Botev Trustee Limited v Tait
[2021] NZHC 2205
•26 August 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2021-404-387
CIV 2021-404-445
[2021] NZHC 2205
UNDER Article 35 of Schedule 1 to the Arbitration Act 1996 and Rules 26.21 to 26.26 of the High Court Rules 2016 IN THE MATTER OF
An Application to Register an Arbitral Award as a Judgment of this Court
BETWEEN
BOTEV TRUSTEE LIMITED
Plaintiff in CIV 2021-404-387
First Defendant in CIV 2021-404-445AND
BRENDON TAIT
First Defendant in CIV 2021-404-387 Plaintiff in CIV 2021-404-445
SUSAN TURNER and TERRY TURNER
Second Defendants in Both Proceedings
Hearing:
Further submissions:
2 June 2021
11 and 21 June 2021
Appearances:
S R J Hamilton for Botev Trustee Limited T Bates for Mr Tait
No appearance for the Second Defendants
Judgment:
26 August 2021
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 26 August 2021 at 4:00pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
BOTEV TRUSTEE LIMITED v TAIT [2021] NZHC 2205 [26 August 2021]
[1] The plaintiff, Botev Trustee Ltd (BTL), is the owner of a cross-lease interest in a property in Half Moon Bay in Auckland. The defendants own the other cross- lease interests in the same property.
[2] Disputes arose between BTL and the first defendant, Shane Tait, during 2016 and 2017 over several issues. The issues were, in accordance with the terms of the cross-leases, submitted to arbitration. The arbitrator, Graham Kohler QC, conducted a hearing on 21 November 2019 and issued an award on 6 December 2019. BTL was largely successful on the issues in dispute.
[3] BTL says Mr Tait has not complied with the award. It applies for entry of the award as a judgment of this Court. Mr Tait opposes the application, on the basis that enforcement of the award would be contrary to the public policy of New Zealand. I have to decide whether Mr Tait has established any public policy ground for resisting enforcement of the award.
Background
[4] The Half Moon Bay property was divided into three cross-lease flats in 1974. BTL is the registered owner of Flat 3 and Mr Tait is the registered owner of Flat 2. The second defendants, the Turners, are the registered owners of Flat 1. The Turners have taken no steps on BTL’s application and abide the decision of the Court.1
[5] The directors of BTL are Radoslav Stefanov Botev and Mariana Ivanova Atanasova-Botev. The Botevs have lived at Flat 3 since October 2009. Mr Tait purchased Flat 2 from his mother in October 2012. His mother continues to live there. Mr Tait lives elsewhere.
[6] BTL’s Flat 3 is the furthest flat from the road. It is located at the southern end of the property. It enjoys a right of way over the eastern side of the property. The right of way was created by a variation of lease in 1975.
1 It appears the Turners are not directly affected by the dispute between BTL and Mr Tait. The Turners were parties to the arbitration but took no active steps in it.
[7] To the east of Mr Tait’s Flat 2 is an area known as “Area B”. Area B is Flat 2’s exclusive area, but is subject to the right of way in favour of Flat 3. There is a patio over part of Area B. The patio was constructed many years after the right of way was created.
The arbitration
[8] The main dispute between BTL and Mr Tait in the arbitration was the extent of the right of way that BTL enjoyed over Area B. BTL contended it enjoyed a vehicular right of way and that Mr Tait had to remove the patio (as it obstructed vehicular access). Mr Tait contended the right of way was pedestrian only and limited to a 600mm wide footpath that was constructed adjacent to the patio.
[9]There were other disputes before the arbitrator:
(a)In 2016 Mr Tait’s mother began renting Flat 2 on Airbnb. The Botevs took the view this was in breach of the memorandum of lease creating Flat 2. They raised their concerns with Mr Tait and asked him to end the practice. Mr Tait declined to do so.
(b)An issue over a stormwater connection that had been disconnected by a plumber employed by the Botevs. Mr Tait sought an order the connection be restored.
