Nelson Sun Club Inc. v Elsey HC Nelson CP 19/00

[2001] NZHC 752

IN THE HIGH COURT OF NEW ZEALAND
NELSON REGISTRY CP 19/00

BETWEEN NELSON SUN CLUB INC.
Plaintiff

AND WALTER ELSEY and ELIZABETH ELSEY
Defendants

Hearing: 17, 18 July 2001

Counsel: J M Fitchett for the Plaintiff
A Powell for the Defendants

Judgment: 16 August 2001

JUDGMENT OF WILD J

Solicitors:
Daniell-Smith Stallard & Hunter, Nelson for the Plaintiff
Rout Milner & Fitchett, Nelson for the Defendants

Introduction

[1] Is the defendants’ 19 year lease from the plaintiff (“the Club”) subject to an implied term that it terminates with membership of the Club? The full term is set out in paragraph [7] of this judgment. I will refer to it as “the implied term”. I will also abbreviate names of Club members to whom I refer, for privacy reasons.

[2] The plaintiff’s members are “naturists” - people who wish to be at harmony with nature without clothing. The Club owns an attractive property in Upper Moutere near Nelson. The facilities include a swimming pool, a small golf course, caravan and camping sites and a number of sites for baches.

[3] The defendants’ permanent and only home is a bach on site 6. The defendants hope to spend the remainder of their lives there. Over the summer of 1997/98 they designed and built a bach on site 6. On 4 April 1998 the Club granted them a 19 year lease of the site. They were members of the Club throughout this period. 6, and the defendants hoped to spend the remainder of their lives living in their bach. The defendants were members of the Club throughout this period.

[4] The Club has since terminated the defendants’ membership, that of Mr Elsey on 4 November last and Mrs Elsey’s on 7 July 2001. Having terminated membership, the Club required them to leave its property, and served (or in Mrs Elsey’s case has threatened to serve) a trespass notice. The defendants refuse to leave, claiming their lease entitles them to stay.

[5] On 17 November 2000 the Club, by way of an application for summary judgment, sought a declaration that the defendants’ lease became void upon the termination of Mr Elsey’s membership and that Mr and Mrs Elsey must vacate their bach immediately. The Club withdrew its summary judgment application on 15 February. On 18 April the Club amended its claim to seek a declaration as to the proper construction of the lease, in particular determining whether it is subject to the defendants maintaining their membership of the Club. The Club also sought an injunction restraining Mr Elsey (Mrs Elsey was still a member then) from remaining on its property.

[6] In amended statements of defence filed on 15 June, the defendants admitted that they had asserted their entitlement to remain in their bach, regardless of whether they remained members of the Club. In the event that the Court held that their lease contained the implied term asserted by the Club, the defendants alleged that further implied terms were:

“(i) that at no time will the Club (or the Committee of the Club) improperly use the complaints procedure (contained in the Club’s then current Constitution) as a strategem or device effectively to prevent the lessees (or either of them) from continuing to exercise the right of occupation and quiet enjoyment reserved under the Lease;

and/or

(ii) that at no time will the Club terminate the membership of the lessees (or either of them) other than on grounds which are (in all the relevant circumstances) reasonable.”

The defendants also allege that discretionary equitable relief should be withheld from the Club, for a variety of reasons which I need not go into.

[7] On 31 May, by consent, Master Venning directed that this question be tried as a preliminary issue:

“Is the deed of lease dated 4 April 1998 between the Plaintiff as lessor and the Defendants as lessee subject to an implied term that in order for any lessee to exercise the right of occupation and quiet enjoyment reserved under the lease that person must have current membership of the Plaintiff, pursuant to its constitution?”

[8] This judgment deals only with that question.

[9] I note that Mr Elsey has brought a separate proceeding against the Club, seeking judicial review of its decision terminating his membership. Mrs Elsey may now seek to be joined as a plaintiff in that proceeding. This judgment is not concerned with the merits of the Club’s decision to terminate the defendants’ membership. But I will need to make some reference to the manner in which the Club has dealt with membership of lessees of bach sites.

Factual background

[10] The defendants had been members of the Canterbury Sun Club. Their evidence is that difficulties in that club resulted in the loss of much of the value of permanent baches in the grounds of the Canterbury club. As a result, the defendants decided to be extremely careful before they again purchased a permanent bach in a naturalist club.

