//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2025] NSWSC 1382
Supreme Court of NSW
2025-11-24
Bennett J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Patel v Dev Constructions (NSW) Pty Ltd [2025] NSWSC 1382
Hearing dates: 27 August 2025; last submissions received 21 November 2025
Date of orders: 24 November 2025
Decision date: 24 November 2025
Jurisdiction: Equity
Before: Bennett J
Decision: (1) The plaintiff is to email to the Chambers of Bennett J proposed Short Minutes of Order to give effect to this judgment by 4:00pm on 1 December 2025.
(2) By 4:00pm on 1 December 2025, the plaintiff is to serve on Nidhiben Kamlesh Patel, the co-owner of the land in folio identifier X/XXXXX, known as X XXXX Street, Wentworthville, New South Wales:
(a) a copy of these reasons for judgment; and
(b) the proposed Short Minutes of Order prepared in accordance with order 1.
(3) By 4:00pm on 8 December 2025, Nidhiben Kamlesh Patel is to notify the Chambers of Bennett J by email if she wishes to be heard.
(4) Subject to order 5, the defendants are to pay the plaintiff's costs.
(5) Within 7 days of the publication of this judgment, the parties may make an application by email to my Associate to vary order 4. Further orders will be made for the filing and serving of submissions by the parties in relation to any such application.
(6) Any further issue as to costs will be determined on the papers.
Catchwords: EQUITY — Equitable remedies — Injunctions — Where plaintiff contracted with builder for the construction of a house — Where plaintiff terminated contract with builder — Where builder has left materials on the construction site where plaintiff’s house is being built — Where builder has since had altercations with plaintiff and contractors subsequently engaged by plaintiff — Whether the leaving of building materials is a trespass — Whether plaintiff entitled to injunction against builder preventing entry onto land
LAND LAW — Co-ownership — Where plaintiff owns land as joint tenant — Where co-owner of land is not joined as a party to proceedings — Whether plaintiff can seek injunction to prevent entry onto land without joining other co-owner
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464
Blacktown City Council v Sharp (2000) 10 BPR 18,107; [2000] NSWSC 339
Coles Group Property Developments Limited v Stankovic [2016] NSWSC 852
Cowell v Rosehill Racecourse Company Limited (1937) 56 CLR 605; [1937] HCA 17
Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93
Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457
Makucha v Preslands Finance [2005] NSWSC 41
Merl v Merl [2022] NSWSC 434
New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247
Pitt v Baxter (2007) 34 WAR 102; [2007] WASCA 104
Romani v State of New South Wales [2023] NSWSC 49
Smethurst v Commissioner of Police (2020) 272 CLR 177; [2020] HCA 14
Uber BV v Howarth (2019) 94 NSWLR 636; [2017] NSWSC 54
White City Tennis Club Ltd v John Alexander’s Clubs Pty Ltd (2007) 13 BPR 24,835; [2007] NSWSC 1210
Texts Cited: B Edgeworth, Butt’s Land Law (Law Book Co, 7th ed, 2017)
Category: Principal judgment
Parties: Harsha Janak Patel (Plaintiff)
Dev Constructions Pty Ltd (First Defendant) (Submitting Appearance)
Kamleshkumar Kantilal Patel (Second Defendant) (Submitting Appearance)
Representation: Counsel:
S Greenwood (Solicitor) (Plaintiff)
Solicitors:
Greenwood Lawyers (Plaintiff)
Birch Partners Lawyers (Defendants)
File Number(s): 2025/00046598
Publication restriction: Nil
Ms Harsha Janak Patel seeks orders principally to restrain the defendants from engaging in any conduct that prevents her from being able to complete the construction of her house. Originally, a Summons was filed on 5 February 2025 seeking that order only. When this matter came on for hearing on 27 August 2025, Harsha sought leave to file an Amended Summons seeking further orders restraining the defendants from entering onto what is identified in the Amended Summons as the “Wentworthville Property” (about which more will be said later) and requiring the defendants to remove goods that were left on the “Wentworthville Property”. The Court granted leave, and the Amended Summons was duly filed later that afternoon and supplied to my Associate.
As the key individuals in this matter share the same surname, I will refer to them by their first names, without intending any disrespect or overfamiliarity.
The first defendant is Dev Constructions (NSW) Pty Ltd (Dev Constructions). Harsha and Dev Constructions entered into a contract on 29 December 2020 (the Building Contract) pursuant to which Dev Constructions agreed to construct a new house. The second defendant is Kamleshkumar Kantilal Patel, who is the sole director and shareholder of Dev Constructions. Dev Constructions and Kamleshkumar filed submitting appearances, save as to costs, on 5 May 2025.
Harsha and Ms Nidhiben Kamlesh Patel are the registered proprietors of the land in folio identifier X/XXXXX, known as X XXXX Street, Wentworthville, New South Wales (the Wentworthville Property). Harsha and Nidhiben hold the Wentworthville Property as joint tenants. Kamleshkumar is the father of Nidhiben.
On 29 December 2021, Parramatta City Council (the Council) granted its consent for a two staged development to occur on the Wentworthville Property. The work to be undertaken in stage 1 of the development was “[d]emolition of existing structures, and construction of a two-storey detached dual occupancy and basement with Torrens title subdivision from one lot into two lots”. Stage 2 was the “[c]onstruction of a secondary dwelling on resultant Lot 2b”. The practical consequence of the Council’s development consent was that it had approved:
the subdivision of the Wentworthville Property into two lots, with one of the lots to be known as “Lot 2b”; and
the construction of two new houses, with each of the eventually subdivided lots to have one house on it.
What can be inferred from the evidence is that Harsha and Nidhiben have some arrangement whereby Harsha would take one of the houses to be built, and Nidhiben the other. The evidence and Harsha’s submissions described the house for Nidhiben as “House One” and the house for Harsha as “House Two”. I will refer to the respective houses in the same way.
It was not clarified in submissions, nor was it apparent on the evidence, where on the land comprising the Wentworthville Property each house actually was. That is, I am not sure whose house was supposed to go onto the land that, following subdivision, was to be known as “Lot 2b” (using the Council’s descriptor).
Both Nidhiben and Harsha had entered into separate building contracts with Dev Constructions for the construction of House One and House Two respectively. Harsha’s understanding is that around the same time as she entered into the Building Contract, Nidhiben also entered into a contract with Dev Constructions pursuant to which Dev Constructions agreed to construct a new dwelling, being House One, at the Wentworthville Property (Nidhiben**’**s Building Contract).
Only Harsha’s contract with Dev Constructions was in evidence in these proceedings. Nidhben’s Building Contract was not in evidence. Harsha subsequently terminated the Building Contract. Since the termination of the Building Contract, it seems that the construction of House Two has stalled.
The concerning conduct in these proceedings is the alleged failure by Dev Constructions to remove building materials placed by it on the part of the Wentworthville Property where House Two is supposed to be, blocking Harsha’s access to that house, after she had terminated the Building Contract. Harsha also alleges that Kamleshkumar has entered onto the part of the Wentworthville Property where House Two is supposed to be without her consent since the Building Contract was terminated.
The final hearing of this matter took place on 27 August 2025. Mr S Greenwood, the solicitor on the record for Harsha, appeared for Harsha. As already mentioned, Dev Constructions and Kamleshkumar had filed a submitting appearance and so did not appear on 27 August 2025.
By reason of the submitting appearance, all of the evidence which was relied upon by Harsha in this proceeding is unchallenged evidence. Of course, this does not mean that I am bound to accept that evidence. However, in this case, there is nothing contained within the affidavits read and relied upon by Harsha which I consider to be inherently improbable, or which would otherwise suggest that I should doubt the credibility and reliability of those who have given evidence. I record expressly that I have accepted the evidence as contained in the affidavits read in this proceeding, the contents of which are recounted in some detail in the section titled “The facts”.
Mr Greenwood had provided written submissions dated 26 August 2025 in advance of the hearing upon which he relied and made oral submissions.
The evidence as at the date of the hearing was relatively confined. Harsha read and relied on a single affidavit which was sworn by her on 31 January 2025, and tendered the exhibit to that affidavit. Annexed to the PWS were some further documents which were also tendered as evidence in the proceedings.
However, during the course of the hearing, I raised my concerns with Mr Greenwood as to the fact that Nidhiben, the co-owner of the Wentworthville Property, was not a party to these proceedings, and canvassed with Mr Greenwood the potential significance of that being the case. I raised my specific concerns as to it not being clear on the evidence read and tendered at the hearing as to whether Nidhiben was aware of these proceedings. Separately, I was also initially concerned with the adequacy of the submissions as to whether the defendants’ conduct constituted trespass, which is a key issue in this case given the basis for the injunction sought against the defendants was to restrain a trespass.
In response to these concerns, Mr Greenwood said he would provide supplementary written submissions on Harsha’s behalf addressing the elements of the tort of trespass and as to Nidhiben’s awareness of these proceedings, including what procedural steps need to be taken. Mr Greenwood also said that he would obtain from his client a further affidavit specifically about what awareness Nidhiben has of these proceedings. Accordingly, at the conclusion of the hearing, the Court directed Harsha to provide the aforementioned supplementary written submissions and further affidavit by 4:00pm on Friday, 29 August 2025. The date by which the further submissions and affidavit were due was not one unilaterally decided by the Court; it was decided following a brief discussion with Mr Greenwood as to when he would be able to provide the extra material that was necessary in the circumstances.
For the reasons set out below, I have determined that it would be appropriate to grant an injunction restraining the defendants from entering or occupying the Wentworthville Property and from engaging in or continuing to engage in conduct that prevents and/or which is intended to have the effect of preventing Harsha or any contractors engaged by her from completing the building works comprising the construction of House Two on the Wentworthville Property. Additionally, I have determined that it would be appropriate to make an order that the defendants are to remove any building materials which remain on the Wentworthville Property within 21 days.
