Emprja Pty Ltd v Red Engine Group Pty Ltd [2017] QSC 33

SUPREME COURT OF QUEENSLAND CITATION: Emprja Pty Ltd v Red Engine Group Pty Ltd [2017] QSC 33 PARTIES: EMPRJA PTY LTD CAN 135 384 039 (applicant) v RED ENGINE GROUP PTY LTD ACN 006 338 941 (respondent) FILE NO: BS7790/16 DIVISION: Trial Division PROCEEDING: Originating Application DELIVERED ON: 13 March 2017 DELIVERED AT: Brisbane HEARING DATE: 6 October 2016 JUDGE: Jackson J ORDER: The order of the court is that: 1. An injunction is granted and the respondent is restrained from berthing or mooring Pelicans in berth 029 at the applicant’s marina from 10 April 2017. 2. The respondent pay the applicant’s costs of the proceeding. CATCHWORDS: TORTS – TRESPASS – TRESPASS TO LAND AND RIGHTS OF REAL PROPERTY – WHAT CONSTITUTES TRESPASS AND DEFENCES THERETO – where the applicant was the registered lessee of a marina under a head lease of crown land from the state – where the respondent was the registered sublessee of a marina berth from the applicant – where the respondent’s boat was moored in the subleased berth and the outer side of its hull protruded over the boundary of the sublease – whether the respondent thereby trespassed on the applicant’s land CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the respondent was the registered sublessee of a marina berth from the applicant – where the sublease provided that a vesselmoored in the berth must have dimensions appropriate to the berth - where the repondent’s boat was moored in the subleased berth and the -- 1 of 15 -- 2 outer side of its hull protruded beyond the width of the berth– whether the respondent thereby breached the provision of the sublease TORTS – TRESPASS – TRESPASS TO LAND AND RIGHTS OF REAL PROPERTY – REMEDIES – INJUNCTION – where the respondent trespassed on the applicant’s land by mooring a boat such that its outer side of the hull protruded over the boundary of a subleased berth – where the applicant applies for an injunction to prevent the respondent from berthing the boat in the sublease – whether the injury to the applicant was small and disproportionate to the detriment to the respondent if an injunction were granted – whether damages should be awarded instead of an injunction Civil Proceedings Act 2011 (Qld), s 8 Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311, considered Jaggard v Sawyer [1995] 1 WLR 269, considered Lawrence v Fen Tigers [2014] AC 822, considered Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (2015) 256 CLR 104, applied Plenty v Dillon (1991) 171 CLR 635, considered Shelfer v City London Electric Lighting Co [1895] 1 Ch 287, discussed COUNSEL: G Beacham QC and M Long for the applicant P Hastie QC for the respondent SOLICITORS: Tresscox Lawyers for the applicant WMB Lawyers for the respondent [1] JACKSON J: This is an application for injunctive relief either to require the respondent to comply with contractual requirements as to the dimensions of the boat moored in a berth in the applicant’s marina or to restrain a trespass constituted by the boat protruding over the boundary of the sublease for the berth. The Contract [2] The applicant operates the Abell Point Marina at Airlie Beach and is the registered lessee of the marina under a head lease of crown land from the State. [3] The marina has over 500 berths for boats. The applicant is the lessee from the State of the whole of the marina area including the areas of the berths. Although the applicant retains full leasehold title to many of the berths some of them have been subleased. A plan of the marina surveyed the areas of the individual berths, purportedly identifying them as leases. This enabled the applicant (or its predecessor in title) to grant a sublease of a berth, where appropriate by reference to the plan. -- 2 of 15 -- 3 [4] The respondent is the registered sublessee under the Land Act 1994 (Qld) from the applicant of a berth described as “Lease OAC” on SP 194460 for a term of 20 years commencing 14 July 2008. The berth is also known as number 029 in the marina. [5] The sublease incorporates standard form terms and conditions. Clause 4.1(a)(ii) provides that the respondent must: “(ii) give written notice to the [applicant] in the form set out in Appendix 2 nominating the boat or other vessel which the [respondent] intends to moor in the Berth from time to time (“the Boat”) which must, at all times during the Term: (A) have dimensions appropriate to the