COSENZA v DENISOFF & ANOR [2026] SASCA 54
On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE
MCINTYRE) [2026] SASC 18
Appellant: DEAN COSENZA Counsel: MR A LAZAREVICH
First Respondent: PAUL DENISOFF Counsel: MR M DOUGLAS WITH DR V GILLILAND - Solicitor:
JANINE CARROLL LEGAL
Second Respondent: @REALTY PTY LTD Counsel: MR M DOUGLAS WITH DR V GILLILAND -
Solicitor: JANINE CARROLL LEGAL
Hearing Date/s: On the papers
File No/s: CIV-26-002867
B
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply
to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach
any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.
COSENZA v DENISOFF & ANOR
[2026] SASCA 54
Judgment of the Court of Appeal
(The Honourable President Livesey and the Honourable Justice Bleby)
14 May 2026
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN
APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF
APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES
INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR
DECISION - ADEQUACY OF REASONS
Application for leave to appeal against a judgment of a single judge of the Supreme Court of South
Australia dismissing an appeal against a decision of a magistrate dismissing the applicant’s claim.
On 6 November 2019, the first respondent, Mr Denisoff, entered a residential property occupied by
the applicant, Mr Cosenza. Mr Denisoff was employed by the second respondent as a real estate
agent. Mr Cosenza alleged that the implied licence to enter the residential property had been revoked
by way of signage displayed at entry points to the property.
On 15 January 2025, a magistrate dismissed Mr Cosenza’s claim for damages for trespass to land.
Mr Cosenza appealed against the decision dismissing his trespass claim. On 18 February 2026, a
single judge of the Supreme Court of South Australia dismissed that appeal.
Mr Cosenza now seeks leave to appeal against the judgment of the single judge.
The grounds of appeal focus on the judge’s treatment of the magistrate’s finding that there was no
effective communication of the revocation of the implied licence. In summary, the essential
complaints arising on appeal are:
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• the judge did not address the ‘central legal question’ as to whether a notice revoking the
implied licence must actually be read by the entrant, or whether it is sufficient that the notice
was clearly displayed so as to communicate the revocation;
• the judge did not analyse the evidence as to the adequacy of signage and express conclusions
as to whether the signage was effective; and
• the judge did not explain why the magistrate’s reasoning was correct ‘or why [Mr Cosenza’s]
arguments as to the adequacy of the signs were not a pleaded issue having regard to
admissions made in the defence’, or why the signage was in any event adequate.
Held (by the Court), refusing leave to appeal:
1. With respect to Proposed Grounds 1 and 2, it is reasonably arguable that the appeal judge did
not conduct a real review of the evidence for the purposes of determining Ground 4 of the
appeal before her.
2. The consequence of success on Proposed Grounds 1 and 2 would be that the Court would
conduct a real review of the evidence. The applicant’s prospects of success on a real review
of the evidence are negligible.
3. Allowing the appeal decision to stand would not result in a substantial injustice.
4. The proposed grounds do not raise questions of general principle or importance.
Uniform Civil Rules 2020 (SA) r 213.1(1)(b), referred to.
Lee v Lee (2019) 266 CLR 129; Southern Wire Pty Ltd v Clover Communications Pty Ltd [2023]
SASCA 18; Warren v Coombes (1979) 142 CLR 531, discussed.
Cosenza v Denisoff & @Realty Pty Ltd [2026] SASC 18; Cosenza v Origin Energy Limited [2017]
SASC 145; Dean Cosenza v Paul Denisoff, @Realty Pty Ltd [2025] SAMC 3; Plenty v Dillon (1991)
171 CLR 635, considered.
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COSENZA v DENISOFF & ANOR
[2026] SASCA 54
Court of Appeal – Civil: Livesey P and Bleby JA
1 THE COURT: This is an application for leave to appeal, pursuant to r 213.1(1)(b)
of the Uniform Civil Rules 2020 (SA) (‘UCR’), against a judgment of a single
judge of this Court1 dismissing an appeal against a decision of a magistrate
dismissing the applicant’s claim.2 The applicant, Mr Cosenza, claimed damages
for trespass against the respondents in an action filed in the Magistrates Court of
South Australia.
2 On 6 November 2019, the first respondent, Mr Denisoff, entered a residential
property occupied by Mr Cosenza. Mr Denisoff was employed by the second
respondent as a real estate agent. He was door knocking houses in the street.
Mr Cosenza alleged that Mr Denisoff entered the property in defiance of ‘no
trespassing’ signs located at the entrance to the property. He alleged that
Mr Denisoff banged on the front door in an ‘unreasonable manner’ and refused to
leave the property after being asked by Mr Cosenza to leave.
3 Mr Denisoff admitted entering the property to introduce himself as a real
estate agent. He said he entered through the open driveway gates. He exited
through the pedestrian gate within minutes, after there was no answer when he
knocked on the door. He denied seeing any signage when he entered the property,
banging on the door in an unreasonable manner or speaking with Mr Cosenza.
