NQCYC Marina Assc Inc v Dolkens
[2022] QDC 178
•30 August 2022
DISTRICT COURT OF QUEENSLAND
CITATION:
NQCYC Marina Assc Inc v Dolkens [2022] QDC 178
PARTIES:
NORTH QUEENSLAND CRUISING YACHT CLUB MARINA ASSOCIATION INCORPORATED
(Applicant)
v
ROSSLYN JOY DOLKENS
(Respondent)
FILE NO: 2 of 2021
DIVISION:
Civil
PROCEEDING:
Judgment
ORIGINATING COURT:
District Court
DELIVERED ON:
30 August 2022
DELIVERED AT:
Townsville
HEARING DATE:
19 May 2022
JUDGE:
Coker DCJ
ORDER:
1. An injunction is granted.
2. The Respondent is:
a. Restrained from berthing or mooring the vessel known as “Purrfect” in Berth 28 at the Applicant’s marina;
b. To remove or cause to remove the vessel from Berth 28 at the Applicant’s marina; and
c. Not to cause or permit any vessel (including any projections) to be berthed or moored in Berth 28 at the Applicant’s marina which exceeds 10 metres in length by 3.5 metres in beam.
3. The Respondent is allowed 28 days from the date of this Order for the purposes of removing the vessel, “Purrfect”, from Berth 28 at the Applicant’s marina.
4. Submissions as to costs must be filed by the Applicant within 21 days of this Order, and the Respondent within 14 days of receipt of any such submissions.
5. Unless specific request is to be made to hear submissions on costs orally, the question of costs is to be determined in Chambers.
CATCHWORDS:
CIVIL LAW – TORTS – TRESPASS – WHAT CONSTITUTES TRESPASS – where the applicant was the registered lessee of a marina under a deed lease of crown land – where the respondent has purchased the sublease of marina berth 28 from the previous sublessee – where the respondent had not previously considered the terms of the licence to moor – where the respondent’s husband’s vessel was of a greater beam than that allowed under the licence to moor – where the respondent’s husband’s vessel protruded over the boundary of the sublease – whether that protrusion constituted a trespass.
CIVIL LAW – CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES - where the applicant was the registered lessee of a marina under a deed lease of crown land – where the respondent has purchased the sublease of marina berth 28 from the previous sublessee – where the respondent had not previously considered the terms of the licence to moor – where the respondent’s husband’s vessel was of a greater beam than that allowed under the licence to moor – where the respondent sought an exemption from the applicant as to the size conditions on the licence to moor – where the applicant refused the exemption – whether the respondent thereby breached the provision of the licence to moor – where the applicant applies for an injunction to prevent the respondent’s husband from mooring his vessel in the berth – whether the injury to the applicant was small and disproportionate to the detriment to the respondent if an injunction were granted – whether damages could awarded instead of an injunction.
LEGISLATION:
Land Act 1994 (Qld).
CASES:
Entick v Carrington [1765] 19 STTR 1029, considered.
Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287, considered.
Plenty v Dillon [1991] 171 CLR 635, cited.
Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd [2007] 20 VR 311, cited.
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] 256 CLR 104, cited.
Emprja Pty Ltd v Red Engine Group Pty Ltd [2017] QSC 33, cited.COUNSEL: Evans. W for the Applicant
SOLICITORS: Macrossan & Amiet Solicitors for the Applicant
Woods Hatcher Solicitors for the Respondent
Introduction
On the 8th of December 2020, NQCYC Marina Association Incorporated filed an originating application in this Court seeking the following orders:
(1) That the respondent removes or cause to be removed the vessel, “Purrfect”, from marina berth 28, NQCYC, on the grounds that the vessel is in excess of the permitted length and breadth.
(2) That the respondent be restrained from berthing or causing to berth any vessel in berth 28 of dimensions in excess of the dimensions permitted under the licence in respect of that berth.
(3) That the respondent paid the applicant’s cost of the application.
It is agreed that the application has been served upon the respondent in these proceedings, and material in response, has been filed.
For the purposes of these reasons, I shall hear and after refer to NQCYC Association Incorporated as, “the applicant” and Rosslyn Joy Dolkens as, “the respondent”.
Before proceeding in a more in-depth manner in relation to the determination of this matter, I should note that on the day of the hearing of the argument, the 19th of May 2022, the legal representatives for the applicant provided a draft of the order that is sought in relation to this matter. To all intents and purposes, it constitutes the same order as was detailed in the originating application but it, perhaps, reflects a more legalistic tone to the terms of the orders that are sought.
