Cap D'Amarres Residents' Association Incorporation v Edwards HC Auckland Civ-2011-404-6434
[2011] NZHC 2104
•23 December 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2011-404-6434
BETWEEN CAP D'AMARRES RESIDENTS' ASSOCIATION INCORPORATION First Plaintiff
ANDALAN FLITCROFT AND CHRYSTINE FLITCROFT
Second Plaintiff
ANDIAN CLARENCE JONES, SHIRLEY GWENDOLINE JONES AND SHALE CHAMBERS
Third Plaintiff
ANDSIMON JEREMY REI EDWARDS, KIT PING TAN AND CST TRUSTEES LIMITED
First Defendant
ANDDAVID DONALD MORGAN, GLENNIS DOREEN MORGAN AND SPICERS TRUSTEE COMPANY (2005) LIMITED Second Defendant
ANDJOHN WINTER, ANNA KARIN ELISABETH WINTER AND AUCKLAND TRUSTEES & EXECUTORS LIMITED
Third Defendant
ANDJOYCE IDA FISHER, CLAYTON TREVOR ARTHUR STENT AND IAN LAWRENCE BRITTEN
Fourth Defendant
Hearing: 21 December 2011
Appearances: S R Ebert for Plaintiffs
P McKendrick for Defendants
Judgment: 23 December 2011
CAP D'AMARRES RESIDENTS' ASSOCIATION INCORPORATION V EDWARDS HC AK CIV-2011-404-
6434 [23 December 2011]
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 23 December 2011 at 4:30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Billings, P O Box 243, New Plymouth email: [email protected]
Glaister Ennor, P O Box 63, Auckland
email: [email protected]
[1] The defendants apply for an interim injunction, seeking orders against the plaintiff (“the Association”). The Association opposes the application. The application was filed on 6 December 2011. On 13 December 2011, Woolford J set the application down for up to one and a half hours on 21 December 2011. Since the hearing, the parties have each filed further submissions on the matter.
[2] The defendants seek the following orders:
(a) An order that the first plaintiff forthwith reactivate the deactivated remote control of the second defendants to have both vehicular and pedestrian access.
(b) An order that the first plaintiff not de-activate any other remote control of the first to third defendants, and/or any other Owners, without order of the Court, pending final determination of these proceedings.
(c) Any further orders the court deems necessary to give effect to and implement the order regarding the remote controls.
(d) The costs of and occasioned by this application.
Summary
[3] To summarise this dispute, Cap d’Amarres is a precinct in the Gulf Harbour Marina Village Development in Whangaparaoa. The development includes residential lots, a marina or marinas and other facilities. The second defendant, to whom I shall refer as the Morgans, own a residential lot in Cap d’Amarres and also hold a licence to two marina berths adjacent to their lot. The Morgans have sublicensed their berths. The actions of one of their sublicensees, to whom I refer as “the sublicensee”, are of concern to some residents of Cap d’Amarres.
[4] The Association has the means of controlling access to the precinct and it has taken steps which have had the effect of preventing the sublicensee from driving his car up to the berth at which his yacht is moored. The sublicensee has said he will terminate his sublicence if he does not have that access reinstated. The defendants wish the Association to reinstate the sublicensee’s access forthwith, with the legal issues which arise in the dispute determined at a later time.
[5] It is summer, close to the holiday period and there is evidence that the sublicensee wishes to use his boat over the holiday period. Given the time available, it has not been possible to review in detail the various constitutional and other documents that are relevant to a determination of this dispute. Accordingly, this decision is intended to meet immediate needs and is not to be taken as anything more than that.
Background
[6] To give a little more background, all the parties, excluding the Association, are registered proprietors of different lots within Cap d’Amarres. There are 16 residential lots within Cap d’Amarres, the registered proprietors of which are referred to as “Owners”. The Morgans own lot 11. Some Owners have built houses on their sites and are resident in the precinct. Others, including the Morgans, have not built on their lots.
[7] All Owners are members of the Association and they, and any successor in title, are bound by the rules of the Association (“the rules”). Several of the rules are relevant to the issue in this case and I come back to them shortly.
[8] The physical layout of the Cap d’Amarres precinct is also relevant.
