Body Corporate 329331 (The Ridge) v Baddley
[2025] NZHC 580
•20 March 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV2024-404-2027
[2025] NZHC 580
UNDER the Unit Titles Act 2010 and Property Law Act 2007 IN THE MATTER
of an application for cancellation of a Unit Plan
AND
IN THE MATTER
of an application for orders for the sale of the base land
BETWEEN
BODY CORPORATE 329331 (THE RIDGE)
First Applicant
Continued …
AND
REX ALLEN BADDLEY, PATRICIA
ELIZABETH HALT AND THE OWNERS IN SCHEDULE ONE
First Respondents
Continued …
Hearing: On the papers Appearances:
T J Rainey for the Applicants
No appearance by or for the Respondents
Judgment:
20 March 2025
JUDGMENT OF GAULT J
This judgment was delivered by me on 20 March 2025 at 11:30 am pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
BODY CORPORATE 329331 (THE RIDGE) v BADDLEY [2025] NZHC 580 [20 March 2025]
Continued …
BETWEEN STEPHEN CLIVE HAYDEN
Second Applicant
AND
WESTPAC NEW ZEALAND LIMITED
Second RespondentASB BANK LIMITED
Third RespondentDELFIN SECURITIES LIMITED
Fourth Respondent
ANZ BANK NEW ZEALAND LIMITED
Fifth RespondentDAVID JOHN MCFARLANE, TIMOTHY JOHN BIRCHER, STEPHANIE
ELIZABETH DOUGLAS BANKS and TIMOTHY JOHN BIRCHER
Sixth Respondents
[1] This Originating Application for Orders Cancelling the Unit Plan for Body Corporate 329331, Modifying Easements, and for the Sale of the Base Land dated 6 November 2024 concerns a 33-unit residential apartment complex at 23 Hargreaves Street, St Mary’s Bay, Auckland known as the Ridge Apartments. The applicant is the Body Corporate.
[2] Following service of the originating application, there was no opposition. Once the applicants’ submissions were filed following first call of the application in the Duty Judge list, I indicated that I would deal with the application on the papers.
Factual background
[3] The building that is now Ridge Apartments was originally an office block. It was converted into apartments in the late 1990s. The redevelopment was unsuccessful. The Ridge Apartments building was assessed as leaky and required extensive remedial work.
[4] Those defects prompted the Body Corporate to apply to the Court for an order establishing a scheme for the repair of the defects and damage under s 48 of the Unit Titles Act 2010 (UTA). On 3 February 2010, the Court approved the scheme which authorised the Body Corporate to carry out the remedial works required to the building (the Scheme).
[5]In December 2010, Auckland City Council issued a notice to rectify defects.
[6] Between 2010 and 2015, the Body Corporate and owners pursued legal claims against those involved in the design, construction and certification of the Ridge Apartments to recover the anticipated cost of the remedial work.
[7] In 2015, the Body Corporate engaged consultants to assist with preparing plans and specifications for the remedial work and completed a tender process for the proposed repairs.
[8] In 2018, the Body Corporate obtained a building consent for the remedial work and contracted Brosnan Construction Ltd to carry out the remedial work in accordance with the plans and specifications approved by the Council.
[9] Before the remedial work could begin, one of the unit owners (201 Ltd) applied to the High Court for an injunction to stop the proposed remediation work. That application was heard by Hinton J in April 2018 resulting in a decision on 8 May 2018 which dismissed the application for an injunction.1
[10] The internal dynamics within the Body Corporate changed between May 2018 and August 2018. In that period, several of the units in the Ridge Apartments changed hands so that the minority owners who had made the application for an injunction became the majority ownership group within the Body Corporate. The new majority intended to cancel the contract with Brosnan Construction Ltd and redesign the remedial work to save costs.
[11] To pre-empt that decision, the owners of one of the units who had previously been in the majority made an application to the High Court to appoint an administrator to take control of the Body Corporate. That application was granted by Clark J on an interim basis on 6 September 2018.2 The Court appointed an Administrator to the Body Corporate because the Court was satisfied that the Body Corporate was unable to commence the remedial work required under the Scheme because it had become dysfunctional.
