Black v Body Corporate 125491
[2025] NZHC 2401
•22 August 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-39
[2025] NZHC 2401
UNDER Parts 18 and 30 of the High Court Rules 2016 and the Judicial Review Procedure Act 2016 IN THE MATTER OF
a judicial review of a body corporate under the Unit Titles Act 2010
BETWEEN
MICHAEL CARSON BLACK
Applicant
AND
BODY CORPORATE 125491
Respondent
Hearing: 15 July 2025 Appearances:
Applicant in person
J P Wood for Respondent
Judgment:
22 August 2025
JUDGMENT OF O’GORMAN J
This judgment was delivered by me on 22 August 2025 at 3 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
…………………………………
Solicitors:
Court One, Auckland
BLACK v BODY CORPORATE 125491 [2025] NZHC 2401 [22 August 2025]
Introduction
[1] This is an application by Body Corporate 125491 (the body corporate) to strike out proceedings brought by Mr Michael Black, a long-standing unit owner in the Waterloo Towers complex.
[2] Mr Black challenges a series of decisions made by the body corporate regarding the management and expenditure of special levies for remedial works, alleging breaches of the Unit Titles Act 2010 (Act), the relevant regulations, and equitable duties. The body corporate, in turn, seeks to have the claims struck out on the grounds of delay, futility of relief, and lack of a tenable cause of action.
Issues
[3]The issues for determination are:
(a)Untenable: Whether the applicant’s claim discloses a tenable cause of action.
(b)Futile: Whether the relief sought is futile — in particular, whether any remedy could be granted that would have practical effect, given the collective nature of body corporate decision-making and the financial arrangements in question.
(c)Delay: Whether the application for judicial review has been brought promptly and, if not, whether any delay is excusable in the circumstances.
(d)Suitability of judicial review: Whether the factual and legal context, including alleged deficiencies in the body corporate’s records, precludes summary determination.
Facts
[4] Mr Black has owned unit 1 in the Waterloo Towers complex for 33 years. The complex comprises 14 units and was completed in the late 1980s/early 1990s.
[5] From 2010 to 2021, the body corporate undertook maintenance funded by levies for a rolling 10-year maintenance plan, reviewed at each annual general meeting (AGM) until 2020. In 2019, a major roof failure led to significant water damage. The body corporate developed a repair plan, but progress stalled in late 2020 when Mr Black objected to the way levies were raised.
[6] Until 2021, the body corporate was run informally, with no elected committee and tasks delegated among members. The body corporate’s finances were managed by an accountancy firm, which acted as de facto manager, collecting levies and arranging meetings.
[7] At an Extraordinary General Meeting (EGM) on 11 March 2021, the body corporate regularised matters by electing a committee, retrospectively authorising previous decisions, approving comprehensive building remediation works and resolving to raise a special levy of $8,064,189 payable by the owners in five equal instalments of $1,612,838. The minutes record that:
(a)By ordinary resolution, a three-person committee was elected.
(b)Under item 7, the following delegation to the committee was unanimously carried in the following terms:
Motion: The body corporate by special resolution makes a general delegation to the committee under section 108 of the Unit Titles Act 2010 of all its powers save those listed in the section as unable to be delegated until the close of the next AGM.
…
After further discussions, Steve Plummer then mentioned that the general delegation to the committee to take effect to the end of next AGM under section 108 of the Unit Title Act 2010 of all its powers save those listed in the section as unable to be delegated (like change of Utility Interest which requires a general meeting) and that the committee powers be further restricted from approving any:
·Material changes to the design
·Material changes to the scope
·Material changes to the cost
·Any significant concerns raised by Cuesko (Q.S) in relation to the Contract (to be brought to Owners attention).
·That the final draft of the section 74 Scheme (that will be prepared by and represent the recommendations of Court One) is to come back to Owners for discussion and approval.
·Significant change in time or delay in works programme.
(c)Under item 8, the body corporate by ordinary resolution ratified the levies already made for phase 1A costs of around $1 million. Mr Black opposed, but it was approved by all other voters.
(d)Under item 9, the body corporate by special resolution agreed “to proceed with phases 1B, 1C and 1D and phase 2 (including any variations advised by the body corporate’s experts are required and agreed upon) of the remediation project and to engage Edge [Interiors Ltd] and other such other consultants as necessary to undertake the work and provide services related thereto and enter into such contracts with them for that purpose”. Mr Black abstained, but it was approved by all other voters.
(e)Under item 10, the body corporate by ordinary resolution agreed to raise a further levy of $8,064,189 (payable in five instalments) pursuant to s 121 of the Act, based on the estimated costs of completing the remediation project as advised by Cuesko. Mr Black opposed, but it was approved by all other voters. As referred to in (b) above, it was envisaged that application for a scheme would later be made under s 74.
(f)Under item 17, it was discussed that if any two committee members (a quorum of the committee) approved the contractor/Edge’s progress claims/invoices, then McGregor Bailey & Co were authorised by the body corporate to make payments for remedial works invoices rendered by contractors.
[8] Invoices for each unit’s first instalment of the special levy was issued on 12 April 2021.
[9] At the next AGM held on 18 November 2021, a new committee was elected. Among other things:
(a)There was discussion about the delegation to the committee in relation to the remediation project. The minutes record that the following motion was carried:
Motion: By special resolution, to delegate all the powers and duties of the body corporate as provided for in Section 108 UTA 2010 save for entering into a construction contract for the remediation project (where this matter will come back to a general meeting for a vote).
(b)The financial report and draft budget were discussed. Owners agreed for no increases in the budget from the prior year. By ordinary resolution, the body corporate agreed to accept the 31 December 2020 financial statements and the 10-year property maintenance budget (among other things).
[10] A building consent was subsequently obtained for the works in December 2021. However, the remediation project continued to suffer problems including changes in consultants and the main contractors, and significant increases to the estimated costs.
[11] By October 2022, tenders had been received for the consented works. The body corporate was informed the cost of remediating the building had risen to approximately $15.5 million.
[12] The body corporate called a meeting on 8 October 2022 at which concerns were expressed about the increased cost and extent of the proposed works. The two draft motions for appointment of a contractor were not put to a formal vote as several owners required further information before deciding whether to support progressing the consented works. A further meeting was therefore scheduled for 18 October 2022.
[13] At the 18 October 2022 meeting, a majority of owners considered the repairs were too expensive. As a result, the body corporate resolved not to proceed with the planned remediation.
