Hunt v Queenstown Lakes District Council
[2023] NZHC 2379
•30 August 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-001610
[2023] NZHC 2379
BETWEEN GEOFFREY GERARD HUNT
Applicant
AND
QUEENSTOWN LAKES DISTRICT COUNCIL
Respondent
Hearing: On the papers Counsel:
S R Carey for Applicant
T J McGuigan and Z L Trapski for Respondent
Judgment:
30 August 2023
JUDGMENT OF ANDREW J
[Leave to appeal]
This judgment was delivered by Justice Andrew on 30 August 2023 at 12.00 noon
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date ……………………………
HUNT v QUEENSTOWN LAKES DISTRICT COUNCIL [2023] NZHC 2379 [30 August 2023]
Introduction
[1] NZL 14 is a large America’s Cup yacht that has been moored on Lake Wakatipu since approximately 2005.
[2] In February 2020, the Queenstown Lakes District Council1 obtained a formal proof judgment from this Court declaring that NZL 14 had been abandoned by Mr Hunt2 for the purposes of s 33L of the Maritime Transport Act 1994.3
[3] In my judgment of 1 March 2023, I dismissed an application by Mr Hunt to set aside that decision.4 I concluded that Mr Hunt did not have a substantial ground of defence, namely that NZL 14 has not been abandoned.
[4] Mr Hunt now seeks leave pursuant to s 56(3) of the Senior Courts Act 2016 to appeal my judgment of 1 March 2023 to the Court of Appeal. He submits that I erred in concluding that he did not have available a substantial defence to the claim that NZL 14 had been abandoned. He also submits that the intended appeal will have both general importance and be of great significance to him. The purpose of the intended appeal is to prevent NZL 14 being destroyed.
[5] The critical issue I must determine is whether the interests of justice are served by the granting of leave to appeal.
Factual background
[6] In September 2018, when owned by Mr Hunt, NZL 14 broke its mooring and became a hazard to other vessels. Since then, QLDC has been mooring the vessel. Demands to remove it have not been met by Mr Hunt.
[7] In the period between September 2018 and July 2019, Mr Black, QLDC’s harbourmaster, issued four directives to Mr Hunt directing him to (among other things) re-locate the yacht, pay the costs of re-locating, remove the yacht to a permanent
1 QLDC.
2 Hunt v Queenstown Lakes District Council [2020] NZHC 285, at [13].
3 MTA.
4 Hunt v Queenstown Lakes District Council [2023] NZHC 364.
mooring, pay the costs of temporary mooring and not to use the yacht. Those directives were issued pursuant to cl 55 of the Queenstown Lakes District Council Navigation Safety Bylaw 2018.
[8] Despite Mr Hunt’s response that he was taking steps to find a place to re-locate the vessel and have it repaired, he has not to date done so.
[9] A comprehensive factual background is set out at [8]–[37] of my judgment of 1 March 2023. I adopt them for the purposes of this judgment.
Relevant legal principles
[10] The requirement for leave to appeal serves as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.5
[11] The following considerations are relevant on an application for leave to appeal:6
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
5 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679, at [13].
6 Greendrake v District Court of New Zealand [2020] NZCA 122, at [6].
Analysis and decision
Error of law – substantial defence
[12] In support of his principal contention that he has a substantial defence that NZL 14 has not been abandoned, Mr Hunt submits:
(a)He did not have to show in the set aside application that NZL 14 had not been abandoned; he only had to show that such a defence existed.
(b)Abandonment is not defined in the MTA. Section 33L presupposes abandonment: the section applies after abandonment, but the MTA offers no assistance as to what constitutes abandonment under the Act.
(c)There is no suggestion that Parliament intended “abandoned” under the MTA to take anything other than its usual legal meaning.
(d)The usual legal meaning of abandonment is that there must be clear evidence both of intention to abandon and of some physical act of relinquishment. Here, it is at least arguable that there was neither a physical act of abandonment nor an intention by Mr Hunt to relinquish ownership. Clear evidence is required before an intention to relinquish such a right is inferred. There was no clear evidence here.
(e)Forsaking responsibility is not legal abandonment. An owner can forsake responsibility for a chattel but still own it. Abandonment is more serious; it is unequivocally relinquishing ownership.
