will between the parties.  Justice Jackson found that may have been motivated by ill will to an extent, but the respondent had not made out that the proceedings were an abuse of process.

The relief

The respondent argued that an injunction would be too drastic a remedy, as “the injury to the applicant is small or trivial” and damages were more appropriate, as contemplated by s.8 Civil Proceedings Act 2011 (Qld).

Justice Jackson held that “it is not a matter of course to award damages under Lord Cairns Act instead of an injunction to which the plaintiff is otherwise entitled”.  The statutory power to award damages in equity did not introduce damages as the standard remedy for trespass, whereby wrongful acts could routinely be sanctioned by the effective purchase of the landowners right.  Rather it was necessary to make out a special case for the Court to exercise its jurisdiction to award damages under the Lord Cairns Act.[2]

Outcome

Justice Jackson considered the matter and found that while the respondent’s detriment “is no doubt likely to be much greater than the benefit of the injunction to the applicant”, the Court should award an injunction against the respondent as “the effect of an award of damages instead of an injunction…would be to authorise the respondent’s ongoing trespass for the future”.

 

[1] (1765) 19 St Tr 1029 at 1066

[2] Citing Shelfer v City London Electric Lighting Co [1895] 1 Ch 287, 322.