Body Corporate 201161 v Keung

[2016] NZHC 1827

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001478 [2016] NZHC 1827

UNDER

Part 19 Unit Titles Act 2010

IN THE MATTER

of an application for a scheme pursuant to section 74 of the Unit Titles Act 2010

BETWEEN

BODY CORPORATE 201161
Applicant

AND

LLOYD GEORGE KEUNG AND LYNETTE KEUNG

First Respondents

… /cont

Hearing:	8 August 2016
Appearances:	J P Wood for Applicant No appearance for Respondents
Judgment:	8 August 2016

ORAL JUDGMENT OF GILBERT J

Solicitors:

Rainey Law, Auckland  [email protected]

BODY CORPORATE 201161 v KEUNG AND ORS [2016] NZHC 1827 [8 August 2016]

VIJAYALAXMI KOTEESWARAN Second Respondent

SANTORINI PROPERTIES LIMITED Third Respondent

DENISE COLLEEN BEDDOES Fourth Respondent

SEFTON ENTERPRISES LIMITED Fifth Respondent

JIMDEB INVESTMENTS LIMITED Sixth Respondent

GMD INVESTMENTS LIMITED Seventh Respondent

DAVID JOHN SMITH Eighth Respondent

JORN LIESKOUNIG Ninth Respondent

ALLAN DAVINDER WALIA Tenth Respondent

BRIAN VICTOR ANDERTON AND LARAINE SHIRLEY MOORE Eleventh Respondents

CAROLINE ROSER CHAPMAN, JANENE MARY OLSEN AND IAN ROBERT ROSS

Twelfth Respondents

ZELJAN ALEXANDER UNKOVICH Thirteenth Respondents

WILLIAM GORDON JOHNSTONE Fourteenth Respondent

AVANA PROPERTIES LIMITED Fifteenth Respondent

…/cont

DAVID RALPH GIESEG, JAN ELIZABETH GIESEG, DIANNA ELIZABETH WALTON AND AMANDA JANE DALE

Sixteenth Respondents

ALLAN STEPHEN D’SOUZA AND PAMELA THERESA D’SOUZA Seventeenth Respondents

GILG DEACON PROPERTIES LIMITED Eighteenth Respondents

DAVID GRAHAM SPENCER BAYLEY, MICHAEL DAVID SPENCER BAYLEY AND CHRISTOPHER PATRICK EIDSELL MOORE

Ninteenth Respondents

RODNEY RUSSELL HANCOX Twentieth Respondent

FIONA ELIZABETH MILDE AND THE MILDE TRUSTEE COMPANY LIMITED Twenty-first Respondents

GRAHAM JOHN BOLLARD Twenty-second Respondent

COLIN DOUGLAS ANDERSEON Twenty-third Respondent

TIMOTHY WILLEM RUDDELL Twenty-fourth Respondent

JOHN COLIN BELCHER AND PAMELA ANNE BELCHER

Twenty-fifth Respondents

IAIN ANDREW DAVID MACDONALD, PENELOPE JANIS MACDONALD AND MARIN JAMES GLUCINA

Twenty-sixth Respondent

ALLAN DAVID ATCHISON AND LORNA MARGARET ATCHISON Twenty-seventh Respondents

…/cont

MILL APARTMENTS LIMITED Twenty-eighth Respondent

XIAOWEI LI
Twenty-ninth Respondent

ALLISTER CLAUDE EDWARDS AND WAYNE GREGORY EDWARDS Thirtieth Respondents

WALLACE ROY MAXWELL JACKSON, NGAIRE ANNE JACKSON AND MGI WILSON ELIOTT TRUSTEE COMPANY LIMITED

Thirty-first Respondents

MELINA JAYANTHI RODRIGO Thirty-second Respondent

ELENA ELOVSKAYA Thirty-fourth Respondent

PHILLIPE FLAGEL AND MARIE GENEIVIEVE FLAGEL

Thirty-fifth Respondent

FABIEN PAUL JULIEN CHABRAND Thirty-sixth Respondent

ALASTAIR HUGH CAMPBELL Thirty-seventh Respondent

CLANGER MOON LIMITED Thirty-eighth Respondent

ALISTAIR HEALY DORE, BEVERLEY GAIL DORE AND ROBIN BROCKIE Thirty-ninth Respondents