[12] The decision to appoint the Administrator and to proceed with the remedial work under the contract with Brosnan Construction Ltd was reaffirmed in a decision by Lang J dated 9 January 2019.3 As Lang J concluded:
[42] If the remedial work is halted at this point, there can realistically be no guarantee when it will begin or at what cost. Furthermore, it would obviously be a major blow to the unit owners if they abandoned the Brosnan contract now only to discover in a years time that remedial work was still some way off and that the true costs of the Prendos proposal were significantly greater than they had been led to believe.
1 201 Ltd v Body Corporate 329331 [2018] NZHC 1933.
2 May v Body Corporate 329331 [2018] NZHC 2337.
3 May v Body Corporate 329331 [2019] NZHC 3.
[43] These factors lead me to conclude that, on the material presently available, implementation of the Brosnan contract appears to offer the only realistic prospect of the Body Corporate being able to complete the repairs within a timeframe that will enable it to meet its obligation under the scheme to carry out the remedial works as expeditiously as practical.
[13] The remedial work commenced but it transpired that it was not possible for it to proceed. During the remedial work, additional defects were discovered resulting in a significant increase in the cost of the remedial work, which proved to be beyond the ability of the Administrator to fund from levies on the unit owners.
[14] Thus, the Administrator was unable to complete the remedial work from the levies which were paid by unit owners. Several unit owners in the complex did not pay levies raised by the Administrator to fund the remedial work. The Administrator was unable to meet the cost of repairs as they fell due. The remedial work was suspended in or around May 2020. The Administrator attempted to raise additional levies; however, it became clear that the Body Corporate had insufficient funds.
[15] The construction contract with Brosnan Construction Ltd was subsequently terminated in June 2020 and the property made secure. When the contract was terminated, the building had been deconstructed such that it was essentially a shell and unable to be used for any purpose.
[16] Upon termination of the construction contract, there was a significant disparity in the payments that units had made towards the work, with some having made no payment, some having paid a proportion of their levies, and others having paid all levies.
[17] In 2022, the Administrator applied to the Court for orders to discharge the Scheme for the repair of the complex and to terminate the administration because the Administrator was satisfied that although the remedial work had not been completed it was impossible to proceed with the remedial work given the financial position of the Body Corporate and unit owners. The Court was satisfied that the purpose for the appointment (completion of the works authorised by the Scheme) could no longer be completed. The Court was satisfied that it was appropriate to make the orders sought and discharged the Scheme and ended the administration.
[18] There is no prospect that the building will be repaired by the Body Corporate. The Body Corporate has exhausted all alternatives and can no longer fulfil its statutory duties under the UTA.
[19] After the end of the administration, the owners commissioned the Home Owners and Buyers Association of New Zealand Inc. (HOBANZ) to carry out a project review to determine whether there was any viable option to repair the building. HOBANZ’s conclusion was that the only viable option available to the owners was to sell the property in its current condition as reinstatement of the 33 apartments in the building was likely to cost more than $30 million and it was unlikely that the owners would be able to fund the remedial project.
[20] The owners held an Extraordinary General Meeting (EGM) on 14 February 2023 to consider a resolution to apply to the High Court for orders for the cancellation of the unit plan and subsequent sale of the base land. The resolution was approved unanimously by those unit owners entitled to vote at the meeting and had the support of most unit owners, including those unit owners who had not paid levies and were therefore not entitled to vote.
[21] In accordance with the resolutions passed at the meeting, the Body Corporate marketed the property for sale through Bayley’s Real Estate. After an extensive marketing campaign, the Body Corporate received three offers for the purchase of the base land. The Body Corporate resolved to accept a conditional offer from Solomon Holdings Ltd which was subject to due diligence and other conditions.
[22] The Body Corporate later agreed to enter into a “backup” agreement with Coastline Investments Ltd and to give notice of cancellation of the first agreement for non-satisfaction of the due diligence condition within the timeframes provided for in the first agreement. The position at the time of the application was that the Body Corporate has a conditional agreement with Coastline Investments Ltd. The due diligence condition had been satisfied so that the only remaining condition is the Court making orders for the cancellation of the unit plan and preserving the Right-of-Way easement recorded on the Unit Plan. Although the agreed date for Court orders has
passed, counsel advised that the purchaser has indicated the agreement might be revived if the orders are made soon.