[9] There are roads within the Gulf Harbour development. Taking one of these roads leads to a locked gate at the entry to Cap d’Amarres.
[10] Pedestrian or vehicular access from the road into the precinct may be obtained only by going through the locked gate. The gate may be opened from the outside by using a swipe card issued to an Owner or through a “hand scan” device. Accordingly, the precinct is a type of “gated community”. A person who is inside the gate can open it by pushing a button or something of that nature, and can let other vehicles or pedestrians inside without having to “re-swipe” their card or have their hand scanned.
[11] Once inside the gate, one is on Rue d’Amarres. Rue d’Amarres is a road which serves all lots in the precinct. Rue d’Amarres’ legal description is lot 19. Each Owner is the registered proprietor of a one sixteenth share in lot 19.
[12] Turning to the marina, there are different categories of ownership or membership within the Gulf Harbour precincts, including Cap d’Amarres. The Morgans are Residential Berth Members.
[13] This brings me to the constitution of The Gulf Harbour Marine Village Residents’ Association Incorporation (“GHMVRA” and “GHMVRA constitution”). Amongst other things, the GHMVRA constitution entitles a Residential Berth Member to a “berth licence” from GHMVRA as licensor. The Morgans have a berth licence for each of berths 11A and 11B, these berths being immediately adjacent to their lot 11 in Cap d’Amarres.
[14] A Residential Berth Member may grant a sublicense of their berth or berths for up to 12 months at any one time (see 7.6 and 7.8 of the GHMVRA Constitution). The permitted form of sublicence is a schedule to the GHMVRA constitution.
[15] The sublicence in place between GHMVRA, the Morgans and the sublicensee is not in evidence. However, it is or should be in the terms of the schedule to which I have referred. Some of the terms of the sublicence restrict the sublicensee’s use of the berth and how they may access the berth and so on.
[16] The Association has no standing to enforce the terms of the sublicence directly as it is not a party to the sublicence. Because of this, some Owners have previously sought to amend the rules so as to incorporate all or parts of the GHMVRA constitution, so as to make the constitution enforceable against an Owner at the suit of the Association. There is a dispute as to whether the attempts to amend the rules have been effective. There is also a dispute as to whether the Association or an individual Owner may enforce all or part of the GHMVRA constitution against another Owner by another route, namely encumbrances registered against the titles to lots.
[17] I am not able to resolve these disputes so propose to deal with this matter on the basis of the rules only.
[18] The Association’s complaint is that the sublicensee does not park outside the locked gate as others do, but comes through the gate, drives along Rue d’Amarres, and from there drives onto the second defendant’s lot. The sublicensee then parks on the lot for however long he wishes. Apparently the sublicensee is a frequent visitor so this is a frequent occurrence. On occasions, more than one car has been parked on the lot and there is evidence that on some occasions many cars, say six or more, have been parked on the lot. The Association’s case is that the car parking is unsightly and to have so many people driving up close to other lots interferes with the privacy and amenity of other Owners, particularly those who are resident in the precinct.
[19] Discussions having failed to resolve matters to the satisfaction of all parties, the Association cancelled one of the swipe cards issued to the Morgans, that being the swipe card that the Morgans have given to the sublicensee for him to use.
Serious issue to be tried
[20] Counsel for the defendants referred me to rule 5.1 of the rules which reads as follows:
5.1Subject to any Rules of the Association relating to the use of the Cap d’Amarres Land, each Owner and their Invitees shall be entitled to make full use of their individual Lot and the Common Facilities.
[21] The Cap d’Amarres Land comprises lots 1 to 16 and 19 in the Cap d’Amarres precinct. The rules define an Invitee to mean “any invitee, visitor, or occupier of the Lots authorised or approved by an owner”. The definition of Lots includes lot 11. Common Facilities is defined to include Rue d’Amarres, that is lot 19.
[22] Counsel for the defendants submitted that a sublicensee of a berth is an Invitee for the purposes of rule 5.1 and so is entitled to make “full use” of the relevant Owner’s individual Lot and of the Common Facilities. On that basis, the defendants submit that the sublicensee may drive along Rue d’Amarres and that he and his guests may park their cars on lot 11, without limitation.