The decision of the magistrate
4 The magistrate set out the applicable principles of trespass3 referring,
relevantly, to the decision of Blue J in Cosenza v Origin Energy Limited4 with
respect to the granting and revocation of an implied licence:5
It is common ground that the licence defence is a defence strictly so called. It is common
ground that a licence can be express or implied. It is common ground that:
1. the occupier of an ordinary housing property in a city or town ordinarily grants an
implied licence to persons to enter onto the land and approach the house for legitimate
purposes;
2. if an occupier erects a sign at the entrance to such land which would be seen by a
reasonable person in the position of the defendant, no implied licence will arise.
1 Cosenza v Denisoff & @Realty Pty Ltd [2026] SASC 18.
2 Dean Cosenza v Paul Denisoff, @Realty Pty Ltd [2025] SAMC 3.
3 [2025] SAMC 3 at [9]-[14].
4 [2017] SASC 145.
5 Cosenza v Origin Energy Limited [2017] SASC 145 at [38].
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5 The magistrate also relied on the statement of principle by Blue J in the same
case with respect to the onus of proof concerning to the continuing existence of an
implied licence:6
By reference to principle and authority, the ultimate onus of proof at trial lies on a defendant
to prove the existence of an implied licence including where applicable to prove that no
notice was given forbidding entry. However, if the defendant proves at trial that he or she
entered an ordinary housing property in a city or town without seeing any sign or other
indication forbidding entry, it ordinarily creates an evidentiary onus on the plaintiff to
adduce some evidence that there was a sign forbidding entry or other indication that the
occupier was not granting an implied licence.
6 The magistrate set out at length the competing versions of the accounts of
what occurred on the day, together with the email correspondence that occurred
between the parties following the alleged trespass. Mr Cosenza initiated that email
correspondence by way of complaint. The magistrate concluded her assessment of
the two witnesses’ credibility as follows:7
In my opinion, neither Mr Cosenza’s or Mr Denisoff’s evidence was entirely reliable or
satisfactory. Some discrepancies and conflicting evidence could be explained by the normal
infirmities of memory with the passage of time and perceptions of self-interest in the
outcome. There was likely to be some reconstruction by both witnesses of their recollection
of an incident which occurred over a matter of minutes, five years earlier.
Conflicting evidence on critical factual matters concerning the existence of signage at the
driveway entrance and whether there was any conversation between Mr Cosenza and
Mr Denisoff on 6 November 2019 was more difficult to reconcile.
I generally preferred the evidence of Mr Denisoff where it conflicted with Mr Cosenza
unless there was other credible or reliable evidence that was consistent with his account,
for three main reasons.
7 First, the magistrate rejected Mr Cosenza’s submission that Mr Denisoff was
an ‘extremely evasive witness’.8 She found Mr Denisoff’s evidence to be
inherently plausible and generally consistent with the contemporaneous email he
had sent days after his visit in response to Mr Cosenza’s complaint.9 Mr Denisoff
said he had not seen any ‘no trespassing’ sign when he entered the property. He
explained this based on the direction and angle of his approach to the property. He
freely admitted he had seen one when he exited the pedestrian gate.
8 Secondly, the magistrate found Mr Cosenza’s evidence explaining the
absence of any verbal exchange or interaction with Mr Denisoff in his complaint
emails, and his asserted construction of his words in one email ‘when no one
attended you’ (implying that Mr Cosenza was conceding that he had not spoken
6 [2017] SASC 145 at [48], quoted by the magistrate in [2025] SAMC 3 at [17].
7 [2025] SAMC 3 at [44]-[46].
8 [2025] SAMC 3 at [47].
9 [2025] SAMC 3 at [47]-[48].
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[2026] SASCA 54 The Court
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with Mr Denisoff), to be incredulous.10 The magistrate explained this assessment
at length.11
9 Thirdly, the magistrate considered that Mr Cosenza’s memory of this
incident, as distinct from ‘the many other incidents’ that had occurred between
2012 and 2023, was likely impacted to some degree by his poor mental and
physical state on the day.12 She explained this conclusion in detail.13
10 The magistrate concluded that she was not satisfied that Mr Cosenza’s
evidence reflected what had occurred.14
11 The magistrate then turned to the question of the signage at the driveway
entrance that was in place on 6 November 2019. Mr Cosenza gave evidence that
on 6 November there were three warning signs, affixed to columns on the front
wall of the property, being two at the driveway and one at the pedestrian gate. The
signs were postcard-sized and located between waist and chest height. He accepted
that there had not always been two signs at the driveway but maintained there had
been two there since 2017.
12 The magistrate analysed the evidence of the existence of the signs closely.
She concluded on the balance of probabilities that the left sign on the driveway
was in situ on 6 November 2019. She was not persuaded, on balance, that the right
sign was in place when Mr Denisoff entered the property. She gave reasons for this
conclusion.15
13 The magistrate then turned to whether Mr Denisoff saw the sign. She
accepted that Mr Denisoff approached the property from the western side. She
accepted Mr Denisoff’s evidence that he did not see the sign:16
… as this was plausible by reason of the sign’s postcard dimensions, location, design,
wording and visibility based on the general angle of his approach, and the absence of any
other indication of the revocation of the implied licence.