[10] The arbitration hearing took place on 21 November 2019. Mr Kohler issued an award on 6 December 2019. It is convenient to set out his relevant conclusions and findings in full:
Right of way
6.1The right of way access reserved for the benefit of the owner of Flat 3 [BTL] is not limited:
(i)to the footpath currently constructed;
(ii)to pedestrian access use only.
The owner of Flat 3 [BTL] is entitled to exercise reasonable vehicular access over Area (B).
6.2[Mr Tait] must remove any obstruction that prevents the reasonable use of that right of way at [his] cost. [Mr Tait] is however only required to restore the land to a natural state. By that I mean a grassed evenly sloped state.
6.3[BTL] is entitled to undertake such works as are required reasonably to construct a concrete or asphalt or the like right of way over Area (B). Such right of way to be pursuant to an agreed design consistent with local authority requirements as to width and otherwise. In the event of disagreement as to design leave is reserved to either party to seek a further determination by arbitration either by me or someone else. The cost of constructing a concrete or asphalt or equivalent right of way over Area (B) is to be met by [BTL].
The stormwater pipe
6.4[BTL] is to restore the stormwater downpipe [at its cost].
Air Bnb
6.5I hold that the use of any part of a flat as an AirBnb property for rent is a breach of the relevant Memorandum of Lease relating to that flat.
[11]Neither party has appealed or otherwise challenged Mr Kohler’s award.
Events after the award
[12] On 9 July 2020, about seven months after Mr Kohler issued his award, BTL and Mr Tait entered into a “Cross Lease Works Agreement” (CLWA). Clause 1 of the CLWA said that pursuant to the award the parties agreed to works (as shown on a plan annexed to the agreement) being carried out in Mr Tait’s exclusive area “to enable [BTL] to construct their right of way”. Clause 1 set out the steps that each party was to take in respect of these works:
(a)BTL was to arrange for updated engineering designs for a retaining wall to be prepared.
(b)Mr Tait was to lodge an application for building consent for the retaining wall within 20 working days of BTL supplying the engineering designs.
(c)Within 25 working days of the building consent being issued Mr Tait’s contractor was to remove and reconstruct part of the patio in accordance
with the plan annexed to the CLWA and restore the land as required by the award. Mr Tait was then to arrange for a Code Compliance Certificate to be issued for the retaining wall.
(d)Within 20 working days of receiving a copy of the Code Compliance Certificate, BTL was to carry out the works required to construct a right of way over a 2.4 metre area shown in the plan annexed to the CLWA and in accordance with all local authority requirements. BTL was also to reconnect the stormwater outlet in accordance with paragraph 6.4 of the award.
[13] Clause 2 contained various incidental terms. These included that the parties agreed to resolve any dispute that might arise in respect of the agreement by referral to the ADLS Property Disputes Committee. They agreed to be bound by the Committee’s decision.
[14] In compliance with cl 1 of the CLWA, BTL provided updated engineering designs to Mr Tait. Thereafter the agreement foundered. Mr Tait attended a pre- consent meeting with Auckland Council. Council officers advised him he required a resource consent for the proposed works before he could obtain a building consent. Mr Tait applied for a resource consent in early September 2020. His application was declined in a decision dated 20 November 2020.
[15] Council declined Mr Tait’s application because his proposed works involved the removal of part of his patio (which partially obstructed the proposed access way to BTL’s flat) and the construction of a retaining wall to support what was left of his patio. Council said the removal of part of the patio would reduce the useable outdoor living space for Mr Tait’s flat below the standards required by the 1973 City of Manukau District Scheme and by the Auckland Unitary Plan.
