Body Corporate 161883 v Maui Investments Limited

[2016] NZHC 135

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2838 [2016] NZHC 135

UNDER

the Unit Titles Act 2010

IN THE MATTER

of an application to settle a scheme under s 74 of the Unit Titles Act 2010

BETWEEN

BODY CORPORATE 161883
Applicant

AND

MAUI INVESTMENTS LIMITED First Respondent

MAYFLOWER HOLDINGS LIMITED Second Respondent

Continued …

Hearing:	11 February 2016
Appearances:	T Bates for the Applicant No appearance by or for the Respondents
Judgment:	11 February 2016

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr T Bates, Legal Vision, Solicitors, Auckland

BODY CORPORATE 161883 v MAUI INVESTMENTS LIMITED [2016] NZHC 135 [11 February 2016]

Continued …

KIM WAI YAM and YIN PING YU YAM Third Respondents

VALMAINE MARIE TOKI Fourth Respondent

CHANDRAKANT PATEL and MADHU PATEL

Fifth Respondents

FIBONACCI INVESTMENTS LIMITED Sixth Respondent

CHRISTINA ELIZABETH VENVILLE and WILLIAM BEAU HOLLAND Seven Respondents

WALLIS RAYMOND HUNT and DIANA MARGARET HUNT

Eighth Respondents

KEITH PATRICK GOSLING Ninth Respondent

TONIKIM INVESTMENTS LIMITED Tenth Respondent

ANZ BANK NEW ZEALAND LIMITED Eleventh Respondent

ASB BANK LIMITED Twelfth Respondent

IAG NEW ZEALAND LIMITED Thirteenth Respondent

THE REGISTRAR OF GENERAL OF LAND

Fourteenth Respondent

[1]      This is an originating application to settle a claim of repair pursuant to s 74 of the Unit Titles Act 2010.  The building in question has commercial and residential units.   Buildings comprising the units and common property have suffered water damage to the extent that the structural integrity of the buildings and the health and safety of the building occupants have been adversely affected to a significant extent.

[2]      All parties required to be served with this application have been served.  This is confirmed by the affidavit of Hana Xharra.  In addition, the affidavits confirm, as would be expected, that all necessary Body Corporate meetings in respect of this matter have occurred.

[3]      No unit owner or other interested party has taken any step to oppose this application.  This is consistent with the evidence as to what has occurred at Body Corporate meetings.  That is not to say that there are some unit owners who may have taken no steps.   But the evidence establishes that appropriate majorities or unanimous approval has been obtained from those who have attended relevant Body Corporate meetings.

[4]     Mr Bates, for the applicant, has provided a reasonably comprehensive memorandum  and  submissions  covering  the  matters  required  to  be  covered  in support of the application.  In particular, he has addressed the matters dealt with by the Court of Appeal in Tisch v Body Corporate 318596.1     I am satisfied that all necessary steps, as outlined in that case, have been taken and that the grounds for making of the orders sought have been established.   The detail in that regard is contained in the memorandum.  Given the fact that there is no opposition I see no need to set out detail in this judgment.

[5]      I do note that the only variation from what might be described as the usual funding mechanism relates to the roof.  The roof is immediately over some only of the residential units.  The owners of those units in the normal course might have sole responsibility for repair of the roof.   Those owners consider in these particular

circumstances of this repair that that would not be fair. That is a matter that has gone

1      Tisch v Body Corporate 318596 [2011] NZCA 420.

to the Body Corporate.  80% of those entitled to vote attended or were represented by proxy. There was a unanimous resolution in support of this variation.

[6]      Accordingly, there is an order in terms of the application.  There is no need for an order for costs.

Woodhouse J