Du Fall v Tauranga Bridge Marina Ltd - [2017] NZHC 3165

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2017-470-000140 [2017] NZHC 3165

BETWEEN
NEVILLE JOHN DU FALL

First Plaintiff

CHRISTOPHER DENNIS DONALD COLLIER

Second Plaintiff

AND

STUART JAMES NEAVE Third Plaintiff

Contd/…

Hearing: 13 November 2017

Appearances:

D Fraundorfer and T Conder for the Plaintiffs
P Crombie and D Wilsher for the Defendant

Judgment:

15 December 2017

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on 15 December 2017 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

Solicitors: Holland Beckett Law, Tauranga
Cooney Lees Morgan, Tauranga

DU FALL & ORS v TAURANGA BRIDGE MARINA LTD [2017] NZHC 3165 [15 December 2017]

ALLARD ROBERT HENRY MITCHELL Fourth Plaintiff

WORDSWORTH GROUP HOLDINGS LTD
Fifth Plaintiff

NEIL LOCKHART MAGNUS and GAYE THOMSON MAGNUS
Eighth Plaintiffs

TAURANGA BRIDGE MARINA LTD Defendant

[1] The plaintiffs apply for an interim injunction to prevent the defendant from transferring and selling their berth licences at the Tauranga Bridge marina.

Facts

[2] The six plaintiffs are berth holders in the Tauranga Bridge marina, which is operated by Tauranga Bridge Marina Ltd (TBML). The marina contains 306 berths,
190 of which are owned by TBML.

[3] The plaintiffs and TBML have been involved in a dispute for some years. In

2006 significant damage was caused to the marina by a storm. Expert advice suggested that TBML should build a breakwater outside the marina to protect it from severe wave action. Following a meeting with berth holders, TBML obtained costings for the construction of the new breakwater. A meeting of the berth holders in December 2014 resolved that these costs would be met by way of levies on berth holders.

[4] A small group of berth holders refused to pay the additional levies. TBML applied to the High Court for declarations that the defendants in those proceedings, many of whom are now plaintiffs in these proceedings, were bound by the resolution and therefore obliged to pay their contributions, or alternatively that the berth holders were obliged to pay the contributions as an “operating expense” as defined in the berth licenses. Thomas J held that the resolution was not binding on the defendants, and that the construction costs were capital expenditure not operating expenditure.1 She held that the berth licenses governed the relationship between the berth holders and TBML. That agreement defined “operating expenses” as those relating to “the control, occupation, maintenance and management of the marina”. Thomas J held that this related to the existing marina, not to a new development outside the marina. Accordingly, TBML was not entitled to charge the berth holders additional levies to pay for the new breakwater. As a result of the judgment, TBML deferred the
breakwater project indefinitely.

1 Tauranga Bridge Marina Ltd v Du Fall [2016] NZHC 1747.

[5] Following the judgment, in 2017 the plaintiffs queried further charges levied by TBML ostensibly as operating expenses. They claimed the further charges were not…

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: [2017] NZHC 3165
Decision Date: 15 December 2017

CaseChat Overview and Summary

Neville John Du Fall, Christopher Dennis Donald Collier, Stuart James Neave, Allard Robert Henry Mitchell, Wordsworth Group Holdings Ltd, Neil Lockhart Magnus and Gaye Thomson Magnus (collectively, the plaintiffs) brought an application for an interim injunction to prevent Tauranga Bridge Marina Ltd (TBML) from transferring and selling their berth licences at the Tauranga Bridge marina. The plaintiffs claimed that the charges levied by TBML did not constitute operating expenses as defined in the berth licences. They also sought a declaration that TBML had waived any right to forfeit the licences without giving notice to the plaintiffs. The plaintiffs further alleged that TBML engaged in misleading and deceptive conduct under the Fair Trading Act 1986. The court considered whether there was a serious question to be tried and whether the balance of convenience favoured the plaintiffs. The court concluded that there was a serious question to be tried regarding the nature of the costs levied and whether they fell within the definition of operating expenses. The court also found that the balance of convenience clearly favoured the plaintiffs, as they would likely lose access to their berths and the marina if interim relief was not granted. The court granted an interim injunction restraining TBML from taking steps to transfer and sell the plaintiffs’ berth licences pending the final determination of the proceedings.

Orders