[23] Division of the proceeds of any sale would need to be adjusted given the differing investments in the construction.
[24] The Body Corporate and majority of owners seek orders to facilitate the only way for the unit owners to realise the residual value in the units and common property.
[25] They also seek to preserve the benefit of an easement in favour of the principal units. The easement provides access across the common property of the neighbouring unit at 21 Hargreaves Street to allow occupants of the Ridge Apartments to access the basement level of the building at 23 Hargreaves Street.
Orders sought
[26]The originating application seeks the following orders:
(a)An Order by declaration under s 188(2) of the Unit Titles Act 2010 authorising the cancellation of Unit Plan 329331.
(b)An Order under s 188(3)(c) of the Unit Titles Act 2010 extinguishing any registered mortgages and any principal units in Body Corporate 329331 (but, for the avoidance of doubt, such extinguishment shall not discharge any liability that the persons listed in Schedule 1 to this Application may have to the mortgagees under any loan agreement).
(c)A direction under s 189(5)(aa) of the Unit Titles Act 2010 that the application to the Registrar to cancel the unit plan does not need to be accompanied by a certificate from a registered valuer showing the ownership interests and proposed ownership interests (if any) reassess for all units in the unit title development.
(d)An Order by declaration under s 188(2) of the Unit Titles Act 2010 dissolving Body Corporate 329331 upon completion of the sale of the base land and the distribution of the proceeds of the sale of the base land in accordance with the Orders set out below.
(e)An Order under s 317 of the Property Law Act 2007, modifying the following easements benefiting the principal units on Unit Plan 329331 so that the dominant tenement is the base land being Lot 3, DP 121257 as provided for in Schedule 2 to this Order:
(i)Right of Way Easement created by Easement Instrument 8105910.6.
(ii)Right of Way Easement created by Easement Instrument 8105910.9.
(f)An Order under s 339(1)(a) of the Property Law Act 2007 for the sale of the base land for Unit Plan 329331 being on the following terms and conditions:
(i)The sale of the base land is to be conducted by Body Corporate 329331 which is appointed as agent for the co-owners of the base land being the persons listed in Schedule 1 to this Order for the purpose of:
(1) Retaining lawyers and sale agents for the purpose of marketing the base land for sale.
(2) Ratifying the agreement for the sale of the base land with Coastline Investments Limited dated 23 May 2024.
(3) Executing a transfer and such other documents required to complete the sale of the base land as required by the terms of the agreement for the sale and purchase of the base land
entered by Body Corporate 329331 pursuant to Order (2) above.
(4) Accounting to the Owners and their (former) mortgagees for the proceeds of sale of the base land less all costs incurred by Body Corporate 329331 in obtaining the Orders and in completing the sale and transfer of the Base Land including the costs of the sales agent, lawyer’s fees (including disbursements) and any rates or other charges to be cleared to complete the sale and transfer.
(g)An Order that the net proceeds of the sale of the base land after payment of the costs in order (f)(4) shall be held for the benefit of the co-owners of the base land and mortgagees in a solicitor’s trust account (on interest bearing deposit) pending distribution under this Order or further order of the Court.
(h)An Order for the division of the net proceeds of the sale of the base land and the distribution of the assets of the Body Corporate as summarised in Schedule 3 as follows:
(i)First, an allocation to refund owners who paid the ordinary levies imposed at the Annual General Meetings on 6 September 2022 and 6 December 2023 for the amount paid, in accordance with the resolutions passed at the 7 June 2023 EGM and the 6 December 2023 AGM as particularised in Schedule 3 column F.
(ii)Second, an allocation to the owners of the 13 units who paid Special Levy 9, allocate the amount necessary to refund Special Levy 9 payments in full as particularised in Schedule 3 column G.
(iii)Third, the balance of the net proceeds is to be allocated to all units based on their respective Ownership Interest as particularised in Schedule 3 column H.
(iv)From the allocations to each unit in subparagraph (iii) above the following deductions are to be made:
(1) Deduct all unpaid ordinary levies and charges adjusted to allow for the levy repayments in subparagraph (i) above, and funds held in the body corporate operating fund as particularised in Schedule 3 column I.