[11] The defendants had been members of the plaintiff Club since 1994. They obtained an option over a bach site on the Club’s property, but during 1997 lived in a caravan on the property. During 1997 they spent much time sorting, indexing and filing the Club’s records and, in the course of that work, became aware that the Club did not have a resource consent for the permanent baches on its property. They assisted in obtaining a consent from the Tasman District Council in 1997. As they were contemplating building a bach on one of the Club’s sites, they also interested themselves in the licence to occupy under which the bach sites were held. This was essentially an annual licence, and clauses in it gave the Club Committee the right to settle disputes by majority vote without hearing from the licence holder and to sell the bach without being responsible to the occupier for the amount of the sale price. The defendants took the view that this licence did not offer adequate security of tenure.

[12] The defendants’ work in ordering the Club’s records also gave them some awareness of past disagreements between members. But Mrs Elsey deposed:

“By the time this information was known to me, my husband and I had sold our house in Christchurch and committed ourselves to retirement at the Club. Had I been aware of the history of discord and improper Committee actions against members, I would not have contemplated building our ultimate retirement home at the Club.”

[13] In the latter part of 1997, the defendants, in particular Mr Elsey, drafted a form of lease and a revised constitution for the Club. He did this in his capacity as a member of the Long Term Planning Committee which was established in May 1997 and disbanded some two years later.

[14] Mr Elsey presented his draft lease to the Club Committee on 31 January 1998. Although members did not object to its terms, the Committee decided to obtain legal advice about the draft, to protect the Club’s interests. The Club’s solicitors provided to the Club a fresh draft lease under cover of a letter dated 23 February 1998. The solicitors’ draft did not contain the implied term. As it was not adopted, its terms are of little relevance, but I note the following:

“5. ASSIGNMENT OR SUB-LETTING

5.1 The Lessee shall not sub-let the Site or building thereon nor assign this lease without the express written permission of the Lessor and upon such terms and conditions as the Lessor shall impose in its absolute discretion including the condition that the purchaser and assignee are Members of the club.

. . .”

(my emphasis)

[15] The Club Committee decided to reject the solicitors’ draft, seemingly on the ground that the solicitor had only been asked to comment on Mr Elsey’s draft, not to prepare a fresh one. The Committee resolved on 4 April 1998 to adopt the Elsey draft and, on the same day, signed and sealed deeds of lease to a number of bach site occupiers, including the defendants.

[16] In the meantime, the Annual General Meeting of the Club held on 15 November 1997 resolved that the Club’s constitution and rules be up-dated and revised, for consideration at the 1998 Annual General Meeting. A new draft constitution, the work of Mr Elsey and Mr A, was circulated to members in or about March 1998, and their submissions requested. Relevant changes included a new definition of “grounds” to exclude leased bach sites (Interpretation of Terms), a restriction on the powers of the Club Committee to deal with the Club’s property (Rule 16 e)) and a power in the Committee to issue to members leases for bach sites (Rulel6 f)). The draft did not include a condition that any lease issued was conditional upon continued membership. The new constitution was adopted by the Club at its Annual General Meeting in May 1998.

[17] New regulations were promulgated by the Club Committee under its power under Rule 16 b) of the new constitution. Regulation 21, dealing with permanent residents, states that withdrawal of permanent residency shall be considered if:

“21.3.1 a member’s conduct is likely to bring discredit to the club or other members.

21.3.4 change of membership status other then (sic) Full or Life.

21.3.5 if matters are considered by the committee and it is in the club’s best interests.

. . .”

[18] As I have mentioned, the defendants designed and built their bach on bach site 6 in the Club’s property over the summer of 1997/1998, completing it early in March 1998. It is one of the “Versatile Garages” range, 13 x 12 metres in area, plus a carport. The flooring and framing is of timber construction, the cladding Colorsteel.

[19] In terms of the Club’s resource consent, all the baches built on its property are to be relocatable. Photographs of several of the baches are in evidence. These leave me in no doubt that the baches are not readily relocatable, and have been built and landscaped with the intention that they remain on site permanently. They are not truly relocatable homes such as are found in construction villages or in areas specifically set aside for temporary homes. The photographs also support the defendants’ evidence that extensions to bach 1 at the foot of the service lane running behind the baches would make it physically very difficult if not impossible to truck any of the other baches out down the lane.