However, I have not granted an injunction in terms of the relief sought within the Amended Summons nor made any final orders yet because of concerns as to the precise terms of the injunction, which I shall detail later.
As already mentioned, on 29 December 2020, Harsha and Dev Constructions entered into the Building Contract. The cover page to the Building Contract reveals it is some sort of standard form contract. The contract is headed “NSW Residential Building Contract for New Dwellings”. The cover page also indicates this is “edition 7” of the contract. The copyright attribution and apparent author of the contract is “HIA”.
Both on the cover page and in item 2 of sch 1 to the Building Contract (titled “Particulars of Contract”) the “owner” of the land the subject of the contract is identified only as “Mrs Harsha Janak Patel” (ie, the plaintiff in these proceedings). There is no reference to Nidhiben in the Building Contract. The “builder” identified on the cover page and in item 3 of sch 1 is Dev Constructions.
The “site address” on the cover page is “House 2, X XXXX St Wentworthville NSW 2145”. By contrast, the “site”, as defined in item 5 of sch 1 contains just the folio identifier and street address of the Wentworthville Property. There is no reference to “House 2” in item 5 of sch 1.
The total contract price identified in item 4 of sch 1 was $685,000 including GST. Item 6 of sch 1 defines the “building period” by which the “building works” must reach the stage of practical completion – this period is defined as 52 weeks after the building period commences (subject to any extensions).
Schedule 4 is titled “Description of Work”. It contains a direction to the drafter to insert a brief description of the “building works”. Schedule 4 of the Building Contract includes the following (capitalisation as per original):
“PROPOSED DOUBLE STOREY WITH ATTACHED GRANNY FLAT (SECONDARY DWELLING)
GROSS FLOOR AREA: 330m2 WHICH INCLUDE [sic] GRANNY FLAT APPROXIMATELY”
(No area was given for the granny flat.)
“Clause 13. Site Possession and Access
13.1 The owner gives the builder exclusive possession of the site to carry out the building works.
13.2 The owner must provide all weather access. If the owner does not provide all weather access and the builder will be required to carry out further work to achieve such access the owner is deemed to have asked the builder for a variation to carry out that extra work and the procedure for variations in Clause 18 applies.
13.3 The owner, the *owner’*s agents and officers of the lending body:
(a) must not hinder:
(i) the *builder’*s access or possession of the site; or
(ii) the progress of the building works;
(b) must not:
(i) make inquiry of;
(ii) issue directions to; or
(iii) give instructions to,
the *builder’*s workers or subcontractors. Communication must only be with the *builder’*s nominated person; and
(c) may only have access to the building works at reasonable times and after giving reasonable prior notice for the purposes of inspecting the progress of the building works.
13.4 The *builder’*s unused materials on the site are the property of the builder.
…
Clause 26. Early Possession
26.1 If the owner:
(a) enters into occupation of the site or any part of the site;
(b) takes control of the building works or the site; or
(c) prevents or inhibits the builder from carrying out the building works,
without the *builder’*s written consent, the owner commits a substantial breach of this contract entitling the builder to elect to either:
(d) treat the *owner’*s actions as repudiation of this contract and accept that repudiation; or
(e) do either or both of the following:
(i) suspend the carrying out of the building works under Clause 25;
(ii) give the owner a notice of default under Clause 27.”
The definition of the defined terms “owner”, “builder”, and “site” have been described above. Clause 1.1 provides the following definitions for the other defined terms necessary to understand cll 13 and 26:
“‘all weather access’ means access in all weather conditions as required by the builder for carrying out the building works; …
‘building works’ means the building works to be carried out, completed and handed over to the owner in accordance with this contract as shown in the contract documents and includes variations; …”
As mentioned earlier in this judgment, the evidence establishes that Nidhiben also had a contract with Dev Constructions which I am referring to as Nidhiben’s Building Contract.
While Nidhiben’s Building Contract itself was not in evidence, there was in evidence a letter dated 3 October 2024 sent by a solicitor acting for Nidhiben to Dev Constructions giving notice Nidhiben intended to terminate Nidhiben’s Building Contract. That letter mentions some information about that contract. That letter establishes that Nidhiben’s Building Contract was entered into on 29 December 2020 (the same day as when Harsha entered into the Building Contract) – the letter expressly says as much. Given Harsha’s own evidence that she understands Nidhiben entered into a contract with Dev Constructions around the same time she did, I am satisfied Nidhiben’s Building Contract was entered into on the same date.
The 3 October 2024 letter also gives rise to a strong suggestion that Nidhiben’s Building Contract and the Building Contract may have been in similar terms. The letter refers to the termination being “pursuant to Clause 27.1 of the contract”. The letter also says that Nidhiben instructs Dev Constructions to remedy its breaches, adding that “pursuant to Clause 27.3(b) we [Nidhiben’s solicitors] are instructed to provide you [Dev Constructions] with 10 working days to remedy the breach” (emphasis added). Clause 27.1 of the Building Contract is also the clause under which Harsha could terminate the contract for a substantial breach by Dev Constructions (a course she eventually did take, as recounted below). Similarly, cl 27.3(b) of the Building Contract is what empowers a party (such as Harsha) to terminate the Building Contract if a substantial breach notified to the breaching party is not remedied within 10 working days.
Without more, I probably cannot be satisfied on the balance of probabilities that the Building Contract and Nidhiben’s Building Contract were in identical or materially similar terms. However, given what is set out in the 3 October 2024 letter and the correspondence between the right of termination Nidhiben’s solicitors say she had with the termination right Harsha had under the Building Contract, I can at least conclude that the rights of termination they had under their respective contracts with Dev Constructions were similar.
By a letter dated 18 January 2021, Dev Constructions proposed a variation to the Building Contract to allow for additional works, which was to increase the price by $194,530 inclusive of GST, which would bring the total price payable by Harsha to $879,530. On 21 January 2021, Harsha agreed to the proposed variation by signing the letter from Dev Constructions indicating her agreement.
As already mentioned, on 29 December 2021, the Council granted development approval for the demolition of existing structures on the Wentworthville Property, the construction of a “two storey detached dual occupancy and basement”, the subdivision of the Wentworthville Property from one to two lots and the construction of a secondary dwelling on the second lot.
On or about 29 April 2022, Dev Constructions commenced performing the building works under the Building Contract.
In or about March 2023, Dev Constructions suspended carrying out the building works at the Wentworthville Property. On 22 July 2023, Harsha and Dev Constructions agreed to vary the Building Contract in accordance with a document titled “Construction Agreement Amended Conditions”. The terms of that variation do not appear to be material to this dispute. Nonetheless, I note that the parties agreed here that House Two was to be completed by 6 March 2024, and the keys and certificates were to be handed over to Harsha by the same date. Following the agreed variations, Dev Constructions recommenced performing the building works at the Wentworthville Property.
On 21 February 2024, Dev Constructions sent two letters to Harsha. In one letter, Dev Constructions indicates the contract price under the Building Contract was to be varied upwards a further $103,787.50 on account of the gross floor area exceeding that which was estimated under the original contract, with the total contract price including GST now to be $983,317.50. The other letter of the same date communicated Dev Constructions’ intent to suspend working on House Two by reason of Harsha’s failure to make progress payments totalling $439,765.
In response to these letters, on 26 February 2024, Harsha sent an email (which is signed off by her and her husband, Janak) to Dev Constructions raising various issues. In this email, Harsha and Janak rejected Dev Constructions’ attempt to increase the contract price.
On 4 March 2024, Dev Constructions sent an email in reply to Harsha’s email dated 26 February 2024. In that email, Dev Constructions claimed, amongst other things, that Harsha had breached numerous clauses of the Building Contract.
On 26 March 2024, Harsha sent an email (again signed off by both her and her husband) in reply to the email of Dev Constructions of 4 March 2025. In that email, Harsha (and Janak) responded to the allegations she had breached the Building Contract, attached invoices totalling $439,765, indicated that payment had been released to Dev Constructions, and directed Dev Constructions to recommence building works pursuant to cl 25.3 of the Building Contract.
Shortly after this email, on or around 8 April 2024, Janak says he had a conversation with Nidhiben about what he described as the slow progress of House Two. He says that he told Nidhiben that if Kamleshkumar did not complete the building works on time and in accordance with the previously agreed price, he and Harsha would have no choice but to get a lawyer involved with a view to terminating the Building Contract. Janak’s evidence is that Nidhiben said she spoke to her father about the lack of progress but that he (that is, Kamleshkumar) was not listening to her.
Janak says he then had a further conversation with Nidhiben on or around 18 April 2024. He says he asked Nidhiben to talk to her father to resolve the issues in dispute between Harsha and Dev Constructions, but Nidhiben instead kept telling him that he would need to get a lawyer involved as her father was not listening to her.
Sometime in late April 2024, Janak says he had a conversation with his business partner and Nidhiben’s husband, Darshan Patel about the matters the subject of this dispute. Janak’s evidence is that he explained to Darshan that he and Harsha would be appointing a lawyer to terminate the Building Contract, and encouraged Darshan to get Nidhiben to speak to the lawyer appointed by Harsha and Janak with a view to Nidhiben terminating her own building contract with Dev Constructions. Janak says Darshan’s response to this was to say that his wife would probably not want to speak with Janak and Harsha’s lawyer as she did not want to get into a legal dispute with her father.
“Confirmation from the contractor was received on 30.07.2024 following expiry of the rectification order.
Mr. Kamleshkumar Patel, Director of Dev Constructions (NSW) Pty Ltd advised using the words to the effect and referred to as T, stated that no work has been carried out since the issuing of the rectification order.
According to Mr. Patel the documents submitted by Mr. Janak Patel (Complainant) are not genuine. Further said that the correct facts are mentioned on his emails sent to me on 30.07.2024”
On 8 August 2024, the inspector from Building Commission NSW sent an email to Harsha confirming that Dev Constructions had not complied with the Rectification Order.