(2) Deduct outstanding remedial levies and charges adjusted for the repayment of Special Levy 9 provided for in subparagraph (ii) above and deposit in the body corporate operating fund as particularised in Schedule 3 column J subject to the following:
A.If insufficient funds are available to pay the outstanding remedial levies and charges in full, apply the deduction to the available funds.
B.If the remedial account is in credit, add the credit amount to the sale proceeds allocated to the unit.
(v)Then allocate the balance in the body corporate operating fund after all creditors have been paid, to the units that have no outstanding levies following the allocation of sale proceeds, in proportion to the rateable ownership interest of only those units as particularised in Schedule 3 column N.
(vi)The Final Distribution (subject to adjustment if the net amount received or the final creditors are different from the amount
allowed) is as particularised in Schedule 3 columns L, M, N and O.
(“the Final Distribution”)
(i)The Body Corporate shall pay the Final Distribution to the co-owners of the base land being the persons listed in Schedule 1 to this Application as follows:
(i)For each of the persons listed in Schedule 1 to this Order where there is a mortgagee listed in Schedule 1, the payment of share each former unit owner(s) is entitled to from the Final Distribution shall be made:
(1) To the mortgagee listed in Schedule 1 to repay any amounts owing by the relevant owner(s) under their loan agreements with the mortgagee; and
(2) Once the amounts owing to the mortgagee have been satisfied, the balance of the Final Distribution (if any) payable to each former unit owner or owner(s) shall be paid to the former owner(s) listed in Schedule 1 for each unit.
(ii)For the avoidance of doubt, the payment of funds by the Body Corporate under Order (i)(i)(1) above:
(1) Shall discharge all claims that the mortgagee(s) may have against the Body Corporate or in relation to the Final Distribution; and
(2) Shall not discharge any liability that the persons listed in Schedule 1 to this Order may have to the mortgagee(s) under any loan agreement.
(iii)For each of the owners listed in Schedule 1 to this Order where there is no mortgagee, the payment of share each former unit owner(s) is entitled to from the Final Distribution shall be made to the unit owner(s).
(j)Leave is reserved for any party to apply for any further Orders or directions necessary to give effect to Orders (a) to (i) above.
Issues
[27] For the Body Corporate, Mr Rainey’s helpful submissions indicate that the issues arising are:
(a)Whether the Body Corporate has established, under s 188 of the UTA, that it is just and equitable to order that the unit plan be cancelled, having regard to the rights and interests of all affected parties.
(b)If such an order is made, whether the Body Corporate has established that it is appropriate to make an order for the sale of the base land under s 339 of the Property Law Act 2007 and, if so, the terms of that order.
(c)If such an order is made, whether the Body Corporate has established that it is just and equitable to make an order modifying the easements benefiting the principal units on unit plan 329331, so that the dominant tenement is the base land being Lot 3, DP 121257 under s 317 of the Property Law Act 2007.
Applicable legal principles
[28] These issues cover three areas of law – cancellation of the unit plan, division of property and modification of easements.
Cancellation of the unit plan
[29] A unit titles plan can be cancelled through application to the High Court under the UTA. The application is made under s 187. The relevant matters to be considered are provided for in s 188, which provides:
188 Cancellation of unit plan by High Court
(1)The persons described in paragraphs (a) to (f) of section 187(2) have the right to appear and be heard.
(2)The High Court may authorise that the unit plan be cancelled if—
(a)the High Court is satisfied that it is just and equitable that the body corporate be dissolved and the plan cancelled having regard to—
(i)the rights and interests of any creditor of the body corporate; and
(ii)the rights and interests of every person who has any interest in any unit or in the base land or in any part of the base land; and
(b)no principal unit in the unit title development to which the plan relates contains a subsidiary unit title development.
(3)If the High Court makes a declaration authorising the cancellation of a unit plan under subsection (2), the High Court may by order impose any conditions and give any directions as it thinks fit, for the purpose of giving effect to the declaration, including—
(a)directions for the payment of money by or to the body corporate; or
(b)the distribution of the assets of the body corporate; or
(c)a direction to modify or extinguish, in whole or in part, any registered interest or caveat or notice of claim entered on the register in relation to any unit, the common property, or the base land.
