Classique’s Mooring Claim with Auckland Council Escalates
Tomorrow there will be the initial assessment of Classique by the Auckland Council Insurer’s appointed assessor but the Insurers have not yet accepted liability for the failure of their inadequate mooring & the negligence of their staff, including certifying contractors responsible for the bi-annual surveys.
This is said in a recent comment on www.facebook.com/nautical.protocol to be par for the course for Auckland Council “who will get themselves out of paying anything .. Campbell Live loves a good story and it would be good to see this made completely public on prime time tv just to show how well how the Council is actually being run” – probably Fair Go could be interested as well ?
As Auckland Council have attempted to absolve themselves from all liability whether it’s their staff, contractors or agents who were negligent, the Consumers Guarantees Act is going to have a lot to say about that attitude being over-ridden easily enough.
In addition, there is the determining of whether or not an agreement is unconscionable. An agreement that is grossly unjust, unfair, or dishonest may be deemed an unconscionable contract.
As a rule, a court will not enforce an unconscionable contract clause. An unconscionable clause is one whose purpose is contrary to public policy, is overly harsh or has one-sided results that shock the conscience of the court. For instance, a clause which purports to release one party from its intentional torts would be unconscionable and unenforceable.
This is exactly what Auckland Council aims to do “whether in Contract or in Tort” not withstanding the Contract made out 10 years after the use of the moorings began wasn’t made out for each mooring Classique used subsequently nor the last mooring Classique dragged effortlessly to Shoal Bay & Harbour Bridge.
The verbal agreement to begin with was as would be normal for moorings – Classique uses its own lines to attach to the Mooring & pays the weekly charge – the mooring being fit for purpose & surveyed/maintained by the council bi-annually.
The estimate of costs to repair Classique have now exceeded the District Court ceiling so a transfer to the High Court is to be arranged this week.
When the cost of repairs to the craft Classique damaged as she dragged, are added to the Claim, the High Court will perhaps become essential territory if Auckland Council Insurers aren’t willing to accept their liability sensibly.