The order sought in the draft provided to Court is in these terms:
(1) An injunction is granted and the respondent is;
(a) restrained from berthing or mooring the vessel known as “Purrfect” in berth 28 at the applicant’s marina;
(b) to remove or cause to remove the vessel from berth 28 at the applicant’s marine and;
(c) not to cause or permit any vessel (including an projections) to be berthed or moored in berth 28 at the applicant’s marina which exceeds 10 metres in length by 3.5 metres in beam.
(2) The respondent pay the applicant’s cost of the proceedings.
As I indicated, there is some history in relation to this matter and, by way of background, it is important that the background is properly understood. It should be noted, therefore, that the Association, or the applicant, is the sublessee from the State of Queensland of land at Bowen on which is located the marina, including the berthing facilities, the subject of these proceedings. It is also noteworthy that the respondent is a member of the Association and a licensee and that the vessel, Purrfect, owned by the respondent’s husband, Bastiaan Dolkens, presently occupies berth 28 at the marina.
It is accepted that the applicant grants permission to members to moor vessels at the marina by way of long-term licenses. The licenses are capable of being transferred to other members provided the transferee agrees to the terms of the licence and the Association also consents. The licence also requires members to abide by the rules of the Association. That background is important to understand in the context of what has occurred here.
The respondent to the application purchased berth 28 at the marina following notice being given by, it would seem, an employee or member of the applicant Association on the 6th of June 2021, to the effect that berth 28 was available for purchase. As the evidence appears to outline, the respondent then made contact with the previous owner of berth 28, Deborah Perkinson, providing details of the size of her husband’s vessel and of the intention to moor the vessel in that berth. It is said that those communications, as between the respondent and the previous owner, included indications as to the dimensions of the vessel Purrfect.
Agreement, subsequentially, was then reached between the respondent and Ms Perkinson in relation to the sale of the berth and, again, it appears uncontested, but on the 8th of July 2021 agreement was reached as to the purchase of berth 28.
What is important to recognise in that regard, is that what was purchased was the licence to moor at berth 28 and not necessarily the berth, though, there appears to be some dispute in relation to that particular aspect of the matter. Annexed to the affidavit of the secretary of the applicant, Ian Douglas Haigh, which affidavit was filed on the 4th of March 2022, is a copy of the licence to moor. The licence to moor specifically notes as follows:
The licensee shall have the sole right of mooring vessel not exceeding a maximum length of 10 metres and not exceeding a nominal beam of 3.5 metres including all projections.
The licence to moor goes on to note that the licence is effective from the 21st of May 1991 for a period of 30 years, thus expiring on the 22nd of May 2021, a date which preceded the respondent and Ms Perkinson entering into agreements in relation to the sale of the licence to moor. The licence to moor goes on, however, to provide that in addition to the right of mooring a vessel, subject to the beam and length detailed therein, that the licensee and their invitees and guests covenant that at all times they will observe and confor to the rules and regulations of general conduct of the marina, of the North Queensland Cruising Yacht Club as existing and varied, from time to time.
There are, therefore, two parts to the agreement entered in to as between the applicant and any member of the association. It would appear that the respondent did not have knowledge of the terms of the license to moor at the time of entering into the agreement to purchase the license to moor. In material filed on behalf of the respondent, it appears clear that that is acknowledged, noting specifically that she was:
…at the time acting under the belief that LTM28 entitled me, the “Sole right of mooring a vessel not exceeding a maximum length of 10 metres and not exceeding a nominal beam of six metres, including all projections.”
That appears, clearly to reflect the dimensions of the berth itself and at least in part gives rise to the dispute that is now relevant here. It should also be noted in that regard, however, that the vessel which had previously been moored at berth 28 was a vessel which, in fact, exceeded the dimensions which were allowed pursuant to the licence to moor. The respondent submits that she was not advised of the maximum vessel dimensions permitted for the berth as contained and noted within the license to moor, but only that she was aware of the berth size of 10 metres by six metres and suggested that that was more than sufficient to moor the catamaran “Purrfect”, which was owned by her husband.