[20] The defendants’ lease is in the form of a deed dated 4 April 1998. It is executed for the Club as lessor under seal by its President, Secretary and Treasurer. Both defendants have signed as lessees. The parties’ respective signatures are witnessed.

[21] Tension developed between the Club and Mr Elsey around the middle of 2000. A Special General Meeting to consider terminating Mr Elsey’s membership was called on 4 November last year, and that meeting resolved to terminate his membership. The Secretary of the Club wrote to Mr Elsey the following day instructing him to leave the Club grounds by 3 pm that day and advising him that he would be served with a trespass notice if he failed to do so. A trespass notice was served on Mr Elsey later on 5 November.

[22] The Club, at its Annual General Meeting in May this year, resolved to increase the annual rental for bach sites from $130 to $250 per annum, a 90% increase.

[23] At a Special General Meeting on 7 July this year, Mrs Elsey’s membership of the Club was terminated. She received a letter the same day requiring her to leave the Club’s property forthwith or face action as a trespasser.

[24] The defendants’ evidence is that the Club Committee, over the last 10 months, has terminated the membership of three of the eight bach owners. They depose that the owners of a further site have deliberately absented themselves from the Club for most of the last year, in order to avoid complaint, and subsequent termination of membership. The defendants say that they and other bach lessees have been the victims of a concerted effort by a clique of non-permanent residents, including the Club Committee, to exclude them from the Club. In evidence, Mr A accepted that the membership of two other bach lessees had been terminated. Whilst he accepted that one of these, Mrs E, had refused to pay a fee for assignment of her lease, he said that her membership had been terminated because she had refused to turn up at a meeting or meetings arranged to discuss the dispute. He also accepted that the refusal of Mr and Mrs R to pay an electricity charge in relation to their bach, may have been one of the grounds used to terminate their membership. Mr A accepted that the mediation/arbitration clause had not been invoked in the case of any of these disputes, but maintained that that was because the disputes arose out of members’ conduct, and thus were dealt with in terms of the Club’s rules 6 and/or 7.

[25] Although I have set out this factual background, deciding the preliminary question does not necessitate any factual findings, and I therefore make none.

The law

[26] The requirements for implication of a term have, in New Zealand law, remained as succinctly summarised by Lord Simon in the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283:

“[a] It must be reasonable and equitable.

[b] It must be necessary to give business efficacy to the contract, so that no term will be implied if the term is effective without it.

[c] It must be so obvious that it “goes without saying”.

[d] It must be capable of clear expression.

[e] It must not contradict any express term of the contract.”

[27] Our Court of Appeal acknowledged that this is the law in New Zealand in Devonport Borough Council v Robbins [1979] 1 NZLR 1 at 23 and Prudential Assurance Co. Ltd v Rodrigues [1982] 2 NZLR 54 at 61.

[28] Lord Simon’s citations in Westernport reflect that his tests meld the “business efficacy” test propounded by Bowen LJ in The Moorcock (1989) 14 PD 64 at 68; McKinnon LJ’s “officious bystander” test from Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 at 227. That fusion of the two approaches was noted by Tipping J in Otago Harbour Board v Reid Farmers Ltd [1991] NZLR 115.

[29] Implication of a term aims to give effect to the obvious intention of the parties. Each of Lord Simon’s five tests reflects that aim, though from a different but overlapping angle.

The Westernport tests applied here

Reasonable and equitable

[30] The lease is of a bach site in the grounds of a naturist club. The defendant’s bach commands a view over the Club’s grounds, including the swimming pool. Naturism or nudism is a fairly private activity. Accordingly, the Club’s regulations restrict access to its grounds to members and their visitors and guests, the latter only on specified conditions. Prominent notices at the entrance to the Club’s property, and within it, announce “Members and Guests Only”. In those circumstances, to require that the lessee of a permanent bach in the grounds also be a member, seems consistent, and reasonable and fair.

[31] There is also the point that the bach is required (in terms of the Club’s resource consent) to be relocatable. The fixing of the annual rental at no more than twice that for a caravan site perhaps reflects the inherently “temporary” nature of the accommodation. In terms of the lease, the bach may be removed in the events that the lease terminates, and no buyer offering a reasonable price for the bach could be found.

[32] The evidence left me unable to assess where the $250 annual rental lay in relation to a “market” rental. But my instincts are that it is low, particularly if access to the Club’s facilities such as its swimming pool and golf course are factored in. That access, of course, would only be available if the lessee was a member. This might be offset to some extent by work done by bach lessees on the Club’s grounds in working bees and the like. But the overall point is that the annual rental for the bach site reflects benefits and obligations which are incidents of membership of the Club.