Berth ...” [6] By cl 1.1 of the sublease “Boat” is defined to mean “the boat or vessel nominated by the Sublessee to use the Berth in accordance with clause 4.1(a)(ii).” Clause 4.1(b) states that “[f]or clarity, the expression “Boat” includes the Boat’s tender.” There is no specific provision as to whether fenders are included within the meaning of “Boat”. [7] The dimensions of the sublease of the berth were shown on the plan attached to the sublease. Berth 029 is labelled on the relevant part of the plan as “LEASE OAC”. [8] Berth 029 as shown on the plan is 5.7 m wide and 24 m long. The berth is accessed from the north and is bounded by a floating finger wharf to the east and south. The finger walkway between Lease OAC (berth 029) and “Lease OAB” to the east connects to a wider walkway running from the east to the west. The western boundary of the sublease adjoins a strip of water between Lease OAC and “Lease OAD” to the west. That area is part of the area of the head lease from the State to the applicant. I will describe it for convenience as a “manoeuvring strip”. The manoeuvring strip as shown on the plan is 1.157 metres wide. Pelicans -- 3 of 15 -- 4 [9] “Pelicans” is a large motor yacht owned by the respondent. [10] The respondent has berthed Pelicans at the marina in berth 029 since approximately 2009. The respondent obtained the sublease with the intention of acquiring a large motor yacht for the berth. It acquired Pelicans for that purpose. [11] The sublease was entered into in 2008 between the respondent and the applicant’s predecessor in title. Years later, the applicant acquired the head lease and became the sublessor under the sublease. [12] According to a plan in evidence, Pelicans is 74 ft 9.5 inches (22.796 m) in length. It is common ground that her beam is 5.8 m. That exceeds the width of the sublease by 100 mm. Berth 030 [13] FC Management Pty Ltd is the registered sublessee of Lease OAD which is also known as berth 030. [14] Timothy Bayles is associated with FC Management Pty Ltd. He uses the berth for a large two masted yacht. There is some evidence that suggests it is over 5 m in beam, possibly up to 5.5 m. [15] Although Pelicans is 5.8 m in beam, when berthed the inboard side of the hull is protected by fenders hung between the side and the edge of the finger wharf on the eastern side of the berth. A photo below shows Pelicans tied up at the berth and the fenders in place. -- 4 of 15 -- 5 [16] When the fenders are hung to prevent the side of the hull from coming into contact with the finger wharf Pelicans’ “width” (the distance from the outer point of the fender in contact with the edge of the finger to the outboard side of the boat) is 6.3 m. According to the dimensions of the plan of the sublease, it is 5.7 m from the edge of the finger to the western boundary of the sublease. It follows that when tied up as shown the outboard side of Pelicans projects 500 mm into the 1.157 m manoeuvring strip. [17] A photograph below shows the area of the manoeuvring strip between Pelicans and Mr Bayles’ boat in berths 029 and 030. [18] In July 2016, Mr Bayles’ daughter called the applicant to inquire if berth 031 (on the western side of the finger wharf for berth 030 would be available. Use of berth 031 would allow easier berthing of their boat. [19] However, when Mr Bayles berthed his boat in berth 030 he found it could be done with ease and in his view no further concern needs to be addressed. -- 5 of 15 -- 6 [20] In late July 2016, Mr Bayles told Paul Darrouzet, the director of the applicant, that if the two vessels were separated by one berth it would make it easier for both vessels to be berthed but he was happy with berth 030. The Dispute [21] On 26 July 2016 the applicant’s solicitors wrote to the respondent’s solicitors alleging: (a) Pelicans’ beam exceeds dimensions that are appropriate for the berth; (b) that had resulted in the applicant being in breach of the sublease for berth 030; and (c) in those circumstances the applicant required the respondent to cease mooring Pelicans in breach of the sublease and to arrange for its immediate removal. [22] On 1 August 2016, the applicant started this proceeding. The orders sought include an order that the respondent remove Pelicans from berth 029 or be restrained from berthing or mooring Pelicans in the berth. [23] Mr Darrouzet swore an affidavit in support of the application. He claimed that the applicant is