Kennedy Point Boatharbour Ltd v Barton

• Jurisdiction: New Zealand
• Judge: Gault J
• Judgment Date: 23 February 2022
• Neutral Citation: [2022] NZHC 257
• Docket Number: CIV-2021-404-2053
• Court: High Court

Between

Kennedy Point Boatharbour Limited

Plaintiff

and

Aine Barton

First Defendant

Kristen Busher

Second Defendant

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

[2022] NZHC 257

Gault J

CIV-2021-404-2053

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Civil Procedure — Application by twelfth defendant to vary, set aside or appeal without notice interlocutory orders obtained by the plaintiff restraining the defendants and unknown persons from entering active construction areas following protests against a marina the plaintiff had resource consent to construct and operate — whether there was sufficiently real and imminent risk of a tort being committed to justify quia timet relief — Resource Management Act 1991

Appearances:

C R Andrews for the Plaintiff

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

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

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.

2 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 Pu tiki 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 injunction in the terms sought subject to additional terms requiring display of and access to the Court order, marking the specified areas with buoys and signs, and reserving leave to apply to set aside or vary the order on not less than three working days' notice.

6 In doing so, Wylie J was satisfied that it was appropriate to allow the matter to proceed on a without notice basis. He said it would be impracticable and would unnecessarily prolong matters to proceed on notice. It was, however, appropriate to allow the defendants, and other persons potentially affected by the order, to apply to set aside or vary it on not less than three working days' notice.

7 Wylie J was satisfied there is a serious question to be tried, based on his preliminary view that s 122(5) of the Resource Management Act 1991 (RMA) entitles KPBL to exclude persons from the CMA if that exclusion is “reasonably necessary” to implement the coastal permit it holds. He said the affidavits suggest that the named defendants have previously trespassed into the area which KPBL says it is entitled to occupy under s 122(5) for the purposes of constructing a marina. It is arguable that the named defendants have thereby sought to undermine KPBL's right to undertake the permitted construction. It appeared that many of the named defendants have been served with trespass notices, which appear to have been ineffective. There is further evidence suggesting that they, together with others, are planning to commit further trespasses when the lockdown level is lowered. The evidence suggests that a protest group, with which a number of the named defendants are said to be associated, has publicly stated its intention to continue occupying the marina construction area in order to disrupt KPBL's activities.

8 Wylie J also considered whether it was appropriate to grant an interim injunction against “persons unknown”, and added a requirement that notices be fixed to or placed immediately inside the floating mussel and buoy fence surrounding the on water construction areas.

9 Wylie J was further satisfied that the balance of convenience favoured granting the interim injunction. He referred to the likely impact of future trespass on KPBL's rights to construct the marina for which damages would not be an adequate remedy and to the public safety dimension given evidence suggesting there is a danger to persons who place themselves in close proximity to some of the machines being used to undertake the construction and KPBL's duty to take steps to minimise the risk to members of the public.

10 Wylie J concluded that overall justice supported granting the interim injunction sought, stating:

[22] It appears that KPBL is not seeking to do anything other than protect what seem[s] to be its legal right to construct the marina. I have no doubt that the defendants and others feel strongly about the matter but, on the papers filed to date, it seems that KPBL has obtained consent to construct the marine, that that consent has survived concerted and determined challenges, and that KPBL has the right to exclude persons from that part of the coastal marine area as is reasonably necessary so it can exercise the consent is has obtained.

Principles governing without notice injunctions and their review

General principles governing grant of interim injunctions

11 The principles governing applications for interim injunctions are well — established and not in dispute. They were summarised by the Court of Appeal in Commerce Commission v Viagogo AG: 3

[30] The principles that govern the grant of interim injunctions under r 7.53 and the court's inherent jurisdiction are well settled. The court will usually adopt a two-stage approach. 4 The first inquiry is whether there is a serious question to be tried. If that threshold is met, the court moves on to consider whether the balance of convenience favours granting or refusing relief. But as this Court observed in Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd, considerations are marshalled under these (non-exhaustive) heads as “an aid to determining, as regards the grant or refusal of an interim injunction, where overall justice lies. In every case the Judge has finally to stand back and ask himself that question.” 5

[31] As Lord Hoffmann said in delivering the advice of the Privy Council in National Commercial Bank Jamaica Ltd v Olint Corp Ltd: 6

“The purpose of such an injunction is to improve the chances of the court being able to do justice after a determination of the merits at the trial. …

The basic principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other.”

Without notice applications

12 An application without notice may be made only:

(a) on one or more of the grounds set out in r 7.23(2)(a) of the High Court Rules 2016, including (as claimed here) that:

(i) requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicant; or

(ii) the interests of justice require the application to be determined without serving notice of the application; and

(b) if the applicant has made all reasonable enquiries and taken all reasonable steps to ensure that the application and supporting documents contain all material that is relevant to the application, including any defence that might be relied on by any other party and any facts that will support the position of any other party. 7

13 As the Court of Appeal said in Commerce Commission v Viagogo AG, an application for interim relief should be made without notice to the defendant only where that is essential, either because giving advance notice will defeat the purpose of the order sought, or because the application is so urgent that it is not feasible to give notice. Applications in the second category should be rare, and every attempt should be made to provide such notice as possible – even if it is only a telephone call or text message or email – to alert the defendant to what is happening and enable them to participate on a Pickwick basis. 8

Review of interlocutory injunctions

14 A party affected by an interlocutory order may, instead of appealing, apply to the Court to vary or rescind the order if that party considers that the order or decision is wrong. 9 The Court has a co-existent jurisdiction, not curtailed or affected by the

High Court Rules, to vary or rescind interlocutory orders including injunctions in the light of changing...