[14] Matters then deteriorated, leading to the Court appointing Mr Woodworth as administrator on 24 July 2023 (there was no opposition to the need for such an appointment, but Mr Black proposed a different person). The orders included that Mr Woodworth “to the exclusion of the Body Corporate and any of the Body Corporate committee (that may be constituted) has and may exercise the powers of the Body Corporate and the committee, and is subject to the duties of the Body Corporate and the committee”.
[15] The administrator issued his first report to the Court on 2 May 2024. He explained his extensive efforts to assemble the body corporate’s records from various sources, but some frustration that there were still gaps in information. His report included the following:
26. While there are still gaps in the body corporate’s information, I have with the assistance of Property 101 managed to complete what I believe is an “accurate as possible” set of Financial Statements to the end of December 2023 and am able now, with some degree of confidence, to comment on the body corporate’s current financial position.
27. The 2023 Financial Statements are attached as “A” (the Operating Account) and “B” (the Remedial Fund). There are no other contingency funds held by the body corporate.
…
29. The body corporate had as at 31 December 2023 available funds in its operating account of $59,093 and in its remedial fund of $1,791,345.
30. The accounts had not been used strictly in accordance with whether something is an operating expense or a cost relating to the remediation.
31. Given the paucity of meeting minutes and decisions, it is not entirely clear whether all remedial contracts and costs were appropriately authorised. There has been insufficient financial information (including copies of actual invoices paid) to verify exactly what work has been carried out for the funds spent. There are also differing opinions from owners in relation to exactly what was discussed and agreed at either general or committee meetings. This has not been helped with limited documented resolutions.
32. I do not at this stage intend to spend the available resource (both of time and money) needed for the remediation to undertake a full forensic analysis of the contracts and payments. If that becomes necessary, it will involve significant additional costs to owners with little if any guarantee of a benefit. Owners are of course at liberty to take such action as they may independently be advised to take to avoid any potential limitation issues.
[16] He considered three options for the way forward, with his preferred option being to remediate the building based on a new scope falling short of a “Rolls Royce” approach, which he is now progressing. In parallel with the remedial work, the administrator intends to ensure the body corporate is fully compliant with the Act, including a long term maintenance plan and fund.
[17] In his evidence, Mr Woodworth provided a schedule of the $4,560,574 of expenditure that Mr Black seeks to challenge. This shows that:
(a)The total of $4,560,574 was spent over a 13-year period.
(b)The amount spent over the 10 years from 2010 to 31 December 2020 was $2,734,795.
(c)In 2021, the body corporate authorised and spent $1,013,102. The bulk of this was with Edge ($686,496).
(d)In 2022 the body corporate authorised and spent $797,769. The bulk of this was spent on project management and quantity surveying (including the tender process and securing materials for future work).
(e)The balance for expenditure from 2023 onwards is $14,908.
[18] At the hearing, Mr Black advised that Mr Woodworth has recently written to the owners about his intention to apply to Court for approval of a s 74 scheme.
Procedural background
[19]This proceeding was commenced on 6 January 2025.
[20] As recorded in a minute dated 19 February 2025 when the matter was first called, van Bohemen J considered the pleading was inadequate, so he deferred making any timetable orders until an amended claim was filed by 19 March 2025. His minute includes the following:
[13] When the proceeding was called in the Judicial Review list on 19 February 2025, I said I agreed with Mr Wood that the statement of claim is not satisfactory. Notably, it does not give sufficient particulars of time, place, dates and other circumstances to inform the Court and the Body Corporate of Mr Black’s causes of action, as required by r 5.26 of the High Court Rules. On the basis of the current statement of claim, the Body Corporate cannot sensibly know the case it has to answer. Mr Black’s questions in his memorandum of 14 February 2025 do not refine the issues. To the contrary, they seek answers to general questions and appear to require the Body Corporate to establish that it has not breached its duties under the Unit Titles Act, while not specifying which duties have been breached or how.
[14] It is also unclear from the statement of claim as drafted whether Mr Black is seeking compensation, whether equitable or otherwise, as a form of relief for judicial review — which would seem unprecedented outside the context of an alleged breach of human rights — or whether Mr Black is seeking compensation on some other basis. If the latter, that cause of action should be pleaded separately.
[21]An amended claim was filed and served on 18 March 2025.
[22] As recorded in a minute dated 24 March 2025, at the next mention on that date, Jagose J considered the claim was still defective, and set a timetable for a further amended claim to be filed by 9 April 2025, with the following guidance:
[5] If it assists, I observe a claim for judicial review here must clearly and concisely identify, consistently with rr 5.17 and 5.20 of the High Court Rules 2016 in particular:
(a)what specific right, obligation or interest had by Mr Black is affected by the Body Corporate’s conduct;
(b)by reference to specific provisions in relevant legislation or the Body Corporate’s bylaws, what particular statutory power the Body Corporate is said to have exercised;
(c)which specific actions of the Body Corporate are at issue as exercises of that statutory power;
(d)in relation to each such action, what of it is alleged not to be exercised in accordance with law, or to be unfair or unreasonable in a judicial review sense, and how; and
(e)with reference to s 16 of the Judicial Review Procedure Act 2016, what relief Mr Black seeks the Court grant.
[23]The second amended claim was filed and served on 9 April 2025.
[24]The respondent filed and served its strike-out application on 22 April 2025.
[25] On 30 April 2025, Jagose J set down a hearing date of 15 July 2025 for the hearing of the strike-out application, along with making a timetable for remaining documents and bundles to be filed and served.
Legal principles
Unit Titles Act 2010
[26] A body corporate constituted under the Act is made up of the owners of individual owners of principal units,1 who must be members of the body corporate. Put broadly, common property is the remainder of the land.2 Through the body corporate, all unit holders own the common property.3
[27] Under s 101(1) of the Act, a matter to be decided by a body corporate must be decided by ordinary resolution at a general meeting, unless:4
(a)the Act provides for the matter to be decided by the body corporate by special resolution; or
(b)the body corporate committee exercises a delegated authority to decide the matter.