(4)The High Court may, at any time before the unit plan is cancelled under section 189, vary or modify the terms of any declaration or order made by it under this section.
(5)The High Court may make any order for payment of costs as it thinks fit.
[30] Thus, in terms of s 188(2), the Court may authorise the cancellation of a unit plan if it is satisfied it is just and equitable that the Body Corporate be dissolved and the plan cancelled, having regard to the rights and interests of the creditors of the Body Corporate and the rights and interests of every person having an interest in a unit or the base land. The phrase “just and equitable” means equitable justice, the justice of the individual case. All matters relevant to the rights and interests of creditors or interest holders must be considered. And, importantly, the evaluation must be conducted with proper regard to the scheme and purpose of the Act.4
Division of Property
[31] When a unit plan is cancelled, the unit owners become co-owners of the land in shares proportional to their ownership interests. If all co-owners agree, they may sell the land. Where agreement is not obtained from all co-owners, one or more of the co-owners may have recourse to s 339 of the Property Law Act to seek orders for the sale of the land. That section relevantly provides:
339 Court may order division of property
(1) A court may make, in respect of property owned by co-owners, an order—
(a)for the sale of the property and the division of the proceeds among the co-owners; or
(b)for the division of the property in kind among the co-owners; or
(c)requiring one or more co-owners to purchase the share in the property of one or more other co-owners at a fair and reasonable price.
[32]The relevant considerations are provided for in s 342(1):
342 Relevant considerations
(1)A court considering whether to make an order under s 339(1) (and any related order under s 339(4)) must have regard to the following
(a)the extent of the share in the property of any co-owner by whom, or in respect of whose estate or interest, the application for the order is made:
4 Lake Hayes Property Holdings Ltd v Petherbridge [2014] NZHC 1673, (2014) 15 NZCPR 590 at [48]. See also World Vision of New Zealand Trust Board v Seal [2004] 1 NZLR 673 (HC).
(b)the nature and location of the property:
(c)the number of other co-owners and the extent of their shares:
(d)the hardship that would be caused to the applicant by the refusal of the order, in comparison with the hardship that would be caused to any other person by the making of the order:
(e)the value of any contribution made by any co-owner to the cost of improvement to, or the maintenance of, the property:
(f)any other matters the court considers relevant.
[33] Making an order under s 339 involves a broad discretion, limited by s 339(1), but beyond that turning on whatever factor appears to the Court to be relevant when the broad range of factors in s 342 and the broad powers in s 343 are considered.5
Modification of easements
[34] Section 317 of the Property Law Act provides for the modification of easements:
317 Court may modify or extinguish easement or covenant
(1)On an application (made or served in accordance with section 316) for an order under this section, a court may, by order, modify or extinguish (wholly or in part) the easement or covenant to which the application relates (the easement or covenant) if satisfied that—
(a)the easement or covenant ought to be modified or extinguished (wholly or in part) because of a change since its creation in all or any of the following:
(i)the nature or extent of the use being made of the benefit land, the burdened land, or both:
(ii)the character of the neighbourhood:
(iii)any other circumstances the court considers relevant; or
…
(d) the proposed modification or extinguishment will not substantially injure any person entitled; or
…
5 Bayly v Hicks [2012] NZCA 589, [2013] 2 NZLR 401 at [27] and [33].
(2)An order under this section modifying or extinguishing the easement or covenant may require any person who made an application for the order to pay to any person specified in the order reasonable compensation as determined by the court.
[35] The Supreme Court in Synlait Milk Ltd v New Zealand Industrial Park Ltd confirmed the two-stage approach to the exercise of the court’s discretion: the court must first determine whether one or more grounds in s 317(1) are made out; and, if so, whether the discretion to extinguish or modify should be exercised.6
Analysis
[36] Given the circumstances which resulted in the Administrator applying for and obtaining orders to discharge the Scheme and to discharge his appointment, I accept that the Body Corporate is effectively defunct. The Body Corporate is unable to perform its obligation under s 138 of the UTA to repair and maintain all building elements that relate to or serve more than one unit. The building has been deconstructed and is now no more than a shell. It cannot be used for any purpose by the owners of the principal units. No unit owner has suggested any alternative to the cancellation of the unit plan and sale of the base land. All unit owners eligible to vote support the application to cancel the unit plan and no unit owner has suggested any other viable option. I am satisfied that it is just and equitable to cancel the unit plan.