14 The magistrate considered whether a reasonable person in the position of
Mr Denisoff would have seen the signage before entering the property on two
scenarios. The first was that there was a sign only on the left-hand side of the
driveway. The second was that there were signs on both sides. She approached this
analysis by reference to the following statement of principle:17
There must be effective communication of a decision to revoke an implied licence to enter
a residential property. The adequacy of the communication is dependent on the facts of the
10 [2025] SAMC 3 at [49].
11 [2025] SAMC 3 at [50]-[62].
12 [2025] SAMC 3 at [63].
13 [2025] SAMC 3 at [64]-[68].
14 [2025] SAMC 3 at [70].
15 [2025] SAMC 3 at [100]-[107].
16 [2025] SAMC 3 at [112].
17 [2025] SAMC 3 at [122]-[123].
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case, the category of the individuals to be excluded, the means of the communication and
to whom the communication was made.
If, as is the case here, the relevant communication takes the form of signage at the Property,
it must be adequate in terms of the size and positioning of the signs in order to amount to
an effective communication of the revocation of the implied licence.
(Footnotes omitted.)
15 The magistrate examined the ‘left sign only’ scenario first. She engaged in a
close analysis of the evidence by reference to the sign’s dimensions, location,
design and wording, low visibility based on the general line and angle of approach
and the absence of any other indication of revocation of the implied licence. She
concluded that a reasonable person in the position of Mr Denisoff was unlikely to
have seen the left sign, or if it had been seen, it would not have been appreciated
that it conveyed a message that entry to the property was forbidden. She based this
conclusion on the inadequate size of the sign, its inconspicuous positioning on the
relatively low column, the similarity to other signs displaying the word
‘WARNING’ prominently in the community and the absence of any other
objective indication of revocation of the implied licence.18
16 The magistrate then found, on the ‘two signs’ scenario, that a reasonable
person in the position of Mr Denisoff would, if anything, be less likely to notice
the right-hand sign based on the direction and angle of approach, the height of the
sign and its proximity to the threshold of the driveway. That is, she did not consider
that the presence of the right-hand sign, if it was there at the time, made any
material difference to whether there was effective communication of the
revocation of the implied licence to a reasonable person in Mr Denisoff’s
position.19
17 Having rejected Mr Cosenza’s evidence that there was a verbal exchange
between him and Mr Denisoff, the judge further found that Mr Cosenza did not
verbally communicate to Mr Denisoff the revocation of an implied licence to enter
the property.20
The appeal to a single judge
18 The Notice of Appeal from the magistrate’s decision contained four grounds
of appeal relevant to the trespass claim. Each of these grounds attacked a specific
aspect of the magistrate’s conclusions:
1. The learned Magistrate erred in failing to find that the elements of trespass had been
made out on the admissions made by the respondents in both their defence and the
statement of agreed facts and issues, which admitted the fact of entry, that there were
two signs located at the points of entry to the property, prohibiting entry into the
18 [2025] SAMC 3 at [141].
19 [2025] SAMC 3 at [145]-[146].
20 [2025] SAMC 3 at [147]-[148].
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property without invitation, and admitted that the wording of the signage was
sufficient to revoke any implied licence to enter the property.
2. The learned Magistrate erred in preferring the evidence of Mr Denisoff over that of
[Mr Cosenza] as to the absence of a third sign, whether he saw the sign, and whether
[Mr Cosenza] spoke to Mr Denisoff. The learned Magistrate gave inadequate reasons
for her findings, or alternatively the findings were contrary to the evidence as a whole
or alternatively were glaringly improbable.
3. The learned Magistrate erred by failing to take into account the second respondent’s
letter of 5 December 2019 which was to the effect that Mr Denisoff had received
training sessions about not trespassing and accordingly ought to have been on the
lookout for signage before entering the property. If he had been on the lookout for
signage there was no reasonable possibility that he could have failed to have seen
the signs prohibiting entry.
4. The learned Magistrate erred in finding that there was not an effective
communication of a notice to revoke an implied licence to enter the property. The
learned Magistrate ought to have found, on either factual scenario as to whether there
were two or three signs on the property that the signs were sufficient to revoke any
implied licence to enter into the property. The learned Magistrate ought to have
found that Mr Denisoff saw or read the signs, but in any event ought to have held
that it was immaterial whether he actually saw or read the signs. Further her Honour
erred in finding that the location and size of the signs was insufficient for a
reasonable person to have seen the signs.
19 The appeal judge rejected Mr Cosenza’s contention that it was immaterial
whether or not Mr Denisoff saw the signs, relying on the passage in Cosenza v
Origin Energy Limited,21 quoted earlier. Subject to the integrity of the finding that
Mr Denisoff did not see the signs, she held that the conclusion that he did not do
so shifted to Mr Cosenza an evidentiary onus of establishing that there were
warning signs revoking the implied licence.22 That finding is unimpeachable.