[28] The requirement that a body corporate acts democratically (generally by majority rule) exists precisely because it may not be possible for a body charged with governing a group of people with potentially disparate interests to exercise its functions in a way that will further those interests equally.5
[29] The body corporate owners may delegate to a committee.6 Where the complex has 10 units or more it must have a committee, unless the body corporate decides by special resolution not to.7 When the committee performs its delegated tasks it does so
1 Unit Titles Act 2010, s 76.
2 Milne v Thompson [2025] NZCA 375 at [16].
3 Unit Titles Act, s 54.
4 Section 101(2).
5 Een v Body Corporate 384911 [2024] NZHC 2556 at [15]; and Gibson v Body Corporate 384911
[2012] 1 NZLR 84 (HC) at [67].
6 Unit Titles Act, ss 108–109.
7 Section 112.
on behalf of and as the body corporate.8 Under r 24(7) of the Unit Titles Regulations 2011, unless a committee member sooner resigns or is removed from office by ordinary resolution of the body corporate, he or she holds office from the close of the general meeting at which he or she is elected until the close of the next AGM.
[30] At the material times, s 113 simply provided the following for committee decision-making:9
113 Decision-making of body corporate committee
Any matters at a meeting of a body corporate committee must be decided by a simple majority of votes.
[31] Under s 114, a body corporate committee must report, as prescribed in the regulations, to the body corporate on the exercise of the duties or powers delegated to it by the body corporate under s 108(1). Rule 28(1) of the Unit Titles Regulations requires a report to the body corporate at each body corporate AGM.
[32] The powers and duties of a body corporate are set out in s 84(1) of the Act, which cross-refers to numerous other sections including s 138 (relating to repair and maintenance of the common property, assets designed for use in connection with the common property, infrastructure, and building elements and access for those purposes).
[33] In unit title cases involving damage to both principal units and common property, there are notorious complications that may arise concerning who is responsible for remedying the defects, and how the interests are co-ordinated and costs fairly allocated.10 There is no doubt that s 138 imposes a clear obligation upon the body corporate to ensure it repairs and maintains not only the common property, but also the broader essential components of a building that fall within the definition of building elements, regardless of where they are located.11 However, s 138 does not take away the obligation on individual principal unit owners for work on building
8 Section 109(1).
9 Section 113 was replaced on 9 May 2023 by s 21 of the Unit Titles (Strengthening Body Corporate Governance and Other Matters) Amendment Act 2022 (2022 No 19). The amendments now require the committee to keep written records of its meetings and resolutions.
10 See Grimshaw & Co v Body Corporate 207624 [2025] NZCA 392 at [142] and [154].
11 HWD NZ Investment Co Ltd v Body Corporate 392418 [2025] NZHC 1755 at [20].
elements and infrastructure within their own unit. Should that work be undertaken by the body corporate, then the costs can be recovered by the body corporate from the owner.12
[34] These problems are often best managed under a s 74 scheme. A s 74 scheme typically authorises the body corporate to repair the whole of the complex, regardless of whether it constitutes repairs to common property, principal units, or accessory units.13 Under s 74, the High Court “settle[s] the scheme”, with the aim being “to balance the interests of each unit holder in a way that imposes terms that achieve the outcome fairest to all unit [owners]”.14
[35]Financial and property management is dealt with in subpt 13 of pt 2 of the Act:
(a)Section 115 requires a body corporate to establish and maintain an operating account for the purpose of meeting various expenses, including any regular maintenance costs.
(b)Section 116 requires a body corporate to establish and regularly maintain a long-term maintenance plan (LTMP). Section 117 requires a body corporate to establish and maintain a long-term maintenance fund (LTMF) unless the body corporate decides by special resolution it will not do so. Under s 117(2), an LTMF “may only be applied towards spending relating to the [LTMP]”.
(c)Section 118 provides that a body corporate may establish and maintain one or more optional contingency funds, and s 119 provides that a body corporate may establish and maintain an optional capital improvement fund.
12 At [20], n 4.
13 For example, see: Body Corporate 474585 v Nath [2024] NZHC 3171; Body Corporate 189717 v Duan [2024] NZHC 2428; Body Corporate 209538 v McDonnell [2024] NZHC 1413; Body Corporate 87945 v Marine Parade Holdings Ltd [2019] NZHC 1311, (2019) 20 NZCPR 893; Body Corporate 81340 v Knight [2018] NZHC 2953; and Body Corporate 85115 v Middlemiss [2017] NZHC 1906.
14 Hannam v Body Corporate 126001 [2024] NZCA 274, [2024] 3 NZLR 266 at [49].
(d)Section 120 requires that:
The body corporate must establish, in accordance with any regulations, either—
(a)separate bank accounts for each of the funds; or
(b)a single bank account in which the respective funds are kept entirely separate and are able to be identified.
[36] In the case of the operating account, the LTMF and any contingency fund, levies are required to be calculated in proportion to each unit owner’s utility interest:15
(a)A utility interest is assigned to every principal unit and every accessory unit. A utility interest is used to determine a range of matters including “the extent of the obligation of the owner of the principal unit in respect of contributions levied by the body corporate under s 121 in respect of the [LTMF], the optional contingency fund, and the operating account”.16
(b)The default position is that the utility interest is the same as an ownership interest.17 An ownership interest is assessed by a registered valuer on the basis of the value of the unit relative to each other unit.18
[37] The Act provides options for objecting owners to seek a remedy for levy decisions they believe are unjust and prejudicial:
(a)In any case where the Act requires a resolution and the resolution is passed, any person who voted against the resolution may apply under s 210 to the “appropriate decision-maker”19 for relief on the grounds that the effect of the resolution would be unjust or inequitable for the minority. However, the application must be made within 28 days of the
15 Unit Titles Act, s 121(1).
16 Section 39(3)(a).
17 Section 39(2).
18 Section 38(2).
19 In s 5, the appropriate decision-maker is defined to mean the Tenancy Tribunal or a court with relevant jurisdiction. Sections 171–175 specify the respective jurisdictions of the Tenancy Tribunal, the District Court and the High Court.
passing of the resolution.20 In Gibson v Body Corporate 384911, Ellis J observed that if a decision made democratically is inequitable to minority unit holders, then s 43 (the predecessor to s 210 applicable at that time) is the appropriate means to address that problem.21 Otherwise, there was no basis for alleging any acts were unlawful or ultra vires.
(b)Similarly, the method for levying of utilities is the default regime provided for under the Act. It is open to the applicant to seek a reassessment under s 41 of the Act if they wish.22 The procedure provides for a reassessment based on a valuer’s report. Under s 41(6), if utility interests are to be assigned other than on the basis of the value of the unit relative to each other unit, the body corporate must, by special resolution, approve the method of apportionment of the utility interests.