[33] For the defendants, Mr Fitchett readily acknowledged that a lessee must be a member when the lease was obtained. That concession reflects Rule 16 f) i). Clause 1 d) of the lease itself permits sub-letting or assigning of the lease only with the express permission of the Club and upon such terms as it may in its absolute discretion impose. The Club would surely permit assignment or sub-letting only to a member.

[34] Mr Fitchett then advanced the difficult argument that, while a person must be a member to obtain a lease, thereafter the requirement for membership lapsed. The illogicality of this argument is immediately unappealing. Mr Fitchett supported it by referring to the Club’s recent termination of the membership of two other bach sites lessees, apparently on grounds related, at least in part, to the lease. I have already referred to this in paragraph [24] above. But, whilst that situation may argue for relief for those lessees in respect of the Club’s actions, I cannot see that it argues against the reasonableness of implying a term that lessees of bach sites in the Club’s grounds must be members.

[35] The nub of Mr Fitchett’s argument is that it is unreasonable to imply a term that the lease terminates with membership, because the Club may (and recently has) unreasonably terminated lessees’ membership. The corollary of this argument is that it is reasonable to imply the term if the Club deals with lessees’ membership in a fair and proper manner. That is what the Club can and should be expected to do, and it is that corollary which I consider determines this first test in favour of implication.

Necessary to give business efficacy

[36] I regard access as the primary point under this head. The lease is of “the . . . land known as site 6” shown on an attached sketch plan. Clause 6 a) of the lease also gives the lessees “sole access over the service road behind the Buildings on Sites 1-8 delineated in red on the attached sketch plan”. I regard that as an error, the intention being that access over the service road be shared with the lessees of the other seven bach sites. The point is that access to bach site 6 and to the service road can only be gained across the Club’s property. The obvious and convenient access, and the only vehicular access, is through the main entrance to the Club’s property and along the access road through the grounds which join the service lane. Access to the Club’s property is restricted to members and their invitees, in the manner I have described. Mr Fitchett sought to meet this difficulty by referring to the affidavit of a private investigator who had attempted to serve documents on Mr Elsey by approaching bach site 6 from the west. This man described “parking on the neighbouring farm and walking a kilometre so that I could approach the (defendants’) house from across the farm and to within 10 metres without being seen”. He recounted having to climb over a fence. I find that proper access to bach site 6, indeed to all the bach sites, is only across the Club’s property. Such access is restricted to members. No point in a lease continuing if the lessee cannot gain access to the property. I view this circumstance as strongly supporting implication of a term that the lease terminates with the lessee’s membership.

[37] There are further indications that continuance of the lease was conditional upon the lessee remaining a member of the Club:

[a] Clause 2 e) of the lease assures the defendants quiet enjoyment of the bach site subject to their “ . . . observing . . . the Rules of the Club . . .”. As I have mentioned, lessees must be members to obtain a lease, and Club Rule 3 requires that every member be issued with a copy of the Club Rules and Regulations and any subsequent additions or amendments to them. There is no provision in the lease for the lessee to be provided with a copy of the Club’s Rules or amendments to them. Realistically, clause 2 e) assumes the lessee, throughout the lease, will continue to be a member of the Club, provided with and bound by its Rules and Regulations, as amended or added to from time to time.

[b] Pursuant to clause 1 a) of the lease, the annual site rental and other levies for the site are as “lawfully determined at an AGM and which accord with the Rules and Regulations of the Club”. This rental and levy fixing mechanism would exclude any participation by the lessee, unless a member of the Club and thus entitled to be present at the Annual General Meeting. Mr Fitchett pointed out that the annual bach site rental is capped at twice that for a standard powered caravan site. This does not detract from the point that the annual bach site rental is fixed at the Club’s annual meeting, and membership is necessary before the lessee can participate in any way in the rental fixing.