[16] As a result of Council’s decision, Mr Tait has never applied for a building consent for the retaining wall, and he has not carried out any of the work for which he was responsible under the CLWA. BTL regarded Mr Tait as being in material breach of the CLWA. On 1 December 2020, BTL, by its solicitors, purported to cancel the
CLWA on the ground of Mr Tait’s alleged breach. Mr Tait’s solicitors responded on 9 December 2020 that Mr Tait was not in material breach of the CLWA.
Applications made by BTL and by Mr Tait
[17] BTL, being of the view that the CLWA was at an end, wished to take action to enforce Mr Tait’s obligations under the award. BTL applied to have the award registered as a judgment. Mr Tait responded by applying for an order for refusal of recognition and enforcement of the award. Those respective applications reflect, and are governed by, substantive law in arts 35 and 36 of sch 1 of the Arbitration Act 1996 and procedural law in sub-pt 4 of pt 26 of the High Court Rules 2016.
[18]As to the substantive law, art 35 provides:
35Recognition and enforcement
(1)An arbitral award, irrespective of the country in which it was made,—
(a)must be recognised as binding; and
(b)on application in writing to a court, must be enforced by entry as a judgment in terms of the award, or by action, subject to the provisions of this article and of article 36.
…
[19] Article 35 addresses both recognition (para (1)(a)) and enforcement (para (1)(b)) of the award. BTL is applying for enforcement.2 Article 35(1)(b) provides two enforcement paths: enforcement by entry as a judgment or enforcement by action. BTL has chosen to follow the first path.
[20] Article 35(1)(b) provides that, on application, the court must enforce the award by entering it as a judgment, subject to the provisions of art 35 itself and of art 36. This means that where, as here, a defendant opposes the entry of the award as a judgment, the onus is on the defendant to establish the ground of opposition, which must be found in either art 35 or art 36.3
2 Enforcement necessarily involves recognition: D Williams and A Kawharu Williams & Kawharu on Arbitration (2nd ed, LexisNexis, Wellington, 2017) 19.2.2. But in this case it is sufficient to refer to enforcement.
3 Hi-Gene Ltd v Swisher Hygiene Franchise Corp [2010] NZCA 359 at [20].
[21] The balance of art 35 deals with certification of the award and is not in issue. Article 36 sets out the grounds on which recognition or enforcement may be refused. Mr Tait relies only on art 36(1)(b)(ii):
36Grounds for refusing recognition or enforcement
(1)Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only—
…
(b) if the court finds that—
…
(ii)the recognition or enforcement of the award would be contrary to the public policy of New Zealand.
[22] I will address in a moment the basis on which Mr Tait says enforcement of the award would be contrary to the public policy of New Zealand.
[23] As to procedural law, sub-pt 4 of pt 26 of the High Court Rules 2016 deals with the enforcement of an award under art 35. Rule 26.20 applies where all parties agree to the award being entered as a judgment. Rule 26.21 applies in other cases:
26.21 Entry of judgment in other cases
(1)If rule 26.20 does not apply, a party to an award who wishes to enforce it may—
(a)enforce it by action; or
(b)apply to the court for entry of the award as a judgment.
(2)A party electing the method set out in subclause (1)(a) must commence a proceeding under Part 5.
(3)A party electing the method set out in subclause (1)(b) must follow the procedure set out in rules 26.22 to 26.27.
[24] Rule 26.21(1) provides a party wishing to enforce an award with two options, reflecting the two enforcement paths in art 35. The first is to enforce the award by action, in which case the party must commence a proceeding in the ordinary way (by statement of claim and notice of proceeding). BTL has not followed that option. It has applied under r 26.22 for entry of the award as a judgment.
[25] Where, as in this case, the defendant opposes entry of the award as a judgment, r 26.27 applies. The defendant must file an application seeking an order for refusal of recognition and enforcement in terms of art 36. That is what Mr Tait did.
Mr Tait’s grounds for opposing entry of the award as a judgment
[26] The sole basis of Mr Tait’s opposition to entry of the award as a judgment is that enforcement of the award would be contrary to the public policy of New Zealand.
