Body Corporate 201924 v Sceats

[2016] NZHC 371

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-3172 [2016] NZHC 371

UNDER

the Unit Titles Act 2010

IN THE MATTER

of an originating application for orders settling a scheme under s 74 of the Unit Titles Act 2010

BETWEEN

BODY CORPORATE 201924
First Applicant

MARK ANTHONY McGILLY Second Applicant

AND

NEVILLE WILLIAM SCEATS First Respondent

B W RENTALS LIMITED Second Respondent

MELISSA SWEE TING TAN and Others

Third to fifty-third respondents

Hearing:	7 March 2016
Counsel:	I J Stephenson and S A Jammes for applicants Appearance excused for Westpac New Zealand Ltd, the Forty Ninth Respondent No appearance for other respondents
Minute:	7 March 2016

JUDGMENT OF PALMER J

This judgment was delivered by me on 7 March 2016 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           MinterEllisonRuddWatts, Auckland

Westpac New Zealand Ltd, Auckland (K Verkerk)

Body Corporate 201924 v Sceats [2016] NZHC 371 [7 March 2016]

Summary

[1]      I order the settling of a reinstatement scheme to address weathertightness and other defects in the Mayfair Villas at 99 Mays Rd, Onehunga, Auckland, under s 74 of the Unit Titles Act 2010.

Context

[2]      The first applicant is the Body Corporate for a unit title development, the Mayfair Villas, at 99 Mays Rd, Onehunga, Auckland.   The Villas are damaged, suffering  from  defects  due  to  weathertightness  issues  as  well  as  other  building defects.

Reinstatement

[3]      The Body Corporate is a representative body and owner of the common property of the Villas.

[4]      The Ministry of Business, Innovation and Employment has approved the repair  scope  and  made  a  financial  contribution  under  the  Financial  Assistance Package at part 1A of the Weathertight Homes Resolution Services Act 2006.

[5]      The  applicants  have  applied  to  settle  a  scheme  for  reinstatement  of  the Mayfair Villas under s 74 of the Unit Titles Act 2010.  The reinstatement comprises re-cladding and re-roofing and associated works.

[6]      On or about 20 August 2015 the owners of the Mayfair Villas passed a motion approving the terms of the draft reinstatement scheme without opposition and authorising the Body Corporate to apply to the High Court to settle the scheme.

[7]      The originating application for orders to settle the proposed reinstatement scheme has been served on all 56 respondents which include the Unit owners.  On

15 February 2016 Davison J made orders in relation to service.

[8]      Counsel has not received, and is not aware of, any opposition to the scheme.

[9]      At today’s hearing Westpac, the forty ninth respondent, abided the decision of the court and sought leave to be excused attendance, which I approved.   Westpac also requests that it be served with all papers in the proceedings and reserves its right to be heard in the event any issue arises which affects it.

Decision

[10]     In accordance with the Court of Appeal’s three step process for considering

an application to settle a scheme:1

(a)       I  am  satisfied  that  the  Mayfair  Villas  have  been  damaged,  in accordance with the affidavit of Building Surveyor Stuart Wilson.

(b)I consider the proposed reinstatement scheme is appropriate in the circumstances.

(c)       I approve the terms of the scheme proposed by the applicants.

[11]     I order the settling of the scheme sought by the applicants attached to the notice of originating application.

Palmer J

1      Tisch v Body Corporate 318596 & Ors [2011] NZCA 420l, [2011] 3 NZLR 697.