[c] Next, there are several provisions in the lease which I regard as unworkable unless the lessee is a member of the Club. The first is clause 2 b) which restricts lessees’ visitors, by reference to the Club’s Rules and Regulations. In particular it proscribes any such person from becoming a Permanent Resident as defined by the Club’s Rules and Regulations without the written permission of the Club. Club Regulation 21 defines permanent residents as members whose written application has been approved by the Committee. Clause 2 b) assumes that the lessees are themselves members and would be virtually unworkable if they were not. The second clause is 5 c), which confines the market for the sale of any bach on the site to members of the Club. Again, the assumption is that the lessees will themselves be members, and will thus know or be able to ascertain the membership, and in particular prospective buyers. Whilst this clause could theoretically operate if the lessees were not themselves members, there would be an artificiality and impracticality about its operation. Finally, clause 7 provides for notices or correspondence from the lessees to the Club to be sent to “the address of the Club as notified to all members of the Club”. If the lessees are not members, they will not have had that notification and will not have the Club’s current postal address.

[38] I find that the implied term is necessary to give the lease business efficacy to make it workable.

So obvious that “it goes without saying”

[39] As already mentioned, leases of bach sites may only be granted to members. Clause 9 of the lease entitles the lessee to a “NEW LEASE” upon similar terms. Any such new lease could also only be granted to a member. I have also mentioned that sub-letting or assignment is only by express written permission of the Club, which would insist that the sub-tenant or assignee be a member. These points strip Mr Fitchett’s submission that the lease could continue in the hands of a non-member of any force, and signal the obviousness of a term that the lease would terminate with membership.

[40] The points I have made in relation to efficacy have equal application to obviousness. There are further clauses in the lease which make it obvious that the lessee must be a member. For example, in terms of clause 1 e), the lessee covenants not to be a nuisance or cause offence “to other Club members”.

[41] In submitting that the implied term did not go without saying, Mr Fitchett relied upon two events:

[a] The Special General Meeting of the Club held on 4 November 2000. This was the meeting called to consider a motion that Mr Elsey’s membership be terminated, and which resolved to terminate it. The minutes of that meeting were put in evidence. Mr Fitchett’s point was that there was no mention at the meeting, and there is no record in the minutes, of any suggestion that termination of Mr Elsey’s membership would also result in termination of the defendants’ lease of their bach site. I accept that. But I think there is nothing in this point. The defendants’ lease named both of them as lessees. Termination of Mr Elsey’s membership did not clearly terminate their lease. The Club’s letter the following day to Mr Elsey required him to leave the Club grounds by 3 pm that day, and he was subsequently served with a trespass notice. As I understand it, the Club did not suggest that Mrs Elsey was not entitled to remain on the Club’s grounds since she was still a member. What was so obvious at the meeting on 4 November that no-one mentioned it, was that termination of Mr Elsey’s membership would result in his having to leave the Club grounds.

[b] The situation early last year where the Club believed Mr A had resigned as a member, but did not reward his lease as simultaneously terminating, the Club allowed Mr and Mrs V into possession of Mr A’s bach, but declined to grant them a lease because they were not full members. On the incomplete evidence available, I can only regard that situation as confused, and not as a clear example of the lease of a bach site not terminating with the lessee’s membership.

[42] I am satisfied that the term sought to be implied is an obvious one which “goes without saying”.

Must be capable of clear expression

[43] Three arguments supported Mr Fitchett’s submission that the implied term is incapable of clear expression. I deal with them in turn.

[a] The first argument is a pleading point. In their statements of defence each defendant pleads the further implied term or terms I have set out in paragraph [6] of this judgment.

Whether those further terms are to be implied is a decision for another day. The possibility that implication of one term may require implication of further terms is not an argument that the first term is incapable of clear expression. On its face, it is. This argument fails.

[b] Secondly, Mr Fitchett argued that the words “pursuant to its Constitution” at the end of the implied term raise difficulties in that the constitution could be changed “in an unreasoning manner”. He instanced the Club excluding from membership people with a surname starting with “E”. Mr Fitchett bolstered that argument by pointing to the illogicality of Mr Admore’s evidence when asked about this possibility. He said that the defendants would be “protected” because they had become members under the previous (1969) constitution. I accept that this aspect of Mr Admore’s evidence was astray: all members of the Club became subject to the present constitution, upon its introduction in May 1998. But this argument, which is similar to the first, does not support the proposition that the implied term cannot be clearly expressed. The words are intended to make it clear that membership must be in terms of the Club’s constitution. I view the words as unnecessary. How else could a lessee acquire membership? Certainly, not by obtaining a lease, since it is common ground that a lease can only be granted to a member: clause 16 f) (i) Club’s constitution.