[27] In his application Mr Tait articulated only one ground on which enforcement would be contrary to public policy. This was that enforcement of paragraphs 6.1 to
6.3 of the award would require removal of part of Mr Tait’s patio, and this would be contrary to the 1973 City of Manukau District Scheme and to the Auckland Unitary Plan. Removal would leave Flat 2 with insufficient useable outdoor living space. Mr Tait pointed to Auckland Council having refused resource consent for that reason.
[28] Mr Tait raised a second public policy ground in submissions filed on his behalf by Mr Bates. This was that entry into the CLWA amounted to a compromise of the award, and it would contravene the public policy of New Zealand for this Court to enter the award as a judgment in light of that compromise. I will refer to this as the “compromise” ground.
[29] For BTL, Mr Hamilton said enforcement of the award would not be contrary to public policy. He said planning rules did not equate to public policy. He also said, based on an affidavit from an expert planner, that Auckland Council’s refusal to grant resource consent was unsound. He submitted that, in any event, part of Mr Tait’s patio could be removed without breaching the planning rules if Mr Tait also removed a conservatory over a deck that was enclosed without consent.
[30] In written reply submissions, Mr Hamilton objected to Mr Tait pursuing his new “compromise” public policy ground. Mr Hamilton complained, with justification, that Mr Tait had not raised this ground until about a week before the
hearing.4 However, out of an abundance of caution, Mr Hamilton responded to the compromise ground in his reply submissions.
[31] The manner in which Mr Tait raised the compromise ground was unsatisfactory. Nonetheless, at the hearing it seemed to me BTL had not been prejudiced, given that the new ground merely involved a legal argument based on material already in affidavits before the Court, and Mr Hamilton had been able to respond in detail to the new ground in his reply submissions. I therefore allowed Mr Bates to address me on it.
[32] In addressing me on the compromise ground, Mr Bates submitted the CLWA was an accord and satisfaction of paragraphs 6.1 to 6.4 of the award and that therefore those paragraphs had been discharged by entry into the CLWA. In exchanges with Mr Bates I expressed some doubt about that submission. Mr Bates then put forward an alternative ground: that if paragraphs 6.1 to 6.4 were not discharged they were at least supplemented by the CLWA. Mr Bates submitted it would be contrary to public policy to enforce the award in light of the CLWA supplementing the award.
[33] That further ground was based on a more viable characterisation of the effect of the CLWA than was the compromise ground. I therefore allowed the parties to file supplementary submissions addressing whether, assuming the CLWA remained on foot and assuming the CLWA supplemented the award, enforcement of the award would be contrary to the public policy of New Zealand.
Issues
[34] Under art 35(1)(b) I must enforce the award by entering it as a judgment, subject only (in this case) to art 36(1)(b)(ii). Under art 36(1)(b)(ii), I may refuse enforcement only if I find enforcement of the award would be contrary to the public policy of New Zealand. The burden is on Mr Tait to establish that ground.
[35]Therefore, the issues are whether Mr Tait has established that:
4 Pursuant to directions earlier made by the Court, BTL was first to file its principal submissions. BTL therefore became aware of the second ground only when Mr Tait’s principal submissions were filed.
(a)Enforcement of paragraphs 6.1 to 6.3 of the award would be contrary to planning instruments and therefore contrary to public policy.
(b)The parties had compromised the award by entering into the CLWA and it would therefore be contrary to public policy to enforce the award.
(c)The CLWA supplemented the award and it would therefore be contrary to public policy to enforce the award.
[36] To determine those issues it is first necessary to examine the scope of the public policy exception in art 36(1)(b)(ii).
The public policy exception
[37] The public policy exception to enforcement of arbitral awards arises most commonly in relation to applications under art 34 to set aside an award. Article 34(2)(b)(ii) provides that one of the grounds on which the court may set aside an award is that the award “is in conflict with the public policy of New Zealand”. This is nearly identical language to that in art 36(1)(b)(ii).
