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Port Marlborough New Zealand Limited v EcoWorld Aquarium Limited [2022] NZHC 3016 (17 November 2022)

Last Updated: 15 December 2023

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CIV-2021-406-000023
[2022] NZHC 3016
BETWEEN
ECOWORLD AQUARIUM LIMITED
Plaintiff
AND
PORT MARLBOROUGH NEW ZEALAND LIMITED
Defendant

CIV-2021-406-000029
BETWEEN
PORT MARLBOROUGH NEW ZEALAND LIMITED
Plaintiff
AND
ECOWORLD AQUARIUM LIMITED
First Defendant
AND
JOHN PETER REUHMAN
Second Defendant
Hearing:
19, 20, 21, 22, 23 and 28 September 2022
Appearances:
T D Gee and D P MacKenzie for EcoWorld Aquarium Limited and for J P Reuhman
D J Friar and K J Dobbs for Port Marlborough New Zealand Limited
Second Defendant appears in Person
Judgment:
17 November 2022

JUDGMENT OF GENDALL J

ECOWORLD AQUARIUM LIMITED v PORT MARLBOROUGH NEW ZEALAND LIMITED [2022] NZHC

3016 [17 November 2022]

Table of contents

Introduction [1]

The parties [4]

Port Marlborough New Zealand Ltd [4]

EcoWorld Aquarium Ltd [7]

The factual background [10]

The Lease [14]

Dealings between the parties [20]

The Port’s considerations as to the end of the Lease [30]

EcoWorld’s attempts to recommence negotiations for a new lease [41]

Continuing possession [51]

The parties’ positions in general terms [54]

My conclusion in this case [56]

The proceedings [58]

The 23 proceeding [59]

EcoWorld’s claims [59]

The Port’s position [62]

The 29 proceeding [63]

The Port’s claims [63]

EcoWorld’s position [66]

Issues for determination [68]

Analysis [69]

A contractual 10-year right of renewal? [70]

Analysis [74]

Subsequent communications [88]

Relief under the Property Law Act [96]

Analysis [101]

Section 261 requirements — in particular, did the parties “covenant in writing”? [107]

Discretion for relief under s 264 — should relief be granted under s 264? [116]

Conclusion on relief under the PLA [119]

Specific performance [122]

Equitable estoppel [125]

Principles of equitable estoppel [127]

Belief or expectation created or encouraged in EcoWorld by the Port through a clear and

unequivocal representation [129]

Reasonable reliance on the representation by EcoWorld to its detriment [138]

Unconscionability [151]

Conclusion on equitable estoppel [157]

Conclusion on EcoWorld’s claims [158]

The Port’s claims [159]

Action for the recovery of the Land [160]

Breaches of the Lease [162]

Mr Reuhman’s personal liability [165]

EcoWorld’s affirmative defences [167]

Conclusion on the Port’s claims [169]

Relief [170]

Possession [171]

Damages [178]

Costs [188]

Any other relief [192]

Summary [193]

Result [194]

Orders [196]

Introduction

The parties

Port Marlborough New Zealand Ltd

EcoWorld Aquarium Ltd

The factual background

1 Port Companies Act 1988, s 5.

judgment against Mr Reuhman and a personal settlement with the Taylors, which the Port says Mr Reuhman arranged for Sligo to pay.

The Lease

(a) the term commenced on 1 November 2010;

(b) the “Final Expiry Date” was 22 July 2021;

(c) the “Number of Renewed Terms Available” was “Nil”;

(d) rental was $11,885 per annum (plus GST);

(e) rent was to be reviewed at two-yearly intervals from the commencement of the term; and

(f) the permitted use was the operation of an aquarium and associated ecological facilities.

(a) Clause 1.11 – EcoWorld would reimburse the Port for the reasonable cost of any legal or other expenses incurred because of any default on the part of EcoWorld;

(b) Clause 2.1 – EcoWorld would not use the Land or any Improvements on the Land for any use or activity other than that specified in the Specific Conditions without the written consent of the Port;

(c) Clause 5.1 – EcoWorld would comply with the provisions of all “statutes, regulations, ordinances, bylaws and other laws of any kind (present or future)” affecting the Land or any activity carried on upon the Land, in particular (under cl 5.2) all obligations which arose under the Resource Management Act 1991;

(d) Clause 7.1 – EcoWorld would care for the Land and all Improvements on the Land to a reasonable standard, and in particular keep and maintain all Improvements to a good standard of maintenance and repair and rectify any damage or deterioration without delay;

(e) Clause 8 – EcoWorld would indemnify the Port against all claims or damage or loss resulting from any act or omission in breach of the Lease;

(f) Clause 9 – EcoWorld would institute and maintain public liability, statutory liability and reinstatement insurance;

(g) Clause 10 – the Port was able to undertake such work or take such action as was reasonable and appropriate in the circumstances in consequence of EcoWorld defaulting in any of its obligations under the Lease, and all moneys expended in this was to be reimbursed with interest;

(h) Clause 15 (the future development clause) – while “acknowledg[ing] the need for [EcoWorld] to have security of tenure and also the need for [the Port] to have some degree of flexibility in what is a dynamic port environment”, if the Port required the Land to further develop the port area the Port could terminate the Lease by giving at least three months’ notice in writing;

(i) Clause 19 – “[n]o variation shall be efficacious unless it is in writing and signed by all of the parties”;

(j) Clause 21 – in respect of Improvements made by EcoWorld:

(i) at least three months before the end of the term of the Lease, the Port and EcoWorld would consult with each other to address what should happen in relation to EcoWorld’s Improvements at the end of that term;

(ii) any agreement reached in this respect would be recorded in writing; and

(iii) if no agreement was reached, EcoWorld must remove its Improvements off the Land at the end of that lease term, and leave the Land “clear, clean and tidy”;

(k) Clause 23 – that Mr Reuhman as guarantor guaranteed payment of the rent and the performance by EcoWorld of the covenants in the Lease.

Dealings between the parties

... prepared to offer you [EcoWorld] a further right of renewal for a term of ten years following your current term. This would make the final lease expiry on 22 July 2031.

