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 jonathan.wood@raineylaw.co.nz

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 1827
Decision Date: 8 August 2016

CaseChat Overview and Summary

The case of Body Corporate 201161 v Keung and others involves an application by the Body Corporate for an order under section 74 of the Unit Titles Act 2010, to establish a scheme for the repair of the Gladstone Apartments in Parnell, Auckland. The Body Corporate seeks to address watertightness issues and repair damage to the residential apartment complex. The respondents include the owners of the 125 units, institutions with registered mortgages, the building insurer, and others with an interest in the property.

The primary legal issue before the court was whether to sanction the proposed scheme, which aimed to allocate repair costs among unit owners in proportion to their utility interests. The Body Corporate had insufficient funds to cover the stage 2 works, which involved repairs to the residential tower and were estimated to cost approximately $4.841 million (inclusive of GST). The scheme had been approved by all owners present or represented at an extraordinary general meeting on 26 February 2016, with only one owner opposing the allocation of costs. However, this owner did not oppose the current application.

The court determined that the scheme was necessary, detailed appropriately, and deviated from the Act and the Body Corporate Rules no more than was reasonably required to achieve a fair outcome. The court noted that the scheme was consistent with similar orders granted in comparable circumstances and took into account the broad support for the scheme among the owners and the absence of any opposition to the application. Consequently, the court made an order sanctioning the scheme as requested by the Body Corporate.

Orders