[38] In Amaltal Corporation Ltd v Maruha (NZ) Corporation Ltd the Court of Appeal addressed the scope of the public policy ground in art 34(2)(b)(ii), in relation to an award that allegedly offended the rule that a penalty clause in a contract is unenforceable. The Court of Appeal cited with apparent approval international authorities that said the public policy ground:5
(a)Covered “fundamental principles of law and justice”;
(b)Applied only where enforcement would “violate the forum state’s most basic notions of morality and justice”;
5 Amaltal Corporation Ltd v Maruha (NZ) Corporation Ltd [2004] 2 NZLR 614 (CA) at [41]-[46].
(c)Applied where enforcement would be clearly injurious to the public good or “wholly offensive” to a reasonable and fully informed member of the public;
(d)Applied where enforcement of the award would abuse the integrity of the court’s processes and powers.
[39] The Court said the issue was whether the penalty rule was a matter of public policy for the purposes of art 34 “in the sense that that rule is a fundamental principle of law and justice”.6 The Court concluded the penalty rule was not “so fundamental” as to constitute “public policy” in terms of art 34.7
[40] The public policy ground in art 36 was before the Court of Appeal in Hi-Gene Ltd v Swisher Hygiene Franchise Corp.8 The Court of Appeal, relying on Amaltal, stated “a narrow reading is to be given to the public policy ground”.9 The Court acknowledged that Amaltal was concerned with art 34 but said that “the threshold for the public policy ground under article 36 is to be approached in a similar fashion”.10
[41] “Public policy” in art 36 is therefore concerned with fundamental principles of law and justice. As the Court of Appeal said in Hi-Gene, this sets a high threshold.11 With that in mind, I turn to the grounds upon which Mr Tait contends enforcement of the award would be contrary to public policy.
Ground 1: enforcement would be contrary to planning instruments
[42] Mr Bates submitted the works identified in the CLWA were those the parties had agreed would satisfy paragraphs 6.1 to 6.3 of the award. Mr Tait had attempted to obtain resource consent for those works. Auckland Council’s decision to refuse consent made clear the proposed works would offend the relevant planning
6 At [56].
7 At [59].
8 Hi-Gene Ltd v Swisher Hygiene Franchise Corp [2010] NZCA 359.
9 Hi-Gene Ltd v Swisher Hygiene Franchise Corp [2010] NZCA 359 at [21]
10 Hi-Gene Ltd v Swisher Hygiene Franchise Corp [2010] NZCA 359 at [23].
11 Hi-Gene Ltd v Swisher Hygiene Franchise Corp [2010] NZCA 359 at [20].
instruments. The Council’s decision had not been challenged. In these circumstances enforcement of the award would be contrary to public policy because:
(a)Enforcement would be contrary to the Auckland Unitary Plan;
(b)Enforcement would be injurious to the public good because it would render the rest of the public subject to the Unitary Plan but parties arbitrating privately would fall outside its scope.
(c)Enforcement would allow the Court’s processes to be abused, because it would sidestep the established processes for appealing or judicially reviewing consent decisions.
[43]I reject this submission, for three reasons.
[44] First, the question is whether enforcement of the award would be contrary to public policy. Mr Bates’s submission did not engage with that question. His submission was instead directed at whether enforcement of the CLWA would be contrary to public policy. His submission assumed that enforcement of the award necessarily involved enforcement of the CLWA. The onus is on Mr Tait to persuade me that this is so. I am not persuaded. In my view it is more likely that either the CLWA has been validly cancelled by BTL or, if it has not (and if Mr Tait is correct that the works in the CLWA cannot be lawfully carried out in accordance with the Unitary Plan), the parties are entitled to relief on the grounds of mistake or frustration.12
[45] For completeness, I am also not persuaded that enforcement of paragraphs 6.1 to 6.3 of the award itself would be contrary to public policy:
(a)Paragraph 6.1 is a declaration that the right of way reserved for BTL’s flat is not limited to pedestrian access, so that BTL is entitled to exercise reasonable vehicular access over Mr Tait’s exclusive area. There was
12 There may be other grounds on which the obligations in the CLWA, or some of them, could not be enforced. It is not necessary for me to make a final determination on those possible grounds. The onus being on Mr Tait, it is sufficient for me to find, which I do, that he has not persuaded me that enforcement of the award necessarily involves enforcement of the CLWA.