By about 21 August 2024, it appeared that Dev Constructions had still not complied with the Rectification Order. On 21 August 2024, Harsha issued to Dev Constructions a Notice of Termination in respect of the Building Contract (the Notice of Termination). After setting out some background, which largely reflects the chronology already stated above, in the Notice of Termination, Harsha stated:
“13. In the premises, and given it is now more than 10 working days since the Notice of Intention was given to the Builder, pursuant to clause 27.3 of the Building Contract the Owner hereby gives the Builder notice that she has elected to terminate the Building Contract with immediate effect.
14. Take further notice that:
(a) The Builder’s right to access the Site is hereby revoked;
(b) The Builder will no longer have the right to access the Site and will be a trespasser if it hereafter attempts to access the Site without the Owners’ consent; and
(c) The Owner also requires the Builder to remove all of its tools and equipment from the Site (including its temporary fencing and portable toilet), noting the Builder will need to contact the Owner to arrange a time for it to be given access to the Site for the purposes of removing its tools and equipment from the Site.”
Harsha says that “a few days” after the Notice of Termination was provided to Dev Constructions, she noticed that someone had accessed the Wentworthville Property without her consent and had moved Dev Constructions’ materials from House One to inside her fence such that access to House Two had been blocked. Harsha says she suspected Kamleshkumar was the one who moved the materials.
On 4 September 2024, Harsha and her husband Janak, sent the following email to Kamleshkumar (copying in what appears to be the email addresses of Nidhiben and Darshan):
“As was explained in the Notice of Termination of Building Contract that we sent to you on 21 August 2024, you are no longer entitled to access the building site and will be a trespasser if you do so without our consent.
Notwithstanding the above, it appears you have recently accessed the building site without our consent and have placed all of your materials from next door inside our fence (blocking our access to the building site).
This is unacceptable and we have reported the matter to the Police.
Moving forward we require you to immediately remove the abovementioned materials from the building site along with your portable toilet, noting again you will need to contact us to arrange a time for you to be given access to the building site for the purposes of removing these items.
For the time being we continue to reserve all of our rights in this matter.”
On 5 September 2024, Janak and Harsha provided access to a contractor Harsha had engaged to install CCTV cameras on House Two. Soon after, on the same day, Harsha says Kamleshkumar entered House Two (Harsha says he did so “forcefully”) despite Janak and Harsha reminding him that his access to House Two had been revoked and that he was therefore trespassing. Harsha says that Kamleshkumar proceeded to “threaten” the contractor who was present to install the CCTV cameras, including saying to the contractor that he would “go to jail” if he did not stop working immediately. The CCTV contractor left House Two without installing CCTV cameras.
Someone appears to have called to the police during this verbal altercation alleged by Harsha, as she says that the police arrived by the time the contractor had left. The police first questioned Harsha and Janak about what had happened, and then, it appeared to Harsha, they spoke to Kamleshkumar. Harsha’s evidence is that she observed Kamleshkumar being warned by the police that he would be charged with trespassing if he disobeyed their direction to refrain from entering House Two.
Around 10 September 2024, Harsha arranged for Mr Gavin Swain of Tyrrells Building Advisory to inspect the building site of House Two and to identify any incomplete or defective building work. Mr Swain prepared a “technical report” dated 18 September 2024 in which various items of work were described as incomplete or likely requiring “corrective treatments”.
On 19 September 2024, Birch Partners Lawyers, the solicitors for Dev Constructions, sent a letter to Harsha, signed off by Mr Michael Birch. In that letter, Mr Birch said that Dev Constructions considered that the Notice of Termination was “unlawful and constituted a repudiation” of the Building Contract by Harsha, and that Dev Constructions had elected to accept Harsha’s alleged repudiation and terminate the Building Contract itself. The letter stated (emphasis added):
“… My client will continue with the construction of his daughter’s dwelling, including the installation of services which will be installed across the front of the dwelling being constructed by you. For the avoidance of any doubt, my client does not consider you have any right to prevent my client from accessing the land in the front of the dwelling being constructed by you for the purpose of preparing the land for the construction of the installation and if required, for storing building materials. Both the Building Contract between my client and his daughter and your Building Contract provides for my client to have exclusive possession. As the parcel of land is not yet subdivided and ownership is by way of joint tenancy, the exclusive possession relates to the whole, not part, of the parcel of land. …”
By 20 September 2024, Dev Constructions had still not removed its materials such that they were still blocking access to House Two. In the circumstances of all that had happened, Harsha had arranged for a crane to arrive on that day to move these materials to make space for her and her future contractors to access House Two and deliver building materials.
Not long after the crane arrived on 20 September 2024, Harsha says that Kamleshkumar arrived and parked his motor vehicle directly behind the crane, preventing it from being able to do any work. Harsha then says that Kamleshkumar entered House Two and started “threatening” the crane operator and his dogman, including by saying they would “go to jail” if they did not stop working. Once again, the police were called. Once they arrived, the police spoke to Harsha, Janak and Kamleshkumar. Harsha says she observed Kamleshkumar claim to the police that he was entitled to exclusive possession of the property and that his materials were being damaged by Harsha. Harsha said to the police that this was untrue. The police, crane operator and his dogman left the building site, leaving Dev Constructions’ materials in place.
Also on 20 September 2024, Janak says he had a conversation with Darshan, although it is not clear if this was before or after the incident with the cranes recounted in the preceding paragraph. During this conversation, Janak says he told Darshan that Harsha had terminated the Building Contract and had been advised to commence proceedings in this Court to stop Kamleshkumar and Dev Constructions from entering the Wentworthville Property and disturbing Harsha and Janak’s contractors and new builder. Janak said he also told Darshan that if Nidhiben terminated Nidhiben’s Building Contract, legal proceedings may be unnecessary. Janak’s evidence is that in his presence Darshan then told Nidhiben, by a phone call to her, of Harsha’s intention to commence proceedings in this Court.
Janak’s evidence is that on the next day, 21 September 2024, he and Harsha met Nidhiben in her apartment to further discuss matters. Janak says Nidhiben suggested that Harsha and Janak do what they contemplated, that is, commence proceedings in this Court, as Nidhiben’s father was still not listening to her. Janak says that Nidhiben also said that she was intending to terminate Nidhiben’s Building Contract but did not intend to join Harsha and Janak in commencing legal proceedings against her father.
Harsha says that on 2 October 2024, Kamleshkumar again entered House Two without the consent of Harsha. She says she has CCTV footage of this occurring, though that CCTV footage was not in evidence.
I interrupt this chronology to note that after Harsha sent the Notice of Termination and parallel to her attempts to remove Dev Constructions’ materials from blocking her access to House Two, she began trying to find another builder to complete House Two. Boutique Builders Pty Ltd () was chosen. On 21 September 2024, Boutique Builders sent to Harsha and her husband an email including a proposed building contract, a tender proposal (including a list of inclusions), and an invoice for the payment of an initial deposit. Harsha says she did not sign the contract given the incidents that she says had occurred on 5 and 20 September 2024, which had caused her to be concerned that Kamleshkumar might prevent or hinder her from giving Boutique Builders access to House Two as she was contractually required to do.
“refrain from engaging in and/or continuing to engage in any conduct that prevents and/or which is intended to have the effect of preventing [Harsha] and/or her new builder [Boutique Builders] from completing the construction of her new home at X XXXX Street.”
As the Wentworthville Property is subject to a joint tenancy, and there are two separate building contracts pursuant to which Dev Constructions and Kamleshkumar were initially allowed onto the land, it is useful to briefly set out the law which governs the manner in which co-owners of land may singly grant and revoke licences. Significantly however, it will be noted that much of this law is in relation to tenants in common, rather than joint tenants.
In New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247 (Koumdjiev), Hodgson JA (with whom Beazley JA and Hislop J agreed) considered the law where one tenant in common of land purports to grant permission to another person to enter the land, and another tenant in common purports to refuse or revoke that permission. His Honour remarked at [31] that there is “little authority or textbook discussion” with respect to the issue just mentioned.
In that decision, his Honour distilled the relevant principles as follows (emphasis added):
“[32] It is clear that each tenant in common is entitled to possession of the property, and to the use and enjoyment of it in a proper manner. If one tenant in common excludes the other from the property, the latter has a remedy in action for trespass; and if one tenant in common takes more than its share of income or other benefits produced from the property, the other may have an action for an account: Jacobs v Seward (1892) LR 5 HL 464; Bull v Bull. However, there appears to be no direct remedy available to one tenant in common on the basis that the other is making use of the property, which does not go so far as to exclude the former and cannot be made the subject of an action for an account, but nevertheless is excessive and unreasonably restricts the former’s use and enjoyment of the property. In such a case, it appears that the only remedy would be to compel a sale of the property.
[33] It is clear that one tenant in common can transfer its interest to another person, who will then have the same rights as the transferor previously had. It also seems that one tenant in common can lease its interest to another, so that during the term of the lease the lessee has the same rights of possession as the lessor previously had: Jacobs v Seward. If such a lease is a periodic tenancy, there would appear to be no basis on which the tenant in common who was not the lessor could terminate it by notice. By contrast, where there is a joint tenancy, the only lease that can be granted (in the absence of a severance of the joint tenancy) is a lease of a property granted by both joint tenants; and if that lease is a periodic tenancy, then it can be terminated by notice from one joint tenant, because its continuance requires the concurrence of all parties: Doe d Aslin v Summersett (1830) 1 B & Ad 135; 109 ER 738; Parsons v Parsons [1983] 1 WLR 1390.
… [His Honour then discussed some non-Australian cases which considered whether one tenant in common could revoke a licence granted by another.]
