Acernus Aero Ltd v Vincent Aviation Ltd - [2012] NZHC 295

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-113 [2012] NZHC 295

BETWEEN ACERNUS AERO LIMITED Plaintiff

ANDVINCENT AVIATION LIMITED Defendant

Hearing: 27 February 2012

Appearances: J Toebes for the plaintiff
J Scragg and P Higbee for the defendant

Judgment: 29 February 2012

JUDGMENT OF CLIFFORD J

Introduction

[1] The plaintiff, Acernus Aero Limited (“Acernus”), owns a Cessna Mustang corporate jet (“the Mustang”). Since early 2008 the defendant, Vincent Aviation Limited (“Vincent”), has hangared the Mustang, or a predecessor, at Wellington Airport for Acernus. Vincent has also provided other services to Acernus so that Acernus can both use and charter the Mustang.

[2] On 19 January this year Vincent wrote to Acernus purporting to terminate those arrangements for hangaring and other services (“the Arrangements”), with immediate effect, for non-payment of outstanding fees. Acernus disputes that termination.

[3] Matters were brought to a head when, on 20 January 2012, Vincent prevented

Acernus from having access to the Mustang, claiming a workman‟s lien. On

25 January Acernus issued proceedings to specifically enforce the Arrangements and

ACERNUS AERO LIMITED V VINCENT AVIATION LIMITED HC WN CIV-2012-485-113 [29 February
2012]

for damages. It claims, amongst other things, that it has a sublease of, or a licence to occupy, hangar space from Vincent on back-to-back terms with Vincent‟s five year head lease. At the same time Acernus applied for interim injunctive relief, in effect asking for a mandatory injunction requiring Vincent to specifically perform the Arrangements pending the hearing of its substantive claim.

[4] The matter first came before me in the Judge‟s Chambers List on Monday

13 February 2012. At that time I made timetabling orders for the hearing of Acernus‟ interim relief application, and set down a hearing for Thursday 16 February on the question of the claimed workman‟s lien in the event such a hearing proved to be necessary.

[5] As recorded in my minute of 16 February, I held a further hearing that day. In circumstances which I recorded in that minute, and which need not be repeated, I heard an application from Mr Toebes for what I described as “interim interim” relief, pending the hearing of Acernus‟ original application for interim relief. At that hearing, and very much in terms of an offer Vincent had made to Acernus, I ordered that Vincent was to continue to hangar the Mustang pending the hearing of Acernus‟ interim relief application, subject to Acernus paying in advance the sum of $3,000 plus GST per month for those hangaring services. At that time, I set down a hearing of Acernus‟ application for interim relief on 27 February 2012. I indicated that subject to possible interim relief as regards hangaring, I was not at all persuaded that interim relief requiring specific performance of the Arrangements more generally would be appropriate.

[6] Against that background, on 27 February I heard Acernus‟ application for interim relief, which Mr Toebes very sensibly limited to the question of Vincent being ordered to provide hangaring facilities to Acernus for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 295
Decision Date: 29 February 2012

CaseChat Overview and Summary

Acernus Aero Limited sought to enforce an agreement with Vincent Aviation Limited for the hangaring of a corporate jet at Wellington Airport. The dispute arose when Vincent terminated the arrangement, claiming non-payment of fees, and Acernus sought injunctive relief to maintain access to the aircraft. The court considered Acernus' application for interim relief, specifically to enforce the arrangement for hangaring services pending the substantive hearing. The legal issues involved assessing whether Acernus had a lease or licence to hangar the aircraft, the balance of convenience, and the overall justice of the case for granting the injunction.

The court found that there was a serious question to be tried regarding whether Acernus had a lease or licence to hangar the aircraft. However, the balance of convenience and overall justice did not favour Acernus. The court held that Acernus had not established it could not reasonably procure alternative hangaring arrangements. Vincent's offer to continue hangaring services for three months at a specified rate was noted, as was Acernus' outstanding fees under the arrangement. The court declined Acernus' application for a mandatory injunction, reserving costs for later determination. The court encouraged the parties to settle the matter, anticipating a substantive hearing within the three-month period of Vincent's offer.

Orders