not meeting its obligations to the berth 030 sublessee to sublease the agreed area under the berth 030 sublease. Having regard to the actual dimensions involved and Mr Bayles’ evidence, there was no apparent justification for the claim that the applicant had been put in breach of the sublease for berth 030. No attempt was made to justify those assertions by Mr Darrouzet at the final hearing of the application. Trespass [24] The applicant submits that the uncontroverted facts show that Pelicans is protruding into an area outside the sublease of berth 029 and that to do so constitutes a trespass. [25] As it was succinctly put by the plurality in the High Court in Plenty v Dillon:1 “The starting point is the judgment of Lord Camden LCJ in Entick v Carrington (1765) 19 St Tr 1029 at 1066 : By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing… If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him. And see Great Central Railway Co v Bates [1921] 3 KB 578 at 582; Morris v Beardmore [1981] AC 446 at 464.”2 1 (1991) 171 CLR 635. 2 (1991) 171 CLR 635, 639. -- 6 of 15 -- 7 [26] Under the Land Act 1994 (Qld) a lease may be made of unallocated State land for a term of years. The Act expressly recognises the lessee’s “right to possession” under such a lease: s 157(1). [27] The right to possession of a crown leaseholder may be a right of exclusive possession that supports an action of trespass. The usual effect of a demise is to confer on the tenant a right to exclusive possession of the demised area. The head lease is not in evidence. The head lease and sub-lease are of land which is part of the sea-bed. There are exceptions to the proposition that a crown lease grants a right of exclusive possession, as both the result and the discussion of principle in Wik Peoples v Queensland3 show. However, there is no suggestion in this case that either the head lease or the sublease does not create a right of exclusive possession. [28] Equally, there is no suggestion in this case that the right of exclusive possession does not extend to the surface of the sea above the land of the sea-bed. Any other conclusion would fly in the face of the apparent purpose of the demises of both the head lease and the sublease for use as a marina and as a marina berth respectively. An obvious analogy exists between such a conclusion and the exclusive right of a possessor of land to the usable airspace above their land.4 There are some cases dealing with the availability of trespass as a remedy for unlawful use of a wharf, but they are not particularly relevant to this case.5 [29] It is uncontroversial, therefore, that the respondent obtained a tenant’s right of exclusive possession to the area of berth 029, subject to the provisions of the sublease. [30] The other side of the coin is that the grant of a sublease of part of leasehold premises does not, per se, confer a right in the sublessee to go onto or occupy any of the area of the premises which is not subleased. There are often exceptions. For example, if sub-leased premises can only be accessed over an area in the possession of a lessor that is not part of the sub-leased premises, there will be an implied right of access.6 [31] In the present case, the sublease expressly provides by cl 4.1 that the permitted use of the berth was to moor in the berth from time to time a boat which “must have dimensions appropriate to the berth”. [32] Second, cl 4.4 of the sublease expressly provides that the sublessee must not do anything to obstruct access by any boats to the marina, or moor the boat in such a manner that may interfere with or disturb the use of any part of the marina by any other occupier or user. [33] Third, cl 7.3 of the sublease expressly provides the sublessee may, in common with others, use the “Common Areas for the purposes for which they are intended” but 3 (196) 187 CLR 1, 115-119, 151-152, 203 and 239-241 and 245. 4 For example, Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334; Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1. 5 Victoria v Second Comet Pty Ltd (unreported, BC9405877, Supreme Court of Victoria, 21 December 1994, Coldrey J, 7691 of 1992); South Wales and Liverpool Steamship Company Limited v Nevill’s Dock and Railway Company Limited (1913) 108 LTR 568. 