Body Corporate 117502 - [2025] NZHC 1859

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2025-441-18

[2025] NZHC 1859

IN THE MATTER of the Unit Titles Act 2010

AND

IN THE MATTER

of an application by Body Corporate 117502

Hearing: On the papers

Appearances:

A L Barnett for Applicant

Judgment:

9 July 2025

JUDGMENT OF McHERRON J

[1] The Body Corporate for the Bishop Selwyn holiday resort in Piha seeks cancellation of the unit plan associated with the resort, to allow its sale.

[2] For the reasons set out below, I make a declaration authorising the cancellation of the unit plan, on the conditions set out at the end of this judgment. However, it will be for the Registrar to consider whether the plan can be cancelled under s 189 of the Unit Titles Act 2010.

Body Corporate’s process

[3] On 28 May 2023, the Body Corporate held an annual general meeting at which future options for the Bishop Selwyn were discussed. Arising from that AGM was a direction to survey unit owners. In the survey, 59.7 per cent of the 263 owners that responded voted “yes” to a windup of the timeshare scheme and sale of the property. Of those, 46.39 per cent requested a time frame of one to two years.

RE BODY CORPORATE 117502 [2025] NZHC 1859 [9 JULY 2025]

[4] Following the survey, on 26 March 2024 an extraordinary general meeting of timeshare unit owners was called. A special resolution is required in order to cancel the unit plan.1

[5] Unit owners were directed to send their postal and proxy voting papers for the 2024 extraordinary general meeting to the Body Corporate’s solicitors by post or email. A total of 408 postal votes were received, of which 369 were in favour of the motion and 39 against. 47 proxy votes were also received from unit owners.

[6] On 19 May 2024, the 2024 extraordinary general meeting was held, chaired by Body Corporate Chairperson Geoffrey Ward. The result of the vote was as follows:

In favour Against Total eligible votes

461 95 556

[7] Accordingly, 83 per cent of eligible voters voted in favour of the motion to cancel the unit plan.

[8]The special resolution authorised:

(a)the sale of the property;

(b)the cancellation of the unit plan; and

(c)Mr Ward to sign the documents needed to effect a sale and the transfer of the land and buildings underlying the unit plan to a purchaser.

[9] On 18 June 2024, a notice of designated resolution, plus the minutes from the 2024 extraordinary general meeting were sent to unit owners.2

1 Unit Titles Act 2010, s 187(1)(a).
2 In accordance with s 213 of the Unit Titles Act.

Applicable law

[10] Section 187 of the Unit Titles Act governs an application to the Court for cancellation:

187Application to High Court for order of cancellation of unit plan

(1)Any 1 or more of the following persons may apply to the High Court for the cancellation of the unit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Body Corporate 117502

Details

AGLC: Body Corporate 117502 [2025] NZHC 1859
Case: [2025] NZHC 1859
Decision Date: 9 July 2025

CaseChat Overview and Summary

The High Court of New Zealand Napier Registry was asked to consider an application by Body Corporate 117502 to cancel the unit plan associated with the Bishop Selwyn holiday resort in Piha. The Body Corporate sought the cancellation to facilitate the sale of the resort, which had garnered support from a majority of unit owners. The primary legal issue before the Court was whether it was just and equitable to authorise the cancellation of the unit plan and dissolve the Body Corporate, given the majority support of the unit owners and the absence of any opposing claims.

The Court examined the process undertaken by the Body Corporate to gather the unit owners' consent, which included a survey and an extraordinary general meeting. The results showed significant support for the cancellation and sale of the resort. The Court considered the statutory framework under the Unit Titles Act 2010, particularly sections 187 and 188, which govern the application for and authorisation of unit plan cancellation. The Court noted the absence of any creditors or other interests that could be adversely affected by the cancellation, and that the unit owners had not voiced any opposition.

Based on the evidence presented, the Court found that it was just and equitable to authorise the cancellation of the unit plan. The Court approved the sale of the property and imposed conditions to ensure the proper distribution of the sale proceeds to the unit owners, accounting for any outstanding dues and costs. The Court also directed that any undistributed proceeds be paid to the Crown after a period of non-claim. The Body Corporate was authorised to manage the property and incur necessary expenses pending the sale, with the proceeds held in trust. The Court made detailed orders to facilitate the sale and distribution of proceeds, emphasising the importance of transparency and accountability in the process.

Orders