Body Corporate 204299 v Whyte

[2021] NZHC 1942

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-002314

[2021] NZHC 1942

UNDER

The Unit Titles Act 2010

IN THE MATTER OF

an originating application for orders establishing a Scheme under s 74 of the Unit Titles Act 2010

BETWEEN

BODY CORPORATE 204299

First Applicant

IAN WALTER SAYER and DORIS SAYER
Second Applicants

AND

JEREMY KANE WHYTE & ORS

First and Subsequent Respondents

On the papers:
Judgment:	29 July 2021

JUDGMENT OF HINTON J

[Re: Orders]

This judgment was delivered by me on Thursday, 29 July 2021 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Pidgeon Law, Auckland.

Katerina Wendt, Richmond Chambers, Auckland.

BODY CORPORATE 204299 v WHYTE & ORS [2021] NZHC 1942 [29 July 2021]

[1]    Body Corporate 204299 applies for an order discharging a scheme for the reinstatement of the buildings comprising the unit and common property at Greenwich Park in Auckland (the Scheme).  I made an order settling the scheme on  2 September 2016 pursuant to s 74 of the Unit Titles Act 2010 (the Act) and I made a further order amending the Scheme by consent on 27 January 2017.

[2]    The application is made on the grounds that the remediation project is now complete. The Scheme sets out the following discharge steps:

12COMPLETION OF REINSTATEMENT PROJECT

12.1Completion of Reinstatement Project: The Reinstatement Project shall be deemed to be completed on the issue of all New Code Compliance Certificates for the Repairs by the Building Consent Authority

12.2Order Settling the Scheme: The order settling this Scheme shall be discharged upon the completion of the Reinstatement Project by the Body Corporate giving written notice to the Court and all parties affected by the Scheme that the Reinstatement Project is complete. The Body Corporate shall give written notice by filing a memorandum in the Court to that effect, attaching a copy of all New Code of Compliance Certificates and serving copies on all parties to the Scheme.

12.3Discharge notice: On receipt of notice from the Court that the order settling this Scheme has been discharged, the Body Corporate shall forward a copy of the Court’s discharge notice to the District Land Registrar.

[3]    Anna Song, the Body Corporate’s manager, has filed an affidavit confirming that the Reinstatement Project is complete and that Certificates of Code Compliance have been issued in respect of the works. Ms Song also confirms that, pursuant to clause 12.2, notice of completion of the project and intention to request a discharge of the Scheme has been sent to all parties affected by the Scheme on 3 November 2020 by their preferred method of contact.

[4]    In her affidavit, Ms Thornber, chambers manager of Richmond Chambers, confirms effecting service by courier on 16 November 2020 to the insurer for the development, and all current mortgagees of the units in the development, notifying them of completion of the Reinstatement Project and of the intention to request a discharge of the Scheme.

[5]    All of the notices issued to the affected parties requested that any objection to the application be directed to Ms Song. Ms Song confirms that at time of filing the application, 10 December 2020, she had received no objection to a discharge of the Scheme.

[6]    Rule 7.24(1) of the High Court Rules 2016 states that any respondent who intends to oppose an application must serve a notice of opposition on every other party before the end of the tenth working day after being served with the application.

[7]    I am satisfied by the contents of the affidavits that all affected parties were served with notice of the intent to request a discharge of the Scheme. The time for filing notices of opposition has expired and I am satisfied that no notices of opposition have been filed by any of the respondents.

[8]    I am satisfied that it is appropriate for me to grant the application. Accordingly, pursuant to s 74(8) of the Act, I make an order discharging the Reinstatement Project Scheme established on 2 September 2016 and amended and resettled on 27 January 2017.

Hinton J