The respondent also notes, and it does not appear to be contested, that the previous licensee allowed her husband’s catamaran, “Albatross Bay” to be moored for many years, it is suggested perhaps 20, at berth 28 and that the overall dimensions of Albatross Bay was 10 metres by 5.5 metres, in other words, a vessel considerably wider than the vessel now occupying berth 28, “Purrfect”. The further incidents in relation to this matter and said to be of significance here, is that the respondent says that there were specific negotiations between her husband, on her behalf, with regard to the purchase of berth 28 as between he and the secretary, Ian Douglas Haigh.
The respondent notes the nature of those discussions in paragraphs 7, 8, 9 and 10 of the affidavit of the respondent filed on the 14th of February 2022. Those paragraphs are in these terms:
7. As a past member of the Marina Association Management Committee I worked with the Secretary, Mr Ian Haigh, to look at other options for calculating the annual fees to be charged to owners. The document now produced and marked “BD3” is a true copy of an Excel Spreadsheet identified as “Copy of Marina Fees Calculation 2015 three options.xlsx”.
8. The document “BD3” clearly shows Berth 28, listed as owned by Mark Perkinson, to be a “10m x 6m m” berth. This document, unlike the hard copies of the 30+ year old expired licences stored on the premises of RTB Solicitors in Bowen, is used for the important function of calculating the annual fees payable by the members of the Association, Mr Haigh and I, as well other licensees, know what sizes our berths are, and the size of Berth 28 is beyond doubt 10 metres by 6 metres.
9. Berth 28 is defined by the Association as measuring 10 metres by 6 metres.
10. Rule 1 of the Association provides: “1) That the length and beam of a vessel must not exceed the dimensions of the berth it occupies.”
What is noteworthy in particular in relation to that statement is that reference is made to correspondence that passed between the applicant and the respondent on the 26th of July 2021, as well as communications on the same day from the respondent to the applicant and further correspondence on the 7th of September 2021. It is contended by the respondent as detailed in paragraph 10 of her affidavit that, “The reply clearly shows that the association failed to honour our agreement.”
It is noteworthy, however, that there does not appear to be any real evidence as to the nature of any agreement, other than that which is contained within the communications that passed. In particular, the correspondence of the 26th of July 2021 from Mr Haigh as secretary treasurer of the applicant, notes specifically that the license to moor for berth 28 stipulates the berth size is 10 metres by 3.5 metres. It goes on that a boat using the berth would have to conform with those requirements and that,
The license to moor would be transferred to the new owner with those conditions as are on the license to moor, as are all berth transfers on the marina.
The correspondence then goes on to note, that the respondent’s husband’s vessel has a beam in excess of 3.5 metres, as stipulated in the license to moor and that the procedure then to be followed would be to apply to the applicant for an exemption to the size condition, as is on the licence. More particularly, it goes on to detail information that should be provided including information as to whether or not there is impact upon access to other berths along the marina, and that the:
...decision to allow use by a multihull again would take all this into account.
The communication notes specifically the information and exemption request should be supplied and be approved before the proposed sale could take effect. I note in that regard that the respondent has confirmed that she had in fact effected payment to Mrs Perkinson through a direct deposit to her bank account shortly after receiving correspondence from the solicitor acting on behalf of both parties and it would seem, at least initially, also acting on behalf of the applicant, on or about the 21st of July 2021.
On the face of it, of course, it therefore appears that the settlement was effected before there was any discussion held as to requirements that might arise pursuant to the licence to moor, and as I have previously noted, it would appear that, in fact, the purchasers had not even sighted the licence to moor nor, as they suggest, were they advised of the terms of the licence to moor, notwithstanding that the legal representatives involved in the matter were the same legal representatives for the vendor, the purchaser and the applicant. The communication of the 26th of July 2021 goes on to specifically note that:
All sales of a licence to moor have to be endorsed by the NQCYC Marina Association, signed and stamped and returned to Ruddy, Tomlins & Baxter, Bowen, our solicitors.
As indicated, the respondent promptly communicated with the applicant in relation to the requirements with respect to the licence to moor attaching to berth 28 at the marina, and interestingly, though it is said that the moneys were paid some time before, indicate that the respondent is purchasing, and I would have thought that this infers future tense, the licence from Deborah Perkinson and that they have been advised that the previous vessel moored at berth 28, “Albatross Bay”, exceeded the dimensions contained with the licence to moor.
