The case concerned an application for injunctive relief either to require the respondent Red Engine Group to comply with contractual requirements as to the dimensions of a large motor yacht moored in a berth in the applicant Emprja’s marina or to restrain a trespass, constituted by the boat protruding over the boundary by a length of 100mm, of the sublease for the berth. When the boat was tied up with fenders hung between the side of it and the edge of the wharf, the protrusion over the boundary increased to 500mm in length. The sublease expressly provided that the permitted use of the berth was to moor in the berth, from time to time, a “Boat” which “…must have dimensions appropriate to the berth”. The definition of a “Boat” included the boat’s tender, but there was no specific provision as to whether fenders were included within this definition. Having regard to the provisions of the sublease, the Court found that the respondent had a tenant’s right of exclusive possession to the berth area and that the applicant Emprja had not in fact licensed the respondent to go onto or remain protruding over the boundary. Other defences of estoppel and discretionary considerations for equitable relief were not upheld. Hemmant’s List’s Gareth Beacham QC appeared for the applicant and Peter Hastie QC appeared for the respondent.