6 Wilcox and ors v Richardson (1997) 43 NSWLR 4, 15. -- 7 of 15 -- 8 the sublessee must “not obstruct any Common Areas in any manner” or “prevent or hinder the use of any Common Areas by any other person”. [34] The sublease defines “Common Areas” in cl 1.1 to mean all parts of the marina provided and designated by the sublessor for common use by any sublessee or any other person. In my view, the manoeuvring strip was part of the Common Areas within the meaning of that definition. [35] Having regard to these provisions, in my view, it is a trespass for the respondent to berth Pelicans in a fashion that has the effect that the boat protrudes by about 600 mm into the manoeuvring strip as part of the Common Areas. [36] It is a defence to an action of trespass that the plaintiff has licensed the defendant to go onto or remain on the land. [37] A document tendered in evidence is dated 25 November 2013 and entitled “Marine Craft Berthing Licence Agreement”. The text states that it is an agreement comprised by a reference table and several other documents. Only the reference table was tendered. From the form of that table it appears to have been intended to be part of a licence agreement for a vessel to berth at the marina. However, the respondent’s berthing of Pelicans in berth 029 did not depend on a fixed term or casual licence agreement of that kind. It was based on the sublease. [38] The respondent sought to rely on the document as a licence agreement for Pelicans to use berth 029 as a vessel having dimensions appropriate to the berth for the term of the sublease. [39] In my view, the document does not go so far. In the absence of the other parts of the licence agreement, it is difficult to know what the extent of the agreed terms might be. But the tendered part does not lead to the inference sought by the respondent. [40] The ongoing long term use by Pelicans of berth 029 in a manner that protrudes onto the manoeuvring area might have formed the basis to conclude that the applicant had informally consented to and thereby licensed that use. But even if it did, in my view, there was no long term agreement for such use to be continued to be implied from the facts in evidence. [41] Mr Darrouzet’s evidence was that he was not aware before about June 2016 that Pelicans might be wider than the berth. It seems on the evidence from Mr Bayles that the question of Pelicans’ beam was raised, in effect, when Mr Bayles’ boat started to use berth 030. Although there are other aspects of Mr Darrouzet’s evidence that I do not accept, I accept this point. [42] Accordingly, in my view, from 26 July 2016, when the applicant made demand that Pelicans be removed, the applicant revoked any prior licence it may have given for Pelicans to encroach upon the manoeuvring area. [43] It follows, in my view, that the respondent is trespassing on the applicant’s land by berthing Pelicans in berth 029 so that she encroaches onto the manoeuvring area. Breach of Contract -- 8 of 15 -- 9 [44] Clause 4.1, already referred to, provides in full as follows: “(a) The Sublessee must: (i) Only use the Berth for the Permitted Use; and (ii) Give written notice to the Sublessor in the form set out in Appendix 2 nominating the boat or other vessel which the Sublessee intends to moor in the Berth from time to time (“the Boat”) which must, at all times during the Term: (A) have dimensions appropriate to the Berth; (B) be properly licensed in accordance with applicable Laws and Requirements; (C) be equipped with all equipment required by Law; and (D) be seaworthy. (b) The Sublessee: (i) may nominate only one boat or vessel to use the Berth at any time; (ii) may, by giving a further notice in the form set out in Appendix 2, nominate an alternative boat or vessel which the Sublessee intends to moor in the Berth, in which case the Sublessee may no longer moor in the Berth the boat or vessel originally nominated by the Sublessee; and (iii) must ensure that the Boat does not exceed the engineering rating of the Berth. For clarity, the expression “Boat” includes the Boat’s tender. (c) The sublessee must not: (i) moor in the Berth any boat or vessel other than the Boat; (ii) use the Berth for commercial purposes without obtaining the Sublessor’s consent and agreeing to comply with clause 3.4; (iii) allow the Berth to be used for mooring any boat or vessel which exceeds the engineering rating of the Berth; or (iv) deal with the Berth or the Sublessee’s interest in the Berth except in the way set out in the Sublease.” [45] The applicant submits that cl 4.1, properly construed, means that the boat