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Trespass to land

Wilson v State of New South Wales [2010] NSWCA 333. Hodgson JA. 

50 Also, in my opinion, the formulation relied on by Mr Wilson, namely that once his or her licence to be on a property is revoked a person must leave as soon as is reasonably practicable, should not be considered as displacing the principle adopted by Dixon J in Cowell v Rosehill Racecourse Co Limited [1937] HCA 17; (1937) 56 CLR 605 at 631 that a

licensee does not become a trespasser until he has received notice that the licence is countermanded and until a reasonable time has elapsed in which he may withdraw from the land and remove whatever property he has brought in pursuance of the licence”.


53 I would further comment that, where there is an implied licence from co-owners, the question whether this can be revoked by one of them is a difficult one: see State of New South Wales v Koumdjiev [2005] NSWCA 247; (2005) 63 NSWLR 353.

In that case, I (with the concurrence of Beazley JA and Hislop J) expressed at [51] a tentative view that an implied licence granted by all tenants-in-common of the common property of a block of units to police to come to the front door of the block could not be revoked by one tenant-in-common. It is not necessary in this case to consider whether that view is correct, or whether it would apply in the facts of this case.

54 As regards (3), it was pertinent for the primary judge to refer to s 76 of the Fines Act 1996, because Mr Wilson had argued that it displaced the implied licence at general law, and that by going on to the verandah the officer had gone beyond what was authorised by s 76.

The primary judge rejected both contentions; and while it is correct to say the State did not rely on s 76, this does not matter, because on the primary judge’s findings the implied licence at general law meant that the officers were not trespassers on the verandah.



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