Mark Eldridge v Agent 47 Pty Ltd trading as Harcourts West Ryde [2021] NSWDC 230

District Court New South Wales

Medium Neutral Citation: Mark Eldridge v Agent 47 Pty Ltd trading as Harcourts West Ryde [2021] NSWDC 230 Hearing dates: 12 and 13 May 2021 Date of orders: 28 May 2021 Decision date: 28 May 2021 Jurisdiction: Civil Before: Hatzistergos DCJ Decision: (1) Verdict for the Defendant; (2) Plaintiff to pay the Defendant's costs; (3) Exhibits to be retained for 28 days. Catchwords: TORTS — Trespass — General principles – Where the Plaintiff brings proceedings in respect of a claim for trespass to his property (being a letterbox in a strata title) against the Defendant (a real estate agency) whom had deposited what were described as "unwanted real estate pamphlets" – Where the Defendant responded that his monthly newsletter was not "junk mail" – Where the Defendant made attempts to ameliorate deliveries to the Plaintiff's mailbox but the Plaintiff would not provide his address or place a more specific sign – Where the Plaintiff contended that he had a right and exclusive possession of the letterbox – Where the Court finds that exclusive possession not established and any implied licence granted by the Plaintiff has not been withdrawn DAMAGES –– Where the Plaintiff did not address general damages before addressing exemplary damages – Where the Court in any event would have declined to award exemplary damages Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 4.5 Evidence Act 1995 (NSW), s 191 Protection of the Environment Operations Act 1997 (NSW), ss 144A, 146A Australian Postal Corporation Act 1989 (Cth), ss 29, 32 Cases Cited: Kelly v Mosman Municipal Council (2010) LGERA 136; [2010] NSWCA 370 Halliday v Neville (1984) 155 CLR 1 Commissioner for Railways (NSW) v Cardy (1960) 104 CLR 274 Minister of State for the Army v Dalzeil (1944) 68 CLR 261; [1944] ALR 89 Newington v Windeyer (1985) 3 NSWLR 555 JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419 Powell v McFarlane (1979) 38 P & Cr 452 Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534 Sydney Local Health District v Macquarie International Clinic Pty Ltd [2020] NSWCA 274 Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353; (2004) 135 LGREA 98 State of New South Wales v Zreika [2012] NSWCA 37 Roberts v Rodney District Council [2001] 2 NZLR 402 Roy v O'Neill [2020] HCA 45; 95 ALJR 64; 385 ALR 187 Tesco Supermarkets v Nattrass [1971] HKHL1; [1972] AC 153 Category: Principal judgment Parties: Mark Eldridge (in person) Agent 37 Pty Ltd trading as Harcourts West Ryde Representation: Mr M Eldridge (Plaintiff in person) Mr S Jolly (solicitor for the Defendant)