Queenstown Lakes District Council v Hunt

[2020] NZHC 285

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1610

[2020] NZHC 285

BETWEEN

QUEENSTOWN LAKES DISTRICT COUNCIL
Plaintiff

AND

GEOFFREY GERRARD HUNT

Defendant

Hearing:	26 February 2020
Counsel:	T J McGuigan for Plaintiff No appearance for Defendant
Judgment:	26 February 2020

ORAL JUDGMENT OF WHATA J

Solicitors:           Wynn Williams

QUEENSTOWN LAKES DISTRICT COUNCIL v HUNT [2020] NZHC 285 [26 February 2020]

Introduction

[1]    Queenstown Lakes District Council (QLDC) has been mooring Mr Hunt’s boat, NZL 14, for about 18 months. Demands to remove it have not been met. QLDC now applies for a declaration that he has abandoned it for the purposes s 33L of the Maritime Transport Act 1994. QLDC says he has effectively abandoned it and that he has taken no steps to defend QLDC’s application. I have read the evidence in support of QLDC’s claim and I am satisfied that QLDC has shown that Mr Hunt appears to have abandoned the boat. I will make a declaration accordingly. My reasons now follow.

Background

[2]    The following is based on the statement of claim and the affidavit evidence of a Team Leader within the Regulatory, Legal and Finance division of QLDC, Carrie Anne Edgerton, and the Harbour Master appointed for the Queenstown Lakes District, Martin Andrew Black.

[3]    Mr Hunt owns a yacht known as NZL 14. On 13 September 2018, NZL 14 broke its mooring on Lake Wakatipu and became a hazard to other vessels. Due to bad weather conditions, it was necessary for the harbour master to relocate NZL 14 to a temporary mooring in Kelvin Grove on Lake Wakatipu. In the period between September 2018 and July 2019, Mr Black issued five directives1 to (among other things) relocate the boat, pay the costs of re-locating, to remove the boat to a permanent mooring, to pay the costs of temporary mooring and to not use the boat. The directives were issued pursuant to s 55 of the Queenstown Lakes District Council Navigation Safety Bylaw 2018.

[4]    Mr Hunt responded by email to the first and second directives. Broadly, he appears to have signalled in those emails that he was taking steps to find a place to relocate the boat and fix it. There was contact made by Mr Bevan Marten, a solicitor, in October 2019, stating that he acts for Mr Hunt and requesting that emails sent to

1      A correction to my oral judgment is needed here. In fact, Mr Black issued four directives  - on  14 September 2018, 12 October 2018, 24 December 2018 and 31 July 2019. The Council also issued a demand on 31 January 2019.

Mr Hunt  between  14  September and  3  October  2019  be sent to him.    It appears, however, Mr Marten was disengaged by Mr Hunt shortly after that.

[5]    On 31 January 2019, QLDC’s solicitors at the time also wrote to Mr Hunt and demanded that he relocate NZL 14 to a permanent mooring and repay $4,187.78 (the debt then owed by Mr Hunt to QLDC as at 31 January 2019) by 8  February 2019. Mr Hunt acknowledged receipt of this letter. There was, however, no commitment made in that response to meeting the demand.

[6]Furthermore, the last of the directives (sent on 31 July 2019) recorded:

Removal and sale of NZL 14

19.If you fail to relocate NZL 14 by 30 July 2019, QLDC intends to engage the process outlined under section 33L of the Maritime Transport Act 1994 (Act). This process enables QLDC to remove, sell or otherwise dispose of NZL 14.

20.Before engaging that process, QLDC will apply to the High Court for a declaration that NZL 14 has been abandoned by you as its owner. This means that you will be named as a defendant to civil proceedings brought before the High Court by QLDC if you fail to relocate NZL 14 by 30 July 2019.

21.For the avoidance of doubt, if you do not relocate NZL 14 to a permanent mooring by 30 July 2019 you risk QLDC taking action to sell or otherwise dispose of NZL 14. The outstanding debt owed by you will be recovered by QLDC from the proceeds of the sale of NZL 14.

22.QLDC intends to rely upon this letter to seek its full costs in having to bring proceedings against you in the High Court if you fail to relocate NZL 14.

23.I urge you to seek legal advice on this issue and make immediate arrangements to relocate NZL 14 and repay $8,274.28 (including GST) to QLDC.

[7]    There was no response to this letter. Mr Black also stated that the boat remains in the same condition it was in when first rescued on 13 September 2018. Though, a Queenstown local has checked on it two or three times over the last 18 months or so. He also believes that the yacht’s rudder is damaged, and its sails are ruined. He thinks it would cost a minimum of $100,000 to repair it.

Jurisdiction

[8]    The process of removing, selling or otherwise disposing of a ship (including a yacht) is provided for by s 33L of the Maritime Transport Act 1994. It states:

(1)This section applies where any ship (including a ship that is anchored or moored) -

(a)is in waters within the region of a regional council; and

(b)appears to have been abandoned by its owner.

