Pauanui Lakes homeowner Hartley Vincent has defeated the final attempt, in the Supreme Court, to make him pay levies to the golf club which runs the Coromandel development’s golfcourse.
Gary MacDougall (Pauanui Lake Resort Ltd) began his ambitious $34 million resort project in 1998 — 153 residential sections, mostly round the edge of an 18-hole golfcourse, and a 60-room lodge on a 100ha Duck Creek property that runs along a valley 4km from Hoppers’ Pauanui coastal development, but that original development company went into receivership on 1 August 2001.
Other developers took on the project but also collapsed in 2009 as the global financial crisis took hold.
Mr Vincent, co-owner of Harpers Fashions Ltd whose family trust owns lot 75 of the residential subdivision developed around the course, and current golfcourse business owners & managers Lakes International Golf Management Ltd & The Lakes International Golf Course Ltd squared off before Associate Judge Hannah Sargisson in 2 separate summary judgment cases in the High Court in 2013, for a nil decision.
The case then went to trial in the High Court before Justice Paul Heath, who found the golfcourse businesses were entitled to levy Mr Vincent for fees. Justice Heath found that Lakes International Golf Management was entitled to enforce the covenant originally to have been held by an incorporated society, which was never formed, and that Mr Vincent was required as owner of a subdivision lot to join the golf club.
Mr Vincent appealed to the Court of Appeal, which supported his case in 2014.
The Court of Appeal said: “In our view, the scheme of the covenant and the wording of the definition of ‘golf club’ are clear and permit of only one meaning. The obligations were imposed in relation to a golf club that was to be incorporated as an incorporated society to provide for playing rights on the golf course.”
However, in the Supreme Court decision written by Justice Sir Willie Young & issued on Wednesday, the country’s highest court said it was satisfied “that there is no occasion for us to reach a concluded view in respect of them [arguments over whether a society as postulated would meet what was envisaged by the covenant]. This is because the case must be determined by reference to what has, and not what might have, happened.
“What has happened is that the golf club as established is not of the kind stipulated in the covenant. That it might have been no less onerous for Mr Vincent to join a golf club which was an incorporated society is of no moment as he cannot be compelled to do something which is different from what he agreed.”
The 5 members of the Supreme Court who heard the case in March were Chief Justice Dame Sian Elias and Justices Sir Willie Young, Susan Glazebrook, Mark OʼRegan & Ellen France.
Link: Supreme Court decision
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Attribution: Supreme Court decision.