(c)As referred to in [34] above, the process for approval of a s 74 scheme is how to achieve a fair outcome for managing the situation once a property has been damaged or destroyed. Such an application can be made by the body corporate, the administrator, a registered mortgagee of a unit or the owner of a unit.23 Section 74(6) specifies who has the right to appear and be heard on any such application. Under s 74(7), the High Court may make any orders that it considers expedient or necessary for giving effect to the scheme.
[38] When a decision by the body corporate is non-compliant with the Act, regulations, body corporate rules or other internal requirements, it might be either void or voidable:
20 Unit Titles Act, s 210(2).
21 Gibson v Body Corporate 384911, above n 5, at [75].
22 Unit Titles Act, s 41(5A) provides that a reassessment of the utility interests may be made “by the body corporate on a fair and equitable basis, having regard to the relevant benefits and the costs to units”.
23 Section 74(2).
(a)Where something simply cannot be done by the body corporate because it is outside its powers (ultra vires) it is void ab initio,24 although relief may potentially be sought in respect of any illegality.25
(b)Otherwise it may be voidable, so the body corporate could be ordered to remake the decision again using the proper process, or a body corporate may retroactively ratify or validate voidable errors.26 This ability to waive or rectify is important because third parties are entitled to assume that the body corporate’s internal requirements have been complied with.27
[39] In Body Corporate 201036 v Whai Rawa Railways Lands LP, the Court of Appeal dismissed an appeal from a decision of the High Court appointing administrators to the body corporate.28 One of the disputed issues was whether the obligation under s 87(2) to pay ground rent from the operating account had priority over the obligation in ss 115 and 117 to pay monies “into the long-term maintenance fund”.29 The Court of Appeal endorsed the High Court’s finding that the restriction in s 117(2) was to be read as a subordinate priority or restriction, to reflect “the obviously greater importance of ensuring the payment of ground rental over long-term maintenance, given the necessity of the former to the ongoing viability of the unit development.”30
24 Body Corporate 396711 v Sentinel Management Ltd [2012] NZHC 1957, (2012) 13 NZCPR 418 at [65], citing Low v Body Corporate 384911 [2011] 2 NZLR 263 (HC) at [28].
25 For example, although it was not a judicial review claim, see Milne v Thompson, above n 2, at [41]–[42] and [50], in which s 10 of the Unit Titles Act 1972 precluded dealings that would otherwise undermine the validity of the unit entitlements of each unit. Assuming (rather than deciding) that an agreement infringing s 10 might constitute an illegal contract, the Court of Appeal considered that relief under s 76 of the Contract and Commercial Law Act 2017 was inappropriate.
26 Body Corporate 46112 (in admin) v Gregan (2019) 21 NZCPR 8, [2019] NZDC 24174. A body corporate is also subject to the Bobbie Pins principle: Chambers v Strata Title Administration Ltd (2004) 5 NZCPR 299 (HC) at [32]; Fifer Residential v Gieseg (2005) 6 NZCPR 306 (HC); and Body Corporate 396711 v Sentinel Management Ltd, above n 24, at [46]–[61].
27 Marina Resort Ltd v Body Corporate 170989 (in admin) [2016] NZHC 2831 at [44], applying Royal British Bank v Turquand (1855) 5 EL & BL 248, 119 ER 474 (QB); aff’d (1856) 6 EL & BL 327 (Exch Ch), 119 ER 886. See also Peter Watts Directors’ Powers and Duties (3rd ed, LexisNexis, Wellington, 2022) at [4.18].
28 Body Corporate 201036 v Whai Rawa Railways Lands LP [2024] NZCA 151, (2024) 25 NZCPR 556.
29 At [55].
30 At [55].
Judicial review
[40] Judicial review is concerned with exercises of statutory (or otherwise public) power.31 The subject of judicial review is “the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power”.32 “Statutory power” is defined.33 Judicial review of other exercises of executive power also is available at common law.34
[41] On judicial review, this Court assesses if the power is exercised “in accordance with law, fairly and reasonably”.35 However, “fair” and “reasonable”’ are terms of art in judicial review, broadly meaning procedurally regular and substantively rational.36
[42] In Velich v Body Corporate 164980, the Court of Appeal held that the actions of the body corporate of a unit titled apartment building (a body without any public element) in administering its rules, as well as in the validity of its rules, involve exercising a “statutory power” as defined, and is subject to judicial review.37 Under the Judicial Review Procedure Act 2016, s 5(1)(b) deems a “statutory power” to include any actions taken “by or under … the constitution or other instrument of incorporation, rules, or bylaws of any body corporate”.
[43] However, the proper scope of review depends on context.38 Even if judicial review is available as a procedure, it will still be necessary to be clear what the express nature of the legal limits of the exercise of powers are in a particular case:39
31 Moncrief-Spittle v Regional Facilities Auckland Ltd [2022] NZSC 138, [2022] 1 NZLR 459 at [49].
32 Judicial Review Procedure Act 2016, s 4.
33 Section 5.
34 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116 at [75], citing Burt v Governor-General [1992] 3 NZLR 672 (CA) at 676 and 678.
35 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552.
36 Rams Logistics Ltd v Director of Land Transport [2025] NZHC 665 at [22], citing Stafford v Attorney-General [2022] NZCA 165 at [67] and [87]; and Dunstan v Credit Union South [2021] NZCA 656 at [23(c)].
37 Velich v Body Corporate No 164980 (2005) 6 NZCPR 143 (CA) at [45].
38 Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385, [2009] 1 NZLR 776 at [55]–[59].
39 New Zealand Electrical Institute (Inc) v Westpac New Zealand Ltd [2019] NZHC 1407, [2019] NZAR 1240 at [16].
(a)Body corporate decisions, like those of public bodies, are amenable to review on the grounds of illegality,40 or breach of procedure/natural justice.41
(b)Beyond that, in a commercial context judicial review will normally only be available where there is fraud, corruption, bad faith, or an analogous situation.42 A rationality test applies, rather than the Court conducting and substituting its own assessment of the substantive merits (see [41] above).