nominated by the respondent must entirely fit within the berth and sublease. [46] The High Court recently restated the general approach to construing commercial contracts in Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited.7 It was said: “The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose. In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That inquiry will require 7 (2015) 256 CLR 104. -- 9 of 15 -- 10 consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.”8 (footnotes omitted) [47] The expression “dimensions appropriate to the Berth” is not initially clear. However, given the contextual considerations already mentioned, in my view, it may be accepted that generally speaking a boat that is to be berthed in the subleased berth should fit within it. [48] It is unnecessary to decide in this case whether fenders that overhang on the manoeuvring strip side of the berth affect what is an appropriate dimension if the side of the boat is within the boundary of the sublease. That is not this case. The effect of the fenders on the finger wharf side of the berth in the present case was to project the outboard side of Pelicans’ hull over the boundary of the sublease and into the manoeuvring strip. [49] It follows, in my view, that the applicant has proved a breach of cl 4.1 in the circumstances of this case. Estoppel [50] The respondent, in its written submissions, submits that it relied on its continued uncontested use of the berth for the assumption that Pelicans had a beam which was appropriate to the berth. The respondent submits that it would be unjust to permit the applicant to depart from that assumption, in reliance upon Grundt v Greater Boulder Pty Gold Mines Ltd9 and Commonwealth v Verwayen.10 [51] On the facts of the case, in my view, no case of estoppel is raised. The respondent tendered no evidence in support of it. The respondent’s director’s affidavit evidence was not that he assumed that Pelicans had a beam appropriate to the berth, notwithstanding that her beam exceeded 5.7 m, or that his assumption was induced by any conduct of the applicant. It was that he believed that Pelicans in fact was less than 5.7 m in beam. [52] The respondent’s counsel accordingly did not press any estoppel argument in final oral submissions. Discretionary considerations for equitable relief [53] The relief claimed by way of injunction in the present case is a claim for equitable relief in aid of a common law right (either trespass or breach of contract) that has been infringed by the respondent. [54] The applicant submits that the applicant is entitled to an injunction to restrain the respondent’s trespass by mooring Pelicans partly on the Common Area of the manoeuvring strip. Alternatively, the applicant submits that it is entitled to an injunction to restrain the respondent’s continuing breach of cl 4.1. 8 (2015) 256 CLR 104, 116 [46]-[47]. 9 (1937) 59 CLR 641, 674. 10 (1990) 170 CLR 394, 500. -- 10 of 15 -- 11 [55] The respondent submits that there are a number of reasons why no injunction should be granted in the circumstances. Ill will [56] First, it submits that the applicant is motivated to bring this proceeding by Mr Darrouzet’s ill will towards Mr Mousaferiadis, the respondent’s director. Perhaps it was to an extent. The pair have their differences. [57] But it is not suggested that the true object sought by the applicant is other than the relief sought in the proceeding, namely to have Pelicans removed from berth 029 based on the applicant’s legal rights. The respondent did not submit there was any abuse of process available as a defence, or a defence of unclean hands available, as a discretionary bar to the grant of equitable relief. [58] Accordingly, it is unnecessary and would be unhelpful for me to descend into the evidence about those differences or any other criticism made by the respondent of the evidence of Mr Darrouzet. Damages instead of an injunction [59] The remaining ground of defence is that the respondent submits that the injury to the applicant is small or trivial, the effect of an injunction would be oppressive to the respondent, and there is a disproportion in the detriment to the respondent and the benefit to the applicant, relying upon Jaggard v Sawyer.11 [60] The factors relied upon by the respondent owe their origin, at least in part to the “working rule” for the application of s 2 of the Chancery Amendment Act 1858 (Eng) (Lord Cairns’ Act) formulated in 1895 by AL Smith LJ in Shelfer v City of London Electric Lighting Co.12 [61] That formulation has been much discussed since, including in recent decisions of Australian intermediate courts of appeal in Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd13 and Evans v Miller.14 [62] The working rule is: “In my opinion, it may be stated as a good working rule that — (1) If the injury to the plaintiff’s legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction: then damages in substitution for an injunction may be given.” 