Body Corporate 207812 v Singh

[2018] NZHC 1449

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-734

[2018] NZHC 1449

BETWEEN

BODY CORPORATE 207812

Applicant

AND

PRITHI PAL SINGH AND GENDO SINGH

First Respondents

Continued on next page

Hearing:	On the papers
Counsel:	J Wood for Applicant
Judgment:	18 June 2018

JUDGMENT (NO 2) OF WHATA J

This judgment was delivered by me on 18 June 2018 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

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

Solicitors:           Rainey Law, Auckland

BODY CORPORATE 207812 v SINGH [2018] NZHC 1449 [18 June 2018]

AGNES BEATRIX GEE

Second Respondent

VERA TURNER
Third Respondent

PAUL SPENCER
Fourth Respondent

JACK MACNAY AND COLLEEN ROSEMARIE MACNAY
Fifth Respondents

ROBERT STEPHEN PETTY AND LINDA ELISABETH FINDLAY

Sixth Defendants

LYN KINGSNORTH AND ROY KINGSNORTH

Seventh Respondents

MURIEL MAY TURNER
Eighth Respondent

DOUGLAS GEOFFREY

BAMFORTH, ELIEEN BAMFORTH AND SCO TRUSTEES NO 1

LIMITED
Ninth Respondents

JANET KWAI YING NICHOLLS, MARK STEVEN NICHOLLS, TINA MARIE NICHOLLS AND VIV TAMA NICHOLLS

Tenth Respondents

DARIO EDUARDO MASUTTI, SHELLY ANNE GOODFELLOW

AND VULCAN TRUSTEE CO (2012) LIMITED
Eleventh Respondents

S.T.A.R.T. INVESTING IN PROPERTIES LIMITED Twelfth Respondent

TRACEY ANN LIPPARD
Thirteenth Respondent

JANET AMANDA FORBES

Fourteenth Respondent

ROSS WILLIAM NUNN
Fifteenth Respondent

HAIQING WANG
Sixteenth Respondent

ASHINTULLY LIMITED
Seventeenth Respondent

DOUGLAS THOMAS BICKLEY

Eighteenth Respondent

PETER BARRY KIVELL AND GC TRUSTEE SERVICE LIMITED
Nineteenth Respondent

STEPHEN JOHN WALLACE
Twentieth Respondent

BRENDON LESLIE HAWORTH AND ALISON MAY HAWORTH
Twenty First Respondents

MICHAEL JOHN McGOUGAN AND McGOUGAN TRUSTEE LIMITED

Twenty Second Respondents

THOMAS IAN CURTIS DONALD AND ROBERT ALLAN DONALD

Twenty Third Respondents

JOYCE MADELINE DAVIES AND LEWIS CALLANAN TRUSTEES LIMITED

Twenty Fourth Respondents

AK INVESTMENT PROPERTIES LIMITED
Twenty Fifth Respondent

STEPHEN JOHN WHEELER, AMANDA JANE WHEELER AND MICHAEL JAMES WHEELER

Twenty Sixth Respondents

DOREEN MAY WALKER
Twenty Seventh Respondent

KEITH REGINALD INGER AND BAVAGE CHAPMAN TRUSTEES LIMITED

Twenty Eighth Respondents

SANDRA KAY HILL AND SARA KATIE DEVENIE

Twenty Ninth Respondents

JAMES DEREK MARSHALL,
PENELOPE JANE MARSHALL AND JAMES DOMINIQUE MARSHALL

Thirtieth Respondents

BRONWEN McPHERSON AND NICOLE ANN DOMETT

Thirty First Respondents

DAVID ROBERTSON BENTHAM, ROBYN MARIE BENTHAM AND SUSAN MARY KINGSTON

Thirty Second Respondents

ANN LOIS MILNER BUSSE AND CHANTEL LOUISE WRIGHT

Thirty Third Respondents

ROY SWANNACK AND MYRTLE DORA SWANNACK (DECEASED)

