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21 Cards in this Set

  • Front
  • Back

Define trespass to land

a direct interference with land in the possession of another, without lawful justification or the

occupier’s consent.

How many prescribed cases are there?


What are the cases names?

1. Halliday v Nevil

2. TCN channel nine v Anning

3. Lord beirnsteign v Skyviews

4. Plenty v Dillon

5. Mcnarama v Duncan

Halliday v Nevil

Police entered private property to arrest a driver of a motor vehicle on the driveway of a property which was not his home. This was not a trespass as there was implied license to enter.

TCNChannel Nine Pty Ltd v Anning

P leased land which he built amotorcycle track used for training purposes & for the storage of tyres.Property was fenced with locked gates. Truck came to deliver tyres, P forgot tolock the gates and journalists and TV crew came in – he said to get off myproperty = no implied license. He sued in damages & mental trauma suffered& got aggravated damages.

LordBernstein of Leigh v Skyviews & General Ltd

Bernstein(P) claimed that Skyviews (D) wrongfully entered P's airspace to take an aerialphoto of his house. D admitted they took the photo, but said they did not gointo P's airspace, they took it while over adjoining property. D also said thatif they did fly over P's land, they had implied permission to do so. D'saircraft did not infringe any rights of P's airspace – thus no trespass.

Plentyv Dillon

P owned a farm. He was a parent of a 14 year old girl who had committed offences. It was said that the daughter needed care and control. Police made several unsuccessful attempts to serve her. Pmade it clear that no one was to enter his land. 2 police officers again entered the property. There was no implied consent to enter his land as herevoked it.

McNamarav Duncan

Thedefendant deliberately struck the plaintiff during a game of AFL. The plaintiffhad just kicked the ball, but the defendant continued to run at him and hit himon the head, fracturing his skull. While forcible contact is normal in AFL, itis not to be expected where it is both outside the rules AND adeliberate or reckless blow. In such cases, consent has been exceeded and battery and/or assault will hold.

Three elements for trespass to land?

1. Title to sue

2. Direct, unauthorised interference with land

3. Defendant at fault

Title to sue (6)

1. Exclusive possessionof the land.

2. NOT based onownership.

3. Tenant has actual exclusive possession.

4. Person with easement (limited right enjoyed by one person over anothers land) or profits aprendre (soil e.g. taking timber) can sue.

5. Licensee does not have title to sue (person given permission to enter land for a particularpurpose)·

6 Co-owners (sharing land) cannot sue other co-owners unless excluded from land

Direct, unauthorised interference with land


Direct: interference is the immediate consequence


Unauthorised: without lawful authority orconsent : TCN Channel Nine Pty Ltd v Anning · Express consent (enterfor a particular purpose)· Implied license:to members of the public to enter for legitimate purposes [Halliday v Nevil] · If go outside scopeof consent – unauthorised · If remain afterachieving purpose – unauthorised

Revocation of consent

must be communicated &understood

Reasonable time allowed to leave

Implied licence to members public can be negatedsigns,locked gate or express negation


Land: buildings, the subsoil & airspace

Limitations onsubsoil: unauthorised subterranean incursions

Limitations onairspace: restricting the rights of an owner of airspace of ordinary use andenjoyment of his land and the structures upon it’

Authorised by law

Statutory authority to enter property for specific purposes: Plenty vDillon

Private dwelling – police cannot enter without consent/warrant

Private property – police can enter to save someone

Trespass ab initio?

Defendantenters with lawful authority (doesn’t apply to express or implied license) +commits an act outside their authority = unauthorised from initial entry (trespassfrom the beginning)

Actionable interferences? (3)

1. placing or leaving objects/ throwing onto land

2. encouraging animals to enter land

3. continuing trespass

3. Defendant at fault (3)

1. Intentional or careless

2. voluntary

3. motive & mistake irrelevant

Remedies (7)

1. Nominal:no damage:

Compensatory: if damage (decrease value of land or cost of reinstatement)

3. Aggrevated: injury to plaintiffs feelings

4. Exemplary: to punish and deter (very rare) Self help: plaintiff may use force to resist trespass but must be reasonable force.

5. Injunction–Prohibitory [D to stop doing something] or mandatory [to start doingsomething] Plaintiff prove that an award of damages is inadequate in thecircumstancesIf itscontinuing act = stronger argument for injunction

6. Mesne Profits: claimed from tenant wrongfully in possession ofanother’s land; trespasser

should pay for the period of occupation.

Defences? (2)




6 years

for injunction- limitation would commence once the trespass has ended