  1. Mr Welbourn is now Chief Executive of the Port but was its Manager of Business Delivery at this time.

3 The email was sent on 31 August 2015 but the letter was dated 22 August 2015.

(a) In relation to the Lease term, Mr Reuhman stated:

... the lease term currently expires 22 July 2021. The letter from Port Marlborough of 16 September 2015 offers a right to then renew the Lease term for a further 10 years ... adopting that offer, there are effectively, currently, 15 years 9 months available under the Lease ...

He then went on to state, “I seek to renegotiate the lease term”, apparently to seek up to a 20-year renewed term.

(b) In relation to rent, Mr Reuhman said, though the rent had remained the same since the Lease commenced in 2010, it was a “significant burden” and “disproportionate” and he would like to see the rent reduced. However, he indicated he was prepared to concede “in order to achieve satisfactory outcomes on other points”.

(c) The permitted use he said was to be amended to capture the cinema and café operations.

(d) Greater flexibility in relation to rent payment dates was requested.

(e) In relation to the future development clause, Mr Reuhman described this as “a significant obstacle”. He suggested it be removed entirely or “softened in one or more ways”, including by an extension of the three- month notice period, requiring the Port to make available a suitable alternative site for EcoWorld, or requiring EcoWorld to purchase the Improvements.

(f) In relation to removal of Improvements, Mr Reuhman requested that the Port be required to acquire the Improvements at the end of the term, or otherwise allow EcoWorld to “simply walk away” from them.

(g) The personal guarantee he requested should be softened.

(h) Finally, he asked that the Lease be converted from a Deed to a Memorandum form to allow it to be registered (for use as a security interest).

(a) the Port reiterated that it had “offered a right of renewal of a further 10 year term when the current term expires on 22 July 2021” and stated it was prepared to break the lease term into shorter intervals but was unwilling to extend the term beyond this point (which it had proposed in the September 2015 discussions);

(b) as to the rental, the Port was willing to consider a seasonable split to ease lease payments during difficult times, but it was not prepared to negotiate any rent reductions;

(c) in relation to the future development clause, the Port did not agree with removing the clause as suggested but said it would be willing to extend the notification period from three to 12 months;

(d) the Port was not willing to take on an obligation to purchase the Improvements or to provide an alternative site, and also would not simply allow EcoWorld to walk away from the Improvements at the end of the term; and

(e) the Port was not prepared to soften Mr Reuhman’s personal guarantee terms.

(a) On 27 October 2016, Mr Reuhman met Mr Ryan Lock, then the Port’s Property Manager, and Mr Welbourn. According to Mr Lock, the parties were not agreed on the terms of any new lease, and Mr Reuhman was still to respond to the Port’s 3 February 2016 letter.4 The meeting ended on the basis that Mr Reuhman would get back to the Port with his substantive response to that February 2016 letter. This was confirmed in evidence by Mr Welbourn, who said he left with the “clear view that EcoWorld did not accept the terms we had proposed in our letter earlier in the year”. Mr Reuhman confirmed too that matters were not advanced at that meeting and it was “up to us” to come back to the Port.

(b) In November 2016, Mr Reuhman says he met with MDC Councillors Oddie and Taylor, who each told him words to the effect that the Port would never “kick out” EcoWorld. (He repeats his claim that these councillors informed him of the same on three other occasions, in December 2019, January 2020 and June 2020.) Councillor Oddie’s evidence before me refutes this, however. He says in this evidence that

  1. At one stage Mr Reuhman appeared to blame the 2016 Kaikōura earthquake for his failure to re- engage with the Port, but as he accepted in cross-examination, that occurred in November of that year, that is after the meeting.
he pointed out to Mr Reuhman that he could not assist in respect of the Lease, as MDC could not interfere in the Port’s business. Councillor Taylor’s evidence was largely to similar effect. She said that she could not recall making that statement and would be very surprised if she had given that assurance, for similar reasons as Councillor Oddie had outlined.

(c) On 25 August 2017, Mr Reuhman emailed Mr Welbourn (copying Mr Lock) proposing “Picton Twilight Food Market” and “Edible Marlborough” events. Mr Welbourn’s evidence is that the Port considered raising the status of the EcoWorld lease negotiations in their email in reply to Mr Reuhman, but decided not to because, as Mr Reuhman had not asked about a new lease, it was firmly in his court if he wished to raise again new lease issues.

(d) On 11 October 2017, Mr Lock provided EcoWorld’s lawyer, Mr Chris Clark, with a copy of the Port’s 3 February 2016 letter and said “As mentioned to [Mr Reuhman] recently, I am keen to progress a meeting with both [Mr Reuhman] and you so we can work through the details”.

(e) On 21 November 2017, Mr Reuhman and Mr Clark met with Mr Lock and Mr Welbourn. Mr Reuhman’s evidence is that at this meeting Mr Clark went through all of the points that EcoWorld wanted changed in the Lease. These included the removal from the lease of the future development clause, which Mr Reuhman agreed was a fundamental issue for EcoWorld. Both Mr Lock and Mr Welbourn in their evidence confirmed that they advised Mr Reuhman and Mr Clark the future development clause would need to remain.

(f) On 22 January 2018, Mr Clark wrote to the Port, recording that “fundamental to EcoWorld’s desire to move forward is the need to have changes made to the existing Lease which place matters on a sounder footing”. The letter went on to list the three “critical”, “essential” and “fundamental” changes that EcoWorld wanted as follows:

(i) that the future development clause be removed, as it “stifles” EcoWorld’s opportunity for development;

(ii) in respect of the term of the Lease, that “the Lease term currently expires in July 2021, and EcoWorld has been offered a 10 year right of renewal through until July 2031. This is an offer which EcoWorld would accept if nothing more were available”; and

(iii) an amendment to the permitted use.

Mr Clark noted these were only “the three most essential points” and although there were “some other supplementary matters” these three points above were the ones EcoWorld regarded as “critical to its future”.

(g) On 19 February 2018, the Port by email responded substantively on a “without prejudice” basis. In respect of the “three most essential points”, Mr Lock noted:

(i) the future development clause could not be removed (though the position may change in the next 18 to 24 months);

(ii) the Port “would agree” to reformat the term of the Lease to four rights of renewal of five years each, “effectively taking the final expiry to 2041”; and

(iii) the Port was “open” to amending the permitted use, but sought clarification as to what it would be amended to.

The email went on to request EcoWorld’s financial report and noted it “would want the rental to be reviewed to a current market rent”. Those financial records however were not produced. Mr Lock also referred in the email to the need to vary the Lease formally.