(c)To invoke a broader scope of review (particularly when the applicant is seeking to challenge the substance of the decision), the applicant must raise issues relevant to the public interest and not just be a disappointed commercial party, seeking to take advantage of public remedies in a commercial or private context.43
[44] Given this bounded focus, judicial review claims are intended to be “simple, untechnical and prompt”,44 and usually determined on affidavits alone.45 A need for discovery, detailed fact-finding, oral evidence and cross-examination can indicate that the disputed issues are not within the proper scope of assessing compliance with legal limits.46 Similarly, caution is exercised about allowing a judicial review claim to be heard along with a different cause of action seeking damages, because expedition of the application for judicial review must be the focus.47
40 See above at n 25. To the extent the issue turns on interpretation as a matter of law, a standard of correctness applies: Powerco v Commerce Commission HC Wellington CIV 2005-485-1066, 24 December 2007 at [366].
41 Deep v Auckland Gold Line Co-Operative Taxi Society Ltd [2019] NZHC 217 at [8].
42 Lab Tests Auckland Ltd v Auckland District Health Board, above n 38, at [91]; and Attorney-General v Problem Gambling Foundation of New Zealand [2016] NZCA 609, [2017] 2 NZLR 470 at [34].
43 Attorney-General v Problem Gambling Foundation of New Zealand, above n 42, at [42].
44 Ngāti Tama ki Te Waipounamu Trust v Tasman District Council [2018] NZHC 2166, [2019] NZAR 1732 at [19], quoting Attorney-General v Dotcom [2013] NZCA 43, [2013] 2 NZLR 213 at [39].
45 Chief of Defence Force v Four Members of the Armed Forces [2025] NZSC 34, [2025] 1 NZLR 21 at [105]; and Geary v The Psychologists Board [2009] NZSC 67, (2009) 19 PRNZ 415 at [1].
46 Vector Ltd v Transpower New Zealand Ltd HC Auckland CL1/98, 17 August 2000 at [38], [43] and [47]; and Air New Zealand Ltd v Wellington International Airport Ltd [2009] NZCA 259, [2009] 3 NZLR 713 at [44] and [67].
47 Attorney-General v Dotcom, above n 44, at [47].
[45] In principle, when a judicial review claimant succeeds and substantial prejudice was caused by the identified breach, then the starting point is that the claimant is entitled to relief.48 However, there are limited types of relief the Court may grant,49 and generally it is discretionary.50 The usual remedy is to quash the decision and refer it back to the decision-maker for reconsideration in light of the Court’s decision.51 Compensatory damages have not been recognised as available relief in a judicial review cause of action under the Judicial Review Procedure Act.52
Strike-out
[46] The procedure for a judicial review proceeding concerning a statutory power is determined by case management under s 13 of the Judicial Review Procedure Act, which confers a discretion to make the orders and directions specified in s 14. As such, there is a discretion to strike out judicial review claims on ordinary principles.53
[47] Rule 15.1(1)(a) of the High Court Rules 2016 provides that the court may strike out all or part of a pleading if it “discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading”. In making such an assessment, the court will not usually consider evidence inconsistent with a pleading, except where an essential factual allegation is so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further.54
48 Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [60]–[61].
49 Judicial Review Procedure Act, ss 16–19.
50 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112].
51 Auckland Yacht v Auckland Council [2023] NZHC 1047 at [60]; and Smith v Chief Executive of the Dept of Corrections [2019] NZHC 2472 at [64].
52 GDS Taylor Judicial Review A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at [5.63]; and Philip Joseph and Jason McHerron Laws of New Zealand Administrative Law (online ed) at [142], both noting that exceptions might arise for general common law actions (such as tort) or a public law remedy against the State under the principles in Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 (CA).
53 Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA) at 63 per Gault J.
54 Ruscoe (As Liquidator of Cryptopia Ltd (In Liq)) v Epic Trust Ltd [2025] NZHC 2138 at [103], citing Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566.
[48]However, some special considerations arise in the judicial review context:
(a)Unlike ordinary proceedings, the hearing of an application to strike out a judicial review claim would not usually be expected to save the cost and expense of a witness trial, so there may be little advantage compared with proceeding straight to a simple, untechnical and prompt substantive judicial review hearing on the affidavits.
(b)The court may strike out a judicial review proceeding where it is satisfied that there is an alternative and more appropriate pathway to seek a remedy,55 or the disputed issues are not within the proper scope of assessing compliance with legal limits (see [44] above).
(c)In Wallace v Wellington City Council, the Court struck out the proceeding because the only remedy the applicant wanted was one that could not be granted by the Court.56
Submissions
Submissions by the respondent
[49]The Body Corporate seeks to strike out the proceedings on three main grounds:
(a)Delay: Mr Black failed to bring his application promptly, with most impugned decisions and expenditure occurring well before the application was filed. Judicial review is rarely granted when more than two years have elapsed since the decision, and almost never after five years.57
55 H (SC 52/2018) v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433 at [78]; and Air New Zealand Ltd v Wellington International Airport Ltd, above n 46, at [44] and [67].
56 Wallace v Wellington City Council [2014] NZHC 2352, [2014] NZAR 1263 at [15]–[16]: neither the Council nor the Court on judicial review had the power to compel return of the dog after the exercise of a disposal power under s 69(2) of the Dog Control Act 1996.
57 Taylor, above n 52, at [5.36].
(b)Futile: The relief sought is futile, as any compensation or accounting would ultimately require the body corporate to levy all owners, including Mr Black, resulting in no net benefit to him. The losses are collective and irretrievable and cannot be remedied by judicial review.
(c)Untenable: The claim does not clearly identify the specific statutory powers allegedly breached, the particular decisions at issue, or the rights affected. The body corporate contends that its actions were within its powers under the Act, and that any procedural errors were either validated or are not amenable to judicial review, especially after significant delay and third-party involvement.
[50] The body corporate submits that Mr Black’s true grievance is with the allocation of costs and his share of levies, which is a matter for a s 74 scheme application, not judicial review.
[51] It argues that the complexity and informality of body corporate governance, and the collective nature of decision-making, mean that only the most egregious, ultra vires errors are void ab initio, and that most alleged errors are voidable and have been validated or are not justiciable after such delay.
Submissions by the applicant
[52] Mr Black alleges that the body corporate mismanaged and improperly spent special levies, intermingled them with operational funds, and breached statutory, trust, and equitable duties under the Act and regulations.
[53] He contends that decisions made after the 11 March 2021 EGM, including contracting and expenditure, were ultra vires, lacked proper authority and failed to comply with special resolutions and statutory requirements.