[40] In my opinion, the Hong Kong case is incorrect insofar as it asserts that, so long as a licence granted by a tenant in common does not purport to give exclusive possession, such a licence may both authorise another person, in the absence of the grantor and for an indefinite period, to do whatever a tenant in common can do, and also not be terminable by other tenants in common of the property. In my opinion, that gives too little weight to an incident of possession, namely the right or power to grant or withhold permission to others to enter property. Although one tenant in common can transfer or lease its interest, I do not think one tenant in common can, without such a transfer or lease, grant a licence to another, irrevocable by other tenants in common, if that licence is of a kind that goes beyond what is reasonable and incidental to the grantor’s possession and use and enjoyment of the property in common with the other tenants in common, and which interferes with the possession and use and enjoyment of the property by other tenants in common.
[41] For example, suppose there are two tenants in common of a small house, and one of them purports to grant a licence to twenty people to live in the house. If this amounted to excluding the other from possession, it would be a trespass; but if it fell short of excluding the other person, but was substantially detrimental to the other tenant in common’s use and enjoyment of the property, in my opinion such a licence could be terminated by the other tenant in common, assuming that it went beyond what was reasonable and incidental to the grantor’s possession and use and enjoyment of the property. That is, in my opinion, any licence in excess of what is reasonable and incidental to one tenant in common’s possession and use and enjoyment of the property, and which prejudices the other tenant in common’s possession and use and enjoyment of the property, is a licence terminable by the other tenant in common. Otherwise, in my opinion, there can be no reasonable reconciliation of the rights of both tenants in common to have possession and use and enjoyment of the property.
[42] On that basis, the result in Robson-Paul [(1969) 20 P & CR 820] is correct. If there was a licence to use the premises to the exclusion of the plaintiff, that was clearly a licence that could not be granted; but if the licence fell short of that, but was a licence to continue for an indefinite period to exercise all the rights of one tenant in common, without a transfer or lease, it would be a licence going beyond what was reasonable and incidental to the grantor’s possession and use and enjoyment of the property in common with the plaintiff, and so was terminable by the plaintiff
[43] In my opinion, the result in Annen v Rattee [[1985] 1 EGLR 136] is probably correct on the same basis. In my opinion, that case was wrong in so far as it applied to cases concerning periodic tenancies granted by joint tenants, and insofar as it suggested a licence granted by one tenant in common, could always be terminated by another. But it was open to conclude that the licence granted in that case was so extensive as to be terminable by the other tenant in common.
[44] In my opinion, the result in Hong v Choo [[2004] HKCFI 24] was also correct. The tenant in common was dead, and the administrators of his estate wished to have a representative occupying the property, and they authorised the family member who had lived in the house with other family members to stay at the house pending the sale. In my opinion, that was reasonably incidental to that tenant in common’s right to possession and use and enjoyment of the property, and so was not terminable by other tenants in common.
[45] Applying this approach to the entrance foyer of an apartment block, and subject to any by-laws of a relevant strata scheme, this would mean that, if one unit owner gives a licence to an acquaintance to enter the common property in order to visit the unit owner’s unit, that licence could not be revoked by another unit owner.
[46] On the other hand, one unit owner could not give a licence, irrevocable by another unit owner, to a person who sought entry in order to harass the other unit owner at the internal front door of the latter’s unit. That licence would not be reasonable and incidental to the right of the grantor to possession and use and enjoyment of the common property. The grant of such a licence could not trump the right of the person who would be harassed to exclude the harasser, as an incident of that person’s right to possession and use and enjoyment of the common property.”
What is said by Hodgson JA at [45] and [46] is said against the context of his Honour earlier noting that the common property of a unit block governed by a strata scheme was, by force the relevant statute at the time, held by the different lot owners as tenants in common (see at [16]).
It follows that one tenant in common may grant a licence over his or her interest, which may grant a third party the right to enter and occupy the land: see White City Tennis Club Ltd v John Alexander*’*s Clubs Pty Ltd (2007) 13 BPR 24,835; [2007] NSWSC 1210 at [24]-[26] (Brereton J) (reversed on other grounds).
To similar effect, Wheeler JA (with whom Buss JA and Miller AJA agreed) in Pitt v Baxter (2007) 34 WAR 102; [2007] WASCA 104 concluded that a single tenant in common could not unilaterally revoke an implied licence for the police to enter onto the common property of a unit block to conduct inquiries which had been granted by all of the tenants in common (see at [16], and [18]-[22] of that decision). I note that her Honour did not expressly approve of what is said in Koumdjiev. Rather, her Honour distinguished that case from the facts before her Honour and held that in any event, the conditions for a tenant in common to be able to unilaterally revoke a licence granted by other tenants in common had not been satisfied in that case.
In Butt*’*s Land Law (Law Book Co, 7th ed, 2017) at 264, Professor Brendan Edgeworth provided the following distillation of the principles (emphasis added, footnotes omitted):
“[6.410] … One co-owner (whether joint tenant or tenant in common) may also grant a licence over his or her interest, giving (for example) a right to enter and occupy the land. However, the New South Wales Court of Appeal has held that if the licence (1) goes beyond what is reasonable and incidental to the grantor’s possession and enjoyment of the property as a co-owner, and (2) interferes with the co-owners’ rights to possess and enjoy the property, then the other co-owners have the power to terminate it. To cite contrasting examples given by the Court of Appeal: a licence given by one co-owner of a small house for a guest to enter the property would be reasonable and incidental to the grantor’s possession and enjoyment of the property as a co-owner, and so the other co-owner(s) could not terminate it; but a licence for 20 guests to live in the house would go beyond what is reasonable and incidental to the grantor’s possession and enjoyment of the property as a co-owner, and so the other co-owner(s) could terminate it.”
It will be observed that, strictly speaking, Hodgson JA in Koumdjiev only dealt with how tenants in common could grant and revoke licences. His Honour did not address whether joint tenants could unilaterally grant or revoke licences. The learned author of Butt*’*s Land Law in the passage quoted above seems to assimilate the position of joint tenants and the position of tenants in common when explaining what Hodgson JA said in Koumdjiev. For reasons which are explained later (see [94], [100]-[101]), the facts of this case make it unnecessary to consider in any detail whether the right of joint tenants to unilaterally grant or revoke licences is any different to that of tenants in common.
Having regard to the authorities cited above, it would appear that co-owners have the power to terminate a licence granted by another co-owner (assuming, without it being necessary to decide, that joint tenants and tenants in common are to be treated the same) if the licence:
goes beyond what is reasonable and incidental to the grantor’s possession and enjoyment of the property as a co-owner; and
interferes with the other co-owners’ rights to possess and enjoy the property.
“[38] The tort of trespass is committed whenever there is interference with possession of land, including physical entry onto and remaining on the land, without the licence or consent of the person in possession or without other lawful authority: TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 at [23]-[24] (Spigelman CJ, Mason P and Grove J agreeing).
[39] In Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15, Mason CJ, Brennan, Gaudron and McHugh JJ held, at 435-6:
‘Every unauthorized entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right [Entick v. Carrington (1765) 2 Wils KB 275 at 291 (95 ER 807 at 817); Halliday v. Nevill (1984) 155 CLR 1 at 10 per Brennan J*; Plenty v. Dillon* (1991) 171 CLR 635 at 639 per Mason CJ, Brennan and Toohey JJ, 647 per Gaudron and McHugh JJ. See also Colet v. The Queen (1981) 119 DLR (3d) 521 at 526.]. In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorized or excused by law [Halliday v. Nevill (1984) 155 CLR at 10 per Brennan J; Plenty v. Dillon (1991) 171 CLR at 639 per Mason CJ, Brennan and Toohey JJ, 647 per Gaudron and McHugh JJ].’
[40] Thus, any person who enters the property of another must justify that entry by showing that he or she either entered with the consent of the occupier or otherwise had lawful authority to enter the premises*: Plenty v. Dillon* (1991) 171 CLR 635 at 647 (Gaudron and McHugh JJ); [1991] HCA 5.
…
[42] The question whether an occupier of land has consented or granted a licence to another to enter upon it is essentially a question of fact: Halliday v Nevill (1984) 155 CLR 1 at 6 (Gibbs CJ., Mason, Wilson and Deane JJ); [1984] HCA 80. If a driveway or path leading to the entrance of a dwelling is left unobstructed, with the entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the driveway to the entrance of the dwelling for the purpose of lawful communication with any person in the house but such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it: Halliday v Nevill at 7; Kuru v State of New South Wales at [45] (Gleeson CJ, Gummow, Kirby and Hayne JJ); Plenty v. Dillon at 647.”
“[13] The evidence establishes, in my view, that the fifth defendant has an entitlement to possession of the land, and actual possession of it. That gives the fifth defendant title to sue for the tort of trespass to land. The presence of the chattels on the land constitutes a trespass. …
[14] In the circumstances, it seems to me that the ongoing presence of the materials on the land is not only a continuing trespass, but is also a continuing trespass concerning which damages for the tort of trespass would not be an adequate remedy. There is some evidence that the market value of the chattels on the land is not great, but I do not place any reliance on that evidence.”
To similar effect, see Lord v McMahon [2015] NSWSC 1619 (Lord) at [151]-[155] (Slattery J).
A court of equity has a well-established jurisdiction to grant injunctions to restrain legal wrongs: Uber BV v Howarth (2019) 94 NSWLR 636; [2017] NSWSC 54 (Uber) at [194] (Slattery J). An injunction in aid of a legal right or interest is granted in this Court’s auxiliary jurisdiction in equity: Smethurst v Commissioner of Police (2020) 272 CLR 177; [2020] HCA 14 (Smethurst) at [48] (Kiefel CJ, Bell and Keane JJ).
This Court may grant an injunction in its auxiliary jurisdiction, whether interlocutory or final, if the plaintiff has a legal right that the injunction will protect: Smethurst at [77] (Kiefel CJ, Bell and Keane JJ).
In Uber, at [194]-[199], Slattery J set out the following four requirements that must be satisfied for the Court to grant an injunction in its auxiliary jurisdiction:
the plaintiff possesses a legal right;
that right is arguably of a proprietary nature;
that right is threatened or has already been infringed so as to show a threat of future infringement; and
damages would not be an adequate remedy.
