A dispute over whether an alleged brothel can continue to operate in the same building as upmarket Auckland restaurant Clooney is heading to the Court of Appeal.
The building's owner, a company called Sale 33, wants the Court of Appeal to order that one of its tenants stop operating the alleged brothel at the premises or cease any prostitution-related activity.
The High Court's Justice Susan Thomas this month declined to grant the interim injunction sought by the owners of the building at 33 Sale St, which houses Clooney on the ground floor.
The owner alleges husband and wife Maria and David Simpson (the latter a bankrupt ex-solicitor) are running a brothel from a five-bedroom, loft-style apartment at the address. It has been denied a brothel was operating there, according to Justice Thomas' decision on the injunction.
The apartment is leased by a company directed by Maria Simpson and the owner says when it applied for the tenancy its described its business as both a legal consultancy and a fashion modelling and styling operation.
The owner alleges it was always intended a brothel would operate from the apartment and that this was not disclosed.
The owner claims the operation of the alleged brothel is devaluing the building and that future tenants will be less inclined to rent it.
They also claim the alleged brothel is creating a nuisance and that other tenants have complained about smoking in the stairwell, that police have been called to disputes, that prostitutes and their clients are approaching restaurant patrons and that prostitutes and clients are using the common areas.
According to Justice Thomas' decision, a private investigator hired by the building owner surveyed the building on at least five evenings and identified four women he considered were likely to be prostitutes, and 13 potential clients.
Simpson's company has denied the building owner's claims and opposed the injunction on the basis that there was no serious arguable case and that the appropriate forum for the dispute was the tenancy tribunal. Her firm had previously applied to that tribunal for a declaration that its use of the apartment was lawful.
Although a decision had not been made at the time of Justice Thomas' ruling, the judge said that the tribunal was the right place for the dispute.
But in case she was wrong, Justice Thomas considered whether there was a serious case to be tried, which is one of the tests that must be satisfied when applying for an injunction. Although there was evidence of a police call-out to the apartment, Justice Thomas said that was only once and that the sad reality was that domestic incidents could occur at any residential premises.
There was also a complaint of loud music but that was only once."It is patently clear that the plaintiff's concern is the use of the apartment as a brothel and that is what the application is designed to stop.
The injunctive relief is not directed at the nuisance which is claimed, for example, loitering and smoking in the stairwell, but use of the apartment for a brothel. While this might perhaps be understandable, there is nothing in the [tenancy] agreement, which restricts the type of commercial activity which could be conducted out of the apartment," Justice Thomas said.
"Some of the alleged disturbances have not been repeated (domestic incident, loud music). The prospect of visitors to the apartment, whether male or female, exists with other commercial uses and the residential use of the apartment," she said.
The judge said she was not satisfied there was a serious question to be tried and believed the overall justice of the case did not favour granting the injunction.
That decision is now being appealed.
The owner of Clooney, Tony Stewart, did not wish to comment on the dispute between the building owner and another tenant.