Emprja Pty Ltd v Red Engine Group Pty Ltd  QSC 33
The Applicant leased a marina at Airlie Beach from the State of Queensland. Some of the berths at the Marina were available for sublease.
The respondent leased one of the berths (029). Under the terms of the lease, the respondent was to give written notice as to what vessel was to be moored at the berth. And the vessel was to be one whose ‘dimensions [were] appropriate to the Berth’.
The respondent’s motor yacht was called “Pelicans”. Pelicans’ beam exceeded the width of the leased berth by 100mm. When fenders are hung from Pelicans it projects outside of the leased area by 500mm. To resolve the issue of space, the owner of the neighbouring vessel, berthed at 030, suggested to the applicant that if the two vessels could be separated by one berth, it would be easier to berth both vessels.
Instead, the applicant’s solicitors wrote to the owner of Pelicans alleging that Pelicans’ dimensions exceeded that appropriate for the berth, and that the applicant had to cease mooring Pelicans at berth 029. The applicant latter sought orders for removal of Pelicans from the berth.
- Does Pelicans’ projecting into the neighbouring berth constitute trespass?
- If Pelicans’ did trespass, did it have a license to do so?
- Did the respondent breach the terms of the lease by mooring a vessel too large for the berth?
- Is the applicant entitled to an injunction preventing Pelicans from continuing to trespass at the marina?
- Is the trespass small or trivial enough that damages should be awarded?
FINDINGS AND CONCLUSION
The sublease granted the respondent a right of exclusive possession to berth 029. There was an express clause in the sublease that the vessel to be moored at 029 was one with ‘dimensions appropriate to the berth’, and that the sublessee must not ‘interfere with or disturb use of any part of the marina’. Given those clauses, it is a trespass by the respondent for their vessel to protrude into common areas or neighbouring berths at the marina.
There was no evidence of an agreement between the parties that Pelicans would be permitted to project into common areas, and had there been one, it was formally revoked when the applicant requested that the Pelicans be removed.
The terms of the sublease meant that by having a vessel that extended into common use areas or a neighbouring berth, the respondent breached the terms of the lease.
The applicant sought an injunction against the respondent to restrain the respondent from mooring Pelicans at the marina. The respondent opposed this, arguing it was the Marina operators ill-will towards the respondent’s director that motivated the application. This was rejected because there was no suggestion of an abuse of process, or a defence of unclean hands.
Where the damage suffered is small, it is possible to award damages instead of an injunction. If damages were awarded instead of an injunction, it would in effect authorise ongoing trespass by the respondent in the future. The actual injury to the applicant is small – the area trespassed upon is not in use, and not needed save for the manoeuvring of the vessel in 030, the owner of which gave evidence that it could manoeuvre safely Pelicans larger beam notwithstanding. The applicants made no submissions as to risks or costs arising from Pelicans size. Nor did the respondent make any submission about the costs involved in berthing Pelicans elsewhere.
Where a lease is undertaken for the purposes of storing or berthing a vessel or other item, careful consideration should be given at the outset as to whether the place being leased is appropriate. This should be having regard to the size and nature of the item being stored.