The onus rests on the plaintiff to show that an injunction is, in the circumstances an appropriate form of relief. This requires the plaintiff to persuade the court that an award of damages would not be an adequate remedy or that irreparable harm would be suffered if the injunction were refused: Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93 (Graham H Roberts) at 107 (Helsham J); Blacktown City Council v Sharp (2000) 10 BPR 18,107; [2000] NSWSC 339 (Blacktown City Council) at [14] (Young J, in the context of an interlocutory injunction); Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 (Lincoln Hunt Australia) at 464 (Young J, in the context of an interlocutory injunction).
In Coles Group Property Developments Limited v Stankovic [2016] NSWSC 852 (Coles Group Property), Sackar J at [54]-[60] summarises the principles relevant to a permanent injunction to restrain an act of trespass (emphasis in original):
“[54] In Reliance Finance Corporation Pty Ltd v Orwin Walshe & Ward [1964-5] NSWR 970, McLelland CJ in Eq stated at 976 that:
The general position in England in relation to injunctions in respect of trespass since the Judicature Act is discussed at length in Kerr on Injunctions at pp. 90, etc. At p.93, it is said: ‘In the case of trespass of a continuing nature, however, the Court will generally interfere by injunction, and the Court will interfere by injunction where the trespass, although not of a continuing nature, is serious, or threatened to be repeated’; and many cases are cited in support of these submissions. I am of the opinion that these words also correctly describe the jurisdiction of this Court at the present time. (emphasis added)
[55] A more modern statement of the principles applicable to the grant of injunctive relief in cases of trespass was provided by Slattery J in Lord v McMahon [2015] NSWSC 1619 at [166]-[170]:
[166] Injunctions and Trespass. … Ordinarily if damages were an adequate remedy, a plaintiff should be relegated to that remedy and only if damages were an inadequate remedy will an injunction lie: RP Meagher, JD Heydon, MJ Leeming, *Meagher, Gummow & Lehane’*s Equity: Doctrines and Remedies (5th ed 2015, Butterworths LexisNexis) at [21-040].
…
[168] But generally speaking, equity will not regard common law damages as an adequate remedy for an injury to land: PW Young, C Croft, ML Smith, On Equity (1st ed 2009, Thomas Reuters) at [16.210]. And equity has long granted injunctions in the auxiliary jurisdiction to restrain trespasses to land or the continuation or repetition of such trespasses: Thomas v Oakley (1811) 18 Ves 184 at 186; 34 ER 387 at 388. Prima facie a landowner is entitled to an injunction to restrain a trespass: Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) ATR 81 – 930 (‘Break Fast’).
[169] But if there is no question of irreparable injury involved, the injunction may nevertheless not be granted. Injunctions have been refused because the trespass involved no appreciable damage to a plaintiff: Behrens v Richards [1905] 2 Ch 614. Authorities to the contrary on this issue are probably unsupportable: Jaggard v Sawyer [1995] 1 WLR 269 and RP Meagher, JD Heydon, MJ Leeming, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (4th ed 2002, Butterworths LexisNexis) at [21-110].
[170] In this context the so-called ‘good working rule’ stated in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 (“Shelfer”) has often been applied in Australia: Break Fast. The rule, which is perhaps no more than a guide to the exercise of the Court’s Lord Cairns Act discretion to award damages in lieu of an injunction, allows that damages may appropriately be awarded in lieu of an injunction in trespass cases where: (1) the injury is small, (2) capable of being estimated in money, (3) may be compensated by small money payment, and (4) the grant of an injunction would be oppressive to the defendant. (emphasis added)
[56] In Break F**ast Investments Pty Ltd v PCH Melbourne Pty Ltd [2007] VSCA 311, the Victorian Court of Appeal stated that:
[36] According to longstanding equitable principle, the breach or invasion of a proprietary right, or a sufficient risk thereof, founded a prima facie entitlement to an injunction or specific performance. The unavailability of equitable damages prior to Lord Cairns’ Act entrenched that principle.
…
[39] In Shelfer, the Court of Appeal made plain that the unprecedented statutory power to award damages in equity did not introduce damages as the standard remedy of trespass, whereby wrongful acts could routinely be sanctioned by the effective ‘purchase’ of landowners’ rights. Rather, it was necessary to make out a special case for the court to exercise its jurisdiction to award damages under Lord Cairns’ Act. Although the Court of Appeal emphasised that an injunction remained the prima facie remedy for trespass, AL Smith LJ articulated, in ‘a good working rule’, guidance as to when, exceptionally, damages would be appropriate.
…
[46] While the factors potentially relevant to the exercise of the discretion cannot be exhaustively stated, Shelfer, in my opinion, correctly accorded primary importance to identifying a small injury to the plaintiff, and disproportionate hardship constituting oppression, to the defendant.
[47] In determining whether a substitution of damages for in specie relief is just, the interests of the parties are not of broadly equivalent weight. It will not suffice that the hardship entailed to the defendant by an injunction marginally outweighs the relief that the plaintiff will obtain thereby. Rather, the courts have typically required a significantly disproportionate damage to the defendant, reflected in the criterion of oppression in the Shelfer working rule.
[48] In that sense, the Shelfer working rule itself implicitly assumes that in order to justify the substitution of damages, it is ordinarily necessary that there be a relationship of significant disproportion between the relief afforded to the plaintiff’s injury and hardship to the defendant entailed by the grant of an injunction.
[49] The question whether to substitute damages for an injunction for trespass to land is necessarily determined after the plaintiff (in contrast to an application for an interlocutory injunction) has established the invasion or breach of its property right. Ordinarily, in such circumstances, unless the hardship to the defendant entailed by a specific remedy is out of all proportion to the relief thereby assured to the plaintiff, the plaintiff should not be compelled to exchange or suffer continuing invasion of its proprietary right for a money payment at the behest of the wrongdoer. (emphasis added)
[57] I note that in relation to the Shelfer “working rule”, the Supreme Court of the United Kingdom has recently cautioned that each case is ‘likely to be fact-sensitive’ and that the so-called rule should not be used to fetter judicial discretion: Lawrence v Fen Tigers Ltd [2014] AC 822; [2014] 2 All ER 522 at [120]-[121].
[58] The significance of hardship to the defendant to the grant of injunctive relief is helpfully summarised in Spry’s The Principles of Equitable Remedies (9th ed, 2014) at 413-4:
Considerations of hardship to the parties are of critical weight where the right to an interlocutory or interim injunction is being considered, especially since, ex hypothesi, the rights of the parties have not yet been finally ascertained. But when at the final hearing the court is called on to decide whether an injunction or an award of legal or equitable damages should be ordered, it must necessarily have been determined that the defendant is in breach of the rights of the plaintiff or will be in breach if the apprehended acts take place. Accordingly considerations of hardship on the part of the defendant are ordinarily of much reduced weight. He must now be regarded either as a wrongdoer, or at least as a potential wrongdoer, rather than a person who may ultimately be shown to be acting according to his legal rights. Nonetheless the grant of an injunction is always a matter of discretion; and, in particular, the following matters are taken into account by courts with equitable jurisdiction.
…
[T]he court may in its discretion decline to grant an injunction if to do so would result in such substantial hardship to the defendant that, account being taken of any detriment that the plaintiff will suffer on his being confined to damages, disproportionate prejudice would be caused by its intervention. Here it must be remembered that the plaintiff whose rights are threatened to be breached has prima facie an equitable right to have the breach restrained and that he will be denied specific relief only in exceptional cases. …
[59] Relevantly for the purposes of the present case I also note the importance of granting injunctions in ‘clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction’: ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259; Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41; 150 FCR 110 at [40]; Ross v Lane Cove Council [2014] NSWCA 50 at [29].
[60] Injunctive relief may be declined as a matter of discretion where such relief would be futile or of little utility: see e.g. Lets We Forget Pty Ltd v Westpac Banking Corporation [2005] 56 ACSR 126 at [20]; Street v Luna Park Sydney Pty Limited [2009] NSWSC 1 at [271]-[273].”
“A recent statement which I regard as appropriate to follow of the law relating to the matter before me was made by Hodgson J in LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd [1989] Aust Torts Reports ¶80-260. In that judgment (at 68,870-68,872) his Honour reviewed the principal modern authorities on the subjects of the acts which constituted trespass and of the court’s response by way of injunction or otherwise to such acts.
If the defendants had chosen to heap their building materials on the ground surface or on the roof of the plaintiff’s property, the case would not call for a second thought, …
I think it is quite clear from the case law to which Hodgson J referred that the owner of freehold land has a perfectly legitimate interest to decide who will come on to his land, who will build encroachments there, who will stay off and on what terms he is prepared to give leave and licence whether on payment of money or no terms whatever.
There is no power in the court to impose compulsory licences to encroach on real estate or to set the terms on which licences are to be granted. Some judges have endeavoured to mould orders enforcing the rights of freeholders in the direction of licensing or compulsory licensing. Such attempts do not have the approval of courts of appeal. The regret expressed by Scott J in Anchor Brewhouse Developments Ltd v Berkley House (Docklands) Developments Ltd (1987) 38 Build LR 87 about the need for some legislation conferring such a power well illustrates that no such power exists.
The approach now taken in England appears from judgments in the Court of Appeal in Patel v W H Smith (Eziot) Ltd [1987] 1 WLR 853, particularly in the judgment of Balcombe LJ (at 858). His Lordship said:
‘What then, are the principles which a court should apply in a case of this type? It seems to me that, first, prima facie, a landowner, whose title is not in issue, is entitled to an injunction to restrain trespass on his land whether or not the trespass harms him.’