20 With respect to the complaint of inadequate reasons in Ground 2, the judge
held, in short order, that the magistrate’s reasons identified the relevant issues and
the law that was being applied and exposed the reasoning process leading to the
decision on each issue. She held that the reasons were not inadequate.23
21 The judge then turned to Ground 1. She observed, in the first instance, that
the ‘Statement of Facts and Issues’ was not a document agreed by the respondents.
Rather, it was a statement of Mr Cosenza’s position and his submissions.24 She
then traversed the admissions that the respondents did make. She observed that the
ground was in part reliant on the notion that whether Mr Denisoff saw the signs
was irrelevant to the question of liability, a position she characterised as
misconceived. She held that the respondents’ admissions were insufficient to
justify a finding in favour of Mr Cosenza and dismissed the ground.
21 [2017] SASC 145 at [48].
22 [2026] SASC 18 at [18].
23 [2026] SASC 18 at [20].
24 [2026] SASC 18 at [22].
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22 This conclusion was manifestly correct. Ground 1 failed to engage at all with
the magistrate’s finding that a reasonable person in the position of Mr Denisoff
would not have seen the signage before entering the property on either scenario.
This ground of appeal was bound to fail.
23 The judge then addressed the balance of Ground 2 and Ground 3 together,
under the broad heading, ‘Did the Magistrate err in her approach to the evidence?’
She summarised Mr Denisoff’s evidence and the magistrate’s treatment of that
evidence. She considered the evidence supporting the magistrate’s conclusion that
the signs were insufficient to communicate a revocation of the implied licence and
the competing evidence of whether any verbal exchange occurred. She then
concluded:25
In summary, the trial Magistrate’s evaluation of the issues was factual and open on the
evidence. [Mr Cosenza] has not demonstrated that the Magistrate’s findings of fact were
wrong, improbable or contrary to compelling inferences. No error has been established in
relation to any of these factual findings. I dismiss grounds 2 and 3 of the appeal.
24 With respect to Ground 4, the judge said that this ground was ‘largely
addressed’ by the magistrate’s acceptance of Mr Denisoff’s evidence that he did
not see the sign. However, she also went on to consider the magistrate’s assessment
of whether a reasonable person in Mr Denisoff’s position would have seen the sign,
‘noting that there must be effective communication of a decision to revoke an
implied licence to enter a residential property’.26 The judge noted that the
magistrate had correctly stated the test, and noted the effect of the magistrate’s
reasons for concluding that the signage did not constitute effective revocation of
the implied licence on either scenario. She concluded:27
The trial Magistrate’s reasoning was thorough, factual and open on the evidence.
[Mr Cosenza] has not demonstrated that the Magistrate’s findings were wrong, improbable
or contrary to compelling inferences. I dismiss this ground of appeal.
The application for leave to appeal from the decision of the single judge
25 The proposed Notice of Appeal to this Court contains six grounds of appeal,
several of which are particularised by numerous sub-grounds. It is focused on
attacking the appeal judge’s treatment of the magistrate’s finding that there was no
effective communication of the revocation of the implied licence, which was the
subject of Ground 4 of the appeal before the single judge.
26 In Southern Wire Pty Ltd v Clover Communications Pty Ltd,28 this Court
observed:29
25 [2026] SASC 18 at [35].
26 [2026] SASC 18 at [38].
27 [2026] SASC 18 at [39].
28 [2023] SASCA 18.
29 Southern Wire Pty Ltd v Clover Communications Pty Ltd [2023] SASCA 18 at [53] (Livesey P and
Bleby JA).
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The question of whether to grant leave to appeal looks to the following considerations:30
a) whether the decision is attended with sufficient doubt to warrant its reconsideration
on appeal;
b) whether the decision raises an issue of general principle or importance; and
c) whether allowing the decision to stand would work a substantial injustice to the
applicant.
(Footnote in original.)
27 Proposed Ground 1 complains that the appeal judge failed to conduct a ‘real
review’ of the evidence and failed to approach the matter on the basis that, sitting
as an appellate judge, she was in as good a position as the magistrate to decide on
the proper factual and legal inferences to be drawn from facts which were
undisputed or established by the magistrate’s findings. The ground complains that,
instead, the judge:
1.2.1. Adopted the approach that the learned Magistrate’s reasoning was ‘thorough, factual,
and open on the evidence’, and stated that [Mr Cosenza] had not demonstrated that
the Magistrate’s findings were ‘wrong, improbable or contrary to compelling
inferences’, rather than conducting a real review of those findings and dealing with
the competing legal arguments.
1.2.2. Failed to articulate in her reasons [Mr Cosenza’s] arguments as to why, on the
Magistrate’s findings, there was an effective revocation of the licence and failed to
address why those arguments were or were not correct, thereby failing to resolve the
real controversy on appeal.
28 In a similar vein, Proposed Ground 2 complains:
2. The learned Justice failed to provide adequate reasons for rejecting [Mr Cosenza’s]
arguments concerning the effectiveness of the signs and the revocation of the implied
licence.