As such, the correspondence goes on specifically to seek an exemption from the applicant as to the size conditions on the licence. It also appears clear that there is therefore an acceptance that the licence in the terms that it then existed, precluded a vessel the size of the respondent’s husband’s vessel from being moored within the berth, notwithstanding any indication as to the actual size of the berth.
The communication from the respondent also notes the dimensions that are suggested to exist in relation to the vessel “Purrfect”, though there does appear to be some variations in relation to those dimensions, dependent upon which documents are viewed. In any event, the respondent seeks an exemption, in relation to the dimensions of the vessel to be moored in berth 28.
Subsequently, on the 7th of September 2021, correspondence is forwarded by Mr Haigh on behalf of the applicant, advising that the applicant is endorsing the licence to moor for berth 28 transfer/sale and will return the document to Ruddy, Tomlins & Baxter, Bowen, as they requested. It goes on, specifically, to note that the licence to moor for berth 28 will not be altered to accommodate the vessel “Purrfect”, which is oversize in length and beam to use berth 28. The correspondence notes that, as such, it would not be the case that berth 28 would be able to accommodate the vessel “Purrfect” and that alternative arrangements would have to be made to moor the boat.
Proposals are also put with regard to there being some additional time available to enable alternative arrangements to be made in relation to the berthing of the vessel “Purrfect”.
It is with that background information that the proceedings then were brought before this Court. On the first occasion that the application was returnable before the Court, orders were made for the parties to participate in mediation in an endeavour and attempt to resolve the dispute, however, that was unable to be achieved, and the litigation continues.
Before turning to the actual determination of this matter, I note that there is no dispute as to the jurisdiction of this Court to make orders in the terms that are sought. In particular, sections 68 and 69 of the District Court of Queensland Act 1967 specifically confer the jurisdiction upon the Court to hear and determine actions for rectifying any agreement and to determine any question of construction, arising under a written instrument. There is no question or contest in relation to the jurisdiction of the Court.
The issue, then, is as to the course that should be followed in relation to the application generally. From the perspective of the applicant, and it does not appear, at least insofar as the beam of the vessel is concerned, is that the vessel perfect does exceed the allowable limits as to size, in relation to the requirements of the licence to moor.
To assist me in relation to this particular matter each of the parties’ legal representatives addressed me in relation to issues with regard to the arguments which were relevant in respect of their case. Perhaps not unsurprisingly, each of the legal representatives took a somewhat different approach in relation to the manner in which the Court would determine the proceedings. From the perspective of the applicant, it was contended that the applicable principles related specifically to issues in relation to trespass, contracts and injunctions generally.
Insofar as trespass was concerned, I was referred specifically to the decision in Plenty v Dillon [1991] 171 CLR 635, where the High Court quoted from Entick v Carrington [1765] 19 STTR 1029 at 1066. There the High Court said:
The starting point is the judgment of Camden LCJ in Entick v Carrington:
By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing… If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him.
The High Court then went on to specifically address issues in relation to the provisions of the Land Act 1994 (QLD) and the capacity for release to be made of unallocated state land, for a term of years. It is, of course, that which has occurred in relation to the land upon which the applicant’s marina now stands, and whilst the original term of the lease has expired, it continues on a month-by-month basis, with negotiations apparently proceeding in respect of a fresh, longer-term lease being facilitated. In any event, there seems to be little dispute as to the ownership of the land, and the right to occupy, vested in the applicant.
There is, therefore, an issue in relation to trespass as argued by the applicant, and it is clear, also, that the applicant says that there is no remedy properly available other than that there should be an injunction precluding the respondent or anyone else from occupying a berth with a vessel that exceeds the dimensions prescribed pursuant to the licence to moor. Insofar as the applicant is concerned, the proper construction of the contractual or commercial obligations as between the parties is outlined in the decision of Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Limited [2015] 256 CLR 104. There, the Court says:
The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.
And it continues:
In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract, and the commercial purpose or objects to be secured by the contract.
Here, the applicant again argues that the contractual obligations and, therefore, responsibilities that arise as between the applicant and respondent, directly relate to both the contents of the licence to moor and the rules of the applicant association. As such, the applicant says that the requirement contained within the licence to moor is fundamental to the right to occupy berth 28 at the marina, and that, therefore, without an exemption being provided, as was sought and refused, there is no right to occupy, notwithstanding any other considerations should the vessel to be moored within that marina berth is greater in size than 10 metres by 3.5 metres.