11 [1995] 1 WLR 269, 282-283. The respondent also relied on Shepherd Homes Ltd v Sandham [1971] 1 Ch 340. However it was a case of an interlocutory mandatory injunction to enforce a building covenant and raised different considerations. 12 [1895] 1 Ch 287, 322-323. 13 (2007) 20 VR 311, 319-328 [39]-[91]. 14 [2011] WASCA 89 [17]. -- 11 of 15 -- 12 [63] The “jurisdiction” to award damages instead of an injunction in this State, derived from Lord Cairns’ Act, is now contained in s 8 of the Civil Proceedings Act 2011 (Qld), as follows: “If a court has jurisdiction to hear an application for an injunction or specific performance, the court may award damages as well as, or instead of, an injunction or specific performance.” [64] Although it has been said numerous times that it is wrong to treat Lord Cairns’ Act as operating as a basis for a compulsory purchase of a plaintiff’s right,15 it is impossible to deny that is sometimes the effect of an award of damages for trespass or nuisance or breach of a restrictive covenant where the award is made to compensate a plaintiff for past and future loss by reason of the defendant’s continuing wrong. [65] Even so, from Shelfer onwards, the cases have operated on the basis that it is not a matter of course to award damages under Lord Cairn’s Act instead of an injunction to which the plaintiff is otherwise entitled. It was said in Break Fast, recently: “In Shelfer, the Court of Appeal made plain that the unprecedented statutory power to award damages in equity did not introduce damages as the standard remedy for trespass, whereby wrongful acts could routinely be sanctioned by the effective ‘purchase’ of the landowners’ rights. Rather, it was necessary to make out a special case for the court to exercise its jurisdiction to award damages under Lord Cairns’ Act. Although the Court of Appeal emphasised that an injunction remained the prima facie remedy for trespass, AL Smith LJ articulated, in ‘a good working rule’, guidance as to when, exceptionally, damages would be appropriate.”16 [66] Meagher, Gummow & Lehane’s Equity Doctrines and Remedies, 5 ed, makes the point that in the case of an injunction to restrain a trespass to land it is a “fusion fallacy” to reason that because damage was not an element of the common law action for trespass, the absence of damage is no impediment to the grant of an injunction.17 Conversely, Jaggard supports the conclusion that a proved absence of damage, without more, is insufficient to justify the grant of an injunction.18 [67] However that may be, a number of cases recognise that an injunction may go to restrain a trespass even where the damage to the plaintiff is minimal. The discussion in Break Fast serves to illustrate that point. There is nothing inconsistent with that conclusion in the recent decision of the UK Supreme Court that discussed these principles in the context of the tort of nuisance: Lawrence v Fen Tigers Ltd.19 [68] However, as AL Smith LJ in Shelfer pointed out, there may be cases that would otherwise fit within the working rule where the defendant’s conduct disentitles him or her from asking that damages may be assessed in substitution for an injunction. 15 Shelfer v City London Electric Lighting Co [1895] 1 Ch 287, 322 is an earlier example. For a recent example, see Lawrence v Fen Tigers Ltd [2014] AC 822, 855 [121]. 16 (2007) 20 VR 311, 319 [39]. 17 Meagher Gummow & Lehane, Equity Doctrines and Remedies, 5 ed, 718 [21-110]. 18 [1995] 1 WLR 269, 278-279. 19 [2014] AC 822. -- 12 of 15 -- 13 [69] A further point of principle reinforces the conclusion that it is not a matter of course that an award of damages will be granted instead of an injunction. The point was stated thus in Break Fast by reference to the reasoning in Jaggard: “The injury to the plaintiff’s right [in Jaggard] was small … and was capable of being estimated in money or as what a reasonable seller would sell it for. Further, it would be oppressive to the defendants to grant the injunction. In that context, the Master of the Rolls stated: ‘It is important to bear in mind that the test is one of oppression, and the court should not slide into application of a general balance of convenience test.’ He also observed that ‘It would weigh against a finding of oppression if the defendants had acted in blatant and calculated disregard of the plaintiff’s rights, of which they were aware ….’”.20 [70] However, it must be remembered that these statements are not to be substituted for the statutory text or the discretion that is conferred by it. The error in so doing was acknowledged in both Break Fast21 and in Lawrence v Fen Tigers.22 Another potentially important question raised by the latter case is whether a defendant bears the onus of proof to establish that there should be an award of damages instead of an injunction. Lord Neuberger thought that to be so. He said: “I would accept that the prima facie position is that an injunction should be granted, so the legal burden is on the defendant to show why it should not. And, subject to one possible point, I would cautiously (in the light of the fact that each case turns on its facts) approve the observations of Lord MacNaghten in Colls [1904] AC 179, 193, where he said: ‘In some cases, of course, an injunction is necessary—if, for instance, the injury cannot fairly be compensated by money—if the defendant has acted in a high-handed manner—if he has endeavoured to steal a march upon the plaintiff or to evade the jurisdiction of the court. In all these cases an injunction is necessary, in order to do justice to the plaintiff and as a warning to others. But if there is really a question as to whether the obstruction is legal or not, and if the defendant has acted fairly and not in an unneighbourly spirit, I am disposed to think that the court ought to incline to damages rather than to an injunction. It is quite true that a man ought not to be compelled to part with his property against his will, or to have the value of his property diminished, without an Act of Parliament. On the other hand, the court ought to be very careful not to allow an action for the protection of ancient lights to be used as a means of extorting money.’”23 [71] However, Lord Neuberger’s statement was not necessarily accepted by a majority of the members of the Supreme Court. Lord Sumption thought that Shelfer is out of 20 (2007) 20 VR 311, 325 [73]. 21 (2007) 20 VR 311, 325 [77]. 22 (2014) AC 822, 855 [120]. 23 [2014] AC 822, 855 [121]. -- 13 of 15 -- 14 date24 and Lord Clarke agreed with that.25 Lord Mance expressed no clear view or agreed with Lord Neuberger.26 Lord Carnwath was in favour of a move away from Shelfer.27 And Lawrence v Fen Tigers has not received approval by the intermediate appellate courts or the High Court in this country. Lord Neuberger’s statement does not, therefore, necessarily represent the law in Australia although there is much to be said for the reasoning in that case, in my view. [72] In the circumstances, it is convenient to approach the present case through or starting with the considerations stated in the working rule. [73] The effect of an award of damages instead of an injunction in the present case would be to authorise the respondent’s ongoing trespass for the future. The respondent would be left able to berth Pelicans in berth 029 for the reminder of the term of the sublease, which still has 11 years to run. [74] The injury to the plaintiff’s legal rights is small. On the evidence, the plaintiff has not had and does not have any need to use the part of the manoeuvring strip, other than to permit the user of berth 030 (and the user of berth 029) to be able to manoeuvre safely. Mr Bayles’ evidence was that his vessel could do so at present. But the photograph above might suggest that a vessel of greater beam than Mr Bayles’ present boat could not do so. [75] It is difficult to assess whether the applicant’s injury is capable of being estimated in money. There is no evidence as to the value of the part of the manoeuvring strip that is encroached upon. It seems unlikely that it would have any separate commercial value. [76] Subject to two points, it seems not unlikely that the applicant’s injury is one that can be adequately compensated by a small money payment. One possible exception is that the reduced