Body Corporate 191652 v Colombie

[2017] NZHC 1874

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-000747 [2017] NZHC 1874

BETWEEN

BODY CORPORATE 191652

First Applicant

GEOFFREY ROBERT BONNER and ANDREWA MICHELLE SUTHERLAND Second Applicants

AND

DOMINIQUE JEAN-PAUL COLOMBIE AND CELIA CHRISTINE ELDER

First Respondents

GRACE GREGORY LTD Second Respondent

ALIM MOHAMMED and SAKINA BANO MOHAMMED

Third Respondents

cont…/2

Hearing:	8 August 2017
Appearances:	T M Bates for Applicants No appearance for or on behalf of Respondents
Judgment:	8 August 2017

ORAL JUDGMENT OF JAGOSE J

Solicitor:

Legal Vision, Auckland

BODY CORPORATE 191652 & ORS v COMOMBIE AND ELDER & ORS [2017] NZHC 1874 [8 August

2017]

THIRTY SEVEN SOUTH PROPERTIES LTD

Fourth Respondent

BRYDIE CARLOTTE CANHAM Fifth Respondent

ILANA JANE TOBIAS Sixth Respondent

MARTIN DIETER WOODTLI Seventh Respondent

MATTHEW CAMERON CHILDS and NICHOLAS JOHN BRADSHAW Eighth Respondent

SUHEI YOSHIDA Ninth Respondent

GREAT EXPECTATIONS INVESTMENTS LTD Tenth Respondent

JANUARY CEZANNE WICKHAM Eleventh Respondent

CIRCLE HOLDINGS LIMITED Twelfth Respondent

TAITUA INVESTMENTS LTD Thirteenth Respondent

RONALD JOHN BURNS BANNERMAN and YVONNE CHRISTINE BANNERMAN and MICHAEL JOHN MILLARD

Fourteenth Respondent

RICHARD JAMES LOW Fifteenth Respondent

CLUNY INVESTMENTS LTD Sixteenth Respondent

PAUL DAVID DIMOCK and CATHERINE JAME DIMOCK Seventeen Respondent

MCLAREN PARK PROPERTIES Ltd

Eighteenth Respondent

DEAN BENJAMIN DUNFORD Nineteenth Respondent

ROGER ANTHONY SLEE and JOHN CHARLES KILPATRICK

Twentieth Respondents

DIMITAR MIHAJLOVSKI Twenty First Respondent

GERARD PATRICK HALL Twenty Second Respondent

FUNDAMENTALFLEX LTD Twenty Third Respondent

CAROLYN ANN ARMSTRONG and ROBERT THOMAS ARMSTRONG and BAY INDEPENDENT TRUSTEES LTD Twenty Fourth Respondent

JASON ROBERT DUNN Twenty Fifth Respondent

BANK OF NEW ZEALAND Twenty Sixth Respondent

ANZ BANK NEW ZEALAND LTD Twenty Seventh Respondent

WESTPAC NEW ZEALAND LTD Twenty Eighth Respondent

ASB BANK LTD
Twenty Ninth Respondent

IAG NEW ZEALAND LTD Thirtieth Respondent

THE REGISTRAR GENERAL OF LAND Thirty First Respondent

[1]      The applicants seek orders settling a remediation scheme under s 74 of the Unit Titles Act 2010 (the “Act”) for the multi-unit development known as Victoria Park Terraces on Auckland’s Halsey and Dock Streets.

[2]      The units, which are commercial at ground level and residential above, have serious weathertightness issues. Remedying those requires addressing a complex mix of common and private property within the units. There are also complexities arising from the different construction methods used at ground level and above, and from unit  holder  and  body  corporate  remedial  obligations,  including  an  overlay  of territorial authority requirements to address the construction as a whole.

[3]      The Body Corporate wishes to conduct a complete re-clad of the timber- framed portions of the buildings in a single project, addressing both private and common affected property. Opportunity will be taken at the same time to address discovered passive fire issues. Levies will be differentially raised on commercial and residential unit holders, primarily to reflect the distinct direct repair costs of the two.

[4]      The  Body Corporate  engaged  advisers  to  prepare  a  remediation  scheme. Extensive consultation on the proposed scheme has been conducted by the Body Corporate with unit holders, whose support has been strong (although on occasion less than unanimous). The present application has been served on all entitled to service under s 74(6) of the Act, and is not opposed.

[5]      I include in that service, service on substituted parties.  I make the following orders under r 4.56 of the High Court Rules in that respect:

(a)       striking  out  the  first-named  eighth  respondent,  Suzanne  Lorraine

Bradshaw, and substituting her with Matthew Cameron Childs; and

(b)striking out the twelfth respondent, Donald Alexander Harrison, and substituting him with Circle Holdings Limited.

These substituted respondents have filed affidavits confirming their receipt of service in this proceeding.

[6]      The Court of Appeal has set out a three-step process for considering an application to settle such a scheme.1 In accordance with those steps:

(a)      I am satisfied Victoria Park Terraces has been damaged. The expert evidence of Peter Stephen Moore, with wide experience in the area of project  management  of building failures  caused  by leaky building syndrome, is of “widespread moisture ingress resulting in decay of structural framing elements”;

(b)I consider a scheme is appropriate in the circumstances to address the construction and levy issues I have identified above.   The proposed scheme Mr Bates advises is consistent with others settled in similar circumstances; and

(c)      I approve the terms of the proposed reinstatement scheme – being necessary, appropriately detailed, providing for a single and universal plan of remedial works, and only significantly departing from the scheme of the Act in the establishment of a levy formula to reflect differential unit holder benefit – as achieving the outcome fairest to all unit holders in the circumstances.

[7]      I order the settling of the scheme of repairs sought by the applicants.

Jagose J

1      Tisch v Body Corporate 318596 & Ors [2011] NZCA 420, [2011] 3 NZLR 697 at [35].