(h) Mr Clark responded to the Port with a holding letter on 27 February 2018. This noted that Mr Reuhman was gathering some information and a response would be forthcoming in mid-March. Mr Clark wrote again on 30 April 2018, essentially indicating there would be further delay with a substantive response coming “as soon as practicable”. This letter again reiterated that the removal of the future development clause was “the most fundamental issue of all, and one which will affect any development proposal”. It is accepted by all parties that neither Mr Clark nor EcoWorld ever followed up these holding letters to provide a substantive response to the Port’s email of 19 February 2018.

(i) On 7 May 2018, Mr Reuhman met with Mr Welbourn. Their evidence of this meeting differs. Mr Welbourn says he informed Mr Reuhman that the future development clause could not be negotiated while redevelopment plans were still underway. Mr Reuhman’s written evidence was that Mr Welbourn told him there would be no negotiations with respect to the Lease until the Port had firmed up its plans for the particular Picton ferry redevelopment project, which was underway at the time. However, Mr Reuhman accepted in cross-examination that the Port’s 19 February 2018 email did not say that no negotiations could progress, and that this is what Mr Welbourn had actually repeated in the meeting.

(j) In September 2018, Mr Reuhman and Mr Lock met one another by chance. I apprehend there was no change to their respective positions from their encounter.

(k) On 3 September 2020, the Port consulted with EcoWorld about the Port’s Picton Ferry redevelopment project.

(l) On 5 November 2020, Mr Lock and Mr Welbourn met with Mr Reuhman at a local café. The purpose of the meeting it appears, however, was for the Port to catch up with its tenants following the

onset of COVID-19, and not to discuss the Lease. Mr Lock and Mr Welbourn, it appears, confirmed this and told Mr Reuhman they were not there to discuss plans for EcoWorld and Mr Reuhman’s tenancy, which would have to be set up for another time.

(m) On 4 December 2020, Mr Reuhman emailed Mr Lock in respect of the earlier night market proposal. Mr Lock responded that it would need to be held elsewhere as it fell outside the permitted use under the Lease. Mr Reuhman by way of postscript stated “PS. Re Lease Renewal [Mr Clark] is preparing the paperwork prior to arranging a meeting with you.”

The Port’s considerations as to the end of the Lease

  1. Mr Clark’s 27 February 2018 letter stated, “I anticipate that we will be in a position to come back to you with a substantive response to the queries raised in your email toward mid-March”. And as Mr Clark’s 30 April 2018 letter said, “obviously we have been delayed in providing that response ... at this point a further delay, perhaps through until the end of May, is expected.”
memo. In the context of the envisaged Picton Ferry development project, due to commence potentially within the following six to 12 months, this memo stated:

Although not currently being considered, the EcoWorld lease area would likely be a very useful site for the duration of this project either as a site office, temporary terminal, storage area etc.

(a) Option 1 — “look to renew/renegotiate the lease”;

(b) Option 2 — “issue EcoWorld with a notice that [the Port] require the site for port redevelopment purposes”;

(c) Option 3 — “issue EcoWorld with a notice that we will not be renewing the Lease and it will terminate as at expiry of 22 July 2021 ... This would allow utilisation of the site for ferry development activities in the short/medium term.”

1. [The Port] look to exit lease with EcoWorld as it expires on 22 July 2021. This exit is not directly linked to a redevelopment or ferry project, simply the end of the lease term.

(a) entering into a new lease with EcoWorld;

(b) establishing a Maritime Heritage and Environment Centre;

(c) using the site for the Waitohi Picton Ferry Redevelopment Project; and

(d) a hospitality option.

The Lease commenced in 2010 and was for an initial term of 11 years expiring 22 July 2021. Over the years, [the Port] and EcoWorld have had various discussions about varying the Lease to provide for further rights of renewal. These discussions have not progressed and the Lease is still due to expire as at 22 July 2021.

the Lease, did Mr Clark say to Mr Lock that EcoWorld had a right of renewal. Indeed, Mr Reuhman appeared to accept in his evidence that, if EcoWorld thought it had a right to renew, its lawyer would have said so to the Port on that call. EcoWorld elected not to call Mr Clark. The Port invites me to infer from this that Mr Clark’s evidence would only have been unhelpful to EcoWorld’s case. Without necessarily accepting this to be the case, I do acknowledge that an effect of this is that there is no evidence before me to contradict Mr Lock’s account of the call between them (in which Mr Clark did not say anything about a right to renew the Lease).

before the call on 14 April 2021. Mr Reuhman agreed in cross-examination that the letter sent by EcoWorld’s lawyers accurately represented EcoWorld’s position at that time. The letter stated that EcoWorld had concerns with the current lease, which was “due to expire on 22 July 2021”. The letter then set out EcoWorld’s “proposal as to the contents of a new lease”, outlining eight points in this respect. These included matters which the Port had previously declined to concede on as well as some entirely new matters. The letter again raised the future development clause and requested that EcoWorld’s obligations in respect of the Improvements at the end of the Lease be softened. It is accepted by all that at no point did the letter refer to a “right of renewal”. Effectively, EcoWorld was simply repeating its position that “it had taken since 2015 and was continuing to seek significantly different terms than were contained in its then existing lease.”6

  1. These were the words used by Associate Judge Paulsen at [11] in his 22 March 2022 judgment in the present proceeding related to discovery issues, EcoWorld v Port Marlborough [2022] NZHC 535.
  2. Mr Reuhman’s evidence was that he was on holiday that day. I also acknowledge, however, Mr Lock’s evidence that he had sought unsuccessfully to meet with Mr Reuhman personally to discuss the Expiry Notice rather than simply to send it.
an offer (on a without prejudice basis) to pay EcoWorld $75,000 for the building. The cover email accompanying the Expiry Notice also stated that the Port would be open to assisting with EcoWorld’s transition, including with relocating its wildlife. And indeed Associate Judge Paulsen in his discovery judgment noted at the footnote below also said that in this 16 April 2021 letter:

[10]...Port Marlborough proposed a managed exit, whereby it would release EcoWorld from its obligations to remove and reinstate improvements, upon terms which included the making of a payment to EcoWorld of $75,000.

EcoWorld’s attempts to recommence negotiations for a new lease

its willingness to assist EcoWorld with a smooth exit from the premises, noting that the provisions of the Lease would need to be complied with. Again it repeated its offer to assist with the sustainable homing or release of marine life.

