Working rule for injunctive relief

Emprja Pty Ltd v Red Engine Group Pty Ltd [2017] QSC 33

Jackson J

The applicant sought injunctive relief either to require the respondent to comply with dimensional requirements of a moored boat or to restrain a trespass constituted by a part of the boat protruding over the boundary of the sublease for the berth.

Relevantly, the effect of mooring the boat resulted in it protruding 600 mm into the manoeuvring strip as part of the Common Areas and for the bow to exceed the mooring by 100mm.


Dealing with the trespass issue, Jackson J stated:

[25] As it was succinctly put by the plurality in the High Court in Plenty v Dillon:

“The starting point is the judgment of Lord Camden LCJ in Entick v Carrington (1765) 19 St Tr 1029 at 1066:

By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing… If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him.

[27] The right to possession of a crown leaseholder may be a right of exclusive possession that supports an action of trespass.  The usual effect of a demise is to confer on the tenant a right to exclusive possession of the demised area.  The head lease is not in evidence.  The head lease and sub-lease are of land which is part of the sea-bed….

[28] Equally, there is no suggestion in this case that the right of exclusive possession does not extend to the surface of the sea above the land of the sea-bed.  Any other conclusion would fly in the face of the apparent purpose of the demises of both the head lease and the sublease for use as a marina and as a marina berth respectively.  An obvious analogy exists between such a conclusion and the exclusive right of a possessor of land to the usable airspace above their land…

[29] It is uncontroversial, therefore, that the respondent obtained a tenant’s right of exclusive possession to the area of berth 029, subject to the provisions of the sublease.

After interpreting the relevant clauses in the sublease at [31] to [34], his Honour found that the protruding beam of the boat did constitute trespass and that there was no defence.

Breach of contract

The applicant submitted that the respondent breached contract by failing to adhere to a clause requiring the respondent to ensure that the boat fits entirely within the berth and sublease.

Finding a breach of the relevant clause, Jackson J held as follows:

[47] The expression “dimensions appropriate to the Berth” is not initially clear.  However, given the contextual considerations already mentioned, in my view, it may be accepted that generally speaking a boat that is to be berthed in the subleased berth should fit within it.

[48] It is unnecessary to decide in this case whether fenders that overhang on the manoeuvring strip side of the berth affect what is an appropriate dimension if the side of the boat is within the boundary of the sublease.  That is not this case.  The effect of the fenders on the finger wharf side of the berth in the present case was to project the outboard side of Pelicans’ hull over the boundary of the sublease and into the manoeuvring strip.

Injunction or damages?

The respondent further submitted in defence, that an injunction would be disproportionate to the detriment suffered by the respondent and the benefit to the applicant. Ultimately finding that an injunction was warranted, his Honour held, relying on recent intermediate courts of appeal:

[62] The working rule is:

“In my opinion, it may be stated as a good working rule that —  (1)  If the injury to the plaintiff’s legal rights is small,  (2)  And is one which is capable of being estimated in money,  (3)  And is one which can be adequately compensated by a small money payment,  (4)  And the case is one in which it would be oppressive to the defendant to grant an injunction:  then damages in substitution for an injunction may be given.”

[74] The injury to the plaintiff’s legal rights is small.  On the evidence, the plaintiff has not had and does not have any need to use the part of the manoeuvring strip, other than to permit the user of berth 030 (and the user of berth 029) to be able to manoeuvre safely.  Mr Bayles’ evidence was that his vessel could do so at present…

[78] Would it be oppressive to the respondent if an injunction were granted?  The effect of the injunction would be to require the respondent to remove Pelicans to a different place of mooring or berthing. No evidence was led by the respondent as to the financial or other impacts of having to do so. It may be accepted that it would be inconvenient for the respondent to do so, or less convenient than keeping Pelicans berthed at the marina in berth 029.

[80] I accept that the question of oppression is to be judged having regard to all relevant factors in the case, including the benefit to the applicant in comparison with the detriment to the respondent.

[83] Even so, it does not in my view amount to oppression to conclude that the applicant is entitled to an injunction to restrain the respondent from continuing to trespass onto the manoeuvring strip. Accordingly, in my view, it is not appropriate in the present case to award damages instead of granting an injunction to restrain the respondent’s trespass.

David Cormack – Brisbane Barrister & Mediator

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