Kennedy Point Boatharbour Ltd v Barton - [2022] NZHC 257

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2053

[2022] NZHC 257

BETWEEN KENNEDY POINT BOATHARBOUR LIMITED
Plaintiff

AND

AINE BARTON

First Defendant

KRISTEN BUSHER
Second Defendant

Continued …

Hearing:
19 January 2022 (and further memoranda dated 21 and 27 January

and 11 February 2022)

Appearances:

C R Andrews for the Plaintiff

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

Judgment:

23 February 2022

JUDGMENT OF GAULT J

This judgment was delivered by me on 23 February 2022 at 4:30 pm 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 257 [23 February 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:

(a)to vary or set aside without notice interlocutory injunction orders granted by Wylie J;1 and alternatively

(b)for leave to appeal the orders of Wylie J.

The plaintiff, KPBL, opposes both applications.

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 determined the application on the papers. His orders dated 4 November 2021 granted an interim…

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 257
Decision Date: 23 February 2022

CaseChat Overview and Summary

Kennedy Point Boatharbour Limited (KPBL) is seeking to build a marina in Pūtiki Bay, Waiheke Island, and has obtained a coastal permit to do so. Opposition to the marina has led to protests, including trespassers entering the construction area. KPBL applied for and obtained an interim quia timet injunction without notice, restraining named defendants and "persons unknown" from entering the specified area. Aine Barton, one of the named defendants, applied to set aside the interlocutory injunction orders and for leave to appeal the orders. Barton argued that KPBL was not entitled to exclusive occupation of the construction area, that KPBL had failed to disclose relevant information, that the application should not have been sought and determined without notice, and that the balance of convenience and interests of justice did not favour an interim injunction. Gault J rejected Barton's application to set aside the interlocutory injunction orders but granted the application to vary the orders in part. The Court found that there was a serious question to be tried that KPBL is entitled to exclusive occupation of the areas of the coastal marine area within the broad orange lines on Plans A to D in Schedule 2 of the Orders while those areas are demarcated by marker buoys and where construction activity is occurring. The balance of convenience and interests of justice favoured maintaining the interim orders. The interim orders were varied to clarify that the orders do not apply above mean high water springs and that the orders do not suppress public protest outside the areas of exclusion. The orders were also varied to provide that at all other times, defendants were to be restrained from touching, throwing projectiles at, or otherwise interfering with marina construction equipment, marina construction material or marina components at Kennedy Point, Waiheke Island. The Court limited the duration of the order for persons unknown and named defendants, stating that the order would be in place pending further order at trial, if not before, and during the marina's construction phase.

Orders