(a) it would not be consulting in respect of the Improvements;

(b) it had concerns about the Port’s decision-making in respect of the end of the Lease; and

(c) unless the Port confirmed that it would take the necessary steps to agree on terms and conditions of a new lease for EcoWorld, it would apply to the Court for an order for possession, and use any public relations leverage it could to achieve its objective.

Mr Reuhman says that he was in discussion with Port Marlborough about the terms and conditions of the new lease and until recently had every hope, and indeed confidence, that the negotiations would conclude successfully.

Continuing possession

If EcoWorld does not accept this offer then the Lease expires on 22 July 2021

... Port Marlborough expects EcoWorld will vacate the premises including taking the appropriate steps to ensure the welfare and correct care of its marine life and animals which are currently housed on the premises ... it offers to assist EcoWorld with that process and contribute towards the associated reasonable costs.

The parties’ positions in general terms

My conclusion in this case

The proceedings

The 23 proceeding

EcoWorld’s claims

(a) first, under the PLA, EcoWorld says that in the Port’s letter of 16 September 2015, the Port “covenanted in writing” with EcoWorld to renew the Lease on its expiry, and EcoWorld is therefore entitled to relief under s 264 of the PLA;

(b) second, by way of specific performance, EcoWorld contends it is entitled to an order for specific performance against the Port for a new lease consistent with the alleged right of renewal arising from the 16 September 2015 letter; and

(c) third, under equitable estoppel, EcoWorld says that in the Port’s 16 September 2015 letter and subsequent letters, the Port created in EcoWorld a reasonable expectation that EcoWorld would be granted a renewed lease. EcoWorld says it relied on those representations to its detriment and it would be unconscionable to allow the Port to now resile from that expectation it created.

The Port’s position

(a) there was never any right of renewal agreed or any unequivocal representation by the Port that, even in the absence of an agreement, EcoWorld would still have a right of renewal;

(b) the requirements for relief under s 264 of the PLA are not met, and in any case the Court should decline relief;

(c) specific performance is not a cause of action, and there is no contractual right capable of being specifically performed here in any case; and

(d) in terms of equitable estoppel, there was never any clear and unequivocal representation by the Port that EcoWorld would have a right of renewal.

The 29 proceeding

The Port’s claims

(a) first, an action for the recovery of the Land; and

(b) second, claims for breaches of the Lease in two respects:

(i) breach of an implied term of the Lease which required EcoWorld to yield possession on the expiry of the term; and

(ii) breach of an express term of the Lease, namely cl 21.1(c), which required EcoWorld on expiry of the Lease to remove all Improvements from the Land and leave the Land clear, clean and tidy.

(a) an order requiring EcoWorld to give up possession of the Land and immediately vacate it;

(b) damages in respect of the reasonable cost of removing the Improvements from the Land (including any animals housed in those Improvements) plus interest;

(c) costs on a solicitor–client basis; and

(d) such other relief as the Court deems fit.

EcoWorld’s position

(a) first, by way of equitable set-off, EcoWorld says that to the extent that either EcoWorld or Mr Reuhman is liable to the Port, the extent of any damages should be reduced to take into account the conduct of the Port in contributing to that loss; and

(b) second, in estoppel, EcoWorld says it has relied upon assurances and representations contained in the Port’s letter of 16 September 2015 and subsequently to its detriment, that it is unconscionable for the Port to now resile from these, and that consequently it should, at a minimum, be put in the position it would have been in had the representations not been made.

Issues for determination

(a) First, was there a contractual 10-year right of renewal?

(b) If not, should the Court nevertheless grant relief to EcoWorld under s 264 of the PLA?

(c) Is EcoWorld entitled to an order for specific performance against the Port for a new lease on the terms of the alleged right of renewal?

(d) If not, should EcoWorld nevertheless be granted relief in equity under the doctrine of estoppel on the basis of representations or assurances made to it by the Port?

(e) Is the Port entitled to an order for possession of the Land?

(f) Has EcoWorld breached the Lease by:

(i) failing to yield possession; and

(ii) failing to remove all Improvements from the Land and to leave the Land clear, clean and tidy?

(g) Is Mr Reuhman personally liable for any failures on the part of EcoWorld?

(h) What relief, if any, ought to be awarded?

Analysis

A contractual 10-year right of renewal?

... A right of renewal is an uncomplicated matter. It arises in the context of an existing landlord-tenant relationship whose terms are already known to both parties. They are already recorded already. The only matter that changes if the tenant exercises a right of renewal is the expiry date of the lease. The renewal is essentially an open offer by the landlord to the tenant that can be exercised (accepted) by a tenant before a set time (usually the end of the lease or shortly before). Seeking to negotiate new and different terms outside of a right to renew does not affect the right of renewal.

(a) first, that the lease is a bare land lease, meaning the lessee invests significant sums of money into improvements which, if not purchased by the lessor, will be lost at the end of the lease;

(b) second, that the future development clause meant there was an ever- present possibility of the Port repossessing the Land on three months’ notice; and

(c) third, that the Lease in this case was for a unique permitted use and that was for an aquarium and associated activities.

Analysis

(a) an offer and acceptance (that is, agreement); and

(b) that both parties intend to be immediately legally bound.

  1. See for example Wire By Design Ltd (in receivership and in liquidation) v Commercial Factors Ltd [2015] NZHC 985 at [52].

(a) In that letter, the Port said it was “prepared to offer” EcoWorld a further right of renewal for 10 years following the current term. On a restricted interpretation, this meant the Port was prepared to enter into negotiations in relation to a 10-year right of renewal. On an expansive view, this meant the Port would allow EcoWorld to exercise a 10-year right of renewal. Whichever view is taken, however, this amounts at most to an offer of a right to renew.

(b) The Port repeatedly used the word “would” rather than “will”. For example, the letter stated “this would make the final lease expiry on 22 July 2031” and “we would record the proposed right of renewal by way of a variation to your lease”. The first example could be interpreted generously as an expression of the situation if EcoWorld chose to exercise a right of renewal under the terms proposed by the Port. The second example, however, in particular, clearly indicates that this statement was an offer of an option or right to renew the Lease, and that if EcoWorld chose to accept the offer of a 10-year right of renewal option in the Lease, the Port would record this by way of variation, that is in the manner prescribed for any agreed variations by cl 19 of the Lease.