no evidence that this would offend the Unitary Plan (assuming for the moment the Plan embodies a fundamental principle of law).
(b)Paragraph 6.2 provides that Mr Tait must remove any obstruction that prevents the reasonable use of the right of way. I infer this will require Mr Tait to remove some of his patio. The paragraph is not prescriptive as to how much must be removed. There was no evidence that such removal would offend the Unitary Plan. The evidence was directed merely at whether removal in accordance with the CLWA would offend the Unitary Plan.
(c)Paragraph 6.3 provides BTL is entitled to undertake works to construct a right of way. This right of way is to be “consistent with local authority requirements as to width or otherwise”. This qualification means that enforcement of this provision would not offend the Unitary Plan.
[46] Secondly, even if Mr Tait had persuaded me that enforcement of the award necessarily involved enforcement of the CLWA, I would not have been persuaded that enforcement of the CLWA would be contrary to the Unitary Plan. I acknowledge Mr Tait was refused resource consent for removal of the part of the patio contemplated by the CLWA. The Council declined consent because the proposal would have reduced the outdoor living space of Mr Tait’s flat below the area required by the Unitary Plan. But Mr Tait did not explore other ways in which he could comply with the CLWA while at the same time meeting the outdoor living space standard. BTL relied on an affidavit from Iain McManus, an experienced and expert planner. Among other things,13 Mr McManus’s opinion was that Mr Tait could and should have explored alternative solutions. Mr McManus said an obvious and appropriate solution would have been for Mr Tait to remove an illegally constructed conservatory from his flat. This would have restored sufficient outdoor living space to balance the space that was to be lost from removal of part of the patio. Given that possible solution, and that Mr Tait has taken no steps to test it, Mr Tait has not persuaded me that enforcement would be contrary to the Unitary Plan.
13 Mr McManus also opined that the Council’s refusal was, for various reasons, unsound. It is not necessary for me to explore that.
[47] Thirdly, Mr Bates’s submission assumed that enforcement of the award would result in performance of the obligations in the award (or in the CLWA). That is not necessarily so. If, as Mr Tait would have it, performance of the obligation in paragraph
6.2 of the award was not possible because of the Unitary Plan, BTL would be entitled (assuming the award was entered as a judgment) to return to court to ask that the obligation be enforced by requiring Mr Tait to pay damages.14 An order to pay damages is not contrary to any public policy of this country.
Ground 2: CLWA was a compromise of the award
[48]Mr Bates submitted the CLWA was an accord and satisfaction of paragraphs
6.1 to 6.4 of the award and that therefore those paragraphs had been discharged by entry into the CLWA. He submitted, relying on Rodney Hansen J’s judgment in this Court in Kimberley Construction Ltd v Mermaid Holdings Ltd,15 that it would be contrary to public policy to enforce parts of an award that had been discharged.
[49] I do not accept that entry into the CLWA discharged (or, for completeness, released) the obligations in paragraphs 6.1 to 6.4. The CLWA contains no language of discharge or release. To the contrary, cl 1 of the CLWA says it is “pursuant to” the award. Far from acting as a discharge or release of the obligations in the award, the CLWA sets out how the parties have agreed certain of those obligations will be performed. The CLWA provided flesh to what were some bare bones in the award.16 Paragraph 6.2 said Mr Tait was to remove any obstruction that prevented “reasonable use” of the right of way. The CLWA effectively determined (by agreement) how much of the obstruction (the patio) Mr Tait had to remove to comply with paragraph 6.2. Paragraph 6.3 said BTL was entitled to construct a right of way “pursuant to an agreed design”. The CLWA contained the agreed design.