His Lordship referred to recent English authority and expressed a preference for the following statement of Stamp J in Woollerton and Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 411 at 413:
‘It is in my judgment well established that it is no answer to a claim for an injunction to restrain a trespass that the trespass does not harm to the plaintiff. Indeed, the very fact that no harm is done is a reason for rather than against the granting of injunction: for if there is no damage done the damage recovered in the action will be nominal and if the injunction is refused the result will be no more no less than a licence to continue the sort of trespass in return for a nominal payment.’
At 859, his Lordship commented that there may be exceptional circumstances when the court would not think it appropriate to grant an injunction.
In Australian law, there are recognitions of the absolute nature of the rights of freehold owners and their relatively ready access to injunction remedies at several places earlier than the decision of Hodgson J to which I have referred. There is a very strong statement by Sir Leo Cussen in the Victorian Full Court in Beswicke v Alner [1926] VLR 72 at 76-77. While the whole judgment is significant, I refer particularly to the following statement (at 77):
‘… We think that the learned Judge paid too much attention to the fact that the actual damage proved up to the beginning of the action was small or negligible and not enough [attention] to the combined effect of the following matters: –
(1) that possessory and proprietary rights are involved;
(2) that a number of actions for nominal damages would not afford an adequate remedy; and
(3) that the defendant had expressed his intention of repeating the wrongful act.’”
Given the procedural and factual background set out above, together with the applicable legal principles, the real issues before the Court for determination are:
Do the defendants have a valid licence to enter onto and occupy the Wentworthville Property?
Should the Court exercise its discretion to grant an injunction in the terms sought by Harsha?
Harsha accepted that she had granted Dev Constructions exclusive possession of the site to carry out the subject building works, namely the construction of House Two under the Building Contract. However, she submitted that the Building Contract was validly terminated by way of the Notice of Termination, on 21 August 2024. She submitted that even if the Building Contract was wrongfully repudiated, the defendants still had no right of access to the construction site of House Two under the Building Contract after 21 August 2024. In support of these submissions, Harsha cited Graham H Roberts and Cowell v Rosehill Racecourse Company Limited (1937) 56 CLR 605; [1937] HCA 17 (Cowell).
Harsha recognised that this matter was complicated somewhat by the fact that the defendants were also authorised to enter and occupy the Wentworthville Property (or part of that property) under Nidhiben’s Building Contract. As has been previously mentioned, Nidhiben’s Building Contract was not in evidence. However, Harsha conceded in her oral submissions that given “there was clearly a joint endeavour to build two houses”, the Court should proceed on the basis that a valid licence had been granted by both co-owners to the defendants (TR P8 L24-39).
But even if the defendants were granted a valid licence initially, as part of the two contracts to construct House One and House Two on the Wentworthville Property, Harsha submits that the defendants no longer had no entitlement to access any part of the Wentworthville Property (including that part of the property comprising House Two). Harsha’s principal submission appears to be that the right of the defendants to access the Wentworthville Property was revoked as early as when Harsha terminated the building contract on 21 August 2024. Harsha says that because of the joint tenancy between herself and Nidhiben, a valid licence to access the Wentworthville Property required the concurrence of all joint tenants, and so Harsha withdrawing her concurrence (by terminating the Building Contract) made invalid any separate licence granted by Nidhiben to the defendants under Nidhiben’s Building Contract. In support of this, Harsha cited Koumdjiev at [33] and Merl v Merl [2022] NSWSC 434 (Merl) at [38] (Campbell J).
In any event, Harsha submitted that given the evidence establishes Nidhiben’s Building Contract was terminated in October 2024, the question of whether one joint tenant could revoke a licence granted by another joint tenant had fallen away. Accordingly, at least as of October 2024, Harsha submitted there is no valid licence on foot.
For the reasons which follow, I have concluded that there is no valid licence which the defendants currently have vis-à-vis the Wentworthville Property.
I start from the premise that Dev Constructions (and, by extension, Kamleshkumar) did initially have a valid licence to be on the Wentworthville Property for the purpose of carrying out the construction of House One and House Two, pursuant to both the Building Contract and Nidhiben’s Building Contract. So much was conceded by Harsha. Has that licence been revoked?
The evidence establishes that Harsha had terminated the Building Contract by the Notice of Termination on 21 August 2024. Accordingly, any licence the defendants had to enter onto the Wentworthville Property under the Building Contract had been revoked. Whether that termination was wrongful, as the solicitors for the defendants claimed in the correspondence, which was in evidence, does not change that conclusion. If this had been a case where the Wentworthville Property had been solely owned by Harsha, then it seems clear that once Harsha had terminated the Building Contract, whether or not she had done so wrongly (and I record expressly that I am not expressing any opinion on the merits of the defendants’ assertion to this effect), the defendants would no longer have any right to come onto the land and would be considered trespassers if they did so: Cowell at 621 (Latham CJ); 630-631 (Dixon J).
If Nidhiben’s Building Contract had still been on foot, or if this was an action which required me to characterise the state of affairs between August 2024 (when Harsha terminated her contract with Dev Constructions) and October 2024 (when Nidhiben terminated her contract with Dev Constructions), there would have been an interesting legal question as to the validity of any licence granted to the defendants by one joint tenant only. Harsha’s submissions proceeded on the footing that the fact of a joint tenancy meant both joint tenants had to concur in any licence granted to anyone else to enter the Wentworthville Property. Even just examining the passages of authority cited by Harsha, it is not immediately clear the footing on which she proceeded is correct.
What Campbell J said in Merl at [38] and what Hodgson JA said in Koumdjiev at [33] was about the ability of joint tenants to grant leases. Whether, in the case of a joint tenancy, a licence requires the concurrence of all joint tenants would seem to be a different question. In Koumdjiev itself, a case about tenants in common, Hodgson JA reached different conclusions about the ability of one tenant in common to terminate a lease granted by another tenant in common (at [33], his Honour said the non-lessor tenant in common could not revoke the lease) and the ability of one tenant in common to revoke a licence granted by another (at [40]-[41] and following, his Honour suggested a tenant in common could revoke a licence granted by another, but only in the circumstances specified by his Honour). The learned author of *’* in the passage cited above at [79] suggests, contrary to Harsha’s submissions, that a joint tenant could solely grant a licence.
Harsha was required to prove that an injunction is, in the circumstances, an appropriate form of relief, including by demonstrating that an award of damages would not be an adequate remedy or that irreparable harm would be suffered if the injunction were refused: Graham H Roberts; Blacktown City Council at [14]; Lincoln Hunt Australia. It is accepted, as put by Harsha, that equity will not ordinarily regard common law damages as an adequate remedy for an injury to land: Coles Group Property at [54]-[60] (Sackar J); Lord at [166]-[170] (Slattery J).
I am of the view that it is appropriate to grant a permanent injunction restraining the defendants from entering upon or remaining on the Wentworthville Property or leaving any property on the land. The authorities make it clear that the auxiliary jurisdiction of a court of equity can be used to restrain trespasses to land: Lord at [168]. Mapping the facts of this case onto the preconditions for an injunction identified by Slattery J, Harsha as a co-owner of land, no doubt has a legal right of a proprietary nature. Given injunctions to prevent trespasses to land are well accepted, clearly courts of equity accept that an injunction of the kind sought in this case would be protecting a legal right of a proprietary nature.
In this case, I also accept that right has already been infringed and is being infringed by Dev Constructions leaving its materials on the Wentworthville Property. For the reasons already set out above, I am satisfied that is a continuing trespass.
Finally, I accept that damages will not be an adequate remedy in this case. Damages would not adequately compensate Harsha for the main harm she is suffering and would suffer from the continuation of the current trespassory conduct, namely the inability to complete the construction of House Two.
I am also satisfied that any injunction should also capture Kamleshkumar in his own right. On one view, he may be adequately captured by any injunction restraining Dev Constructions given he appears to be the only natural person through whom it acts. But in any event, I am satisfied that his conduct demonstrates that he at least poses a threat to the rights of the co-owners of the Wentworthville Property. That conclusion is reached considering the cumulative effect of the following events evidenced by Harsha and Janak:
the events of 5 September 2024, where Kamleshkumar entered onto the construction site of House Two and threatened the contractor hired by Harsha and Janak;
the events of 20 September 2024, where Kamleshkumar prevented a crane from working on House Two, threatened a crane operator and his dogman (which happened after the police had, according to Harsha, warned him on 5 September 2024 to refrain from entering House Two);
“As I have said, Manfred was not made a party to the proceedings. He is neither plaintiff nor defendant. He is clearly aware of the proceedings and of the nature of the dispute because he provided an affidavit in Andrew’s case. Speaking generally, Rule 6.24 of the Uniform Civil Procedure Rules (NSW) would suggest that Manfred should have been joined as a defendant (Rule 6.24(2)). Mr Crossland relied, however, upon Commonwealth Bank of Australia v McDonald [2000] NSWSC 553 to argue that Manfred’s joinder was unnecessary. There, Young J (as his Honour then was) pointed to the unity of possession as it applied to co-owners who are tenants in common. His Honour pointed out ‘that each co-owner is as of right as much entitled to possession of any of the property as the others’. From this it is argued that any co-owner may assert his or her right to possession independently of any other co-owner, whether by tenancy in common or, as here, joint tenancy, and accordingly Manfred was not a necessary plaintiff or defendant. Even so, given that the lease upon which Andrew relied to resist Joan’s claim was purportedly granted by Manfred, it would have been permissible, perhaps desirable to join him as a defendant under Rule 6.24(2), if for no other reason than to bind him to the outcome.”
“(1) Judgment for the plaintiff for possession of the whole of the land in Folio Identifier XX/XXX02, being Lot XX in Deposited Plan XXXXX and known as 6 XXXXXXX Street, XXXXXX Island New South Wales XXXX;
(2) Direct that the plaintiff file and serve an Amended Statement of Claim joining Manfred Richard Merl as a second defendant by 14 April 2022;
(3) Judgment under Order 1 may be entered upon the filing of an Affidavit of Service of the Amended Statement of Claim on Manfred Richard Merl;
(4) The plaintiff has leave to issue a writ of possession forthwith upon the entry of judgment;
(5) The writ may not be executed prior to 28 April 2022;
(6) The defendant, Andrew Merl, to pay the plaintiff’s costs of the proceedings.”