[54] Mr Black further submits that the body corporate failed to act reasonably, fairly and in good faith, and did not provide adequate information or consultation to unit owners regarding financial decisions.
[55] He seeks relief including declarations of invalidity, orders for an accounting for levy expenditure, equitable compensation, and protection of his private property rights (including proprietary estoppel in relation to renovations to his unit).
[56] Mr Black argues that the deficiencies in the body corporate’s records, as confirmed by the administrator, preclude summary determination and require a full witness trial to resolve factual disputes. At trial he intends to rely on adverse inferences for any information that is lacking.
[57] Mr Black submits that the application is not out of time, as delays were caused by the body corporate’s own conduct and the evolving factual context, and that any alleged prejudice from delay is unsubstantiated.
[58] He contends that the relief sought is not futile, as equitable accounting and compensation can be structured to avoid circularity, and can be limited to his own interests, without affecting other owners.
Analysis
Second amended claim
[59] The second amended claim dated 9 April 2025 is 32 pages long. The wording is verbose and difficult to follow. It contains lengthy narratives of compound factual allegations, prolix paragraphs of legal submissions, conclusory propositions of breach without specifying the alleged underlying factual basis, and it improperly mixes different types of cause of action and relief.
[60]Examples of the key pleadings are as follows:
23. In breach of ss 77, 78 the March Special Resolutions and as specified hereafter, the respondent made decisions to incur obligations, intermingle and transfer operational funds, and spend levies in excess of its duties and powers. This included those expressly restricted and limited by the March Special Resolutions. These decisions were not in accordance with the law, invalid, unfair, unreasonable and breached the UTA and regulations, further particulars of which follow.
24. The respondent exceeded its authority, the duties and specific powers delegated by the March Special Resolutions. It entered into obligations over the nature and scope of the proposed works for common and private betterments. In continuing to do so, it wrongfully incurred expenditure by mismanaging levies paid for other purposes, which were not authorised by the March Special Resolutions or otherwise.
(a)From March 2021 there were significant delays and changes in the work program, scope and costs, which were materially different from those prescribed and restricted by the March Special Resolutions.
(b)From about mid 2021 to 2023 the body corporate nevertheless entered into (expenditure) obligations and decisions to spend levies on consultants for an ‘overstated/misguided’ building consent. It included significant private property renovations and betterments, which exceeded common property.
(c)Without obtaining any resolutions, this included transferring substantial monies from operational levies to pay for those obligations and expenditure.
(d)These decisions exceeded the specified costs, scope, work program, and ‘times’ specified by the March special resolutions, and included significant private property betterments work and costs (beyond maintaining or repairing common property infrastructure).
(e)The Body Corporate undertook this conduct without convening a 2022 AGM, or EGMs and without obtaining resolutions, although significant changes, delays, scope and costs of the project were involved, as the March Special Resolutions specified.
(f)These decisions occurred although the need for formality and resolutions in entering into obligations (and cost expenditure) over works were required, as had previously been formally notified. The Body Corporate’s decisions were contrary to the purpose, effect and intent of the March Special resolutions, were invalid and ultra vires.
(g)Without authority and obtaining resolutions, it exceeded the restrictions imposed by the March Special Resolutions and continued to conduct the Body Corporate's business contrary to the proper financial management of levies as the UTA and regulations provide (particulars follow).
(h)In continuing to enter into obligations and incur expenditure, the Body Corporate by its committee representatives, failed to comply with the 2011 regulations Schedule 1A Code of conduct and in breach of UTA ss.112, 114 A. Among other things, the code requires the body corporate to act honestly and fairly, without conflicts, and in the best interest of the body corporate and all owners.
(i)In breach of the above duties, there was also a conflict of interest in breach of s.114 B (and ss. 114C to 114 F) in that the building consent continued to be pursued and include private property upgrades and betterments and without a s.74 Scheme.
(j)One of the three committee members … included in the building consent the cost for extensive renovations to his internal top penthouse floors.
(k)Although this was to be at his expense, the ‘estimated’ costs and levy allocation ‘consequences’ were disputed, significant, uncertain and problematic.
(l)Throughout the Body Corporate continued to obtain legal advice from Court One, but in doing failed to obtain ‘independent’ legal advice from the ‘Committee’, contrary to the interests and benefit of all owners. Court One's terms of engagement. input and advice on these issues ought to be available from the Body Corporate’s records.
[61]Mr Black pleads five causes of action:
(a)The first cause of action says it is for judicial review under the Judicial Review Procedure Act, with the cover page also referring to pt 30 of the High Court Rules 2016.
(b)The second cause of action says that it is for an “equitable and beneficial (trust) status of levies and the right to accounting”, which is possibly connected with his cover page reference to pt 18 of the High Court Rules.
(c)The third cause of action says that it is for declarations under the Declaratory Judgments Act 1908 and pt 18 (application in equity), or “pursuant to the Court’s inherent jurisdiction”.
(d)The fourth cause of action is for estoppel and equitable proprietary estoppel, alleging that a full refurbishment and renovation of Waterloo Towers including private property betterments “was not agreed, expected or assumed”, whereas a “fair and equitable contribution to necessary common property repairs and maintenance has always been accepted”.
(e)The fifth cause of action is for referral of disputes under s 173 of the Act, with the grounds cross-referring to and relying on the first to fourth causes of action.
[62] Given the opaque nature of his pleadings, the best way to assess the content of the second amended statement of claim is to start with the relief sought under each of the five causes of action, set out in the table below (with minor differences in wording):
Relief sought Cause of action 1 2 3 4 5 1. A declaration that the respondent’s decisions which adversely affect property rights and interests are unauthorised, invalid, ultra vires, a fraud on the power and in breach of the Unit Titles Act 2010 provisions and regulations. ü - - - - 2. A declaration that the respondent’s decisions and conduct in respect of the transaction and levies expended on remedial costs were invalid and
involve the mismanagement and wrongful misuse of trust monies.
- - ü - - 3. An order quashing or setting aside those decisions. ü - - - - 4. Relief under ss 16 and 17 of the JPA and under pt 16 of the High Court
Rules, for a direction or order for an accounting and reconsideration of the levies spent and to be further levied
ü ü ü ü ü 5. Following an accounting, such directions as the court thinks just to pay restitution and equitable compensation for the applicant’s special levies paid and spent of $426,602 (plus interest) and such other sum as the court shall determine is accountable to the applicant. ü ü - ü - 6. A declaration that the respondent is estopped and prevented from not fairly and equitably apportioning and accounted for the levies paid (and expended) to account and satisfy the application for the equities
raised by the estoppel.