[c] Lastly, Mr Fitchett raised a difficulty with the defendants’ joint tenancy, the Club being unable to articulate whether the termination of Mr Elsey’s membership meant that a new lease would have to be offered to Mrs Elsey, or that a new lease might be offered to her. I do not follow this argument. The consequence of the implied term is that, upon the termination of his membership, Mr Elsey ceased to be a lessee. Mrs Elsey continued as the sole lessee. Now that her membership has been terminated, the lease has ended altogether. This argument also fails.

[44] In my view the implied term is capable of clear expression, and has been clearly expressed. This test is therefore satisfied.

Must not contradict any express term of the lease

[45] The defendants’ argument was that the implied term conflicts with clause 8 of the lease. This is a disputes clause obliging the parties to submit to mediation or, failing a mediated resolution, to arbitration, “any dispute or difference arising in any way out of or in connection with the lease or any matter arising therefrom”. The defendants’ argument is that the implied term would enable the Club to resolve lease related disputes by terminating membership, thereby circumventing clause 8. Even were this the case, it does not place the implied term in conflict with clause 8. But I do not consider it is the case. Clause 8 requires that any dispute between the Club and the lessee qua lessee be dealt with in terms of clause 8. Clause 8 does not encompass disputes between the Club and lessees qua members. Such disputes are properly dealt with in terms of the Club’s Rules, in particular Rules 6 (conduct)and 7 (termination of membership). It would be quite wrong for the Club to deal with a dispute (or, to be more precise, to avoid dealing with a dispute) between it and a lessee qua lessee simply by terminating that lessee’s membership of the Club in terms of its rules. Mr Fitchett sought to persuade me that that was what the Club had done, at least in part, in the case of bach lessees Mrs E and Mr and Mrs R. I do not have sufficient evidence to comment upon, let alone determine, their position. As they are not parties to this proceeding it is anyway quite inappropriate that I do so. What the Committee of the Club must appreciate is that it cannot and must not resolve lease related disputes with its bach site lessees by terminating their membership of the Club. That would put the Club in breach of clause 8, pursuant to which it has agreed to mediate/arbitrate such disputes.

[46] But nor are disputes between the Club and a bach site lessee qua member to be mediated/arbitrated under clause 8. Mr Fitchett took the example of an hypothetical bach site lessee who committed an indecent act in the grounds of the Club. He argued that such an act would be conduct in breach of Club Rule 6 a) and/or b), which in turn would be a breach of clause 2 e) of the lease. Clause 2 e) is the last of the Club’s (lessor’s) covenants, assuring the defendants of quiet enjoyment providing they pay the rent, observe their covenants under the lease and the Rules of the Club. Misconduct of the type instanced by Mr Fitchett would thus have two consequences. First, the Club could properly deal with the member qua member in terms of its Rules, and the member qua lessee would no longer be entitled to quiet enjoyment of the bach site. Secondly, if the lessee’s membership was terminated for breach of the Club’s rules, then the Club would also be entitled, through mediation/arbitration, to contend that the lessee was no longer entitled to quiet enjoyment, and to seek termination of the lease. The implied term is consistent with that, in that it achieves that result.

[47] Not to be overlooked is clause 1 e) of the lease under which the lessees covenant:

“e) Not to do, or allow anyone else to do, anything on the Site which shall be a nuisance or cause offence to other Club members.”

(my emphasis)

[48] The point is that this covenant is restricted to the bach site, lending support to my conclusion that conduct constituting a nuisance or causing offence committed in the Club’s grounds is properly dealt with in terms of Club Rule 6 and/or 7.

[49] In my view the implied term does not contradict any other clause of the lease, and in particular it does not conflict with clause 8.

Result

[50] The implied term meets each of the five Westernport tests.

[51] I answer the preliminary question “Yes”.

[52] I have referred to the letter and trespass notice the Club delivered to Mr Elsey on 5 November last, having terminated his membership the previous day, and to the letter delivered to Mrs Elsey immediately her membership was terminated on 7 July. Although the Club may have been entitled, as a matter of law, to act in that peremptory manner, it strikes me as harsh. I think a more reasonable and conciliatory stance would be for the Club now to give the defendants a reasonable period - say a fortnight - to vacate their bach. After all, it has been now for several years the defendants’ permanent and only home.

Costs

[53] As requested by Mr Fitchett, costs are reserved. If there is a request that I fix costs in relation to the preliminary question I have decided, then memoranda should be filed, and promptly.