No appeal for view-blocking marina company
A HERVEY Bay marina company has lost a last-ditch appeal to avoid paying $102,000 for blocking a restaurant view with a 24-metre whale-watching vessel.
Whale Bay Marina has twice appealed a compensation order to The Deck Restaurant made in the Queensland Civil and Administrative Tribunal.
Court of Appeal Justice Philip McMurdo, in the latest decision handed down on Friday, refused to grant the marina leave to appeal to the state's highest court and ordered it pay the restaurant their costs for the applications.
The marina argued the higher court should hear its case because there had been an error of law.
The company argued the boat mooring at the jetty must have been contemplated when the lease began.
The restaurant operators should have known whale watching vessels operated from the harbour and could not claim they were taken by surprise, the marina argued.
But Justice McMurdo said the original tribunal had already considered this point which was a question of fact, not law.
"This ignores the fact that there were no whale watch vessels moored immediately in front of the premises at the start of the lease," he said the original tribunal found.
"There was nothing in the existing state of affairs, nor in what they were told, to lead them to expect they would soon have a 24-metre tourist vessel almost entirely obstructing their view," the QCAT judgment read.