Body Corporate 201036 v Westpac Banking Corporation

[2014] NZHC 1321

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-005177 [2014] NZHC 1321

UNDER

the Unit Titles Act 2010

IN THE MATTER

of an application to settle a scheme under s 74 of the Unit Titles Act 2010

BETWEEN

BODY CORPORATE 201036
Applicant

AND

WESTPAC BANKING CORPORATION Respondent

ANZ BANK NEW ZEALAND LIMITED Second Respondent

ASB BANK LIMITED Third Respondent

TSB BANK LIMITED Fourth Respondent

continued over

Hearing:	11 June 2014
Counsel:	JP Wood for Applicant No appearance for Respondents
Judgment:	12 June 2014

JUDGMENT OF ASHER J

This judgment was delivered by me on Thursday, 12 June 2014 at 3 pm pursuant to r 11.5 of the High Court Rules.

Solicitors:

Rainey Law, Auckland.

Registrar/Deputy Registrar

BODY CORPORATE 201036 v WESTPAC BANKING CORPORATION [2014] NZHC 1321 [12 June 2014]

BANK OF NEW ZEALAND Fifth Respondent

PEPPER NEW ZEALAND (CUSTODIANS) LIMITED Sixth Respondent

CYNOTECH SECURITIES LIMITED Seventh Respondent

AVANTI FINANCE LIMITED Eighth Respondent

CLAUDE THOMAS SOMERS AND HEATHER LORRAINE SOMERS Ninth Respondents

[1]      This is an application by Body Corporate 201036 (“the Body Corporate”) under s 74 of the Unit Titles Act 2010 for an order authorising a scheme for the repair of a terraced complex of buildings known as Parnell Terraces, which are located on a block of land at the bottom of Parnell Rise in central Auckland.  The complex has 81 principle units containing three-storey townhouses arranged in six terraced blocks.

[2]      The originating application sets out a draft scheme and an amended scheme is about to be filed following my discussion with counsel.

[3]      I have satisfied myself that the application has been served on all relevant parties.  Many of the Body Corporate owners have authorised the Body Corporate to accept service on their behalf.  Others have been served by the papers being left at the registered addresses of their units.   The interested parties who joined as respondents to this application have all been individually served.

[4]      The affidavit of the Body Corporate’s Chairperson, Michael James Rehm, and submissions show that this proposal has broad support and in fact there has been, and is, no specific opposition to what is proposed.  I compliment the Body Corporate chair and committee for the efficient in which way they appear to have conducted the affairs of the Body Corporate in relation to this most unfortunate lack of weatherproofness in the building.  Undoubtedly the competent and consensual way in which matters have proceeded have saved  unit owners  considerable sums of money.

[5]      I do not need to make any comment on the particular repairs proposed.  There are detailed reports as to the proposed repairs attached to Mr Rehm’s affidavit and I am satisfied as best I can be that the repairs are necessary and appropriate.

[6]      The repairs will be funded from a variety of sources, including the proceeds of litigation, contributions of the owners and, it is hoped, assistance from the Financial Assistance Package provided for in the amendments to the Weathertight Homes Resolution Services Act 2006.  There are specific provisions in the scheme which deal with an application by the Body Corporate for a contribution.  It is not

know at this point whether funds will ultimately be provided to pay for repairs under that Financial Assistance Package.

[7]      There were some issues that arose in relation to the drafting of the original scheme as attached to the originating application.  Some changes are being made at the volition of the Body Corporate and some as a result of discussions.

[8]      I am  satisfied  that  the scheme is  appropriately detailed.   The scheme  is warranted under s 74 as the buildings are damaged because of the weathertightness issues.   I am mindful of the obligations placed on a Court under s 74 and the observations of the Court of Appeal in Tisch v Body Corporate 318596.1

[9]      I reach the following conclusions:

(a)       The buildings at Parnell Terraces suffer from serious weathertightness failures and are damaged;

(b)All unit holders either actively support the proposed scheme or do not oppose it;

(c)       Adequate steps have been taken to serve all interested parties; and

(d)      The proposed provisions in the draft scheme are sufficiently detailed. [10]    I therefore order that the scheme attached hereto is approved by this Court

and thereby settled.

……………………………..

Asher J

1      Tisch v Body Corporate 318596 [2011] 3 NZLR 679 (CA) at [45]–[49].