Thirty Fourth Respondents

MAVIS LIMBRICK
Thirty Fifth Respondent

CAROLE ANN O’LEARY AND DANIEL MICHAEL O’LEARY

Thirty Sixth Respondents

HEATHER PATRICIA HOWARTH, CHARLES ANDREW HOWARTH, PATRICIA JILL HOWARTH AND HOWARTH FAMILY TRUSTEE

COMPANY LIMITED
Thirty Seventh Respondents

GJCEE LIMITED
Thirty Eighth Respondent

JANET ELIZABETH SCRYMGEOUR, MARGARET ANN SCRYMGEOUR AND HORROCKS HAMPTON TRUSTEE COMPANY LIMITED

Thirty Ninth Respondents

MAVIS PATRICIA KING
Fortieth Respondent

STEPHEN JOHN CROSS AND IRENE MARY CROSS

Forty First Respondents

JACQUELINE MICHELLE TOBIN AND SHARON JOANNE BYRNE

Forty Second Respondents

NAM KYU CHOI AND JEONG SOON CHOI

Forty Third Respondents

ROY TERENCE HARDING AND REBECCA JANE CARE
Forty Fourth Respondents

SEOK HEON LEE

Forty Fifth Respondent

ALICE JANE YOUNG, LINDA-JEAN YOUNG AND WEBB FARRY
LIMITED
Forty Sixth Respondents

EMERALD GREEN INVESTMENTS LIMITED

Forth Seventh Respondent

MICHAEL McHARDIE BERRY AND STEPHANIE ANNE BERRY
Forty Eighth Respondents

ALLEN BRIAN McCLYMONT AND EVANGELIA McCLYMONT
Forty Ninth Respondents

ROBERT EDWARD HAMER

Fiftieth Respondent

ROSEMARIE WINIFRED WALTERS

Fifty First Respondent

CORINNE FRANCES EDGAR AND PHILIP REGINALD ANDERSON
Fifty Second Respondents

PATRICIA’S LEGACY LIMITED
Fifty Third Respondent

COLIN JOHN TILLEY, PETRINA LEE TILLEY AND JOHN M VINCENT TRUSTEE CO LIMITED

Fifty Fourth Respondents

LUCILLE BRENDA BERLAND MELDRUM
Fifty Fifth Respondent

CLARENCE ROBERT YOUNG
Fifty Sixth Respondent

VANESSA ELIZABETH SKEEN
Fifty Seventh Respondent

DIVERS R US LIMITED

Fifty Eighth Respondent

DARIO MASUTTI AND COLLEEN JUDITH MASUTTI
Fifth Ninth Respondent

GWENOLYN PAYNE
Sixtieth Respondent

JOHN McGEOCH SWAN
Sixty First Respondent

BANK OF NEW ZEALAND
Sixty Second Respondent

WESTPAC NEW ZEALAND LIMITED

Sixty Third Respondent

ANZ NEW ZEALAND LIMITED

Sixty Fourth Respondent

GUY DENBY DOMETT
Sixty Fifth Respondent

THE HONGKONG AND SHANGHAI BANKING CORPORATION

Sixty Sixth Respondent

ASB BANK LIMITED
Sixty Seventh Respondent

KIWIBANK LIMITED
Sixty Eighth Respondent

MICHAEL EDWARD WALTERS, SHIRLEY ELIZABETH WALTERS, LINDA LOUISE RYAN, MICHAEL GRANT RYAN, CHRISTINE MAY COOMBRIDGE, BRENT ALAN

COOMBRIDGE

Sixth Ninth Respondent

VERO INSURANCE LIMITED
Seventieth Respondent

[1]                 In my judgment of 13 June 2018, I made orders approving the proposed scheme, subject to confirmation that the proposed scheme was the same scheme approved at the AGM on 27 March 2018.

[2]                 It transpires that there was an amendment made to that scheme. At the time of the AGM, cl 22 read:

The Body Corporate members jointly indemnify and hold harmless the Body Corporate Chair and the members of the Body Corporate Committee for all acts and omissions done in furtherance of this scheme except in case of wilful misconduct or gross negligence.

[3]                 Subsequent to the AGM, Mr Wood became aware, through preparing for another matter, that the clause used potentially would exclude cover under a Body Corporate’s Office Bearer’s insurance. He therefore added the following to the start of cl 22 in the present scheme:

To the extent that any policy of Office Bearer’s Insurance (or other such similar insurance, however named) taken out by the Body Corporate does not respond to a claim made against the Body Corporate Chair and/or Body Corporate Committee members …

[4]                 On 19 April, this scheme with this altered clause was filed and, on receiving an endorsed copy of the originating application, the scheme with the altered clause was served on all owners (and mortgagees and insurers). The scheme prepared for sealing is identical to the one that was served.

[5]                 Mr Wood has submitted that the effect of the alteration does not increase the burden of the indemnity on the owners. I agree. For that reason and because a copy of the scheme to be approved was served on all interested parties, I am content to approve the scheme in its present draft.

[6]                 However, notwithstanding this, I have issued this judgment for completeness and to formally record the basis upon which the scheme has been approved.