Body Corporate 199222

[2017] NZHC 1005

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-834 [2017] NZHC 1005

BETWEEN

BODY CORPORATE 199222

Applicant

AND

Hearing:	On the papers
Counsel:	S E Mitchell for Applicant
Judgment:	17 May 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 17 May 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

BODY CORPORATE 199222 [2017] NZHC 1005 [17 May 2017]

Background

[1]      This matter concerns the repair of a damaged building.   Body Corporate

199222 (BC 199222) is the body corporate for the unit title development at 4 Dunbar Road, Balmoral, Auckland (the Property).   The deposited plan of the units on the Property is attached.

[2]      BC 199222 has resolved to apply under the High Court Rules 2016, pursuant to s 74 of the Unit Titles Act 2010 (the Act), for an order establishing a scheme for carrying out the remedial work for leaky building defects in respect of units H to Q on the Property.  It seeks for directions as to service on parties who may be interested in the establishment of the scheme. The application is supported by affidavits describing  the  nature  and  location  of  the  damage  and  the  persons  likely  to  be

interested in the scheme.1

Application for directions as to service

[3]      Relevantly for present purposes, s 74 provides:

74       Scheme following destruction or damage

…

(5)       A notice  of  any  application  made  under  subsection  (2)  must  be lodged  with the  Registrar who  must  enter  on the supplementary record sheet a notification that the application has been made.

(6)       On  any  application  to  the  High  Court  under  subsection  (2),  the following persons have the right to appear and be heard:

(a)       any person having or claiming to have any estate or interest in any unit or in the whole or part of the base land; or

(b)       any insurer who has effected insurance on the buildings or other improvements comprised in any unit or in the whole or part of the base land.

[4]       BC 199222 identifies as potentially interested:

(a)       The proprietors of the units at the Property;2

1      Affidavits of David James Klosser, dated 11 April 2017 and Janette Anne Enright, dated 20 April

2017.

2      Being those listed in the Body Corporate’s notice of application for directions as to service.

(b)      The registered mortgagees/charge holders of the principal units at the

Property pursuant to s 74(6(a)) of the Act, being: (i)    Westpac New Zealand Limited;

(ii)      Mortgage Holding Trust Company Limited; (iii)         ASB Bank Limited;

(iv)     Bank of New Zealand;

(v)      ANZ Bank New Zealand Limited; (vi)  ANZ National Bank Limited;

(vii)     Hong Kong and Shanghai Banking Corporation Limited; and

(viii)    Kiwibank Limited;

(c)       The Registrar-General of Land, pursuant to s 74(5) of the Act; and

(d)The insurer of the Property, Orion Insurance, pursuant to s 74(6) of the Act.

Assessment

[5]      I  am  satisfied  that,  in  accordance  with  s  74,  BC  199222  has  properly identified the persons who may have an interest in the scheme and should be served.

Orders

[6]      The orders sought are appropriate and granted in the terms set out in the application.