(c) The offer was conditional on other terms being agreed, in particular, amending the rent review mechanism to the greater of CPI or market review. In order to qualify as an offer, it must be capable of being accepted immediately. The letter clearly contained terms that as a factual matter were still very much the subject of discussion and negotiations. Discussions clearly would be ongoing beyond this letter. Thus it was not capable of being accepted immediately. Indeed, M Reuhman said in cross-examination that not only did he never accept the offer, but that it would not have been prudent to accept the offer without negotiating other terms of the Lease.

(d) Any right of renewal would only be effective once the parties entered into a written variation of the Lease. Clause 19 of the Lease required all variations to be in writing. No variation to the Lease would be effective unless it was recorded in writing. Any offer of a right of renewal was therefore clearly conditional on the parties so recording their agreement to vary the Lease in this way in writing.

(e) The letter went on to state, that if EcoWorld was “happy with the proposal”, it should say so and the Port would write up a “draft variation”. Mr Reuhman accepted in cross-examination that he never came back to the Port confirming that he was “happy with the proposal”. Thus there were actions still to be taken with respect to any confirmed right of renewal, and in any case Mr Reuhman never communicated his acceptance of the offer.

arguable whether the proposed right of renewal in the 16 September 2015 letter in fact constituted an “offer”, as it was not capable of being accepted immediately (being conditional on further actions and negotiations), except perhaps on a very generous interpretation. Even if it was an offer, however, in any case EcoWorld (via Mr Reuhman) never accepted the offer in the letter.

  1. Jeremy Finn, Stephen Todd and Matthew Barber (eds) Burrows, Finn and Todd on the Law of Contract in New Zealand (7th ed, LexisNexis, 2022) at [3.4.7], citing Hyde v Wrench [1840] EngR 1054; (1840) 3 Beav 334.

10 Inspire Holdings Ltd v JSM Properties Ltd [2022] NZCA 136 at [32].

formal document is drawn up and executed by both parties that the parties will be held contractually liable.11 I accept this would apply here. In the present case, as noted, the offer was conditional on entering into a formal variation of the Lease, as required under cl 19.

Subsequent communications

11 Finn, Todd and Barber (eds), above n 9, at [8.2.2(a)].

12 Rattrays Wholesale Ltd v Meredyth-Young & A’Court Ltd [1996] NZHC 1837; [1997] 2 NZLR 363 (HC) at 376–377.

accept if nothing more were available”, I am satisfied it could not be seen as constituting an acceptance of the Port’s September 2015 offer, as:

(a) that offer had already been extinguished by EcoWorld’s 7 December 2015 reply letter, which I have found was a counter-offer;

(b) any acceptance was not unconditional, as it was accepting a position in relation to one of several “critical” points under negotiation and subject to further points being negotiated; and

(c) the parties never entered into a written variation, as required by cl 19 of the Lease and under the PLA.

(a) the proposed term is distinct from what is now alleged, as the email offered four rights of renewal of five years each, and not one 10-year right of renewal;

(b) the email was without prejudice and subject to approval by the Port’s senior management;

(c) the offer in this email was never accepted;

(d) any offer was terminated by the Expiry Notice, and in any case the letter of 16 April 2022 from EcoWorld’s lawyers constituted a counter-offer, thereby extinguishing the offer;

(e) the offer was conditional on other matters, including receiving financial statements from EcoWorld, which were not provided; and

(f) any offer was subject to entering into a variation, which never occurred.

Relief under the Property Law Act

extend or renew the lease or enter into a new lease with the lessor and may grant relief on any conditions as to expenses, damages, compensation or any other relevant matters as the court sees fit.13

(a) the lessor has “covenanted in writing” with the lessee that, on the expiry of the lease, the lessor will extend the term of the lease or renew the lease;

(b) that obligation of the lessor is conditional on the lessee giving notice, within a specified time or in a specified manner, of the intention to exercise the right to require a renewal of the lease;

(c) the lessee has failed to give the notice within the specified time or in the specified manner; and

(d) the lessor has refused to renew the lease.

13 Property Law Act 2007, s 264(2)(b).

(a) there was no written covenant in the Lease that it would be renewed;

(b) even if a written covenant outside the Lease did qualify for the purposes of s 261, there was no such written covenant outside the Lease in this case;

(c) no particular process was agreed for the renewal or extension of the Lease; and

(d) the factors to be taken into account in considering relief under s 264 of the PLA tell against the granting of relief.

Analysis

... I agree that we should not view these sections narrowly, neither in the jurisdiction conferred nor in the relief to be granted. The obvious final intention of the Legislature was to place the Court in a position to do what it thinks fit in accordance with the justice of the particular application.

Clearly the Court has to do justice as between lessor and lessee having regard to all the circumstances of the case and so having regard to the relative prejudice occasioned to the lessor or lessee by the grant or refusal of relief.

14 Vince Bevan Ltd v Findgard Nominees Ltd [1973] 2 NZLR 290 (CA) at 297.

15 At 299.

16 Weatherall Jewellers Ltd v J Hendry and Son Ltd CA 135/83, 11 September 1984 at 8.

Section 261 requirements — in particular, did the parties “covenant in writing”?

17 John Burrows (ed) Land Law (online looseleaf ed, Thomson Reuters, 2022) at [LS13.07(1)].

18 Vince Bevan Ltd v Findgard Nominees Ltd, above n 14, at 299.

19 At 299.

20 Bedford Investments Ltd v Alder & Co Ltd [2006] NZHC 521; (2006) 7 NZCPR 420.

21 Te Aka Matua o te Ture | Law Commission A New Property Law Act (NZLC R29, 1994) at 377.

22 Property Law Act, s 207 definition of “covenant”.

23 Bedford Investments Ltd v Alder & Co Ltd, above n 20. Although this case was decided under s 120 of the Property Law Act 1952, s 264 of the Property Law Act was not intended to substantively alter the law in this regard: Stylo Medical Services Ltd v Hum Hospitality Ltd [2018] NZHC 642.

24 Andrew Butler Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) at [2.7.6].

Discretion for relief under s 264 — should relief be granted under s 264?

(a) The reasons for the failure to comply with the relevant condition or notice requirement, including whether the failure was inadvertent?

