Body Corporate 205373 v Baltazaar

[2015] NZHC 2827

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2494 [2015] NZHC 2827

UNDER

the Unit Titles Act 2010 and Part 19 of the

High Court Rules

BETWEEN

BODY CORPORATE 205373
Applicant

AND

JONATHAN BALTAZAAR First Respondent

AND

YUANG ZHUANG AND ZHAOYU MENG

Second Respondents

AND

GEOFFREY ROSS NOWELL AND TOMOTHY JOHN GOULDING Third Respondents

Hearing:	12 November 2015
Appearances:	JP Wood for the Applicant No appearance on behalf of the Respondents
Judgment:	12 November 2015

ORAL JUDGMENT OF THOMAS J

Solicitors:

Rainey Law, Auckland.

BODY CORPORATE 205373 v BALTAZAAR  & ORS[2015] NZHC 2827 [12 November 2015]

AND

CANDIDA CHERIE DOEL

Fourth Respondent

AND

RAAM VENKATESH PARANJPE AND SUSHAMA RAAM PARANJPE

Fifth Respondents

AND

B W RENTALS LIMITED Sixth Respondent

AND

CELINO MEDINA ORQUEJO, SUZETTE ORQUEJO AND JOSEPH CARLO DICTADO ORQUEJO Seventh Respondents

AND

MONIKA RAAM PARANJPE AND RAAM VENKATESH PARANJPE Eighth Respondents

AND

MICHAEL ARTHUR HERN Ninth Respondent

AND

JOON LOONG YONG Tenth Respondent

AND

ANNE VALERIE HOLLINGER AND ANDREW BUSH

Eleventh Respondents

AND

MARK DAVID ROLTON Twelfth Respondent

AND

JOHN EDWARD HASSELL Thirteenth Respondent

AND

PHILLIP KENDALL SHEPHERD AND NICHOLAS JERED BRUELLMAN Fourteenth Respondents

AND

PETER BOSCO FERNANDES AND FIEL MICHAELA D'SOUZA Fifteenth Respondents

AND

SUSAN D'LIMA AND STEVE D'LIMA Sixteenth Respondents

AND

WESTPAC NEW ZEALAND LMITED Seventeenth Respondent

AND

ANZ BANK NEW ZEALAND LIMITED

Eighteenth Respondent

AND

ASB BANK LIMITED Nineteenth Respondent

AND

BANK OF NEW ZEALAND Twentieth Respondent

AND

PETER RONALD HOLLINGER AND MICHELLE ANN HOLLINGER Twenty-First Respondent

AND

ACE INSURANCE LIMITED Twenty-Second Respondent

[1]      The applicant is the Body Corporate of a 20 unit complex at 103 Mays Road, Onehunga.  It applies for  an order under s 74 of the Unit Titles Act 2010 (the Act) to settle a Scheme of repair.

[2]      The Body Corporate has served all those with an interest in the units and the insurers of the building.

[3]      No opposition to the application has been filed and the applicant did not expect any such opposition.  The Scheme was approved unanimously by a vote of 17 of 20 unit owners at an Extraordinary General Meeting on 24 September 2015.  One unit owner sent apologies but did not vote. The first and second respondents own the two remaining units. They neither sent apologies nor voted.

[4]      In those circumstances the applicant seeks orders today.

Analysis

[5]      I am satisfied from the affidavit evidence that the complex clearly needs repair and the matter should be dealt with some expedition.

[6]      In order for the Court to approve the Scheme the applicant needs to show that it is necessary, and I am satisfied that indeed it is; that the discretion to grant the Scheme should be exercised and that the content of the Scheme balances the interests of all the owners.

[7]      There are five factors for the Court to consider as the Court of Appeal has mandated in the decision of Tisch v Body Corporate No. 318596.1  They are:

(a)       a Scheme with broad support is preferred;

(b)      the Scheme is to be appropriately detailed;

1      Tisch v Body Corporate No. 318596 [2011] NZLR 679 (CA) at [36] - [44].

(c)      the order can have retrospective effect, as long as the Body Corporate has  acted  in  accordance  with  the  Scheme  prior  to  the  Court’s approval;

(d)normally work is to be done to the same standard and at the same time; and

(e)      the terms of the Scheme are not to depart from the Act and the Body Corporate Rules any more than reasonably necessary to achieve fairness between unit holders in the circumstances.

[8]      I am satisfied that all five of those requirements have been met.   I have already referred to the support for the Scheme which was evident at the EGM.  As indicated, I have considered the Scheme and I am satisfied it has the level of detail necessary and is in substantially similar terms as schemes which have been approved by this Court on prior occasions.  I am also satisfied that the Scheme has taken into

account comments made in recent judgments of this Court.2

[9]        I am also satisfied as to the basis of the funding to be raised in connection with the Scheme and of the standard of repair.  Furthermore, the Scheme departs no more than necessary from the Act and Body Corporate Rules. There is nothing in the Scheme which suggests to me that the interests of any unit holder or mortgagee are adversely affected.

[10]     For those reasons the application is granted and the Scheme is approved.

Thomas J

2      Body Corporate 183930 v Chua [205] NZHC 2122; Body Corporate 201036 v Westpac Banking

Corporation [2015] NZHC 1955.