[37] I turn to whether it is appropriate to order that the land be sold having regard to the relevant factors in s 342 of the Property Law Act. The purpose for which the unit owners acquired the units has come to an end, with the building no longer fit for that purpose. Sale of the land under the conditional agreement for sale and purchase is supported by all unit owners entitled to vote. It is supported by a substantial majority of all unit owners irrespective of their entitlement to vote. No unit owner has suggested any other viable option which would lead to the repair of the building and its restoration to a condition which would allow it to be occupied. No one has opposed the application. The only owner who initially indicated objection to the application was Mr Hudson, who has made an offer to purchase the base land at a significantly discounted price below that which would be realised from the sale to the current
6 Synlait Milk Ltd v New Zealand Industrial Park Ltd [2020] NZSC 157, [2020] 1 NZLR 657 at [67].
purchaser. But Mr Hudson did not file a notice of opposition. No one has identified any relevant hardship that would arise from the proposed order for the sale of the land. Rather, hardship would be caused if the order is refused. Sale should occur. The proposed order for the sale will benefit all unit owners to realise the residual value in the land. There is no other option which would allow unit owners (or mortgagees) to realise the residual value in the property. I am satisfied that it is appropriate to make an order for the sale of the base land.
[38] As to the terms of the order for sale, in the ordinary course it would be expected that the proceeds of sale would be distributed to unit owners (and their respective mortgagees) in proportion to the ownership interests in the Body Corporate. As Mr Rainey submits, the complicating factor in this case is that the remedial project undertaken by the Administrator has created a situation where there is a significant disparity in the position of each unit owner, having regard to the contributions made by owners to the remedial costs incurred by the Administrator on their behalf.
[39] Some unit owners paid all levies raised by the Administrator. Others paid some of the levies, but not all. Some unit owners paid hardly any levies. The result is that to equalise the position of all unit owners any distribution would need to reflect the payments made towards the costs incurred in carrying out the remediation project by the Administrator. Even though the total levies paid for the repair of the building pursuant to the Scheme (approximately $13.8 million) well exceed the return from the sale of the base land, and indeed are insufficient to equalise the contributions made by the owners who have paid levies with those who have not, the Body Corporate has prepared a schedule distributing the net proceeds from the sale of the base land in accordance with resolutions which have been passed by the owners. The intent of the distribution is as follows:
(a)To enable the Body Corporate to meet its immediate obligations following the end of the administration, the Body Corporate raised additional levies on all unit owners. Given the dire financial position following the failed remedial project, it was unlikely any owner would choose to pay additional levies at that point. To incentivise owners (and the mortgagees) to pay those levies, it was agreed that those levies
would be refunded from the sale proceeds at meetings held on 7 June 2023 and 6 December 2023. The proposed distribution honours that commitment and refunds those levies.
(b)The next item is the final special levy raised for the remedial project (Special Levy 9). This levy was not used in full and has partially been refunded at the end of the administration. The owners have agreed that the balance of the levy should be refunded in full.
(c)The next step in the process is to deduct unpaid ordinary and remedial levies and charges from the balance of the sale proceeds allocated to units in proportion to ownership interest. In most cases this is sufficient to recover all unpaid levies and charges, but there are some units where there will still be insufficient funds to meet outstanding levies.
(d)With the balance of funds, the approach taken in the schedule is to exclude those units who have outstanding unpaid levies from the distribution of the residual balance as those distributions will be insufficient to clear outstanding levies and result in a further nominal recovery and redistribution.
[40] The proposed distribution was approved by owners at an EGM held on 18 October 2024. The proposed distribution received the unanimous approval of owners, and no owner (or mortgagee) has objected.
[41] Acknowledging the financial disaster for the owners, I am satisfied that the proposed distribution is just and equitable.
