Restaurant avoids closing - odour dispute rolls on

An award-winning Auckland restaurant won't have to shut down to fix alleged problems with cooking odours but is still locked in a court dispute with its landlord.

St Heliers Bay Cafe & Bistro - owned by high-profile restaurateurs Scott Brown and Jackie Grant - has been lauded by food critics but is allegedly 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".

Magellan Investments is directed by Robin 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 carpark.

The restaurant would have had to stop operating while remedial work was done to fix the alleged odour problem.

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.

Mr Brown and Ms 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 in Parnell, and eateries in Britomart, including Ortolana and dessert restaurant-wine bar Milse.

The application for the orders in an interim injunction, dismissed this week by Justice Thomas, is part of a wider dispute between the parties over the extraction system in the restaurant and the use of solid fuels in cooking.

The restaurant and Magellan entered into a 12-year lease agreement in June 2010. The eatery needed to fit out the site and required Magellan's approval for this.

As described in Justice Thomas' decision, Magellan alleges it approved a single extraction system in the kitchen after the restaurant and its owners made misrepresentations to them. According to Magellan this system "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 also allege the defendants breached the Fair Trading Act.

They are still 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.

The defendants say the dispute was already resolved, resulting in a settlement 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.

"To the extent they [the plaintiffs] can smell anything, it's because their own vent leaks," the defendants' lawyer Graham Kohler QC said yesterday.