- - - ü ü 7. A declaration that the applicant has equitable and beneficial rights, interests and entitlements (including an equitable lien and proprietary right) to the levies paid and spent and to residual levy funds held ü ü ü - - 8. A declaration or direction that the applicant is entitled to a set off (including an equitable set off) for the above amounts payable and
against any claims by the respondent to pay or incur further levies and costs.
ü ü ü ü ü 9. A declaration or direction preventing the respondent claiming or levying further amounts from the applicant, it considers payable as a consequence of any orders made herein (s 16(2)). ü ü ü ü - 10. Interest on the levies paid and accountable, at such rate and term as the court shall determine under the Interest on Monies Claims Act 2016. ü ü ü ü ü 11. Costs including for amounts paid by the applicant to his own specialist consultants, property surveyor, solicitors and legal advisors. ü ü ü ü ü
[63]From the above table, I summarise Mr Black’s position as follows:
(a)Mr Black’s objective in this proceeding is to achieve a full refund of his share of the levies for the money spent by the body corporate over the period from 2010 to date on dealing with the leak and remediation issues (a total of $426,602 — see rows 4, 5, 8 and 9). His underlying grievances include an understandable frustration about the amount that has been spent with little progress or benefit to him personally, including the fact that some costs have ultimately been wasted (such as consents for remediation designs that did not ultimately proceed). He
considers that he is the only owner entitled to this relief, which should be funded by a levy on the other owners (this would be necessary to avoid the circularity that any financial relief granted against the body corporate would need to be funded by levies).
(b)He believes he will convince the Court to grant that remedy, after the Court conducts a “taking of account” under pt 16 of the High Court Rules, which would involve requiring extensive discovery beyond what the administrator has achieved, supplemented by a witness hearing in which he will presumably seek to cross-examine members of the committee about the services engaged and whether they approved payment of each invoice, with adverse inferences sought in respect of any gaps in information (see row 4 and confirmation at the hearing that he seeks full discovery and cross-examination).
(c)He wants the Court to determine that none of these costs should be apportioned based on each unit owner’s utility interest as required under s 121 of the Act, because he considers this substantively unfair and contends that a different allocation is more appropriate (as might be approved under a s 74 scheme), taking into account where the damage is located and issues of betterment (see row 6 and the fourth cause of action in general). His estoppel arguments are based on discussions that a s 74 scheme application was anticipated.
(d)The balance of his arguments that any invoice payments have been unauthorised, invalid, ultra vires, or a fraud on the power are more difficult to understand (rows 1 and 3). Apart from his allegations of allocative unfairness, they seem to depend on there being a lack of written resolutions from the committee approving payment of individual invoices (from which he seeks an adverse inference), plus an allegation that the limits on the s 108 delegation in the 11 March 2021 EGM continued to bind future committees, so any material change to design, scope and cost is ultra vires and undermines the basis for paying invoices issued by third parties.
(e)His argument about misuse of monies encompasses the above, plus reliance on the administrator’s comment that the accounts had not been used strictly in accordance with whether something was an operating expense or a cost relating to the remediation (see [15] above). Mr Black asserts that funds levied should have been siloed and imbued with trust obligations, and those obligations were breached (row 2).
Untenable
[64] Although it is unusual to reach such a conclusion in a strike-out application (because claims based on disputable facts would normally be allowed to proceed, even if re-pleading is required), Mr Black has not satisfied me that he has any tenable cause of action. My reasoning is set out below considering each key question for assessing whether there has been any reviewable error.
In accordance with the law?
[65] Absent Court approval of a s 74 scheme (which may yet occur), the Act requires costs to be levied in accordance with s 121. Outside of s 74, this Court cannot override those statutory provisions based on “inherent jurisdiction” or any other vague concept of substantive unfairness.
[66] Furthermore, I see no basis for Mr Black maintaining allegations of invalidity for levies and expenditure that were approved and ratified by the requisite majority. The Act provides for democratic approval of such matters despite dissent.58 Mr Black did not take any steps under s 210 at the appropriate times, and there is nothing unlawful or ultra vires about rectifying internal non-compliance issues for invoices paid prior to 11 March 2021.59 The same applies for the payment of invoices during the balance of 2021 and during 2022. There is no factual basis pleaded for Mr Black’s allegation that any of those payments were outside the scope of the s 108 delegation. Items 9 and 10 recorded the resolutions by the requisite majority on 11 March 2021. While the committee may not have kept their own written resolutions when each invoice was paid, this was not required at the time.
58 See above at [28].
59 See above at [38](b).
[67] The mere fact that problems were arising with the cost and scope assessments did not relieve the body corporate from meeting its liabilities to third parties, nor did it undermine the committee’s role of attending to those payment obligations. The 11 March 2011 constraints on delegation were forward-looking about approving material changes — Mr Black has not identified any payment that falls in this category. I also find that Mr Black is wrong that the restrictions in the 11 March 2021 delegation continued to apply to the committee appointed at the 18 November 2021 AGM. That was a new committee with a new delegation.60 For all these payment complaints, Mr Black is simply asserting breach without identifying any factual basis, hoping this will lead to a fishing expedition of witness cross-examination that serves no identified purpose.
[68] In respect of how levies were held in the accounts and paid, strict trust obligations are inconsistent with the approach taken by the Court of Appeal that the identified purpose for each levy is generally subordinate to the body corporate’s overriding duty to meet immediate payment obligations.61 I therefore do not see any arguable illegality or breach of trust issues arising from the fact that the accounts were not operated strictly in accordance with whether something was an operating expense or a cost relating to the remediation.
Procedurally regular?
[69] Mr Black does not allege any breach of natural justice rights. He was notified of and participated in the relevant body corporate meetings. In most cases his vote on each issue was expressly recorded. Otherwise, the comments at [65]–[68] apply. He asserts an ongoing consultation obligation with owners, but that is inconsistent with the regime already discussed above for body corporate decision-making, including by delegation.
60 See above at [9](a) and Unit Titles Regulations 2011, r 24(7).
61 See above at [39]. As discussed in Een v Body Corporate 384911, above n 5, at [56] and [59], the issues may be more complex for funds already deposited into an LTMF under s 117(2), but that issue does not arise here.