29 Mr Cosenza’s essential complaints here, as developed in his written
submissions on the application for leave to appeal, are:
• the judge did not address the ‘central legal question’ as to whether a notice
revoking the implied licence must actually be read by the entrant, or whether
it is sufficient that the notice was clearly displayed so as to communicate the
revocation;
• the judge did not analyse the evidence as to the adequacy of the signage and
express conclusions as to whether the signage was effective;
• the judge did not explain why the magistrate’s reasoning was correct ‘or why
Mr Cosenza’s arguments as to the adequacy of the signs were not a pleaded
30 M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27 at [7] (Doyle and
Livesey JJA).
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issue having regard to admissions made in the defence’,31 or why the signage
was in any event adequate; and
• the judge did not explain why his arguments should have been accepted or
rejected.
30 The magistrate’s finding that Mr Denisoff did not read the sign was a finding
that Mr Denisoff ‘entered the Property without noticing any sign or other
indication forbidding entry’.32 This was obviously a necessary factual issue to
determine, because if Mr Denisoff had read the sign, the revocation would have
been communicated as a matter of fact. Mr Denisoff having entered the property
without seeing any sign or indication forbidding entry created an evidentiary onus
on Mr Cosenza to adduce evidence that there existed such a sign or other
indication.33 Ultimately, in circumstances where the magistrate found Mr Denisoff
had not seen any sign, the question of revocation depended on whether Mr Cosenza
had erected a sign at the entrance which would be seen by a reasonable person in
the position of the defendant.34 We do not read the magistrate’s reasons as turning
only on whether Mr Denisoff read the sign. Having found that he did not, the
magistrate clearly considered it necessary to determine whether, nonetheless, the
sign would have been seen by a reasonable person in the position of Mr Denisoff.
That was the correct approach. Whether a notice revoking the implied licence must
actually be read by the entrant was not a ‘central legal issue’ arising. It was one of
a number of relevant factual issues.
31 Having said that, Mr Cosenza’s complaints that the appeal judge did not
analyse the evidence of the adequacy of the signage, the magistrate’s reasoning or
why his arguments should have been accepted or rejected, have more force. We
have set out the judge’s conclusions earlier. As Mr Cosenza submitted, the appeal
judge was in as good a position to examine the evidence of the signage as the
magistrate. However, the judge concluded that the magistrate’s findings were
‘open’, and that Mr Cosenza had not demonstrated that the magistrate’s findings
were wrong, improbable or contrary to compelling inferences. This conclusion was
not accompanied by the judge’s own analysis of the evidence.
32 Insofar as the question of the adequacy of the signage did not depend on
questions of credibility of Mr Cosenza and Mr Denisoff, the correct approach on
appeal was that explained in Warren v Coombes:35
Shortly expressed, the established principles are, we think, that in general an appellate court
is in as good a position as the trial judge to decide on the proper inference to be drawn from
facts which are undisputed or which, having been disputed, are established by the findings
of the trial judge. In deciding what is the proper inference to be drawn, the appellate court
31 The asserted admissions being that there was a sign but that Mr Denisoff did not see it until he left the
property, and admitting the wording of the sign.
32 [2025] SAMC 3 at [113].
33 Cosenza v Origin Energy Limited [2017] SASC 145 at [48].
34 Cosenza v Origin Energy Limited [2017] SASC 145 at [38].
35 (1979) 142 CLR 531 at 551 (Gibbs ACJ, Jacobs and Murphy JJ).
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will give respect and weight to the conclusion of the trial judge, but, once having reached
its own conclusion, will not shrink from giving effect to it.
33 In Lee v Lee,36 the High Court explained the obligation to conduct a ‘real
review’:37
A court of appeal is bound to conduct a “real review” of the evidence given at first instance
and of the judge’s reasons for judgment to determine whether the trial judge has erred in
fact or law38. Appellate restraint with respect to interference with a trial judge’s findings
unless they are “glaringly improbable” or “contrary to compelling inferences”39 is as to
factual findings which are likely to have been affected by impressions about the credibility
and reliability of witnesses formed by the trial judge as a result of seeing and hearing them
give their evidence. It includes findings of secondary facts which are based on a
combination of these impressions and other inferences from primary facts40. Thereafter,
“in general an appellate court is in as good a position as the trial judge to decide on the
proper inference to be drawn from facts which are undisputed or which, having been
disputed, are established by the findings of the trial judge”41.
(Footnotes in original.)
34 We consider that it is reasonably arguable that the appeal judge did not
conduct a real review of the evidence for the purposes of determining Ground 4.
Mr Cosenza submitted that this failure extended to the judge’s consideration of
Grounds 2 and 3 also. However, Proposed Ground 1 is confined to the appeal
judge’s disposition of Ground 4.
