The curse of Hendo’s Hole strikes again.
The High Court has ordered a Canterbury company to cart 12,000 truckloads of fill from a commercial development site at Frankton, costing “some millions”.
The court’s also ordered March Construction to pay rent for the soil’s “storage” – thousands of dollars a year - from mid-2011 until the last truckload leaves.
The judgment ends a 10-year row over the fill, excavated from former high-flying developer Dave Henderson’s Five Mile site in 2006.
The company’s part-owner Buzz March confirms to the Scene: “We’re going to get in and start moving it.”
Justice Nick Davidson’s High Court judgment found March Construction was trespassing on Queenstown Central Ltd’s land.
There’s so much of it, the ground level of the neighbouring 23-hectare plot has been raised by about a metre.
The fill’s removal paves the way for a new commercial development along the Frankton highway.
Queenstown Central boss Simon Holloway says: “It’s just nice to have the matter resolved.”
He adds: “Now there will be lots of activity on the site.”
Davidson sympathised with March Construction – now 55 per cent-owned by French construction giant Vinci - saying it was a reputable and long-established engineering contractor.
He praised principals Buzz March and sons Andrew and Guy for their “disarmingly frank” and “remarkably candid” evidence.
But it did them no favours.
“March still owns the fill and is liable in trespass,” the judgment says.
In 2007, March Construction signed a $100,000 agreement taking ownership of the fill, in the hope of getting leverage over Hendo’s company, to protect a “million-odd-dollars” debt owed by Five Mile Holdings.
After Five Mile went bust, March sent legal letters asserting its ownership over the fill to financiers Hanover and new owners Queenstown Central, which bought the land in 2010 for $27 million.
The construction company back-pedalled after Queenstown Central demanded it remove the fill, turning a potential asset into a troublesome and expensive liability.
March denied ownership, tried to sell the fill and transfer ‘security interest’ to a separate company - which Queenstown Central labelled a “sham” transaction.
The court said the transfer shouldn’t be recognised as “orthodox”.
At court hearings last year, March used multiple arguments against its ownership, including that the fill was now considered part of the land and that Queenstown Central got a discount on the land sale to offset disposal costs.
That didn’t wash with Davidson, who says the fill was always meant to be stored temporarily.
March is clearly the owner, the judge says, as per the 2007 agreement, its repeated assertions to several companies and the registration of a proprietary interest in 2008.
“Actions speak louder than words.”
Opposing lawyer Malcolm Crotty characterised the change of tune as an “Alice in Wonderland” proposition.
Davidson says the removal will run into “some millions of dollars” and notes the extra claim of rent poses “a real commercial risk to March”.
Buzz March was also behind a failed bid to build a Frankton Marina.