Hamish Fletcher

Business reporter for the NZ Herald

Pauanui property owner in golf resort fees stoush

Photo / Thinkstock
Photo / Thinkstock

The owner of a property near a Pauanui golf course is in a dispute involving whether he should have to pay membership fees for the club.

Hartley Clendon Vincent is a co-director of Harpers Fashions, which operates more than 20 stores around the country.

The majority of these stores trade as Hartleys, whose website says is a name "synonymous with ladies fashion retailing in New Zealand".

Vincent is also the owner of property in the Lakes Resort, a gated community around a Pauanui golf course.

A covenant registered against this property says the land owner is to join the golf club, remain a member and meet all levies and charges by the club.

The golf club, according to the covenant, was to be set up as an incorporated society which would provide playing rights on the golf course.

But the entity now running the golf club, Lakes International Golf Management, is a company and not an incorporated society.

Lakes International Golf Management sent invoices to Vincent for $5070, representing three years of membership fees for the club.

These fees were not paid and Lakes International brought action against Vincent claiming them. The company has also run into difficulties enforcing payment of the memberships fees from "many" of the other 39 Lakes Resort property owners caught by a similar covenant, a recent court decision says.

Both Lakes International and Vincent sought summary judgement in their dispute, which was dismissed last year by the High Court's Associate Judge Hannah Sargisson.

Associate Judge Sargisson said there was room for different interpretations and that it would be prudent to allow more context to be exposed fully at a trial.

Vincent appealed that decision and argued the covenant meant the membership fees are payable to the golf club as incorporated society.

Lakes International is not one and, based on that argument, is not entitled to enforce the covenant.

His lawyer Michael Fisher told the Court of Appeal last month that as a company the golf club operates for commercial gain, which would not be the case if it was a incorporated society.

The club operates without the members having any real say in how it operates, Fisher said.

Parts of the law governing incorporated societies, on the other hand, give members a say in matters like changing rules and approval of financial statements, Fisher said.

Lakes International, said the differences arising from the form of incorporation are "more apparent than real".

It submitted the absence of the ability to control how the club operated had not troubled Lakes Resort property owners. The company said the reference in the covenant to a body "to be incorporated" was a suggestion of the form the club could take rather than a requirement.

Vincent's appeal turned on whether the Associate Judge was right to conclude further evidence could assist in interpretation of the covenant.

Fisher said the interpretation of the clause was clear based on what was already before the court and further evidence was not necessary.

Lakes International lawyer, Claire Mansell, said the words "to be" in the covenant are ambiguous and further evidence would assist in determining meaning.

Justices Ellen France, Geoffrey Venning and Jillian Mallon in their judgment earlier this month said the position was "not clear cut".

They dismissed Vincent's appeal and ordered he pay the Lakes International costs.
Vincent could not be immediately contacted for comment.

Read the full court decision here:

- NZ Herald

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