35 Proposed Ground 2 complains that the judge ‘failed to provide adequate
reasons for rejecting [Mr Cosenza’s] arguments concerning the effectiveness of
the signs and the revocation of the implied licence’. This proposed ground most
clearly relates to the judge’s treatment of Ground 4 of the appeal. Its prospects are
bound up with Proposed Ground 1. We do not think that this ground could be easily
said to attach to the judge’s treatment of the complaints in Grounds 2 and 3 on the
appeal, as these grounds related to matters not directly concerned with the
effectiveness of the signs or the revocation of the implied licence. They were
concerned, rather, with the competing accounts of Mr Cosenza and Mr Denisoff,
and the effect of Mr Denisoff’s second letter.
36 We are prepared to accept that Proposed Grounds 1 and 2 are reasonably
arguable in respect of the appeal judge’s treatment of Ground 4 of the appeal before
her. The matter does not end there, however. On a subsequent appeal to this Court,
36 (2019) 266 CLR 129.
37 Lee v Lee (2019) 266 CLR 129 at [55].
38 Fox v Percy (2003) 214 CLR 118 at 126-127 [25] per Gleeson CJ, Gummow and Kirby JJ; Robinson
Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 686 [43]; 331 ALR 550 at 558; [2016] HCA
22.
39 Fox v Percy (2003) 214 CLR 118 at 128 [29] per Gleeson CJ, Gummow and Kirby JJ; Robinson
Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 687 [43]; 331 ALR 550 at 558-559.
40 Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 at 434-435 [144]; [2013] HCA 25; Thorne v
Kennedy (2017) 263 CLR 85 at 104 [42]; [2017] HCA 49.
41 Warren v Coombes (1979) 142 CLR 531 at 551 per Gibbs A-CJ, Jacobs and Murphy JJ; [1979] HCA
9; see also Fox v Percy (2003) 214 CLR 118 at 127 [25].
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and assuming that Mr Cosenza was to be successful on these grounds, it would be
necessary for this Court to conduct its own review of the evidence for the purposes
of determining whether the magistrate’s findings should be disturbed. That then
raises the substantive complaints on appeal as to what it is contended the judge
should have, but failed, to find.
37 Proposed Ground 3 complains:
3. The learned Justice erred in failing to find:
3.1. That there were three, or alternatively two, signs at the entrance to the Property
being on the pillars to the driveway and on the gate (‘signs’).
3.2. That the signs were in bright red colours with capital letters stating
‘WARNING. ENTRY IS FORBIDDEN. ENTER BY EXPRESS
INVITATION ONLY.
3.3. That the signs were colourful, prominent, not obscured in any way and located
at the only two entry points from the street.
3.4. That the signs were effective to provide an effective communication of the
revocation of a licence to enter the property regardless of whether the
respondent read the signs before entry or not.
38 This appears to be a complaint of a failure to draw, ultimately, different
inferences from the facts as found by the magistrate. As to Particular 3.1, the
magistrate found that there was a sign on the left side of the driveway and one at
the pedestrian gate. That is, she found there were at least two signs. In any event,
she considered the alternative scenario if she was wrong and that there was also a
sign on the right side of the driveway for which there was evidence of it having
existed at some point in 2017.
39 As to Particulars 3.2-3.4, the magistrate made clear findings of fact about the
form of the signs:42
Dimensions
Mr Cosenza agreed that the Warning Sign was about the same size and thickness as a
standard postcard. I measured the width and height of Exhibit A2 as 14.8 cm x 10 cm. To
put it in a broader context, the Warning Sign is roughly the same area as my iPhone Pro 11
Max but much thinner.
Location
At the time of the incident the front boundary wall including the columns was
predominantly painted in a cream or light beige colour. The column on which the Left Sign
was affixed was measured by Mr Cosenza as being slightly in excess of 1100 mm in height
and 500 mm wide. As mentioned earlier the columns were the highest point of the front
42 [2025] SAMC 3 at [126]-[133].
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boundary wall at the Property. The Warning Sign was placed on the cream or beige
coloured section of the column.
I do not accept Mr Cosenza’s evidence that the column height would reach the chest height
of an average adult based on the photographs of Mr Cosenza standing next to the columns.
Mr Cosenza said that he is 175 cm (approximately 5 feet 8 inches) tall. As shown in the
photograph of him standing next to the column, the top of the column appears to just reach
his waistline. In any case, the position of the Warning Sign was below Mr Cosenza’s waist
(i.e., around a height of 1 metre) and well below his eye level.
Design and wording
The background of the sign is white. By far the most prominent word on the sign is
‘WARNING’. It is written in bold red in uppercase font in the top section of the sign. The
words ‘ENTRY IS FORBIDDEN’ are also written in bold red uppercase but are written
underneath the word ‘WARNING’ at about half the size. The balance of the wording is
smaller and in my view unlikely to be legible unless a person was standing very close to
the sign for the purpose of reading it.
Approach to Property
Mr Denisoff’s evidence about the direction he was walking on Glen Eira Street and the
path he took approaching and entering the Property was for the most part unchallenged. He
said he was walking in an easterly direction on the footpath on the same side as the Property
about 50 cm from the fence line. Mr Denisoff’s recollection was generally supported by his
yellow markings on the Google images he attached to the Denisoff Email. He also gave
evidence to the effect that a video taken by the respondents’ solicitor for use at trial fairly
replicated his approach including the height and angle.