The parties had been negotiating a new lease on-and-off since 2015. I am satisfied EcoWorld was well-aware the Lease would expire on 22 July 2021, yet took no action in preparing for the end of the Lease despite this.

(b) Whether the failure was caused by any action of the lessor?

I am satisfied the Port met its obligations in respect of the Lease, including providing EcoWorld with the required notice at all times. The Port consistently engaged with EcoWorld on the issues it had raised and responded in good time in all respects. I am of the view the Port went

25 Transform Minerals Ltd v Gordon Wright & Sons Ltd (2010) 12 NZCPR 558 at [58].

26 Ponsonby Mall Trust Ltd v New Zealand Food Industries Ltd [2005] NZHC 328; (2005) 7 NZCPR 48 (HC) at [29], applied in respect of the Property Law Act in Saisatnam Ltd v Brandons Trustee Co Ltd [2017] NZHC 538, (2017) 18 NZCPR 215 at 224–225.

above and beyond in order to assist EcoWorld in endeavouring to achieve a new lease.

(c) The lessee’s conduct, including whether it has complied with all of the lease’s conditions and covenants and has been a good lessee?

The Port claims in its proceedings against EcoWorld that EcoWorld has breached its lease in several respects. I consider this in more detail below at [162]–[164]. Beyond this, the Port complains that EcoWorld and Mr Reuhman have deliberately made inflammatory and misleading comments to the wider Picton community and to the media about the current state of affairs and the Port’s actions. These have included accusations of the Port attempting to “slaughter” native animals and “of bullying Mr Reuhman.” These comments are unfortunate to say the least. They do not appear to be substantiated and in any event as I see it there does not appear to be any evidence of poor behaviour on the part of the Port here. Rather, the evidence suggests it has been a careful, accommodating, and patient commercial landlord throughout. And, with respect to the aquarium animals, the evidence is clear that the Port on multiple occasions has offered to assist with their sustainable and effective rehoming in various ways. On this, to its credit, it has engaged with Te Papa Atawhai | the Department of Conservation, the Zoo and Aquarium Association, and other expert bodies to do so.

(d) The prejudice to the lessee if the relief is not granted?

While I accept that for EcoWorld no renewal of the Lease would be “existential” and it will be forced to close or relocate, I note also that EcoWorld has had ample opportunity to seek alternative accommodation and/or to put plans in place for closure.27 I therefore consider the prejudice to EcoWorld is consequently limited.

  1. Even just since Note of Expiry of the Lease was given in April 2021, EcoWorld has had 19 months now to make other plans.
(e) The prejudice to the lessor if the relief is granted?

EcoWorld submits that the Port “does not need the land” and that “waiting until July 2031 to get the land back will make not an ounce of difference to it”. It does not, however, lead any evidence to support this claim. On the other hand, the evidence before me in fact appears to suggest that the Port does wish to use the land in the foreseeable future. There are, as the Port has outlined, numerous options available to it with respect to its use of the Land, and the Port states it will be able to progress community consultation regarding the use of the Land once it has certainty as to its possession.

(f) The lessor’s motivations for refusing to renew the lease and its understanding of the lessee’s intentions to renew?

I have described above the Port’s motivations for allowing the Lease to expire and for declining to renew the Lease for a new term at [30]–[37]. These are set out in the Board paper presented to the Port’s Board. While there does not appear to be any decision currently in hand on the immediate use for the Land, I accept the Port’s submission that throughout it has acted in good faith and did not want to foreclose its options by entering into another long-term lease with EcoWorld. Those decisions are matters for the Port.

(g) How the interests of third parties may be affected?

EcoWorld says the effect on third parties from its closure would be “immense”. While the animals housed in the aquarium will no doubt be affected by its closure, the Port I note has offered several times to assist EcoWorld in their sustainable rehoming. I do accept however that EcoWorld is one of only a few aquariums remaining in New Zealand and its closure, unless it can transfer elsewhere, will be a potential loss to the community as an educational asset and tourist attraction. However, it is not for the Court to inquire too deeply into

such matters of a commercial nature, and this is only one factor to be considered among many.

Conclusion on relief under the PLA

Specific performance

28 Vince Bevan Ltd v Findgard Nominees Ltd, above n 14, at 297.

be performed. Second, the Lease itself required that any such agreement be recorded in writing as a variation to the Lease. No such variation was ever made. As I have found above, I do not consider that equity will regard the making of such a variation as done on the basis that it ought to have been done.

Equitable estoppel

(a) in mid-2017, when the evidence suggests Mr Lock thought the Port should write to EcoWorld withdrawing the offer of a right of renewal; or otherwise

(b) in January 2018, when EcoWorld made it known to the Port that it would take a 10-year right of renewal if that was all that was available. EcoWorld says if the right of renewal was not available at this point the Port could not in good conscience continue to let EcoWorld think that it was, and it should have said so, rather than remaining silent.

Principles of equitable estoppel

(a) a belief or expectation by EcoWorld was created or encouraged by words or conduct of the Port;

(b) to the extent an express representation was relied upon, it was clearly and unequivocally expressed;

(c) EcoWorld reasonably relied to its detriment on the representation; and

(d) it would be unconscionable for the Port to depart from the belief or expectation.

29 Sutherland v Lane [2020] NZHC 721 at [129]–[130]; and see National Westminster Finance NZ Ltd v National Bank of New Zealand Ltd [1996] 1 NZLR 548 (CA) at 549.

30 See for example Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd [2014] NZCA 407, [2014] 3 NZLR 567 at [44], applied in Creative Development Solutions Ltd v Chorus New Zealand Ltd [2021] NZCA 178.

31 Taylor’s Fashions Ltd v Liverpool Victoria Trustees Co [1982] QB 133 at 151–152.

Belief or expectation created or encouraged in EcoWorld by the Port through a clear and unequivocal representation

... must be judged objectively according to the impact that whatever is said may be expected to have on a reasonable representee in that position and with the known characteristics of the actual representee ...

32 Primus Telecommunications Plc v MCI WorldCom International Inc [2004] EWCA Civ 957 at [30], cited with approval in Creative Development Solutions Ltd v Chorus New Zealand Ltd, above n 30, at [86]; and see Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd, above n 30, at [125], referring to an expectation the defendant “reasonably engendered” in the plaintiff.

