IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2017-404-1852
[2018] NZHC 1244
UNDER the Unit Titles Act 2010
AND the Residential Tenancies Act 1986 IN THE MATTER of an appeal from the District Court BETWEEN BODY CORPORATE 199380
Appellant
AND ALISON COOK & MICHAEL VAN DEN BLINK
First Respondents
AND MARY WEBB
Second Respondent
Hearing: 30 October 2017
Appearances: S Price and I Stephenson for Appellant
J P Wood and J Heatlie for Respondents
Judgment: 30 May 2018
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 30 May 2018 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors:
MinisterEllisonRuddWatts, Auckland Rainey Law, Auckland
BODY CORPORATE 199380 v COOK & ANOR[2018] NZHC 1244 [30 May 2018]
[1] The leaky building problem has been challenging building owners and managers for over 20 years. The challenges have been acute in the context of unit developments where the powers and responsibilities of unit owners and bodies corporate under the Unit Titles Act 1972 were not always adequate for dealing with situations that arose. The Unit Titles Act 2010 addressed some of the deficiencies of the earlier Act, notably by giving bodies corporate greater powers to repair unit property that is important to the integrity of a building. However, the new Act raises questions about responsibility for payment of repairs to unit property carried out by bodies corporate exercising these new powers because two sections, ss 126 and 138(4), provide different bases on which a body corporate can recover its costs. As demonstrated by this appeal, the two sections can produce very different results for owners of apartments in a unit development.
[2] This appeal seeks clarification of the relationship between those two sections and asks whether one section is intended to apply only when the other cannot apply, or, if they can both apply, on what basis should the body corporate decide which section to apply when it makes repairs within a unit title that have benefits for other unit titles and, possibly, for the building as a whole.
[3] Counsel for the appellant body corporate says the specific question raised on appeal is:
Does s 138(4) apply only where the repairs to an owner’s principal unit do not “substantially benefit” any other units in the circumstances provided for in s 126?
[4] The body corporate says the answer to the question is “no” and it has a choice as to whether to recover the costs of repair under s 138(4) or under s 126 in circumstances where both sections apply regardless of the question of benefit to other units. Under this interpretation, a body corporate may elect to recover under s 138(4) all the costs of repair from the owners of the principal units that were repaired even if the repairs substantially benefitted one or more other principal units. The body corporate says this interpretation is consistent with the purposes of the…
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- [2018] NZHC 1244
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