Kennedy Point Boatharbour Limited v Barton - [2022] NZHC 737

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2053

[2022] NZHC 737

BETWEEN KENNEDY POINT BOATHARBOUR LIMITED
Plaintiff

AND

AINE BARTON

First Defendant

KRISTEN BUSHER
Second Defendant

Continued …

Hearing: On the papers

Appearances:

C R Andrews for the Plaintiff

R M Mansfield QC, DAC Bullock and S D Wakefield for the Twelfth Defendant

Judgment:

12 April 2022

JUDGMENT OF GAULT J

(Application for leave to appeal)

This judgment was delivered by me on 12 April 2022 at 10:00 am pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors:
Mr C R Andrews and Mr D J Pine, McVeagh Fleming, Auckland
Mr R M Mansfield QC (counsel for the twelfth defendant), Barrister, Auckland Mr DAC Bullock and Ms S D Wakefield, LeeSalmonLong, Auckland

KENNEDY POINT BOATHARBOUR LTD v BARTON [2022] NZHC 737 [12 April 2022]

Continued …

NOA CLARKIN
Third Defendant

BILLIE FAIRCHILD
Fourth Defendant

JOHN FINN
Fifth Defendant

THOMAS GREVE
Sixth Defendant

ZO HARTLEY
Seventh Defendant

JOSH JACOBSON
Eighth Defendant

CHRYSTAL KAREN KANARA
Ninth Defendant

ALICE KARETAI
Tenth Defendant

MATTHEW KEMP
Eleventh Defendant

MEGAN MANUKA
Twelfth Defendant

WARREN MATAHAERE
Thirteenth Defendant

ALISON MELL
Fourteenth Defendant

DARLEEN TANA HOFF NEILSON
Fifteenth Defendant

MARDI ELIZABETH O’CONNOR
Sixteenth Defendant

JESSIE-LEE PEARCE
Seventeenth Defendant

TE AATA RANGIMARIE

Eighteenth Defendant

BIANCA RANSON
Nineteenth Defendant

HUGH ROSS
Twentieth Defendant

PABLO ANTONIO ZEBIDI SINCLAIR
Twenty-First Defendant

MEGAN TAYLOR

Twenty-Second Defendant

DANIELLE TOLLEMACHE
Twenty-Third Defendant

JULIANNE TIMMINS
Twenty-Fourth Defendant

EMILY MAIA WEISS (RANDALL)
Twenty-Fifth Defendant

BENJAMIN WHITWORTH-LOZA (MAKO)
Twenty-Sixth Defendant

NEIL WOLMARANS
Twenty-Seventh Defendant

LEV WOOLF
Twenty-Eighth Defendant

JONATHAN ZUR

Twenty-Nineth Defendant

MICHAEL ZUR
Thirtieth Defendant

LARRY “UNKNOWN”
Thirty-First Defendant

SIMON “UNKNOWN”
Thirty-Second Defendant

AND

PERSONS UNKNOWN

[1] The twelfth defendant, Ms Manuka, applies for leave to appeal my interlocutory judgment dated 23 February 2022 in which I varied but declined to set aside without notice interim injunction orders obtained by the plaintiff, KPBL.1

[2] KPBL neither supports nor opposes Ms Manuka’s application. They both agree that leave should be determined on the papers. A number of other defendants have informally expressed support for Ms Manuka’s application.

Factual background

[3] KPBL has obtained a resource consent (coastal permit) to construct and operate a marina in the coastal marine area (CMA) near Kennedy Point in Pūtiki Bay, Waiheke Island. The resource consent has been challenged through the courts – appeals have been unsuccessful,2 but a judicial review proceeding is ongoing. In any event, opposition to the marina remains. A beach occupation began around March 2021 and a series of other protests at or near the marina site followed.

[4] On 3 November 2021, KPBL filed proceedings claiming in trespass together with a without notice interlocutory application for interim quia timet injunction. It sought to restrain thirty named defendants and two partially named defendants from entering a specified area, and also to restrain “persons unknown” in connection with protest action against construction of the marina from doing so, at specified times.

[5] Wylie J…

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: [2022] NZHC 737
Decision Date: 12 April 2022

CaseChat Overview and Summary

Kennedy Point Boatharbour Limited (KPBL) sought leave to appeal an interlocutory judgment varying but not setting aside interim injunction orders that restrained thirty named defendants and two partially named defendants, along with “persons unknown,” from entering a specified area in relation to protests against the construction of a marina. The twelfth defendant, Ms Megan Manuka, applied for leave to appeal the interlocutory judgment. The appeal was to be determined on the papers, with KPBL neither supporting nor opposing the application. Several other defendants expressed informal support for Ms Manuka’s application.

The legal issues the court was required to decide were whether the interlocutory judgment contained arguable errors of fact or law warranting appellate scrutiny and whether granting leave would serve the interests of justice. The court considered the principles governing interlocutory appeals, including the requirement for leave to appeal and the high threshold for such leave, and whether the alleged errors were of general or public importance warranting determination. The court also examined whether the circumstances warranted incurring further delay and whether the ultimate question was whether the interests of justice were served by granting leave.

The court found that the interlocutory judgment did not contain arguable errors of fact or law warranting appellate scrutiny. The court concluded that the primary ground of appeal, concerning the interpretation of the Resource Management Act 1991, was not suitable for determination in the context of an interlocutory appeal. The court considered that the preferable course in this proceeding may be for the Court of Appeal to consider the issue on a substantive appeal on the merits when the various rights can be balanced substantively. The court found that the interests of justice were not served by granting leave, and dismissed the application for leave to appeal.

Orders