33 Coffey v Coffey [2012] NZHC 1765 at [132].

34 John McGhee (ed) Snell’s Equity (34th ed, Thomson Reuters) at [12-024].

35 Creative Development Solutions Ltd v Chorus New Zealand Ltd, above n 30, at [86].

(a) The Port’s letter of 3 February 2016 never stated that EcoWorld had a right of renewal. Rather, it constituted negotiations between the parties, reiterating (and thus clearly indicating) that any variation to the Lease to this effect would need to be formally documented.

(b) The Port’s February 2018 email stated it “would” agree to provide EcoWorld with rights of renewal for four terms of five years each. At this point, there was clearly no intention to be bound by such an offer:

(i) first, it was made on a “without prejudice” basis, understandably thereby requiring subsequent approval;

36 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [38].

(ii) again, it was clearly subject to acceptance of the offer from EcoWorld; and

(iii) as ever, all parties were well aware that any agreement would need to be recorded by way of variation to the Lease.

(c) I am also satisfied on the evidence before me that the oral discussions between the parties over the years, objectively considered, never represented to EcoWorld that it would be entitled to remain on the Land beyond July 2021. Rather, it seems these discussions involved ongoing negotiations as to certain terms of the Lease, such as the rent provisions and the future development clause (the removal of which was described at points, in particular the 22 January 2018 letter, as “critical” to EcoWorld).

(d) In terms of the representations EcoWorld claims were made to it by elected councillors on behalf of the Port, Mr Reuhman testified that the two MDC councillors told him words to the effect that the Port would “never kick EcoWorld out”. Mr Reuhman said this happened on four occasions. However, while the two councillors in their evidence could not say categorically that they did not say those words, their evidence was that it was unlikely they would have said that. This was particularly the case, they testified, given the MDC has no ability to control or direct what the Port does in its commercial operations. I found the two councillors to be honest and careful witnesses whose testimony was credible. Moreover, even if they had made such comments, I am satisfied a reasonable person in Mr Reuhman’s position, armed with the knowledge he had, would have recognised first, that the councillors did not have authority to make representations on the Port’s behalf and secondly, the proper course here was to disregard such statements as they would not represent an actual position in relation to ongoing tenure for EcoWorld in any case.

(e) Although I accept the Port did consult with EcoWorld in August 2020 and September 2020 to discuss its Picton port redevelopment project, it is clear the Port consulted with a number of its tenants at this time regardless of when their leases were due to expire. Such consultation was certainly not specific to EcoWorld. Indeed, Mr Welbourn gave evidence that the Port consulted with all owners and occupiers of potentially affected land, including some tenants who had only a 12-month lease. The fact that the Port consulted with EcoWorld as a current lessee does not constitute a clear and unequivocal representation that EcoWorld would have ongoing tenure beyond the expiry of its lease. This is particularly the case in light of all the surrounding circumstances, which included, as I have noted, the ongoing negotiations between the parties.

Reasonable reliance on the representation by EcoWorld to its detriment

  1. Wee Chiaw Sek Anna v Ng Li-Ann Genevieve [2013] SGCA 36 at [43], referred to in Creative Development Solutions Ltd v Chorus New Zealand Ltd, above n 30, at [95].
Indeed, this is clearly visible in this case in the various concessions both parties advised they would be prepared to either accept or to move their positions on. Most notably, these would include the comment in EcoWorld’s January 2018 letter that the 10-year right of renewal was an offer “which EcoWorld would accept if nothing more were available”. The sole director of EcoWorld, Mr Reuhman, on the evidence, has been a director of 35 companies, including a commercial leasing company. Therefore it does not seem to be contested that he has experience owning property and also dealing with commercial leases. To the extent EcoWorld relied on representations made during the course of these negotiations, through its director Mr Reuhman, a man experienced in such matters, arguably such reliance cannot be seen as reasonable in all the circumstances here.

(a) EcoWorld carried out upgrades to its cinema complex;38

(b) EcoWorld engaged with architects and designers to develop plans for its proposed business expansion; and

(c) EcoWorld “carried on its business” on the basis it had a right to renew.

  1. I leave to one side here the fact the cinemas are owned and operated by a separate company, Picton Cinemas Ltd.
first representation alleged to be relied upon was the Port’s letter of 16 September 2015. Mr Reuhman accepted in cross-examination the upgrades to the cinema were made before this date. EcoWorld could not have relied upon the Port’s 16 September 2015 letter with respect to its upgrades. By this point, the upgrades were already complete.

IT does this despite being faced with the Expiry Notice, and what I see as the proceedings by the Port against it for immediate possession.

Unconscionability

  1. Nectar Ltd v SPHC Operations (NZ) Ltd HC Tāmaki Makaurau | Auckland CL20/02, 7 May 2003 at [141].

40 I note at this point, however, that Mr Reuhman in trying to argue the Port was simply after a “windfall gain” here did accept, however, in response to questions put to him in cross-examination, that the figure he produced for the value of the building ($2.5 million) was in fact not a valuation of the existing building but rather his “unqualified estimate” based on “what it would cost to demolish the existing building and replace it with a new, modern, equivalent asset”.

Conclusion on equitable estoppel

Conclusion on EcoWorld’s claims

The Port’s claims

Action for the recovery of the Land

41 Stephen Todd (ed) The Law of Torts in New Zealand (online ed, Thomson Reuters) at [59.9.3].

Breaches of the Lease

(a) first, that there was an implied term of the Lease42 that on its expiry,

EcoWorld would yield vacant possession; and

(b) second, that EcoWorld was required under cl 21 to remove all Improvements from the Land and leave the Land “clean, clear and tidy”.

42 I put on one side allegations raised here by the Port (but perhaps somewhat tentatively) that EcoWorld had also breached other aspects of its lease, such as its resource consent terms to operate the business and its permitted uses of the premises.

43 Bathurst Resources Ltd v L & M Coal Holdings Ltd [2021] NZSC 85, [2021] 1 NZLR 696.

44 At [116]; and see BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1910] ArgusLawRp 71; (1977) 16 ALR 363 at 376; and Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10 [2009], 1 WLR 1988 at [25].

Mr Reuhman’s personal liability

EcoWorld’s affirmative defences

(a) First, equitable set-off. EcoWorld says that to the extent that either EcoWorld or Mr Reuhman is liable to the Port, the extent of any damages should be reduced to take into account alleged conduct on the part of the Port in contributing to that loss. This was to include conduct through its representations made in the Port’s letter of 16 September 2015 and its subsequent communications. EcoWorld says that, had it not been for the representations in those communications, EcoWorld would have been able to manage its affairs appropriately, including the taking of steps either to relocate or to wind up its business by at or about the final expiry date in the Lease.

