Tourism Holdings Limited v Jacques Limited HC Auckland CIV 2010-404-2864

[2010] NZHC 1996

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-2864

BETWEEN  TOURISM HOLDINGS LIMITED Applicant/Defendant

ANDJACQUES LIMITED Respondent/Plaintiff

Hearing:         8 November  2010

Counsel:         MR Crotty and SA Cunliffe for Applicant/Defendant

MC Black for Respondent/Plaintiff

Judgment:      8 November 2010

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:           Russell McVeagh, P O Box 8, Auckland 1140 for Applicant/Respondent

Rennie Cox, P O Box 6647, Auckland 1141

TOURISM HOLDINGS LIMITED V JACQUES LIMITED HC AK CIV-2010-404-2864  8 November 2010

[1]      Both  parties  have  applied  for  leave  to  appeal  an  arbitral  award  dated

11 February 2010 made by Mr Dereck Firth.   Jaques Limited has applied in the alternative for an order setting aside certain of the arbitrator’s findings.   Having heard argument, I have come to a clear view as to how the applications should be disposed of.   As there may be some delay before I am able to issue a reasoned judgment, I propose to state my conclusions at this stage.

[2]      The application by Tourism Holdings Limited for leave to appeal is granted. I find that it is arguable that the arbitrator’s finding that there was an agreement and/or an estoppel arose resulting in an obligation on Tourism Holdings Limited to extend the sub-lease was in error.  I find further that cl 19.6 of the sub-lease does not apply to preclude a right of appeal on the basis that it excludes cl 5(5) of the second schedule to the Arbitration Act 1996.  In my view, the issue arises independently of the sub-lease.

[3]      The  application  by  Jaques  Limited  for  leave  to  appeal  the  arbitrator’s findings in relation to the meaning of cl 14.13 of the agreement to sub-lease is declined.  As argument developed, it became clear that the particular aspect of the award on this issue with which Jaques Limited takes issue was the Judge’s rejection of the submission that cl 14.13 conferred a right of exclusivity.  I am satisfied that there was no error in the arbitrator’s primary finding as to the meaning of cl 14.13 and that his arguably obiter view in response to the argument put to him as to the application of the clause on the facts will not have affected his finding that there has been a breach of the clause and his determination of the consequences which should follow that finding.

[4]      Jaques’ application for leave to appeal against the arbitrator’s findings in relation to the licence granted to Jaques Limited to operate a kiosk at the premises of Kelly Tarlton’s is refused.   Those findings are contained in an electronic communication dated 5 May 2010 in which the arbitrator sought to clarify some of the findings in his award.  He expressed the findings in the statement of clarification as “tentative views which are subject to further consideration in a conference if there

is time for one, if necessary”.  I am satisfied that the tentative findings he makes in this statement do not form part of his award and could not give rise to a question of law amenable to the application for leave to appeal.

[5]      The alternative application to set aside those findings is likewise refused.