Body Corporate 167041 (North Auckland Registry) v Sue

[2015] NZHC 2670

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001698 [2015] NZHC 2670

UNDER

the Unit Titles Act 2010

IN THE MATTER OF

an originating application for orders establishing a scheme under s 74 of the Unit Titles Act 2010

BETWEEN

BODY CORPORATE 167041 (NORTH AUCKLAND REGISTRY)

Applicant

AND

STANLEY SUE, ADA SUE AND FRANKLIN LAW TRUSTEE LIMITED

& OTHERS

First to Twenty-fourth Respondents

Hearing:	29 October 2015
Appearances:	C R Eric for Applicants No appearance for Respondents
Judgment:	30 October 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 30 October 2015 at 11.30 am

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………

BODY CORPORATE 167041 v SUE & ORS [2015] NZHC 2670 [30 October 2015]

[1]      In   this   originating   application   the   Body   Corporate   of   a   residential development in Mount Eden (Eden Oaks) seeks orders establishing a scheme under s

74 of the Unit Titles Act 2010.  The building (principal units, accessory units and common property) have all suffered significant damage caused by moisture ingress and require remedial work.  The respondents are the various unit owners.  They do not oppose the application.  The matter has been traversed fully at Body Corporate meetings  and  at  an  extraordinary  general  meeting on  17 June 2015  at  which  a resolution was passed approving the draft reinstatement plan that had been circulated prior to the meeting and authorising the Body Corporate to make this application.

[2]      The application is supported by affidavits from Martin John Hill, a chartered building surveyor, Jacqueline Anne Bree, the Body Corporate chairperson at the time the application was filed, and Deborah Sue, the current Body Corporate chairperson. In her affidavit Ms Bree has described the early identification of weather-tightness issues at the Eden Oaks development and engagement of building consultants, who recommended remedial work including a complete re-clad of the east and south elevations with a cavity system to replace the damaged timber framing, fire rated linings and new structural supports.  Those steps were undertaken in 2009 and 2010. Subsequently, the Body Corporate considered various options for the remedial work which, by 2014, had expanded to include work to ensure the structural safety of the balconies.

[3]      In 2014 the Body Corporate began to discuss the need for a reinstatement scheme under s 74 of the Unit Titles Act 2010 and that resulted in the draft scheme being circulated to all owners in June 2015 in advance of the extraordinary general meeting to be held on 17 June 2015.  The details of the proposed remedial work are described in Ms Bree’s affidavit. At the extraordinary general meeting 15 of the 20 principal owners were either present or represented by proxy.  They all supported the funding of the remedial works on the basis of levies under which each owner would be required to contribute a share equivalent to his or her utility interest.

[4]      The  respondents  are  the  unit  owners,  four  mortgagees  and  the  Body Corporate’s insurer. All have been served along with the District Land Registrar.  No respondent has signalled any opposition.  No notices of opposition have been served.

The only respondent to take any steps is Westpac NZ Ltd which has advised the Court by memorandum that it neither consented to nor opposed the application and would abide the Court’s decision.  Moreover, the owners of all 20 units have taken steps to facilitate the remedial works, including entering into service agreements, paying levies and giving notice to tenants.

[5]      I am satisfied that the building has been damaged, that a scheme under s 74 is the appropriate means of effecting remediation of the damage and that the proposed draft scheme is an appropriate one.  Remedial work required will affect the whole complex including common property and interconnected unit property and is best undertaken as a single project to ensure that the work can be properly managed and undertaken as efficiently as possible. I therefore make an order approving a scheme under s 74 of the Unit Titles Act 2010 in the terms of the draft order attached to the

originating application dated 23 July 2015.

P Courtney J