A landlord's attempt to get an award-winning restaurant to shut down and fix alleged problems with cooking odours wafting through a waterfront Auckland building has been dismissed by a High Court judge.
St Heliers Bay Cafe & Bistro - owned by high-profile restaurateurs Scott Brown and Jackie Grant - has been lauded by food critics but allegedly is causing a nuisance for tenants in the building where it operates.
The building's landlord, a company called Magellan Investments, took the restaurant and its owners to the High Court at Auckland, seeking orders that the eatery stop from operating in a "manner which results in the circulation of noxious cooking fumes and odours throughout the premises".
The judge considering whether or not to grant this order noted it would essentially require the restaurant to undertake work of an "uncertain or permanent nature before being able to operate the premises."
Magellan Investments is directed by Robin Sheffield and Florence Sheffield, who live on the second floor of the building on Tamaki Drive where the restaurant is located.
As well as stopping the smells, Magellan wanted St Heliers Bay Cafe & Bistro to remove gas cylinders and restaurant goods from the car park.
But Justice Susan Thomas on considering Magellan's application for these orders said she was satisfied that the "fairness and justice of the case" favoured its refusal.
"I cannot be satisfied, given the wide, uncertain and effectively permanent nature of the orders sought and the inability of the parties and experts to reach consensus on an acceptable solution to date, that a solution can be achieved in the time period suggested by [Magellan]. In those circumstances, I am not prepared to jeopardise the defendants' business and the livelihood of employees by granting the application," Justice Thomas said.
Brown's and Grant's company Hip Group also runs The Cafe, The Store and The Bar at Kohimarama, Takapuna Beach Cafe and Store, Richmond Road Cafe and Rosehip Cafe, and eateries in Britomart, including Ortolana and dessert restaurant-wine bar Milse.
The application for the interim injunction, dismissed yesterday by Justice Thomas, was part of a more substantial dispute between the parties over the extraction system in the restaurant.
The restaurant and Magellan entered into a 12-year-lease agreement in June 2010. The eatery needed to fitout the site and required Magellan's approval for this.
As described in Justice Thomas' decision, Magellan alleges that the restaurant and its owners made "mispresentations" and so they approved a single extraction system in the kitchen "which does not adequately deal with the removal of noxious cooking fuels from the Cafe and odours throughout the whole building constitute a nuisance".
Magellan and the Sheffields filed proceedings in the High Court in late November which alleged the misrepresentations, together with breach of the Fair Trading Act and breach of contract.
The plaintiffs are seeking a permanent injunction to prevent "further and continuing breaches of the lease", damages for alleged breach of the lease, and damages under the Fair Trading Act.
Magellan also wants an order saying it was entitled to cancel a deed of settlement purporting to sort out the issues between the parties.
The defendants - St Heliers Bay Cafe & Bistro, Brown and Grant - say the dispute was already sorted at mediation, resulting in this settlement deed, which allowed the eatery to keep "existing cooking methods" and required Magellan to carry out remedial work.
They deny their actions breached the lease and deny providing misleading information about the kitchen fit-out and extraction system.
The defendants deny there is any nuisance, either historic or ongoing.
While Magellan alleges that in 2010 they were told the kitchen would use a gas-fired char grill and not include a pizza oven, the defendants say their landlord was aware a deck oven would be installed (which is the same as pizza oven) and would use solid fuels.
Although the restaurant stopped using solid fuels in late October and was willing to give an undertaking they would not use them until this wider dispute was sorted, Magellan did not accept this as a temporary solution and wished to proceed with the injunction application dismissed yesterday.
Solid fuels appear to be a key problem in this dispute and Justice Thomas said in her decision:
"There was, it seems, a very real problem of putrid odours emanating from the Cafe's extraction system. That problem has satisfactorily been dealt with by the Cafe ceasing to use solid fuels".
One of Magellan's expert witnesses, Neil Purdie, was concerned the present extraction system was not right for dealing with both solid fuels and gas fuel appliances.
"Enhanced treatment of the exhausts will be required as filtration has been shown to be insufficient to treat odours," he is quoted as saying in an affidavit.
An expert for the defence, on the other hand, said the current system was adequate but that a duct "belonging to Magellan was always destined to leak and was the primary cause of the odour problem".
While she dismissed Magellan's interim application for an injunction, Justice Thomas said there was still a "serious question to be tried".
"The evidence clearly establishes that there is a serious question to be tried regarding the nuisance associated with the extraction system, if both solid fuels and gas are to be used in cooking," the judge said.