Tauranga Bridge Marina Ltd v Du Fall

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2015-470-188 [2016] NZHC 1747

UNDER

the Declaratory Judgments Act 1908

BETWEEN

TAURANGA BRIDGE MARINA LTD Plaintiff

AND

NEVILLE JOHN DU FALL, JANET LOUISE DU FALL AND RUSSELL FREDERICK DU FALL as trustees of N.J Du Fall Family Trust

First Defendants

AND

CHRISTOPHER DENNIS DONALD COLLIER AND CA TRUSTEES (2012) LTD as trustees of Chris Collier Family Trust

Second Defendants

CONTINUED OVERLEAF

Hearing:	11 July 2016
Appearances:	A Hopkinson for the Plaintiff N J Russell and S I Jones for the Defendants
Judgment:	29 July 2016

JUDGMENT OF THOMAS J

This judgment was delivered by me on 29 July 2016 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

TAURANGA BRIDGE MARINA LTD v DU FALL, DU FALL AND DU FALL & ORS [2016] NZHC 1747 [29

July 2016]

AND

RUSSELL JOHN LEVY

Third Defendant

AND

STUART JAMES NEAVE Fourth Defendant

AND

STUART JAMES NEAVE AND SUE CELS

Fifth Defendants

AND

ALLARD ROBERT HENRY MITCHELL AND CLAYTON ROBERT HENRY MITCHELL as trustees of Bob Mitchell Sixth Defendants

AND

COLIN GRAHAM Seventh Defendant

Introduction

[1]      This case involves the proposed construction of a breakwater at a marina in Mount  Maunganui,  Tauranga  (the  breakwater).    The  plaintiff,  Tauranga  Bridge Marina Limited (Tauranga Bridge), owns and manages the marina, which was developed pursuant to a statutory scheme under the Securities Act 1978. It claims that the defendants, who each own licences to berths at the marina, have wrongly refused to make contributions toward the costs of construction of the breakwater, in contravention of an extraordinary resolution passed on 15 December 2014 by the berth licence holders (the Resolution).

Facts

[2]      The marina contains 496 berths, of which 306 are subject to berth licences (licences). The remainder of the berths are owned and operated by Tauranga Bridge. The licences give the right to berth a nominated vessel in the holder’s berth at the marina and to use the marina’s structures and facilities.

[3]      The marina was created in 1996 pursuant to a scheme under the Securities Act 1978 (the Scheme). Securities were offered to the public under the Scheme pursuant to the following:

(a)       The Securities Act 1978 and Securities Regulations 1983.

(b)      Tauranga Bridge’s Prospectus dated April 1996 (the Prospectus).

(c)       The  Securities Act  (Tauranga  Bridge  Marina  Limited)  Exemption

Notice 1996.

(d)      The Fundholding Deed dated 10 May 1996.

(e)       The Tauranga Bridge Marina Management Trust Deed dated 10 May

1996 (the Management Deed).

[4]      The Fundholding Deed was entered into between Tauranga Bridge as issuer of  the  securities  offered  to  the  public  and  the  Public  Trust  as  the  fundholder. Tauranga Bridge funded the construction of the marina from monies received as subscriptions for preference shares.   Monies paid by applicants for the preference shares were held on trust by the Public Trust under the terms of the Fundholding Deed.   The preference shares were redeemed for licences on completion of construction of the marina.  Although the marina and its assets were…