Body Corporate 202546 v ASB Bank Limited

[2018] NZHC 3162

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2010-404-4834

[2018] NZHC 3162

BETWEEN

BODY CORPORATE 202546

Applicant

AND

ASB BANK LIMITED

First Respondent

EARL BUNTING
Second Respondent

BANK OF NEW ZEALAND
Third Respondent

ANZ NATIONAL BANK LIMITED
Fourth Respondent

KIWIBANK LIMITED
Fifth Respondent

THE HONG KONG AND SHANGHAI BANKING CORPORATION LIMITED

Sixth Respondent

Hearing:	On the papers
Counsel:	V J Toan for Applicant
Judgment:	4 December 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 4 December 2018 at 4.00 pm,

pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Glaister Ennor, Auckland

BODY CORPORATE 202546 v ASB BANK LIMITED AND OTHERS [2018] NZHC 3162 [4 December 2018]

[1]    I have before me an application, pursuant to s 74 of the Unit Titles Act 2010 and s 48 of the Unit Titles Act 1972, to discharge a reinstatement scheme approved by this Court on 30 May 2011. The application is supported by an affidavit of Warren Ben Bray. He confirms that he is an elected member of the Body Corporate Committee for Body Corporate 202546. He confirms that in 2010, the Body Corporate applied to the High Court for an order establishing a reinstatement scheme under s 48 of the Unit Titles Act to facilitate repairs of the building on DP 202546.

[2]    He says notice of the Body Corporate’s application to establish a reinstatement scheme was served on the Registrar General of Land in accordance with s 48(3) of the Unit Title Act 1972 and registered on the Supplementary Record Sheet (SRS) for the unit title development (SRS NA131B/586) on 9 August 2010.

[3]    The reinstatement scheme he says was established on 30 May 2011. The building works required to reinstate the buildings were carried out between 2010 and 2015.  Mr Bray notes that the Body Corporate did not address its obligations under  cl 22 of the reinstatement scheme until its Annual General Meeting (AGM) in 2018. The Body Corporate overlooked the need to make a formal application to the High Court and Land Information New Zealand to bring the scheme to an end.

[4]    Notice of the 2018 AGM and an agenda for the meeting was sent to all owners at their preferred address for service on 1 August 2018. The agenda included a motion regarding the completion of the remedial works project and a termination of the reinstatement scheme.

[5]    The AGM was held on 16 August 2018. Out of the 41 units in the development, the owners of 20 units were present or represented by proxy at the meeting and the owners of four units made postal votes (49 per cent of all units were present or represented at the meeting).

[6]    All 20 units who were represented in person, by proxy, or by postal vote at the AGM voted in favour of the motion that a notice of the reinstatement scheme be removed from the SRS for the unit title development.

[7]    For completeness, Mr Bray notes that cl 22 of the reinstatement scheme refers to “Unit Plan 198072”. This was a typographical error.

[8]    Given the foregoing, I am content to make the orders as sought by the applicant Body Corporate.