Harsha also suggested that there be some regime of orders whereby Harsha notifies Nidhiben of any relief granted by the Court and Nidhiben is then given a period of time to potentially apply to vary or discharge any substantive orders made by the Court. Harsha also suggested that the operation of any injunction could then be stayed in the meantime. (See TR P23 L45-P24 L26.)
Harsha submitted that Nidhiben is aware of the proceedings and has not joined the proceedings because she does not wish to get involved. Based on the supplementary evidence provided by Harsha, namely Janak’s affidavit, I am satisfied that Nidhiben is aware of these proceedings. I note that Janak’s evidence appears to suggest Nidhiben was not just aware, but also supportive of the proceedings being commenced, even though she herself did not wish to join as a plaintiff. I accept that this is an understandable position given the proceedings involve Nidhiben’s father.
However, even though I am satisfied that Nidhiben is aware of these proceedings and has consciously chosen not to join them, I am not satisfied that Harsha is able to obtain, on her own, an injunction in relation to the Wentworthville Property. I have been pointed to no authority that would suggest a joint tenant is able to seek an injunction in relation to co-owned property without also joining their co-owner/s. I have also not been given any argument of principle that would lead me to conclude that is a permissible path to take.
Even in Merl, it is not clear Campbell J accepted the plaintiff’s argument which is summarised in [40] of that decision, namely, that the mere fact co-owners have unity of possession mean any one co-owner can assert their right of possession independently of the others. His Honour still ordered the other joint tenant in that case be joined as a defendant. I am not necessarily suggesting that it is impermissible for one co-owner to come to court seeking relief in relation to a co-owned property without the other co-owner/s. If the plaintiff’s argument in Merl at [40] is correct, then that line of thinking does seem applicable to a case like the present, where an injunction is sought to prevent a trespass. Such an injunction would similarly seem to be part of vindicating a co-owner’s right to possession, such that a co-owner could be permitted to vindicate that right without needing to join their fellow co-owner/s. However, in the absence of any reasoned argument on the point, I am not inclined to proceed in that way, especially given the one case Harsha relied on did ultimately have both joint tenants joined as parties.
I accept it is probably not necessary for Nidhiben to be joined to bind her in the way it was necessary to do so in Merl. In that decision, the co-owners had together purported to grant the defendant a lease. This grant was in issue and, accordingly, Campbell J thought it desirable for the co-owner to be joined as a defendant so as to ensure he was bound by the decision made. Here, no such issue arises. Nonetheless, for the reasons explained in the previous paragraph, my opinion is that Nidhiben should be given a formal opportunity to be heard. Given Nidhiben appears to be well aware of these proceedings, I propose only giving her a relatively short time to be heard.
“1 That the defendants, whether directly or indirectly and whether by themselves or by their servants, agents, contractors, partners or principals, be restrained from engaging in and/or continuing to engaging any conduct that prevents and/or which is intended to have the effect of preventing the plaintiff and/or any of her contractors from completing the building works comprising the construction of House 2 at X XXXX Street, Wentworthville NSW 2145 (the Wentworthville Property).
2 That, unless and until they have been granted a valid licence to enter the Wentworthville Property and subject to paragraph 3 below, the defendants be restrained by themselves, their servants, agents or contractors from trespassing or entering upon the Wentworthville Property.
3 That within 14 days the defendants remove from the Wentworthville Property the goods described in the following list:
a. Brick packs (namely red colour render bricks);
b. Metal roof and wall frames (blue colour); and
c. Scaffolding material (namely scaffolding polies).”
There are two problems with the form of the relief sought which I consider prevent me from being able to make the orders she seeks, even if I do accept, as I have, that Harsha is entitled to some sort of relief against the defendants.
First, prayers 1-3 make reference to “the Wentworthville Property”. On the one hand, this could be a reference to the property at X XXXX Street, Wentworthville as a whole. Alternatively, given the way it is defined in prayer 1 and used in prayer 3, it could just be a reference to “House 2” at X XXXX Street, Wentworthville. Particularly for the purposes of prayer 2, whether the injunction prevents the defendants from just entering “House 2”, or the whole of the land at X XXXX Street, Wentworthville, should be clarified.
Second, what is “House 2” at X XXXX Street, Wentworthville is not clear on the face of the order. It will be recalled that, at present, the subdivision of the land has not taken place. “House 2” (or “House Two” as I have called it in this judgment) is simply the informal designation given to the house on the land that is to be Harsha’s. The evidence also does not establish how someone is to identify “House 2” so as to comply with the terms of any injunction. Accordingly, I consider it appropriate that Harsha provide an alternative form of orders which clarifies where “House 2” sits on the land at X XXXX Street, Wentworthville.
To enable her to address these concerns, I will order Harsha to provide the Court with proposed short minutes of order to give effect to this judgment.
In relation to issue 1, I am satisfied on the evidence before the Court that the defendants are now not lawfully authorised to enter or occupy the Wentworthville Property and, accordingly, the leaving of building materials which still remain on the site constitutes a continuing trespass.
As to issue 2, I am of the view that it is appropriate to grant a permanent injunction restraining the defendants from entering upon or remaining on the Wentworthville Property or leaving any property on the land. However, before making any final orders, I will give Harsha the opportunity to formulate orders to address the concerns I have outlined in relation to the form of relief sought. I will give Nidhiben the opportunity to be heard. With respect to the order requiring the defendants to remove building materials from House Two at the Wentworthville Property, I reiterate that I will allow the defendants three weeks, rather than the two weeks Harsha sought to give them.
The plaintiff has been successful and has sought an order for her costs.
Whilst costs are in the discretion of the Court under s 98 of the Civil Procedure Act 2005 (NSW), r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) provides that subject to Part 42 of the Uniform Civil Procedure Rules, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made.
I am of the view there is no reason for the Court to otherwise order in the circumstances of the present case and I propose to make an order that the costs should follow the event and thus order the defendants to pay the plaintiff’s costs. However, given the submitting appearance of the defendants was “save as to costs”, it is appropriate they be given an opportunity to be heard as to any costs order.
I will briefly explain why I am currently of the view the defendants should pay the plaintiff’s costs, despite their submitting appearance. I am of this view because it was the conduct of the defendants which has ultimately required Harsha to commence proceedings to obtain injunctive relief. As I have found, it is the defendants who have left their building materials on the Wentworthville Property. Especially after Nidhiben’s Building Contract was terminated in October 2024, those building materials have remained there without practical or legal justification. The evidence also shows that Harsha attempted to resolve the dispute without resorting to this Court, including by seeking an undertaking from the defendants which was not given. At least according to the evidence, Harsha (or rather, her solicitors) did not receive a response to the correspondence sent on her behalf on 4 October 2024. She should be compensated for the defendants’ conduct which has required her to incur legal expenses in coming to this Court.
For the reasons set out above, I make the following orders:
The plaintiff is to email to the Chambers of Bennett J proposed Short Minutes of Order to give effect to this judgment by 4:00pm on 1 December 2025.
By 4:00pm on 1 December 2025, the plaintiff is to serve on Nidhiben Kamlesh Patel, the co-owner of the land in folio identifier X/XXXXXX, known as X XXXX Street, Wentworthville, New South Wales:
(a) a copy of these reasons for judgment; and (b) the proposed Short Minutes of Order prepared in accordance with order 1.
**********
Correction of typographical error in [5].
Patel
Dev Constructions
(1991) 23 NSWLR 464
(1937) 56 CLR 605
(1986) 4 NSWLR 457
(2005) 63 NSWLR 353
(2007) 34 WAR 102
(2020) 272 CLR 177
(2019) 94 NSWLR 636
(2002) 54 NSWLR 333
(1994) 179 CLR 427
(1984) 155 CLR 1
(1991) 171 CLR 635
(1992) 38 FCR 248
On 29 August 2025, Mr Greenwood emailed my Chambers to seek a short extension for his client to provide the supplementary submissions and affidavit as ordered, in light of a delay he had experienced in another matter which had meant he had been unable to prepare those documents. On 1 September 2025, I caused my Associate to email Mr Greenwood to indicate I was content to grant Mr Greenwood a short extension to 4:00pm that afternoon (ie, the afternoon of 1 September).
Harsha provided by email to my Chambers a further affidavit sworn by Janak Patel (Harsha’s husband) on 2 September 2025 at 6:31pm (the affidavit had been filed online shortly before then), two working days after they were due in accordance with the Court’s direction and more than 24 hours after the extended time that was given to provide those documents. However, I did not receive on 2 September 2025 any supplementary written submissions as directed. In the email by which Mr Greenwood provided to my Chambers Janak’s affidavit, he wrote “[t]he plaintiff’s supplementary submissions will be sent to you shortly”.
By 4 September 2025, I had still not received any supplementary written submissions as directed. That afternoon, I caused my Associate to email Mr Greenwood to follow up as to when I could expect the supplementary written submissions. My Chambers did not receive a response to this email.
By 20 November 2025, my Chambers still had not received any supplementary written submissions. On that day, I instructed my Associate to list the matter for judgment on 24 November 2025 at 4:00pm, and to email the parties’ legal representatives to inform them that I was ready to deliver judgment.
I consider it appropriate to explain why I was ready to deliver judgment in these proceedings despite not having received Harsha’s supplementary submissions. My reasons are as follows. Harsha has otherwise had the opportunity to make written and oral submissions in chief. I considered that Mr Greenwood had more than an ample opportunity to provide the supplementary submissions which he sought to provide on Harsha’s behalf. I note that at least the extra evidence as to Nidhiben’s awareness of the proceedings had been provided to my Chambers and I took it into account in the preparation of this judgment. In those circumstances, including where my Chambers had not received any communication which provided some explanation for the failure to provide the further submissions I ordered, I considered it appropriate to proceed without having those further submissions, lest the resolution of this matter be delayed any further.