Substantively rational?
[70] With hindsight, I am sure that all the owners are frustrated about how much has been spent with little progress, including the fact that some costs have ultimately been wasted. There is also room for different views about how the default provisions of the Act apply concerning who is responsible for remedying the defects, and how the interests should be co-ordinated and costs fairly allocated.62 The body corporate and its committees have had the benefit of detailed legal advice on those issues, and they have relied on consultants and experts in respect of matters such as the remediation design, consent issues, building costs and quantity surveying.
[71] While some of those decisions may not have gone to plan, there is nothing in the pleadings or evidence relied on by Mr Black that could form the basis of an allegation of irrationality, fraud, corruption, bad faith, or an analogous situation.
[72]The owners initially thought the required repair work would cost around
$8 million. They were wrong, but did not know it at the time. The majority of owners voted for those repairs. It was a standard of repair that did not ultimately prove to be economically feasible. Once they knew the true cost, it was the right thing to do to put those repairs on hold and eventually cancel them. Both the decision to repair and the decision to stop were not unreasonable.
Futility
[73] This proceeding cannot overcome any existing problems of sunk cost and of building remediation work that still needs to be done.
[74] Nor are the claims in this proceeding the appropriate vehicle for a “taking of account”. The appointment of an administrator was the appropriate method for assembling the relevant body corporate records, checking the status of creditor payments and outstanding levies, attending to preparation of financial statements, and progressing the steps that now need to be taken in the interests of the owners. This may include settling a s 74 scheme. That is the appropriate avenue for seeking to
62 See above at [33].
achieve substantive fairness in respect of the remediation plans and how those costs are allocated.
[75] I cannot see any beneficial purpose that would be served by this Court conducting a separate backward-looking inquiry requiring cross-examination as to how committee members approved payment of invoices in previous years. There is no reason to believe this was not done, so it would be a pure fishing expedition in circumstances where third parties are entitled to rely on the indoor management rule for those payments.
[76] In any event, apart from the fact that compensation is not available as a remedy for judicial review in a claim of this type, it would be inappropriate for this Court to make any orders that treat Mr Black differently from the other owners. As identified by the administrator, s 121 of the Act requires that levies are raised based on each unit owner’s utility interest. I do not accept there is any arguable basis for undermining those statutory provisions based on the allegations that have been pleaded. This makes the proceedings futile, because the relief that Mr Black seeks cannot be awarded, or the body corporate would have to levy the owners (including Mr Black) to meet its obligations anyway.
Delay
[77] I accept that delay is another relevant discretionary factor in this case. Mr Black is seeking to pursue complaints outside the time limits in the Act (such as under s 210), many years after the relevant invoice payments were made to third parties. Judicial review is rarely granted when more than two years have elapsed since the decision.
[78] Although Mr Black has complained about unfairness for many years, he has not made any application himself under s 74, despite single owners having that standing.
Suitability of judicial review
[79] The fact that Mr Black says he needs discovery, detailed fact-finding, oral evidence and cross-examination in this proceeding demonstrates that the disputed issues he wishes to pursue are not within the proper scope of assessing compliance with legal limits. He envisages a witness trial of some five days, which at its core alleges substantive unfairness. That is the opposite of a “simple, untechnical and prompt” determination of judicial review issues. It also explains why a strike-out application was appropriate in this case, despite the usual considerations referred to in [48](a) above.
Other causes of action
[80]The other pleaded causes of action do not change the above analysis:
(a)The second cause of action for an “equitable and beneficial (trust) status of levies and the right to accounting” is misconceived given the legal position outlined above, the effect of the relevant statutory provisions (including s 121 of the Act) and the fact that an administrator has already been appointed.
(b)The third cause of action seeking declarations and equitable orders under pt 18 are focused on the relief Mr Black seeks rather than founding any separately identifiable cause of action.
(c)The estoppel arguments in the fourth cause of action do not plead any facts that would satisfy the three broad elements for an estoppel claim.63 Although the owners anticipated — and still anticipate — that a s 74 application might be made, there was no unambiguous representation from which the body corporate unreasonably wishes to resile that it would levy other than in accordance with s 121 (even if Court orders had not been made under s 74). To the extent Mr Black’s concern is
63 See Keir v Simms [2025] NZHC 2086 at [231], citing Wilson Parking New Zealand Ltd v Fanshawe [2014] NZCA 407, [2014] 3 NZLR 567 at [44]; and Wolfe v Wolfe [2021] NZHC 2878 at [80].
one of timing, it is understandable that the administrator would need a new remediation plan before seeking s 74 orders.
(d)The fifth cause of action under s 173 merely cross-refers to and relies on the first to fourth causes of action.
Conclusion
[81] For all of the above reasons, I conclude that the second amended claim dated 9 April 2025 discloses no reasonably arguable cause of action or case appropriate to the nature of the pleading:
(a)Mr Black has not satisfied me that he has any tenable cause of action. On the facts as pleaded, and having regard to the indisputable aspects of the supporting evidence on which Mr Black relies, there is no basis for believing any decisions of the body corporate (including through its committee) were unlawful, substantively irrational, or procedurally irregular in any relevant way.
(b)In any event, the proceedings are futile because this Court would not grant the remedies he seeks of compensation at the expense of other owners and not himself. This would undermine s 121 of the Act without any proper basis. This proceeding is only adding further unnecessary legal costs for the owners concerning historic sunk cost grievances, whereas the current interests of the owners are being properly addressed by the administrator, and the availability to seek approval of a s 74 scheme for any substantive fairness concerns.
(c)Delay is another relevant discretionary factor that makes this proceeding inappropriate, given that Mr Black seeks to challenge the payment of invoices spanning back to 2010.
(d)The disputed issues that Mr Black wishes to pursue and the procedures he seeks to utilise are not within the proper scope of judicial review. The other pleaded causes of action take matters no further.
[82] Mr Black has already had two opportunities to file amended pleadings. I conclude that further amended pleadings will not remediate the issues identified and this proceeding should be dismissed.
Result
[83]I strike out the second amended statement of claim and dismiss this proceeding.
[84] The body corporate is entitled to costs. If the parties cannot agree, then the body corporate may file its memorandum within 15 working days, and Mr Black 15 working days thereafter, for costs to be determined on the papers.
O’Gorman J
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