Body Corporate 199762 v Thorburn HC Auckland CIV-2011-404-2568

[2011] NZHC 717

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-2568

BETWEEN  BODY CORPORATE 199762

Applicant

ANDAARON JOHN THORBURN AND JOCELYN CLARE THORBURN AND OTHERS

First Respondent

ANDASB BANK LIMITED Second Respondent

ANDWESTPAC NEW ZEALAND LIMITED Third Respondent

ANDANZ NATIONAL BANK LIMITED Fourth Respondent

ANDTEA CUSTODIANS (PACIFIC) LIMITED Fifth Respondent

ANDBANK OF NEW ZEALAND Sixth Respondent

ANDKIWIBANK LIMITED Seventh Respondent

ANDLAG NEW ZEALAND LIMITED Eighth Respondent

Hearing:	13 July 2011
Counsel:	for Applicant for Respondents
Judgment:	13 July 2011

JUDGMENT OF TOOGOOD J

Solicitors:

C Baker, Price Bker Berridge, Henderson, Auckland:  [email protected] ,  [email protected]

S Te’o, Westpac, Auckland: sarah_te’[email protected]

BODY CORPORATE 199762 V THORBURN AND OTHERS HC AK CIV-2011-404-2568 13 July 2011

[1]      Body Corporate 199762 (“the Body Corporate”) is the Body Corporate for a unit title development at 32-40 Eric Paton Way, St Johns, Auckland.  The building has weather-tightness problems that affect the building and the interests not only of the Body Corporate but also the owners of units.

[2]      The Body Corporate has applied under s 48 of the Unit Titles Act 1972 for an order settling a scheme governing repairs to both common property and private property.

[3]      The Body Corporate was granted leave to bring the proceedings by way of originating application and all of the owners of units and all mortgagees have been duly served.

[4]      Although s 48(3) requires that any notice of application under sub-section (1) should be served on the District Land Registrar, that is no longer possible since that office has been disestablished.   In lieu thereof the Registrar General of Land has been served in the appropriate manner and I direct that service on the office of the District Land Registrar be dispensed with.

[5]      The  scheme  which  is  proposed  by  the  Body  Corporate  is  a  practical, convenient and cost-effective arrangement for the carrying out of the repairs in a manner which will equitably distribute the cost between the Body Corporate and the respective unit holders.

[6]      Accordingly, I make the following orders:

(a)      The  provisions  of  the  scheme  (“the  Scheme”)  appended  to  this application are settled and approved and shall be binding on each respondent (and their successors and assigns, if any) until the Scheme is completed and fully paid for.

(b)The applicant and respondents (and their successors and assigns) have leave to apply for ancillary orders necessary to give effect to the terms of the order.

(c)      The  applicant  shall  file  and  serve  on  each  respondent  (or  their successors and assigns, if any), by memorandum, notice when the Scheme is concluded in all respects confirming the same.

(d)The applicant shall recover the actual reasonable solicitor/client costs incurred  by  the  applicant  in  making  this  application  from  the registered   proprietors   as   if   it   were   an   amount   raised   under section 15(2)(b) of the Unit Titles Act 1972.

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Toogood J