[13] I agree with Mr Hunt’s submission that in my set aside judgment I was not required to determine whether the boat had been abandoned; only whether a substantial defence existed to that claim. However, it is now for Mr Hunt to identify and demonstrate an arguable error of law in order to grant leave to appeal.
[14] The submissions of Mr Hunt give emphasis to the contention that he never intended to give up ownership of NZL 14, let alone unequivocally so. However, as
QLDC submits, what Mr Hunt seeks to do is to import the common law principle of abandonment into s 33L of the MTA, which ignores well-settled principles of statutory interpretation. Mr Hunt’s approach is inconsistent with the express statutory language of s 33L, the broader purposes of the legislation and the principles set out by the Court of Appeal in respect of an antecedent provision under the Harbours Act 1950.7
[15] Mr Hunt argues that I erred by not having due regard to his subjective intention. However, the statutory scheme of the legislation and the earlier Court of Appeal decision of Carter v Ports of Auckland Ltd make it clear that the test is an objective one.8 Section 33L of the MTA adopts the express wording “appears to have been abandoned”. As the QLDC submits, there are sound policy reasons why the subjective intentions of an owner will not be decisive and that a port authority must be entitled to act if outward indications show that a vessel has been abandoned in the sense of having been forsaken, given up or surrendered.
[16] Furthermore, the requirement of an unequivocal intention by the legal owner of a ship to relinquish ownership rights is inconsistent with the broader definition of “owner” under the MTA. Under the legislation, “owner” is not restricted to the person who is the legal owner of a ship. Where a ship is not registered, the owner is the person who is for the time responsible for the management of the ship.9 A requirement of unequivocal intention by that person to relinquish all legal ownership rights makes no sense because that person does not legally own the ship.
[17] I also note that the purpose of s 33L of the MTA is to enable local authorities to either have an owner take responsibility for their ship or to remove, sell or otherwise dispose of it to achieve maritime safety. If local authorities cannot invoke s 33L in circumstances where a ship appears to have been abandoned because of a reluctant owner, they may not be able to fulfil their statutory function under s 33C of the MTA. That function includes regulating ports, harbours and waters for the purposes of ensuring maritime safety within their respective regions.
7 Carter v Ports of Auckland Ltd CA122/04, 29 August 2005.
8 Carter v Ports of Auckland Ltd, above n 7.
9 MTA, s 2.
[18] Finally, Mr Hunt’s submissions fail to address the absurd result contention advanced by QLDC. QLDC give the example of a person who has purchased a ship with the best intentions, but for whatever reason can no longer afford mooring fees or to keep up with necessary maintenance. The condition of the ship deteriorates over several years, but the owner still intends to restore it. Several more years elapse without any substantive steps being taken to restore the ship or otherwise deal with it, but the owner has a particular fondness for the ship and maintains that he still intends to restore it.
[19] That scenario has particular application to this case. The vessel here, not maintained for some significant time now, is an expensive boat to maintain. As I noted in my substantive judgment, there is no evidence to suggest that Mr Hunt is in a financial position to take any steps to restore the yacht and to pay for its ongoing secure mooring.
[20]I conclude that Mr Hunt has failed to identify an arguable error of fact or law.
Interests of justice
[21] As Fitzgerald J held in Finewood Upholstery Ltd v Vaughan, the threshold for a leave to appeal application is a high one.10 The ultimate test is of course the interests of justice.
[22] I find that it would not be in the interests of justice for the leave application to be granted. Not only has Mr Hunt failed to identify an arguable error of law or fact, but there is now a compelling interest in the finality of allowing QLDC to dispose of NZL 14. To date, QLDC has adopted a lenient approach towards Mr Hunt but QLDC continues to incur costs for the vessel’s safekeeping and Mr Hunt’s financial circumstances give no assurance at all that either he or NZL 14 Youth Aid Limited are in a position to pay for ongoing mooring fees or to find an alternative solution for the vessel’s future.
10 Finewood Upholstery Ltd v Vaughan, above n 5, at [9].
[23] I accept that the proposed appeal has significant implications for Mr Hunt and it is regrettable that his aspiration for using the yacht as a training vessel for the youth of Queenstown will likely not be realised. However, this litigation now needs to be brought to an end.
Result
[24] The application by Mr Hunt for leave to appeal to the Court of Appeal pursuant to s 56(3) of the Senior Courts Act 2016 is dismissed. In the circumstances, there is no order as to costs.
Andrew J
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