Thirdly, at least insofar as any issue might arise with regard to alternative remedies that might be available in relation to the applicant, so as to not require the issuing of an injunction, the applicant contends that:
The plaintiff is prima facie entitled to an injunction, and Courts will generally be reluctant to award damages instead where an award of damages would amount to a compulsory sale (or, a compulsory expansion of the berth for an indeterminate term).
Reference is made there specifically to the decision in Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd [2007] 20 VR 311 to 319. It is noted that, in that case, specific reference is made to Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287 at 322-323, where AL Smith noted:
Many judges have stated, and I emphatically agree with them, that a person, by permitting a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the court to sanction his doing so by purchasing his neighbour’s rights, by assessing damages in that behalf, leaving his neighbour with the nuisance of his light’s dimmed as the case may be.
And within that quotation, continuing down a line:
In such cases, the well-known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff’s legal right has been invaded and he is prima facie entitled to an injunction.
The applicant contends that that position was reinforced in the recent Supreme Court decision of Emprja Pty Ltd v Red Engine Group Pty Ltd [2017] QSC 33 where Justice Jackson, after considering an argument not at all dissimilar to the situation here, and at paragraph 82, said the following:
Each case must depend on its own facts. The respondent’s detriment is no doubt likely to be much greater than the benefit of the injunction to the applicant. The trespass seems to have come about from a lack of appreciation (by both the respondent and the landlord) that, “Pelicans” as berthed encroached into the manoeuvring strip.
It should be noted that, “Pelicans” was in fact a vessel owned by the respondent in relation to those proceedings and it was also clear that the vessel was in greater dimensions than was permitted pursuant to the agreement which was in existence. Justice Jackson, after making that comment in paragraph 82, went on to say, at paragraph 83:
Even so, it does not in my view amount to oppression to conclude that the applicant is entitled to an injunction to restrain the respondent from continuing to trespass onto the manoeuvring strip. Accordingly, in my view, it is not appropriate in the present case to award damages instead of granting an injunction to restrain the respondent’s trespass
As such, the argument that was relied upon by the applicant in this matter is said by them to be supported by a recent determination of the Supreme Court, particularly with regard to the fact that, though the detriment to the applicant, is less than to the respondent, that does not give rise to a basis upon which there can be, as a result of orders made, an acquiring by the respondent of some part of the applicant’s property.
For the respondent, however, it is argued that there is, first and foremost, no prima facie case upon which could then be based an application of the nature brought by the applicant in these proceedings. In that regard, it is suggested that the applicant has not demonstrated:
a) That it holds a valid sublease providing for securing of tenure other than that of a tenant holding over as a calendar monthly tenant;
b) That it holds a valid licence to moor for marina berth 28 due to the expiry of the terms of the licence to moor as and from the 22nd of May 2021;
c) That the respondent breached any rules of the applicant in relation to the operation of the marina for berth lessees in that the terms that applied, as at December of 2018, when the association rules were promulgated and effective at the time of the purchase of the lease, provided that the length and beam of a vessel must not exceed the dimension of the berth it occupies; and
d) That the dimensions of the berth 28 are other than 10 metres by six metres, as disclosed in other material available from the applicant association and that reference is contained in such material to berth 28, variously meeting categories that include a catamaran berth, a multihull or multihull berth.
What is contended, therefore, on the part of the respondent is that there is no basis upon which the application brought in relation to the proceedings by the applicant can be countenanced. With respect, I could not disagree more. What is clear is that the marina berth that is the subject of these proceedings, may be presently the subject of a month-to-month tenancy, but that does not obviate or void the terms of the licensed moor which must be read in my assessment in conjunction with the rules of the applicant association.
What is then argued on the part of the respondent is that there needs to be a consideration of the balance of convenience. In other words, an alternative to the granting of injunction or, at the very least, a requirement that there should be specific compliance with the terms, not only of the rules of the applicant association but also the requirements contained with the license to moor. What is argued by the respondent in that regard is that, for a period in excess of 20 years, a large catamaran vessel occupied berth 28 without complaint from the applicant and with the applicant’s knowledge and acquiescence. Accordingly, the respondent says that the failure to bring any claim or action against the previous licensees gives rise to the respondent being able to rely upon laches.