LINDA PAULINE KLINE Fortieth Respondent

SANI & AVALON PROPERTIES LMITED

Forty-first Respondent

…/cont

KEITH JUSTIN AITCHISON Forty-second Respondent

JANICE DOROTHY MORLEY AND STANLEY WILLIAM GEORGE MORLEY

Forty-third Respondents

BRIAN FENTON STEWART AND LYNNE THETFORD-STEWART Forty-fourth Respondents

CHRISTINE MARGUERITE SMITH Forty-fifth Respondent

RICHARD JOHN OTLEY ELLIS AND PAUL COLLINS

Forty-sixth Respondents

EDZEL INVESTMENTS LIMITED Forty-seventh Respondent

GRAEME OSBORNE Forth-eighth Respondent

FREEFA LIMITED Forty-ninth Respondent

M P & G J KEANE LIMITED Fiftieth Respondent

WEIWEI MA
Fifty-first Respondent

CREDENCE INVESTMENTS LIMITED Fifty-second Respondent

SHIREEN NIRMALA NANAYAKKARA Fifth-third Respondent

MARIE-CATHERINE FRANCINO, DANIELLE CARON FANCINO AND HENRI MATTEO CARON FRANCINO Fifty-fourth Respondents

…/cont

WILLIAM GREENHORN SPOWART AND ELIZABETH MARGARET SPOWART

Fifty-fifth Respondents

HUGH WALKTER TOWNSEND AND SANDRA ROSLYN TOWNSEND

Fifty-sixth Respondents

KAREN FAYE FLINKENBERG Fifty-seventh Respondent

MALCOLM DALE CALVERT Fifty-eighth Respondent

ISIO SALVATORE PUTZULU Fifty-ninth Respondent

ALICK ROYHIT LAL AND HELEN GWEN LAL

Sixtieth Respondents

COLIN CAMPBLL SMITH Sixty-first Respondent

ROSAMUND GAY KNILL, DENNIS WILLIAM KNILL AND MARK SIMON HORNABROOK

Sixty-second Respondents

LYNDA MARIE HILL AND GEORGE ARTHUR HILL

Sixty-third Respondents

PARNELL STORAGE & PARKING LIMITED

Sixty-fourth Respondent

ANZ BANK NEW ZEALAND LIMITED Sixty-fifth Respondent

WESTPAC NEW ZEALAND LIMITED Sixty-sixth Respondent

BANK OF NEW ZEALAND Sixty-seventh Respondent

ASB BANK LIMITED Sixty-eighth Respondent

…/cont

KIWIBANK LIMITED Sixty-ninth Respondent

TSB BANK LIMITED Seventieth Respondent

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED Seventy-first Respondent

MORTGAGE HOLDING TRUST COMPANY LIMITED

Seventy-second Respondent

VERO INSURANCE LIMITED Seventy-third Respondent

ROBERT MATTHEW ALLOWAY Seventy-fourth Respondent

[1]      This is an application by the Body Corporate for an order pursuant to s 74 of the Unit Titles Act 2010 settling a scheme for the repair of a residential apartment complex  in  Parnell,  Auckland  known  as  the  “Gladstone  Apartments”.     The

74 respondents comprise the owners of the 125 units, the institutions with registered mortgages over some of the units, the insurer of the building and a person who has registered a notice under the Property (Relationships Act) 1976 over two of the units.

[2]      The application and supporting affidavits have been served on all of the respondents.  No notice of opposition has been filed by any party and there was no appearance today in opposition to the application.

[3]      The Weathertight Homes Resolution Service has found that the Gladstone Apartments are not watertight; damage is occurring and continues to occur.   The Body Corporate engaged Babbage Consultants Ltd to design remedial  works to correct the defects and repair the damage which affects the units and the common property.   A scheme is required to enable the Body Corporate to raise monies in advance of the repairs so that the necessary works can be carried out in a coordinated way at the same time and to the same standard.

[4]      There are two stages to the required works.  The first stage involves repairs to the basement parking level.  These works are largely complete and are expected to cost approximately $4.14 million (inclusive of GST).  The second stage involves the works required to the residential tower.  This work has been put out to tender and the expected cost is approximately $4.841 million (inclusive of GST).   This does not include project management and building consent fees.

[5]      The Body Corporate has insufficient funds on hand to fund the stage 2 works and accordingly needs a scheme in place before these works commence.

[6]      The Body Corporate has resolved that the fairest way of allocating the cost of the  repairs  authorised  by the  scheme  is  for  owners  to  pay  for  these  repairs  in proportion to their utility interests notwithstanding that there might be more or less work required to a particular unit.  The scheme was considered at an extraordinary general meeting of the Body Corporate on 26 February 2016.  All owners present or

represented by proxy voted in favour of the scheme.  One owner, who did not attend the meeting but voted by postal ballot, opposed the proposed allocation of cost. However,  that  owner  has  not  opposed  the  present  application  for  an  order sanctioning the scheme.  It appears that there is broad support among owners for the scheme and no continuing opposition to it.

[7]      I am satisfied that the scheme is necessary, is appropriately detailed and departs from the Act and the Body Corporate Rules no more than is reasonably necessary to achieve a fair outcome between the unit owners.  I note that the scheme is in substantially the same terms as others granted by this Court in similar circumstances.  Taking into account the broad support for the scheme and the fact that there is no opposition to the application, I make an order sanctioning the scheme

in terms of the application.

M A Gilbert J