Body Corporate 196961 v Image Door NZ Limited

[2018] NZHC 2988

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1248

[2018] NZHC 2988

UNDER

The Unit Titles Act 2010 and Part 19 of the High Court Rules

BETWEEN

BODY CORPORATE 196961

Applicant

AND

IMAGE DOOR NZ LIMITED AND 19 OTHER RESPONDENTS

Respondents

Hearing:

15 November 2018

Counsel:

J P Wood for Applicant

No appearancefor Respondents

Judgment:

19 November 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 19 November 2018 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Rainey Law, Auckland

BODY CORPORATE 196961 v IMAGE DOOR NZ LTD [2018] NZHC 2988 [19 November 2018]

[1]                 I have before me an application for an order for a scheme of repairs pursuant to s 74 of the Unit Titles Act 2010. It is supported by a memorandum of counsel together with supporting affidavits by Brett Jones, chairman of the Body Corporate Committee, and Martin Hill, building surveyor.

[2]I am satisfied, as per Counsel’s memorandum:

[a]All owners, mortgagees and the insurer of the building have been served with a copy of the application.

[b]The subject building has suffered water damage.

[c]A scheme of repair has been produced for the purposes of remediation of the damage.

[d]The scheme has a level of detail and is on substantially similar terms to schemes previously granted by this Court.1

[e]The scheme is consistent with the scheme of the Unit Titles Act 2010, save that:

[i]The scheme ensures that the Body Corporate has the power to complete all the repairs.

[ii]The scheme makes clear that the owners may be levied up front.

[iii]The scheme ensures that the repairs are apportioned in an equitable way, being primarily by utility interest, with the exception of bathrooms. The bathroom defects have been isolated because they have been the only defect in the building each owner would have had the ultimate duty to attend to and fix themselves.

1Body Corporate 205373 v Baltazaar (Mays Road) [2015] NZHC 2827; Body Corporate 202692 v Jamak Holdings Ltd (Retro Apartments) [2016] NZHC 1226; Body Corporate 201161 v Keung (Gladstone Apartments) [2016] NZHC 1827.

[f]The scheme has the broad support of the owners:

[i]A copy of the draft scheme was provided to the owners by email on 5 February 2018. The draft scheme was considered by the Body  Corporate  at  an  EGM  on  13 February 2018.

[ii]The Body Corporate decided that remediating bathroom defects should be at the cost of the unit owners within which the cause of the defect exists. The draft scheme circulated to owners on 5 February 2018 did not contain the clause regarding apportionment of the bathroom defects but this amendment was put before the Body Corporate by way of an email tabled at the 13 February 2018 EGM. The scheme voted on at the EGM was intended to incorporate the amended allocation clause and the minutes of the meeting reflect this.

[iii]At the EGM, of the 12 unit owners present, 11 voted in favour of the scheme (with the amended allocation clause) and one abstained. This scheme represents the collective will of the proprietors who actively participated in the discussions.

[g]The complex comprises three blocks which need to be repaired at the same time to ensure that they are repaired to the same standard. It cannot be left for unit owners to complete spot repairs.

[h]The scheme is intended to have retrospective effect, as the majority of the repair works have already been undertaken and the Body Corporate has acted in accordance with the scheme.

[3]Accordingly, the orders as sought are granted.