However, the further submissions that are made in that regard do give rise to concern as to the balance of convenience. In particular, the respondent says that the purchase of the licence to moor for berth 28 was conducted by them without them having any knowledge that there were any size restrictions relating to the maximum vessel dimensions permitted to moor in berth 28. The respondent says that this lack of knowledge on their part should not be utilised against them and that they knew only the dimensions that were permitted pursuant to the berth size as described in other documentation.
Accordingly, they say and argue that any confusion in relation to the vessel dimensions, noting that a larger vessel was previously moored there and that they did not know of any other restrictions arising pursuant to the licence to moor, can be resolved by reasonable negotiation and arbitration. It is, perhaps, unnecessary for me to say more in that regard than that a previous order made in relation to mediation failed to resolve the matter, and it is for that reason that the application proceeds before this Court.
What the respondent then says is that the matter could be easily resolved by an altering or amending of the terms of the licence to moor and that it is argued that there is no rational reason why this cannot be done because other berths within the marina site have different dimensions allowed within them.
Accordingly, the respondent says that on this balance of convenience argument, an injunction, as sought by the applicant, should be denied, as the applicant has not proven any pressing or urgent need for the making of such a mandatory and restrictive order which would cause loss and damage to the respondent far greater than the loss or damage as shown to the applicant. However, that flies, as I have already noted, in the face of the very clear expression as to the law contained within Plenty v Dylan, reinforcing the previous statements in Entick v Carrington and relied upon specifically and commented upon favourably in Emprja Pty Ltd v Red Engine Group Pty Ltd.
The respondent then says that the applicant has not been able to prove that there has been trespass upon its property. Again, I do not agree that that is the case, for whilst it may be clear that the berth, 28 has dimensions of 10 metres by six metres, the licence to moor requires that a vessel moored within that area have a beam no greater than 3.5 metres. It would be a similarly ridiculous situation, in my assessment, were it to be suggested that a garage for a motor vehicle was of a certain dimension and that the vehicle parked within that garage could be exactly the same dimensions. It provides no leeway, and it provides no opportunities, then, for movement of the vessel, and of course, as was noted in correspondence forwarded by the applicant to the respondent, there were specific concerns held in relation to the mooring of the vessel during a 28-day moratorium, that might have been made available to find alternate berthing arrangements for the vessel, “Purrfect”, in circumstances where there may have been rough weather. In other words, there needs to be leeway in relation to what is provided.
Further, the respondent suggests that the applicant has not proven that there has been damage caused to its property by any trespass. That is answered simply by acknowledging that the trespass can be “ever so minute” and there is, clearly, evidence as to the vessel, during certain weather conditions, moving and causing damage ever so slight, to the marina. Accordingly, such an argument does not seem supported on the facts.
Similarly, any argument by the respondent that there is no need for injunctive relief, because a period of more than 20 years had been acquiesced to by the applicant in allowing another to moor their vessel, greater in size than that permitted pursuant to the licence to moor, would mean that there should be no injunction granted is not sustainable. The fact that there has been, for whatever reason, be it a lack of intent or otherwise that the breach was allowed to occur by another, but when a determination was made to not further allow that breach, by in this case, the respondent, is not a basis upon which it could be suggested that it should not be the subject of proper orders, in circumstances where there is a breach of the terms of the licence to moor.
And finally, a suggestion that arbitration would be a proper alternative, does not take into consideration the fact that the relief sought relates to an entitlement of the applicant, and it is appropriate where there cannot be agreement, for a determination to be reached. Similarly, an argument that injunctive relief would be harsh or unfair as against the respondent, and that, perhaps, is to be acknowledged in relation to this matter, does not, again, preclude the making of the orders and the granting of an injunction, in circumstances where it is proper that that should occur.
Accordingly, I am satisfied that the respondent is bound by the terms of the licence to moor and that the vessel sought to be moored within berth 28 exceeds the dimensions allowed pursuant to the licence to moor. Accordingly, the terms of the licence are clear, and the applicant is entitled to the relief sought. I therefore intend to make orders in terms of those which have been sought by the applicant and contained within the draft order provided to the Court, provided, however, that the respondent is allowed 28 days from the date of this order for the purposes of removing the vessel, “Purrfect”, from berth 28 at the applicant’s marina.
Insofar as the question of costs is concerned, I will allow each party the opportunity to file any submissions as to costs, the applicant within 21 days of the date of this order, and the respondent within 14 days of receipt of any such submission. And further, I order that should there be no specific request to be heard orally in relation to the question of costs, then, that they be determined in chambers.
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