(2)The regional council may remove, store, sell, or otherwise dispose of the ship in accordance with this section.

(3)The regional council may remove and store the ship (pending sale or other disposal) if -

(a)the council has notified the New Zealand Police of the proposal to remove the ship; and

(b)more than 1 month has elapsed since the council affixed a notice to the ship advising the owner that the ship may be removed, and sold or otherwise disposed of, in accordance with this section.

(4)The regional council must make reasonable efforts to -

(a)identify the owner and the ship's port of registry (if any) by reference to any of the following particulars if they are on or in the ship:

(i)the ship's name:

(ii)any distinctive number or letters:

(iii)the ship's IMO ship identification number:

(iv)the ship's port of registry:

(v)the ship's registration certificate:

(vi)any other certificate issued in respect of the ship in accordance with an international maritime convention:

(vii)if the ship is moored, any mooring or berthing contracts; and

(b)give notice to the owner of the ship of the council's intention to sell or otherwise dispose of the ship.

(5)The regional council must notify its intention to sell or otherwise dispose of the ship in 2 issues of a daily newspaper circulating in the region in which the ship is situated.

1. Any notice under this section must contain -

(a)the name of the ship (if known); and

(b)a reasonable description of the ship, including its length and any distinctive numbers or letters; and

(c)the ship's IMO ship identification number (if known); and

(d)if applicable, the place from which the ship was removed under subsection (3); and

(e)if the ship is currently registered under the Ship Registration Act 1992, the name of the owner.

(7)If, after a search of the relevant ship register, the ship is found to be subject to a security interest, the regional council must, before selling or otherwise disposing of the ship, notify the holder of that interest of its intention to sell or otherwise dispose of the ship.

(8)The regional council may sell or otherwise dispose of a ship if -

(a)it has complied with subsections (4) to (7); and

(b)more than 1 month has elapsed since the date of the second notice under subsection (5).

[9]    By deed of arrangement with the Regional Council, QLDC is responsible for exercising all functions, powers and duties under Part 3A of the Maritime Transport Act 1994 (which includes s 33L) in respect of waters within its region. NZL 14 is located in waters within the region of QLDC. So, the first threshold issue per s (1)(a) is satisfied.

[10]   As to the second threshold issue, abandonment, this must be judged objectively.2 Subjective intentions are not decisive. QLDC is entitled to act if outward indications show that the boat has been abandoned, in the sense of having been “forsaken, given up or surrendered”.3

2      Carter v Ports of Auckland Ltd [2005] at [18]; the Court was dealing there with an antecedent provision with the word “abandoned”. I see no reason to take a different approach, especially given the present provision refers to “appears to have been abandoned”

3      Above

Assessment

[11]   The Court of Appeal observed in Carter, dealing with a similar claim of abandonment, that the failure to respond to communications, to pay berthage, and to carry out repairs are suggestive of abandonment. The Court also said that the presence of persons on the boat at the direction of the owner was a countervailing circumstance.

It also said:4

[21]      It may be that those persons were not crew in the usual sense of that word. It may be, as the Judge said, that they are more accurately to be described as custodians. But they carried out some of the duties which would normally fall to crew to perform – among them, checking mooring lines, firing the engines and pumping the bilges. That, and their role as caretakers or custodians, in our view weigh against a finding that the owners had abandoned the vessel.

[22]      Because of the financial constraints the owners faced and the condition of the ship, there sees to have been no foreseeable prospect that she would leave her berth. However, it could not be said that the owners had given up hope that a solution might be found. They were doing what they could to preserve their asset. They remained in possession. They asserted their rights as owners. Their actions in these respects were the antithesis of abandonment.

[12]   Returning to the present case, the failure to remove the boat, notwithstanding the directives to do so over a period of about 18 months, is similarly indicative of abandonment. The failure altogether to respond to these proceedings is also indicative of abandonment. However, Mr Hunt’s communications with Mr Black, Mr Marten’s (albeit singular) contact, and visits to the boat by a Queenstown local, suggests an ongoing interest in the boat.

[13]   On balance, I am nevertheless satisfied that QLDC has made out a case of apparent abandonment. Mr Hunt’s inactivity over such a lengthy period in the face of clear demands, with corresponding risk of sale of the boat by the Council, strongly indicates he has forsaken responsibility for it. A case for removal and sale has therefore been made out.

[14]   There shall be an order as sought by QLDC. I record for completeness that the declaration relates only to the operation of s 33L of the Maritime Act. It has no wider legal significance. Furthermore, QLDC must still comply with the necessary

4      Carter v Ports of Auckland Ltd at [21] – [22], above n 2.

procedure, including the notice requirements of s 33L before any removal and/or sale of the boat. QLDC shall file a formal order for my approval within 10 working days. The Council should also have its costs on a 2B scale, to be fixed by the Registrar.