SA government sues former Wirrina Cove marina operator Stephen Marks for almost $270,000 in Supreme Court

Embattled former operator of the Wirrina Cove marina Stephen Marks is being sued for almost $270,000 by the state government.

The Marina St Vincent at Wirrina Cove. Picture: Renato Castello

The state government has launched Supreme Court action against the former operator of the Wirrina Cove marina to recoup hundreds of thousands of dollars in fees for dredging and water bills.

Government lawyers claim Stephen Lindsay Gordon Marks is liable for almost $270,000 in “out of pocket’’ costs it incurred maintaining the marina after his company allegedly breached its lease.

But Mr Marks, who is representing himself in the lawsuit, denies liability and contends he has paid his agreed share of the dredging costs incurred by the government.

The action is the latest involving Mr Marks and his involvement in the Wirrina Cove marina and follows unsuccessful District Court action in 2020 by disgruntled berth owners who unsuccessfully sought to recover hundreds of thousands of dollars in fees paid to Mr Marks.

The State Government terminated the lease held by Mr Mark’s company New Wave Pty Ltd in November 2019 after it defaulted and assumed responsibility for maintaining it.

Stephen Marks is being sued by the state government. Picture: Tait Schmaal

In its statement of claim the government alleges Mr Marks, who guaranteed the obligations of New Wave Pty Ltd, which formerly held the lease and is now in liquidation, owes it a total of $269,978.33.

“ … New Wave agreed to ensure the depth of the water in the marina and in the approaches to the marina were maintained to the declared depth (as defined in the lease) as a minimum at all times during the term of the lease,’’ it states.

“In maintaining the marina to the declared depth during the term of the lease, New Wave was required to carry out the works required, at its own cost and expense, to dredge the marina to the depth of minus 4.3 metres Australian Height Datum.’’

The claim states that under the lease New Wave also agreed to pay all outgoings, including other maintenance, repairs, water rates and charges.

It states New Wave had “defaulted on its obligations’’ in that it had failed to perform the dredging and had not paid water rates and the government had incurred costs of $530,526.56 dredging the marina and $29,681.23 in paying water rates.

It states the government had received payments from New Wave and Mr Marks of $290,229.46 towards the dredging expense, but no payments in respect of the water rates and the “amount of $269,978.33 remains owing”.

In his defence Mr Marks denies the claim, stating that an agreement had been put in place prior to signing the lease whereby the government would pay half of the dredging costs.

The defence states the agreement had been struck in a meeting with government representative Mr David Bernard that occurred in July 2014.

Marina St Vincent at Wirrina Cove.

“Mr David Bernard stated during the pre-assignment meeting words to the effect of “the minister would subsidise 50 per cent of the dredging cost, as a sign of goodwill, especially given the history of the marina …’’ it states.

The defence states Mr Marks had executed the deed believing that 50 per cent of the dredging cost would be subsidised and that the marina basin “was capable’’ of being dredged to the desired minus 4.3 AHD depth.

It states after Mr Marks started receiving accounts in September 2019 for the dredging he was advised at a meeting that dredging had not achieved the desired depth and he requested a hydrographic survey of the marina basin to determine this.

Mr Marks says he had then contacted the then-marina manager Mr Stephen Coggins and asked him if he had spoken to the dredging company about the issue. He had advised Mr Marks the operator had told him “we hit bedrock …’’ and the dredge cutter had been damaged “so we can’t achieve the desired depth”.

The defence states he has not been provided with proof the desired depth has been achieved and if proof was provided, his contribution would be $265,263.28 “as per the agreement’’ and that he had overpaid the government $24,966.18 for the dredging.

The case, before Judge Katrina Bochner, returns to court next month.