manoeuvring strip between Pelicans and a boat that may be in berth 030 could contribute to the risk of collision when manoeuvring into or out of the berths. But it was not submitted by the applicant that it would be exposed to an increased risk of liability in such an event. Another possible detriment to the applicant is that the sublease relating to berth 029 is but one sublease in the series of subleases within the marina. The applicant has an arguable commercial interest in being able to manage the various subleases in the marina consistently and to maintain a consistent approach to the appropriate dimensions of boats in the berths in accordance with their surveyed dimensions. [77] The respondent sought to show that there was another boat in a berth in the marina that was wider than 5.7 m, being a 2009 Sunseeker 86, with a beam of 6.4 m. But the admissible evidence received was insufficient for me to draw that conclusion or to show that the applicant is taking an inconsistent approach as between the applicant and other users of the marina berths in general. For example, there is nothing to prevent the applicant from licensing one of the berths that it owns in a way that might obstruct access to another one of the berths that it owns, where the second berth is unoccupied. 24 (2014) AC 822, 864 [161]. 25 (2014) AC 822, 866 [171]. 26 (2014) AC 822, 865 [167]-[168]. 27 (2014) AC 822, 882-884 [238]-[248]. -- 14 of 15 -- 15 [78] Would it be oppressive to the respondent if an injunction were granted? The effect of the injunction would be to require the respondent to remove Pelicans to a different place of mooring or berthing. No evidence was led by the respondent as to the financial or other impacts of having to do so. It may be accepted that it would be inconvenient for the respondent to do so, or less convenient than keeping Pelicans berthed at the marina in berth 029. [79] It may also be inferred that berth 029 would most likely lose its present utility for the respondent. There was no real evidence as to the flow on effects for the use of berth 029. Mr Darrouzet said that the applicant would be prepared to act as agent for the use of berth 029 by other boats as it does for other sublessees, but that is not enough to infer that berth 029 will have a viable commercial use in place of its present use for the respondent. Whether it will be occupied would depend on rates of occupancy for the marina for berths of this size and the order in which the berths are allocated. There is no suggestion that the respondent has another boat that it might berth in place of Pelicans. [80] I accept that the question of oppression is to be judged having regard to all relevant factors in the case, including the benefit to the applicant in comparison with the detriment to the respondent. [81] The applicant sought to characterise the respondent’s ongoing conduct in berthing Pelicans so that she protrudes onto the manoeuvring strip as a deliberate wrong. However, in my view, this is not a case of deliberate wrongdoing which would preclude an award of damages being granted even where the four factors of the working rule are satisfied. There was no evidence that the respondent was aware of any trespass or breach of the sublease in berthing Pelicans in berth 029 until the applicant made a demand for her removal. [82] Each case must depend on its own facts. The respondent’s detriment is no doubt likely to be much greater than the benefit of the injunction to the applicant. The trespass seems to have come about from a lack of appreciation (by both the respondent and the landlord) that Pelicans as berthed encroached into the manoeuvring strip. [83] Even so, it does not in my view amount to oppression to conclude that the applicant is entitled to an injunction to restrain the respondent from continuing to trespass onto the manoeuvring strip. Accordingly, in my view, it is not appropriate in the present case to award damages instead of granting an injunction to restrain the respondent’s trespass. [84] In those circumstances, it is unnecessary to separately consider whether an award of damages should be made instead of granting an injunction to restrain the respondent’s breach of cl 4.1 of the sublease Conclusions [85] It follows that an injunction should be granted restraining the respondent from berthing or mooring Pelicans in berth 029. [86] I will hear the parties on the question of costs. -- 15 of 15 --