Body Corporate 102123 v Haines

[2017] NZHC 2365

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002035

[2017] NZHC 2365

BETWEEN

BODY CORPORATE 102123

Applicant

AND

CAROLE-ANNE HAINES & ORS

First Respondents

WESTPAC NEW ZEALAND LIMITED
Second Respondent

ANZ BANK NEW ZEALAND LIMITED
Third Respondent

KIWIBANK LIMITED

Fourth Respondent

Hearing:	27 September 2017
Appearances:	C Baker for the Applicant
Result:	27 September 2017
Reasons:	28 September 2017

JUDGMENT OF DUFFY J

This reasons for judgment was delivered by me on 28 September 2017 at 3.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:

Price Baker Berridge (A Elia), Auckland

BODY CORPORATE 102123 v HAINES & ORS [2017] NZHC 2365 [27 September 2017]

[1]    The applicant is the body corporate of a single apartment block comprising 5 units at 11 Whitaker Place, Auckland (Whitaker Place apartments). Those apartments are damaged by virtue of suffering from what has commonly become known as “leaky building syndrome”. The body corporate seeks an order of the Court settling a scheme under s 74 of the Unit Titles Act 2010. The scheme provides for the reinstatement of the damage to the building.

[2]    At an owners’ meeting held on 12 June 2017 the body corporate presented the draft scheme and the owners unanimously resolved to apply for a scheme by way of a postal vote on 14 July 2017. All the named respondents have been served and no notices of opposition to the application for approval of the scheme has been received.

[3]    I am satisfied from the affidavit evidence in support of the application that the Whitaker Apartments need repair and those repairs should be implemented with expedition.

[4]    I am satisfied the scheme is necessary and that it properly balances the interests of all the owners. There are five factors for the Court to consider:1

(a)A scheme of broad support is preferred;

(b)The scheme is appropriately detailed;

(c)The order can have retrospective effect as long as the body corporate has acted in accordance with the scheme prior to the Court’s approval;

(d)Normally work is to be done to the same standard and at the same time; and

(e)The terms of the scheme are not to depart from the Act and the body corporate rules any more than reasonably necessary to achieve fairness between unit holders in the circumstances.

1      See Tisch v Body Corporate 318596 [2011] 3 NZLR 679 (CA) at [36] – [44].

[5]    The information the body corporate has placed before me, together with the absence of any opposition from the unit owners, informs me that the application satisfies the aforementioned requirements. Moreover, there is nothing about the proposed scheme that suggests I should have any concerns about making the orders sought. Accordingly, the application is granted and the scheme is approved.