[23] Counsel for the plaintiff emphasised rule 4.6. Rule 4.6 provides that the rights, privileges and obligations of an owner are not assignable. I am not satisfied that rule 4.6 is particularly relevant to the present application but certainly it may be relevant when the merits of the dispute are determined.
[24] Other rules are also relevant. Owners are required to comply with “Design Guidelines” (see rule 13.2(c)). The Design Guidelines are concerned predominantly, but not exclusively, with the built form of any dwelling to be constructed on a lot.
[25] Design Guidelines 3.0 and 3.1 and 4.2 read as follows:
3.0 TRANSPORT
Inadequate provision of parking and loading areas can create adverse effects on the amenity value of the estate. Parked vehicles can
detract from the streetscape, can obstruct footpaths, berms and
access to properties.
3.1 PARKING
3 parking spaces per site are to be provided, two of which shall be fully enclosed.
4.2 USES
Uses allowed: Residential
Home Business Activity (Not to exceed 55sqm in nett floor area)
Intensity Level not to exceed one person per 55sqm of living space
[26] Guidelines 3.0 and 3.1 are concerned with the effect of parked vehicles on amenity. On its face, Design Guideline 3.1 anticipates only one parking space which is not fully enclosed on each lot, although counsel for the defendants submits that all Design Guideline 3.1 does is set a minimum number of car parks per lot. Design Guideline 4.2 makes it clear that a lot is intended for residential purposes. It is not intended for use as a carpark.
[27] Schedule two to the rules contains the Association’s bylaws. These also are binding on Owners. Bylaw 2.1 requires that a lot be used solely for private residential purposes. Bylaw 4.2 requires an Owner to keep their lot in an attractive condition.
[28] On the face of this very brief examination of the rules, and leaving to one side the terms of the sublicence and other documents which may be binding on Owners, there is clearly an argument that a sublicensee is an Invitee and as such may drive along Rue Cap d’Amarres. In my view, the question of whether numerous vehicles may be parked on a lot is more difficult. The words “full use” in rule 5.1 do not necessarily allow unlimited parking, given the nature of the development and other terms and conditions which are relevant to ownership. I accept, however, that there is a serious issue to be tried.
[29] I turn now to the balance of convenience.
[30] This is a time of year when a person who has a yacht at a marina berth is likely to be wishing to use their yacht, and possibly with friends and family. It is also a time of the year when Owners who are residents will wish to enjoy their properties, they may often wish to be outside, and they also may be entertaining others.
[31] The sublicensee has advised that he will cancel the sublicence if he cannot drive right up to his berth. It is not clear to me that he is entitled to do so. Regardless, if the sublicensee does cancel, the Morgans will be deprived of the rent he pays, notwithstanding that counsel for the Association tells me the Association has ample funds in hand to pay any sum which it may be ordered to pay to the Morgans. Counsel for the Association also informed me that there is car parking within 100 metres of the berth, and the sublicensee and his guests may park there.
[32] I discussed with counsel the possibility of reinstating the sublicensee’s access but limiting the number of cars which might be parked on lot 11 at any one time. I put it to counsel for the defendants that there should be no more than one vehicle parked on an undeveloped lot, given Design Guideline 3.1. Counsel submitted that if I were to limit the number of vehicles on an undeveloped lot, I should allow up to four, that is two vehicles per marina berth. I do not consider that is necessary given the car parking which is available nearby.
Result
[33] Pending further order of the Court, I grant the order sought in [2](a) above on condition that no more than two cars may be parked on lot 11 at any one time. I have allowed a maximum of two vehicles in the expectation that it will enable each of the Morgans’ sublicensees to park one car on the lot at any time. That, however, is a matter for the Morgans.
[34] I do not propose to make orders in respect of [2(b)] to [2(d)] above. The only swipe card the Association has cancelled is the one the Morgans have given to the sublicensee. These orders are confined to that swipe card and lot 11. There is hearing set down for these proceedings on 24 February 2011 and I otherwise adjourn this application to that date. The parties have leave to apply in the meantime.
[35] Costs are reserved.
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PETERS J
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