(b) Second, estoppel. EcoWorld says the Port’s letter of 16 September 2015 and its subsequent communications amount to clear and unequivocal assurances by the Port as to EcoWorld’s continued tenure of the Land after the final expiry date in the Lease. It says it has relied upon these to its detriment and as a result has not taken the necessary steps to wind down its business or to relocate the improvements. EcoWorld says it is unconscionable for the Port to now resile from the

expectation it created in its representations and should therefore, at a minimum, be put in the position it would have been in had those representations not been made.

Conclusion on the Port’s claims

Relief

(a) an order requiring EcoWorld to give up possession of the Land and immediately vacate it;

(b) damages in respect of the reasonable cost of removing the Improvements from the Land (including any animals housed in those Improvements) plus interest;

(c) costs on a solicitor–client basis; and

(d) such other relief as the Court deems fit.

Possession

(a) EcoWorld at all times has known (or at least ought to have apprehended) that the Lease would expire in July 2021. It has therefore had ample opportunity to make arrangements for the eventual return of the Land to the Port. I accept EcoWorld should not now be allowed to rely on what seems to be its deliberate failure to plan for what was a clear eventuality to prolong the period of its (unlawful) possession.

(b) At all times the Port has had the right under the Lease (by way of the future development clause) to terminate the Lease and require EcoWorld, for Port development purposes, to return the Land with three months’ notice. There is no reason why EcoWorld, well over a year after the expiry of the Lease on its terms, should now somehow be entitled to a further lengthy period of time to wind down its operations and return the Land as required under the Lease.

(c) EcoWorld received the Expiry Notice in April 2021. It has therefore had 19 months to turn its mind to the winding down of its business and rehoming of its animals.

(d) From undisputed evidence before me, it is clear the Port has made numerous offers to assist EcoWorld in its end-of-lease obligations, including rehoming the aquarium’s animals. The Port advises again that it remains willing to provide that assistance.

(e) The Port is prepared and ready to take on responsibility for the animals and marine life. I acknowledge that EcoWorld has expertise in looking after the animals and marine life housed at the aquarium. However, notwithstanding the looming expiry of its Lease, on the evidence before me it seems it has made no firm arrangements in preparation for their future rehoming. By way of contrast, the Port has engaged with Te Papa Atawhai | the Department of Conservation and the Zoo and Aquarium Association in order to do so. It advises it has the funding required in order to safely rehome the animals. It has also arranged for a previous manager of EcoWorld to assist in this process. Although I accept EcoWorld could safely rehome the animals, I have no doubt the Port would actively and properly carry out the safe and effective rehoming as it has assured the Court it would be able to do if this may be required.

so itself. Again as I have noted, however, EcoWorld has had a number of years to prepare for this eventuality and it appears it has made very little, if any, preparation for what was an entirely foreseeable eventuality. If it may cost more as a result, this in my view is a consequence of EcoWorld’s actions.

Damages

45 Joyner v Weeks [1891] UKLawRpKQB 90; [1891] 2 QB 31 (CA) at 43–44.

  1. Maori Trustee v Rogross Farms Ltd [1994] 3 NZLR 410 (CA), citing Joyner v Weeks, above n 45, at 43–44.

47 Maori Trustee v Rogross Farms Ltd, above n 46, citing Joyner v Weeks, above n 45, at 43–44.

48 At 420.

49 Property Law Act, sch 3 pt 3 cl 13(1)(b).

it was in previously, both the aquarium and its animals and stock must be removed. Any damages for the reasonable cost of removing the Improvements (which includes the aquarium) must therefore include the costs of removing the animals.

Costs

If at any time Port Marlborough shall be obliged to incur legal or other expenses because of any default on the part of the Lessee, then the Lessee

50 Synlait Milk Ltd v New Zealand Industrial Park Ltd [2020] NZSC 157, [2020] 1 NZLR 657 at [189]–[196].

51 Drive Holdings Ltd v Mission Bay Pharmacy Ltd HC Tāmaki Makaurau | Auckland CIV 2005- 404-00829, 27 May 2005, upheld on appeal in Mission Bay Pharmacy Ltd v Drive Holdings Ltd CA 98/05, 29 June 2006 at [61].

shall upon demand reimburse Port Marlborough for the reasonable costs which it has incurred.

Any other relief

Summary

(a) First, was there a contractual 10-year right of renewal?

No.

(b) If no, should the Court nevertheless grant relief to EcoWorld under s 264 of the PLA?

No.

(c) Is EcoWorld entitled to an order for specific performance against the Port for a new lease on the terms of the alleged right of renewal?

No.

(d) If no, should EcoWorld nevertheless be granted relief in equity under the doctrine of estoppel on the basis of representations made to it by the Port?

No.

(e) Is the Port entitled to an order for possession of the Land?

Yes.

(f) Has EcoWorld breached the Lease by:

(i) failing to yield possession; and

(ii) failing to remove all Improvements from the Land and to leave the Land clear, clean and tidy?

Yes.

(g) Is Mr Reuhman personally liable for any failures under the lease on the part of EcoWorld?

Yes.

(h) What relief, if any, ought to be awarded?

The Port is entitled to relief in terms of the orders made below at [196].

Result

Orders

(a) EcoWorld is to relinquish and provide to the Port vacant possession of the Land within 20 working days of the date of this decision.

(b) The Port is entitled to damages against EcoWorld and Mr Reuhman (jointly and severally) in the reasonable amount of the costs of removing any Improvements from the Land that remain after the period noted at [196](a) above, including the aquarium (and making good the site) and including also removal of any animals housed in those improvements that remain at that time.

(c) The Port is entitled under the Lease to be reimbursed by EcoWorld and Mr Reuhman jointly and severally, for the reasonable legal costs and disbursements it has incurred on this proceeding, on a solicitor–client basis, such costs and disbursements to be approved by the registrar.

Gendall J

Solicitors:

Toby Gee Barrister and Duncan MacKenzie Barrister for EcoWorld Aquarium Limited Bell Gully for Port Marlborough New Zealand Limited

Copy to Second Defendant

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