Body Corporate 204299 v Whyte

[2016] NZHC 2083

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-002314 [2016] NZHC 2083

BETWEEN

BODY CORPORATE 204299

First Applicant

IAN WALTER SAYER and

DORIS SAYER Second Applicants

AND

JEREMY KANE WHYTE AND OTHERS First and Subsequent Respondents

On the papers
Judgment:	2 September 2016

JUDGMENT (NO. 2) OF HINTON J

This judgment was delivered by me on 2 September 2016 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

……………………………………………………………………

Registrar/Deputy Registrar

Counsel/Solicitors:

J Heatlie and J M Wood, Rainey Law, Auckland
D Bigio QC, Auckland

L Fry-Irvine, Pidgeon Law, Auckland

BODY CORPORATE 204299 v WHYTE AND OTHERS [2016] NZHC 2083 [2 September 2016]

[1]      The Greenwich Park Body Corporate is wishing to settle a scheme of repair under s 74 of the Unit Titles Act 2010.

[2]      In  my  judgment  of  31  May  2016,  I  declined  to  approve  the  scheme promulgated by the applicants (the applicants’ initial scheme).

[3]      The respondents had promoted an alternative scheme, which was attached as schedule C to a joint memorandum of counsel filed on 30 March 2016.

[4]      By consent memorandum dated 16 August 2016, counsel advise that  the applicants and respondents have agreed to the respondents’ scheme being adopted, but with the deletion of clause 10.2.  The final agreed scheme, which was attached to the 16 August 2016 consent memorandum, is attached as Schedule One to this judgment.

[5]      I declined to approve the applicants’ initial scheme, as it departed from the Act and rules more than was reasonably necessary to achieve what is fair between unit owners, and therefore did not comply with s 74. The departure from the Act was the treatment of 20 common property walls as unit property.

[6]      I noted that the applicants’ initial scheme otherwise qualified for approval

under s 74.

[7]      Counsel  now  jointly  submit  that  the  scheme  attached  as  Schedule  One satisfies s 74, as it treats the 20 common property walls as common property, not unit property, and this is reflected in RCAP percentages in schedule 2 of the agreed scheme.   In calculating the repair cost estimates for all individual units, the total repair costs for the 20 common property walls have been allocated across all units in the complex, using utility interests.  This addresses the deficiency in the applicants’ initial scheme.

[8]      I agree that the scheme now submitted satisfies s 74 and therefore make an order settling a scheme for the reinstatement of the buildings comprising the unit property and common property in Body Corporate No. 204299, pursuant to s 74 of

the Unit Titles Act 2010, the terms of which scheme are set out in Schedule One to this judgment.

[9]      I note that the issue of costs has been resolved between the parties, so no further order is required in that regard.

------------------------------------------------------ Hinton  J