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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 2827
Decision Date: 12 November 2015

CaseChat Overview and Summary

Body Corporate 205373 is the applicant in a proceeding under the Unit Titles Act 2010, seeking approval for a Scheme of repair for a 20-unit complex at 103 Mays Road, Onehunga. The applicant has served all those with an interest in the units and the insurers of the building. The first and second respondents, who own two of the units, did not vote at an Extraordinary General Meeting where the Scheme was approved by 17 of 20 unit owners. The applicant seeks orders to approve the Scheme. The legal issues before the Court were whether the Scheme was necessary and whether it balanced the interests of all the owners. The Court considered five factors mandated by the Court of Appeal in Tisch v Body Corporate No. 318596. The Court was satisfied that the Scheme had broad support, was appropriately detailed, could have retrospective effect, and that the work would be done to the same standard and at the same time. The Court was also satisfied that the Scheme did not depart from the Act and Body Corporate Rules more than reasonably necessary to achieve fairness between unit holders. For these reasons, the Court approved the Scheme and granted the applicant's application.

Orders