Body Corporate 207812 v Singh - [2018] NZHC 1402

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-734

[2018] NZHC 1402

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:

13 June 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 13 June 2018 at 4.00 pm, 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 1402 [13 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

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: [2018] NZHC 1402
Decision Date: 13 June 2018

CaseChat Overview and Summary

The High Court of New Zealand was asked to approve a repair scheme proposed by the Body Corporate for the Bay Palms Apartment complex, which had systemic weathertightness deficiencies. The Body Corporate sought orders to implement a scheme for repairs, which had been assessed by the Weathertight Homes Resolution Service and found to be necessary to address the building's issues. The application was supported by affidavits from the Chair of the Body Corporate and a building surveyor, who confirmed the presence of the identified defects and the sufficiency of the proposed repairs. The application was not opposed by any of the respondents, who were mostly unit owners, mortgagees, and the insurer of the building.

The legal issue before the court was whether the proposed repair scheme complied with the requirements set out in section 74 of the Unit Titles Act 2010. The court considered the principles established by the Court of Appeal in Tisch, which stated that a scheme with broad support is preferable, it should be appropriately detailed, it may be retrospective, the work should be done to the same standard and at the same time across the complex, and the terms of the scheme should not deviate from the Unit Titles Act and the Body Corporate rules more than necessary.

The court found that the proposed repair scheme appropriately addressed all the matters outlined in the Tisch principles. All but two of the owners had endorsed the scheme at a recent Annual General Meeting (AGM), and the scheme was sufficiently detailed to enable the repairs to be undertaken in accordance with the Act. The court granted the application and ordered the approval of the repair scheme sought by the Body Corporate, provided that the applicants confirmed that the scheme tabled at the March AGM was the same as the one submitted for approval. The court noted that the scheme was substantially similar to the schemes approved by the High Court in previous cases.

In summary, the High Court approved the Body Corporate's proposed repair scheme for the Bay Palms Apartment complex, taking into account the principles established in Tisch and the specific circumstances of the case. The court's decision was based on the broad support for the scheme, its appropriate level of detail, and its compliance with the requirements set out in the Unit Titles Act. The court's approval of the scheme will allow the necessary repairs to be carried out, addressing the systemic weathertightness deficiencies in the building and ensuring the long-term stability and safety of the complex.

Orders