[50] In support of his submission, Mr Bates referred to correspondence between the parties leading up to the entry into the CLWA. Some of this correspondence was
14 I Spry Equitable Remedies (9th ed, Lawbook Co, Sydney, 2014) at 381-382. There might be grounds for Mr Tait resisting a claim to damages. That possibility simply reinforces the absence of any conflict with public policy.
15 Kimberley Construction Ltd v Mermaid Holdings Ltd [2004] 1 NZLR 386 (HC).
16 This is not a criticism of the award. The general terms of the orders simply reflect the shortcomings of the easement instrument.
without prejudice and privileged. Mr Hamilton objected to such correspondence being in evidence. Mr Bates submitted the correspondence should be considered under s 57(2B) or (3) of the Evidence Act 2006. I looked at the correspondence to see whether it should be admitted under s 57. At best for Mr Tait the correspondence shows that the CLWA was entered into in circumstances where BTL was otherwise threatening to enforce the award. That does not assist in determining whether the CLWA discharged or released obligations under the award. There is no inconsistency between BTL threatening to enforce the award and then entering into an agreement that expressed what the parties would do pursuant to the award.
[51]I therefore reject the second ground advanced by Mr Tait.
Ground 3: CLWA supplemented the award
[52] It will be clear from the previous section that in my view the CLWA supplemented the obligations in the award. As noted, counsel filed further submissions on whether (assuming the CLWA is still on foot) the supplementation of the award by the CLWA meant that it would be contrary to public policy to enforce the award.
[53] On the point I raised,17 Mr Bates submitted that to enter the award as a judgment with no reference to the CLWA would involve the Court ignoring the entry by the parties into the CLWA. He said this would be abhorrent and offend the public policy of New Zealand, which feely allows citizens to agree between themselves the means by which awards are to be performed.
[54] Mr Hamilton acknowledged that the CLWA (if still on foot) supplemented the award. For example, under the CLWA the parties had agreed that the formed driveway over the path of the right of way would be 2.4 metres wide. This meant that BTL could not fall back on the general terms of the award and construct a formed driveway 3.0 metres wide. Likewise, Mr Tait could not insist that the driveway be narrower than
17 Mr Bates’s further submissions traversed some matters that were relevant to grounds 1 and 2. He also referred me to two decisions from England and Hong Kong, but neither was concerned with an award being supplemented by a subsequent agreement.
2.4 metres. Mr Hamilton accepted, on behalf of BTL, that the CLWA (if still on foot) would act as a gloss on the enforcement of the award, if entered as a judgment.
[55] In my view the fact the CLWA supplemented the award is not a ground for refusing to enforce the award by entering it as a judgment. There are two reasons.
[56] The first is that, for the reasons set out at [44], Mr Tait has not persuaded me that the CLWA remains on foot.
[57] The second is that, even if Mr Tait had persuaded me that the CLWA remains on foot, its supplementation of the award would not mean entry of the award as a judgment was contrary to public policy. I do not accept Mr Bates’s submission that entering the award as a judgment would involve the Court ignoring the CLWA. The CLWA would still be able to be taken into account if BTL subsequently took steps to enforce the judgment.
Result
[58] I dismiss Mr Tait’s application for an order for refusal of recognition and enforcement of the award.
[59]I grant BTL’s application. I enter the award as a judgment of this Court
[60] BTL is entitled to costs. Costs at 2B appear appropriate. I expect counsel and parties will be able to agree costs. If not, memoranda of no longer than two pages (excluding relevant schedules and annexures) may be filed and served: BTL by 17 September 2021, Mr Tait by 24 September 2021.
Campbell J
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