Body Corporate 189717 v Duan - [2024] NZHC 2428

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-000604

[2024] NZHC 2428

UNDER Unit Titles Act 2010

IN THE MATTER OF

an originating application for a scheme pursuant to section 74 of the Unit Titles Act

BETWEEN

BODY CORPORATE 189717

Applicant

AND

XIAOJING DUAN and ZHENYU SHI

First Respondents

(Respondents as in schedule annexed)

Hearing: 25 July 2024

Appearances:

D T D Horton for Applicant

Judgment:

28 August 2024

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 28 August 2024 at 10 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………..

Counsel/Solicitors:
D T D Horton, Auckland
Thomas Gibbons Law, Hamilton

BODY CORPORATE 189717 v DUAN [2024] NZHC 2428 [28 August 2024]

[1] Body Corporate 189717 applies for an order under s 74 of the Unit Titles Act 2010 settling a scheme for the reinstatement of the building at 14 Waterloo Quadrant, Auckland (the Connaught) to repair weathertightness defects and damage. The Connaught, constructed in the late-1990s, is a 14-level residential building with 154 units and four basement carparks levels. The building is leaky and requires a full reclad and other remedial works.

[2] The originating application is supported by an affidavit dated 31 January 2024 by Linda Keesing-Styles. Ms Keesing-Styles owns a unit in the Connaught and is the current chairperson of the Body Corporate, first elected in July 2021 and re-elected at the annual general meeting held on 6 July 2023. At that meeting, Ms Keesing-Styles was authorised to provide an affidavit in support of this application.

[3] The application came before me on 25 July 2024. Ms Horton appeared for the Body Corporate. No unit owner was present at the hearing and no opposition to the application has been filed. In accordance with Venning J’s order, the application has proceeded by way of formal proof.1

[4] At the annual general meeting on 6 July 2023, the members of the Body Corporate unanimously resolved to proceed with the scheme set out at schedule 2 to the application.2 The minutes record that the meeting was quorate with no less than 25 per cent of those eligible to vote represented. The scheme:

(a)authorises the Body Corporate to act as agent for the owners to deal with all matters relating to the repair of the Connaught;

(b)authorises the repairs to be undertaken by way of contracts entered into and managed by the Body Corporate;

1 Body Corporate 189717 v Duan HC Auckland CIV-2024-404-604, 6 June 2024 (Minute of Venning J) at [2].
2 The scheme at schedule 2 includes one minor change to the draft scheme approved at the annual general meeting on 6 July 2023: the addition of the words “and may have carried out Repairs” at cl 8.7.

(c)determines how the costs of repairs are to be shared between the unit owners, and authorises the Body Corporate to raise levies from owners in accordance with the scheme;

(d)allows the Body…

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: [2024] NZHC 2428
Decision Date: 28 August 2024

CaseChat Overview and Summary

Body Corporate 189717, representing the unit owners of the Connaught, a residential building in Auckland, sought an order under section 74 of the Unit Titles Act 2010 to settle a scheme for the reinstatement of the building to repair weathertightness defects and damage. The application was heard by Van Bohemen J in the High Court of New Zealand. The key legal issue was whether the court should approve the scheme proposed by the Body Corporate for the repair works. The court considered the three-stage process outlined by the Court of Appeal in Tisch v Body Corporate 318596, which requires the court to be satisfied that the building has been damaged or destroyed, to decide whether a scheme is appropriate in the circumstances, and to determine the terms of the scheme if appropriate. The court found that the Connaught had been damaged, the scheme was appropriate, and the terms of the scheme were fair and sensible. The court approved the scheme and made an order settling it, with retrospective effect to the extent the Body Corporate had already acted in accordance with the scheme.

Orders