Mr Cosenza effectively argued that the video stopped short of the Property and did not
fairly show the angle of approach.
In my view, the video was of limited probative value as it was not obtained under controlled
circumstances or if it had been there was no evidence about those circumstances. For
instance, there was no evidence about the precise distance between the footpath and the
fence line of the properties on the approach to the Property. Nor was there any evidence
about the height from which the video was taken and how that compared with
Mr Denisoff’s height and eye level.
Nonetheless, the video showed the general surroundings of the footpath and fence line of
the approach to the Property. In particular, it showed that the footpath abutted the fence
line (i.e., there was no grass verge in between) such that it was possible to walk very close
to the fence line and within half a metre from the fence line (as Mr Denisoff said he had
done).
(Footnotes omitted.)
40 The magistrate concluded:43
In my opinion, a reasonable person in the position of Mr Denisoff (i.e., based on the
direction and angle of approach to the Property) is unlikely to have seen the Left Sign, or
43 [2025] SAMC 3 at [141].
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if they had noticed the sign they would not have appreciated that it conveyed the message
that they were forbidden to enter the Property, because of:
• its inadequate size;
• inconspicuous positioning on the relatively low column, well below eye level;
• the likeness or similarity of the design and prominence of the word ‘WARNING’ to
other signs commonly used in the community conveying different messages; and
• the absence of any other objective indication of Mr Cosenza’s intentions to revoke
the implied licence to enter the Property.
41 As noted earlier, the magistrate’s analysis of the right sign, should it have
been in place in 2019, was to the effect that it was, if anything, less noticeable.
42 Proposed Ground 3 does little more than make assertions about the character
of the signs in the face of the magistrate’s detailed findings about them and her
reasoned conclusions as to their effectiveness in communicating a revocation of
the implied licence. Ground 3 has no prospect of success.
43 Proposed Ground 4 is lengthy. It reads as follows:
4. The learned Justice erred at [17]-[18] in her construction of [Mr Cosenza’s]
argument on appeal and in failing to deal with [Mr Cosenza’s] actual argument.
[Mr Cosenza’s] argument at [45] – [66] of its written outline of appeal was that the
onus of proof of a defence to trespass, (here an implied licence), was on the
respondent; that the respondent has an onus to prove that there was no notice
forbidding entry; that if the respondent gave evidence that they did not see a sign or
other indication forbidding entry that there was an evidentiary onus on [Mr Cosenza]
to adduce some evidence that there was in fact a sign forbidding entry; that
[Mr Cosenza] discharged that onus by leading evidence that there were three signs
on the property (and the existence of two of the three signs on the day in question
was admitted by the respondents), and accordingly the persuasive onus remained on
the respondents to show that there was an implied licence to enter the property which
onus was not discharged. The learned Justice ought to have found:
4.1. That [Mr Cosenza] discharged the evidentiary onus of adducing evidence that
there were three signs.
4.2. That the learned Magistrate erred in finding that there were only two signs as
her reasoning was speculative and involved converting the absence of
evidence and speculation into the status of evidence:
4.2.1. The [Mr Cosenza] gave positive evidence that there were three signs.
4.2.2. The respondents did not give any positive evidence that there were only
two signs.
4.2.3. There was no positive evidence that there were only two signs.
4.2.4. The positive evidence included reference to a photo taken before the
day in question accompanied by evidence that the signs as depicted in
the photo remained on the day in question.
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4.2.5. The lack of a photo of the entrance on the day in question is not positive
evidence that there were only two signs on the day in question. The fact
that meta data of the photo tendered in evidence was not ‘forensically
examined’ evidence does not mean that what the photo depicted, or its
date was unreliable.
4.2.6. The first respondent’s evidence was insufficient to justify a conclusion
there was only two signs – that evidence being that on the day in
question he did not see either sign on the driveway but saw the sign on
the gate as he left, but accepted there was a sign on the driveway by
reference to an outdated ‘google maps’ photo.
4.2.7. The Magistrate’s approach of speculating by reference to what she read
in Cosenza v State of South Australia [2024] SASC 97 that a sign could
have fallen off was erroneous and speculative reasoning because there
was no evidence that one of the signs had fallen off.
4.3. That regardless of whether there were two or three signs that they were
effective to communicate a revocation of any implied licence. Unless the signs
were of a kind that would not reasonably come to the attention of a reasonable
visitor, (which was not the case), it was immaterial whether the visitor actually
read them or not.
44 This ground is highly problematic. First, the magistrate assessed the position
on the alternative basis that there were three signs. The magistrate’s ultimate
conclusion was that the signs, whether two or three of them, were insufficient to
communicate the revocation of the implied licence to a reasonable person in the
position of Mr Denisoff. It may be accepted that on evidence being adduced of the
existence of two or three signs, a persuasive onus lay with Mr Denisoff to establish
that they did not reasonably communicate revocation of the implied licence.
