Body Corporate 169774 v Weerasinghe - [2020] NZHC 3144

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-001711

[2020] NZHC 3144

UNDER The Unit Titles Act 2010

IN THE MATTER

of an Originating Application for Orders establishing a Scheme under section 74 of the Unit Titles Act 2010

BETWEEN

BODY CORPORATE 169774

First Applicant

AND

PEARLNZ LIMITED

Second Applicant

AND

CHANNA AJITH WEERASINGHE and KESHI WEERASINGHE

First Respondents

AND

JI YOUNG BAE and YOUN SUP BAE

Second Respondents

continued overleaf…

Hearing: 18 November 2020

Appearances:

K Wendt for the Applicants

No appearance for the Respondents

Judgment:

27 November 2020

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 27 November 2020 at 3.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

BODY CORPORATE 169774 v PEARLNZ LIMITED [2020] NZHC 3144 [27 November 2020]

AND
DAVID WILLIAM BAINBRIDGE and MING ZHU

Third Respondents

AND

JIYING DUAN

Fourth Respondent

AND

JIN ZHENG

Fifth Respondent

AND

SAJEEV CHETTACKAL KUTTAN and SHEENA THALIYAPARAMBIL

Sixth Respondents

AND

BARRY JAMES NORTHCOTT and CAROLINE ANNE NORTHCOTT

Seventh Respondents

AND

MING-HUEY CHANG

Eighth Respondent

AND

HONG YING NI

Ninth Respondent

AND

VIVIEN FAMILY CORPORATE TRUSTEE LIMITED and YIMING PENG and

YUEBIN GENG
Tenth Respondents

AND

ASCO LEGAL TRUSTEES LIMITED and RICHARD SCOTT GEARY

Eleventh Respondents

AND

DELLISSE MOLETA

Twelfth Respondent

AND

KUANG-YUEH CHENG

Thirteenth Respondent

AND

HUIYAN CHENG

Fourteenth Respondent

AND

LIN HU and TIANCHUN GAO

Fifteenth Respondents

AND

KENNETH JOHN GRAHAM and PATRICIA MARGARET GRAHAM

Sixteenth Respondents

AND
PHUOC THANH TRINH

Seventeenth Respondent

AND

RESPONDENT (MORTGAGEE)

ANZ BANK NEW ZEALAND LIMITED
Eighteenth Respondent

AND

ASB BANK LIMITED

Ninetieth Respondent

AND

BANK OF NEW ZEALAND

Twentieth Respondent

AND

WESTPAC NEW ZEALAND LIMITED

Twenty-First Respondent

AND

IAG NEW ZEALAND LIMITED

Twenty-Second Respondent

Introduction

[1] Body Corporate 169774 applies for an order under s 74 of the Unit Titles Act 2010 settling a scheme for the reinstatement of the building at 2 Alpers Avenue, Epsom, Auckland to repair weathertightness and other defects and damage.

[2] The application is supported by a comprehensive affidavit affirmed on 21 September 2020 by Ravindra Sudhakar Telang, who is a director of Pearlnz Ltd, which owns one of the residential units in the property.

[3] Mr Telang was re-elected Chairperson of the Body Corporate at its annual general meeting held on 23 July 2020. At that meeting, Mr Telang was authorised to provide an affidavit in support of the application.

[4] The originating application was heard on 18 November 2020 by way of formal proof. Ms Wendt, counsel for the Body Corporate, presented submissions in support of the application. No unit owner was present at the hearing.

[5] The proposed scheme annexed to the application was approved unanimously by the meeting of the Body Corporate held on 23 July 2020 at which 66 per cent of owners were present in person or had provided proxies. The scheme:

(a)Authorises the Body Corporate as agent for the owners to deal with all matters relating to the repair of…

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.

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Details

Case: [2020] NZHC 3144
Decision Date: 27 November 2020

CaseChat Overview and Summary

Body Corporate 169774 applied to the High Court of New Zealand for an order under section 74 of the Unit Titles Act 2010 to settle a scheme for the reinstatement of a building at 2 Alpers Avenue, Epsom, Auckland. The building required repairs to address weathertightness and other defects. The application was supported by a comprehensive affidavit from Ravindra Sudhakar Telang, a director of Pearlnz Ltd, which owns one of the residential units in the property. The proposed scheme was approved unanimously by the meeting of the Body Corporate held on 23 July 2020, where 66% of the owners were present in person or had provided proxies. The scheme authorised the Body Corporate to deal with all matters relating to the repair of the building, enter into contracts for repairs, determine how costs would be shared among the owners, and manage funds, among other things. The court was required to decide whether the building had been damaged, whether the scheme was appropriate, and what the terms of the scheme should be. The court found that the building had been damaged, the scheme was appropriate, and the terms of the scheme approved by the Body Corporate should be approved. The court made an order settling the scheme for the reinstatement of the building at 2 Alpers Avenue, Epsom, Auckland as set out in Schedule 2 to the application of the Body Corporate.

The court followed a three-stage process when considering the application to settle the scheme. Firstly, the court was required to be satisfied that the building had been damaged or destroyed. Secondly, if so satisfied, the court must decide whether to settle a scheme. That is, the court must decide whether a scheme is appropriate in the circumstances. Thirdly, if the court decides a scheme is appropriate, it must then decide what the terms of the scheme should be. The court was satisfied that the building had been damaged and that the proposed scheme was appropriate. The court was also satisfied that the terms of the scheme approved by the Body Corporate should be approved. The court found that the proposed repair option set out in the scheme was supported by the owners who participated in the final discussions and voting process relating to the scheme. The unit owner who had expressed reservations with the scheme did not take up the opportunity to record any opposition at the formal proof hearing. The court also found that the proposed scheme had an appropriate level of detail and was substantially similar to those approved by the Court in recent years. The court made an order settling the scheme for the reinstatement of the building at 2 Alpers Avenue, Epsom, Auckland as set out in Schedule 2 to the application of the Body Corporate.

Orders