Body Corporate 201181 v Gwendra Properties Limited

[2013] NZHC 3296

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3592 [2013] NZHC 3296

UNDER  The Unit Titles Act 2010

IN THE MATTER             of an originating application for orders establishing a scheme under Section 74 of the Unit Titles Act 2010

BETWEEN  BODY CORPORATE 201181

Applicant

AND  GWENDRA PROPERTIES LIMITED and

OTHERS Respondents

Hearing:                   10 December 2013

Appearances:           B Vautier for Applicant

No appearance on behalf of the Respondents

Judgment:                10 December 2013

ORAL JUDGMENT OF TOOGOOD J

BODY CORPORATE 201181 v GWENDRA PROPERTIES LIMITED and OTHERS [2013] NZHC 3296 [10

December 2013]

[1]      This is an originating application to establish a scheme under s 74 of the Unit Titles Act 2010 (“the Act”) to manage the redevelopment of a leaky building owned by the applicant Body Corporate 201181 (“the Body Corporate”).

[2]      At a general meeting on 16 July 2013, the Body Corporate resolved to apply to the High Court for orders establishing a reinstatement scheme under s 74 of the Act in accordance with a draft scheme circulated to owners prior to, and discussed and approved at, the meeting.   The approval was subject to an apportionment of remedial costs.

[3]      First, consultants’ costs, including legal and other costs associated with the s 74 proceedings, and Council costs were to be apportioned between all owners in shares equivalent to their utility interests.   Second, construction and construction insurance costs were to be apportioned between owners on a block by block or building by building basis in shares equivalent to their utility interests on a pro rata basis.

[4]      Following the issuing of proceedings, all respondents were served personally or by substituted service.  No respondent has filed any opposition to the application or taken any other step in the proceeding.

[5]      The 22nd and 36th respondents have sold their interests and they are struck out as parties accordingly.  The respective purchasers of those units need to be joined and I order that Kim Schuster and Ben Ah Tong be joined as 48th  respondents; and Peerbhai Holdings Limited be joined as 49th  respondent.   Further service on the added parties is dispensed with.

[6]      It is unnecessary for me to traverse the facts.  I am grateful to Mr Vautier for his comprehensive summary of the factual and legal position, which I accept.  I am satisfied that the buildings have suffered damage; that the remedial work described is necessary; and that the draft scheme represents a fair and reasonable response to the need  to  redevelop  and  reinstate.      I am  further  satisfied  that  the  scheme  deals equitably with the incidence of the cost of repairs and associated costs, and that it

makes a fair apportionment of the costs between individual unit holders and in relation to common areas.

[7]      Applying the relevant authorities,1  I make an order in terms of the draft orders provided at Tab 5 of the applicant’s bundle of documents, subject to necessary amendments to reflect the changes in parties.

[8]      There being no opposition to the application, costs will fall on the applicant.

........................................

Toogood J

1      Tisch v Body Corporate 318596 [2011] 3 NZLR 679 (CA); Body Corporate 205963 v Becker HC Auckland CIV-2009-404-617, 21 April 2010; St John’s College Trust Board v Body Corporate 197230 [2012] NZHC 827; St John’s College Trust Board v Body Corporate 197230 (2013) 14 NZCPR 56   (CA); Berachan Investments Ltd v Body Corporate 164205 [2012] 3

NZLR 72 (CA).