However, after my Associate’s email of 20 November 2025, my Chambers received an email from Mr Greenwood at 3:54pm on 21 November 2025. In that email, he attached the supplementary written submissions I had ordered. Those submissions are dated 21 November 2025 and were filed electronically at 3:47pm. While Mr Greenwood did apologise for the late provision of the submissions, the explanation he provided for their lateness was that he “(embarrassingly) overlooked” providing those submissions.
Despite the lateness of their receipt, I have still read and considered those supplementary submissions. Nothing of substance has been added by those submissions with respect to both what I have named “issue 1” below, that is whether the defendants’ actions constitute a trespass, and the bulk of what I have named “issue 2” below, that is whether an injunction should be granted in this case.
What is submitted in [13]-[16] and [20]-[21] of the supplementary written submissions concern Harsha’s ability to obtain relief without having joined her co-owner. Those paragraphs do not add to the oral submissions made on this issue on 27 August 2025. My consideration of this particular issue, from [115]-[121] already addresses the argument made at [16] of the supplementary submissions, and what is said at [20]-[21] of those submissions. What is submitted at [13]-[15] of the supplementary submissions merely establishes a plaintiff with exclusive possession of land may commence an action for trespass to land against a defendant. But that does not take anywhere consideration of whether Harsha can obtain the relief she seeks without Nidhiben – on the evidence before me, clearly, Harsha and Nidhiben currently have exclusive possession of the Wentworthville Property. The real issue is whether the fact Harsha and Nidhiben are joint tenants has any impact on Harsha’s ability to seek relief on her own.
The balance of this judgment was prepared without having those supplementary written submissions to hand. For the reasons just explained, no further reference to those supplementary submissions is necessary. Accordingly, there are no further references to those submissions below.
On 24 April 2024, Harsha issued a Notice of Dispute to Dev Constructions pursuant to cl 35 of the Building Contract (the Notice of Dispute). In the Notice of Dispute, amongst other matters raised, Harsha:
disputed that Dev Constructions was entitled to increase the contract price under the Building Contract;
disputed that Dev Constructions was entitled to suspend the carrying out of the building works;
disputed that she had breached the Building Contract as Dev Constructions had alleged; and
proposed a meeting with Dev Constructions within 10 working days to attempt to resolve the dispute or agree on methods of resolving the dispute.
Dev Constructions did not respond to the Notice of Dispute and otherwise refused to meet with Harsha to resolve the dispute.
On 4 May 2024, Harsha received tax invoices from Dev Constructions in respect of the construction of House Two, one of which included a contract price adjustment in the amount of $88,219.35.
On or about 5 May 2024, Janak says he had another conversation with Nidhiben. Janak says that in this conversation, Nidhiben suggested he and Harsha take legal action against her father (Kamleshkumar) and Dev Constructions as she thought that was the only way the issues in dispute could be sorted.
On 8 May 2024, Harsha sent an email to Dev Constructions disputing the tax invoice that included the price adjustment of $88,219.35 including GST.
At some point in this timeline, a complaint was lodged with Building Commission NSW. When that occurred is not revealed in the evidence, though there is evidence the Wentworthville Property was inspected on 10 May 2024. That complaint culminated in a rectification order under s 48E of the Home Building Act 1989 (NSW) being issued to Dev Constructions on 12 June 2024 by an inspector appointed under s 48D of that Act (the Rectification Order). The Rectification Order required Dev Constructions to complete all aspects of the agreed upon work and achieve practical completion of the work at the Wentworthville Property by 26 July 2024.
By 29 July 2024, according to Harsha, Dev Constructions had failed to comply with the Rectification Order. Accordingly, Harsha issued a Notice of Intention to End Building Contract dated 29 July 2024 pursuant to cl 27 of the Building Contract (the Notice of Intention). In the Notice of Intention, Harsha notified Dev Constructions that she would terminate the Building Contract unless the Rectification Order was complied with within 10 working days (ie, that practical completion be achieved within that time), with the failure to comply with the Rectification Order said to be a substantial breach under the Building Contract giving rise to a right to terminate under cl 27.
It appears that Harsha made a further complaint about Dev Constructions to Building Commission NSW, now saying that the Rectification Order had not been complied with. As with the initial complaint, it is not clear when this further complaint was made. What is in evidence is another report of the inspector who had issued the Rectification Order, dated 5 August 2024. In that report, the inspector concluded that the Rectification Order had not been complied with. I note that in the further report of 5 August 2024, the inspector reproduced comments made by Dev Constructions (specifically, Kamleshkumar, in his capacity as director) in relation to the complaints made, as sought by the inspector. The inspector summarised Dev Constructions’ representations as follows (the actual representations made by Dev Constructions to the inspector were not in evidence):
On or about 3 October 2024, Darshan forwarded to Janak a copy of a notice of intention to terminate Nidhiben’s Building Contract which Nidhiben’s solicitors had sent to Dev Constructions. That letter was the letter referred to in [34] above.
Again interrupting the chronology, I observe that precisely when Nidhiben’s Building Contract was finally terminated is not exactly clear from the evidence, though there is no doubt the contract has been terminated. The 3 October 2024 letter sent on Nidhiben’s behalf that was in evidence gave notice of her intention to terminate the contract. Any subsequent notice of termination was not in evidence. Janak’s evidence, which itself is derived from a conversation he had in or around July 2025 with an unnamed business partner of his (who is also a business partner of Darshan’s), only suggests Nidhiben terminated the contract in “late” 2024. The only other evidence is an email from Mr Birch, of Birch Partners Lawyers, to Mr Greenwood, in which he says that “[his] client understands that Nidhiben Patel considers the contract between [his] client and herself was terminated on or about 14 October 2024”. It will be observed that 14 October 2024 is not 10 working days after 3 October 2024, but 11 calendar days after. This minor distinction is of little moment. Based on this evidence, I am satisfied that by mid-October, Nidhiben’s Building Contract had also been terminated by Nidhiben.
On 4 October 2024, Greenwood Lawyers, the solicitors for Harsha, sent a letter in response to the letter from Birch Partners Lawyers dated 19 September 2024, signed by Mr Greenwood. In that letter, amongst numerous other matters, a written undertaking was sought from Dev Constructions and Kamleshkumar that they would:
However, I do not need to express any conclusions on these interesting issues. This is because I am satisfied on the evidence that Nidhiben has also terminated Nidhiben’s Building Contract: see [71] above. As I have said, while the precise date of termination is not clear, the evidence establishes that the contract is both at an end, and that it ended in mid-October 2024.
It follows that since the time of Nidhiben’s Building Contract coming to an end, Dev Constructions (and Kamleshkumar, seeing as he does not appear to have had any right to enter the Wentworthville Property separate from any licence granted to Dev Constructions) has had no licence authorising it (and him) to enter onto the Wentworthville Property.
Absent any contractual licence to enter the Wentworthville Property, any intrusion onto the land after October 2024 was unauthorised and constituted trespass: Romani at [38]-[42] (Wright J). The only conduct capable of constituting trespass that has occurred since October 2024 was the defendants leaving their building materials on the Wentworthville Property. As at the time of the hearing, the goods described as remaining on the Wentworthville Property included brick packs, a metal roof, scaffolding materials and wall frames.
I note that in an email sent to Harsha’s solicitors by the defendants’ solicitors on 9 May 2025, the defendants appear to challenge the claim that they have dumped any materials on site. In that email, Mr Birch, on the defendants’ instructions, says “[his] client disputes that it has dumped any materials on site. Any materials that remain on site are building materials proposed to be utilised in the construction.” The sworn evidence from Harsha and Janak, in their respective affidavits, is that materials of Dev Constructions are blocking their access to House Two. I have no rational reason to doubt that evidence. Additionally, there is also an email from Boutique Builders sent on 7 April 2025 which refers to materials “from the previous builder” on the building site of House Two “which has left no space to enter to the side”. That email, from what is effectively a disinterested party in these proceedings, appears to confirm it is Dev Constructions’ materials which are blocking access to House Two, given there is no other “previous builder” whose materials it could be.
The assertion that any materials that remain on site are “proposed to be utilised in the construction” also appears to be an entirely untenable one given both the Building Contract and Nidhiben’s Building Contract had been terminated by 9 May 2025. What is said in the portion of the 9 May 2025 email quoted above seems to itself acknowledge that there are in fact materials of Dev Constructions still on site, though whether or not this particular email should be read that way does not matter given the other evidence in this matter.
In sum, there are materials of Dev Constructions that remain on the Wentworthville Property. Clearly, Harsha and Nidhiben have not authorised those materials to remain on the land. It follows that the conduct of the defendants in leaving their building materials on the Wentworthville Property constitutes a continuing trespass: Coles Group Property at [54]-[60] (Sackar J); Makucha at [13]-[14] (Campbell J).
I am therefore satisfied on the evidence before the Court that, at least from October 2024 onwards, the defendants were not lawfully authorised to enter or occupy the Wentworthville Property and, accordingly, the leaving of building materials, which still remain on the site, constitute a continuing trespass.
the apparent unauthorised entry on 2 October 2024 of Kamleshkumar onto the construction site of House Two; and
Kamleshkumar’s refusal to provide the undertaking sought by Harsha that he (and Dev Constructions) refrain from engaging in conduct that is intended to prevent Harsha from completing the construction of House Two.
I also accept it would be appropriate to order the materials that have been left by Dev Constructions to be removed, so as to leave no room for doubt that this specific trespassory conduct ought be remedied.
In my view, any order made should allow for a period of three weeks to enable the defendant to remove any remaining building material from the Wentworthville Property. In stating this, I note that Harsha’s Amended Summons sought an order allowing a period of 14 days.