However, that onus was satisfied by the very character and placement, etc., of the
signs as analysed by the magistrate.
45 It is the final inference referred to in Particular 4.3 that this ground must
ultimately overcome. Mr Cosenza has merely asserted, by reference to certain
features of the signs, that they were such that a reasonable person in the position
of Mr Denisoff would see them. Mr Cosenza has not engaged with the magistrate’s
findings of fact that weighed against the effectiveness of the signs or the analysis
on the basis of those findings. We are not persuaded that this ground is reasonably
arguable.
46 Mr Cosenza’s written submissions also submit that there was no pleading by
the respondents that a reasonable person would not have seen the notice, and that
‘this raises a procedural fairness point’. In circumstances where no procedural
fairness ground was included in the Notice of Appeal before the appeal judge, we
reject that any ‘point’ of this nature is properly raised.
47 Proposed Ground 5 complains:
5. The learned Justice erred in failing to find that the first respondent’s evidence that he
did not see the signs was glaringly improbable in light of the evidence as to their
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prominence, his training about the law of trespass and need to look out for signage,
and his usual practice or looking out for signage.
48 The prospect that Mr Denisoff’s evidence about not seeing the signs would
be found by this Court to be glaringly improbable is remote in the extreme. The
magistrate gave careful and detailed reasons for accepting those parts of
Mr Denisoff’s evidence. There was nothing inherently improbable in
Mr Denisoff’s account that he did not see the signs. The magistrate based her
conclusion, that it was more likely than not that Mr Denisoff did not see the signs,
in part on the sign’s postcard dimensions, location, design, wording and visibility,
based on the general angle of his approach.44 She also based it on Mr Denisoff’s
subsequent conduct.
49 Proposed Ground 6 complains:
6. The learned Justice erred in failing to find that the implied licence was also revoked
orally.
50 This appears to be an exhortation to reversing the findings of credit that the
magistrate made in rejecting Mr Cosenza’s account that there was a verbal
interaction between him and Mr Denisoff. The magistrate’s rejection of
Mr Cosenza’s evidence was carefully reasoned. There is nothing to support the
necessary proposition that her conclusion was glaringly improbable. This ground
has no prospect of success.
51 As indicated, we accept that Proposed Grounds 1 and 2 have some prospects
of success in respect of the appeal judge’s treatment of Ground 4. However, the
consequence of success on either or both of those grounds would be that this Court
would then need to conduct a real review of the evidence to examine whether any
of Mr Cosenza’s substantive complaints about the magistrate’s reasoning and
conclusions are established. The prospect of disturbing any of the magistrate’s
findings in the manner contended for in the balance of the proposed grounds of
appeal, or in the Notice of Appeal before the single judge, are negligible.
52 Mr Cosenza submitted that the proposed appeal raised the following issues
of general importance:
48. The appeal raises questions of general importance concerning the scope and
revocation of the implied licence to enter residential property – an issue that
frequently arises in the context of door-to-door sales, real estate agents, process
servers and police entry onto land:
48.1 Does an implied licence to enter arise if there is a sign but the respondent did
not read the sign? This is a topic that [Mr Cosenza] asserts is implicit in the
case law discussed above, but rarely addressed explicitly. This gives the Court
of Appeal an opportunity to clarify the law.
44 [2025] SAMC 3 at [112].
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48.2 Are there minimum requirements of ‘reasonableness’ relating to signage in
order to convey that any implied licence is revoked, in terms of what the sign
needs to convey, or how big it needs to be? Again, this topic appears to be
rarely traversed in the authorities.
48.3 Can the respondent argue the signage was not reasonable without pleading it?
48.4 Who bears the onus of proof on whether the signage was ‘reasonable’?
53 For reasons already discussed, the first question does not arise. The finding
that Mr Denisoff did not read the sign was based on the finding that he did not see
it. That was not determinative of the action. The question devolved to, and the
claim was determined on the basis of, the reasonableness of the notice.
54 The second question does not arise. Whether the signs reasonably conveyed
revocation of the implied licence was a question of fact in the particular case, as it
is in every case.
55 The third question does not arise. As discussed earlier, this did not form a
ground of appeal before the single judge.
56 The fourth question does not arise. Even accepting the persuasive onus stayed
with the respondents, that onus was satisfied on the basis of all the evidence
concerning the signs.
57 Finally, allowing the appeal decision to stand would not result in a substantial
injustice. Accepting that it is arguable that the appeal judge did not engage in a
real review of the evidence, the prospects of success on a real review are negligible.
Further, and accepting that trespass is actionable per se,45 no actual damage has
been shown. That is not a complete answer to the question of injustice. However,
to the extent that Mr Cosenza may have lost a (remote) chance of an award of
damages, in the circumstances of this case that loss does not represent a substantial
injustice.
Conclusion
58 We refuse leave to appeal.
45 Plenty v Dillon (1991) 171 CLR 635 at 654 (Gaudron and McHugh JJ).
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