[42] Finally, I turn to the easements. This issue is addressed in the helpful expert evidence of Mr Barker. As he explains, the purpose of the application is to modify the existing easements currently benefiting the principal units on unit plan 329331 so that the benefitted land is the base land being Lot 5, DP 126975 which will have a new record of title issued following cancellation of the unit plan.
[43]The relevant easements are:
(a)Right-of-Way easement created by easement instrument 8105910.6; and
(b)Right-of-Way easement created by easement instrument 8105910.9.
[44] As Mr Barker explains, the easements were a necessary part of subdivision of the land of which the base land to the Body Corporate forms part. As development of 21 Hargreaves Street became more intensive, there were replacement easements in favour of the individual titles issued following deposit of the unit plan, noting they would lapse on cancellation. This was standard LINZ practice at the time of registration of the unit plan under the Unit Titles Act 1972. As Mr Barker explains, there is no prejudice to the other properties affected by the easements. In substance, the right-of-way will continue to exist irrespective of whether the modification is made albeit that the owner of the base land following cancellation will not benefit from the easements.
[45] All interested parties including all parties affected by the right-of-way easements have been served. None have taken any steps.
[46] In these circumstances, I am satisfied that in relation to the two easements the grounds in s 317(1)(a)(iii) and (d) are made out and that the easements should be modified in the exercise of my discretion.
Conclusion
Accordingly, I am satisfied that orders should be made in the terms sought.
Result
[48]I make orders as sought in terms of [26] above.
Gault J
Solicitors / Counsel:
Mr T J Rainey, Barrister, Auckland
Ms D Marsden (applicants’ instructing solicitor), Alexander Dorrington, Auckland
SCHEDULE 1
| 2E & AU 3 | 119921 | .Iohn Charles De.icon mind M.irgaret hI.try Deacon | IVes l° *C NZ Limited | 315 |
| 2F & AU 2 | 119922 | 204 Limited | Delfin Securities Limited | 320 |
| 2G & AU 1 | 119923 | 203 Limited | Delfin Securities Limited | 320 |
| 2H & AU 31 | 119924 | 202 Limited | Delfin Securities Limited | lGS |
| 2I & AU 32 | 119925 | 201 Limited | Delfin Securities Limited | 174 |
| 3A & A\J 12 | 18772 | George Ch.irles Hallid.iy mind Brenda XI.try Hallid.iy | 383 | |
| 3B & AU 19- 20 | 119927 | 307 Limited | ANZ N.itioii.il B.ink Limited | 39T |
| 3C & AU 11 | 119928 | 30G Limited | Delfin Securities Limited | 291 |
| 3D & AU 10 | 11992.9 | .ICBeez Limited | 320 | |
| 3E & AU 9 | 119930 | H & P Prolaerties Limited | ASB Bank Limited | 324 |
| 3F & AU 8 | 119931 | H & P Prolaerties Limited | ASB Bank Limited | 324 |
| 3G & A\J 33 | 119932 | Ridge 302 Limited | Delfin Securities Limited | 173 |
| 3H & AU 28 | 1700G | Denis O1egos’ich Z.iitses’ mind .I.igod.i .Iezowsl‹.i | 181 | |
| 4A & AU 16 | 195358 | Lind.i Anne Andrews | 403 | |
| 4B & AU 17 | 11993 | Angus Stir.irt Oglivie and Fion.i Plane M.ithieson | The N.itioii.il B.ink ct’NZ Limited/ANZ N.itioii.il Bank Limited | 2.97 |
| 4C & AU 35 | 158303 | Big Picture Ins’estinents Limited | ANZ N.itioii.il B.ink Limited | 319 |
| 4D & AU 15 | 1953SG | 40a Limited | D.is’id John XlcFarlane, Timothy Sohn Burcher, Stephanie Elizalaeth Douglas Banks sind Timothy Sohn Burcher in s1i.ires | 3T7 |
| 4E & AU 14 | 1953S 7 | 404 Limited | Deltin Securities Limited | 3T7 |
| 4F & AU 21 | 11993S | 403 Limited | D.is’id .Iohn hIcFarlane, Timothy .Iohn Burcher, Stephanie Elizalaeth Douglas Banks cind Timotliy .Iohn Burcher in s1i.ires | 388 |
| 4G & AU 24 | 1953SS | Noinack Group Limited | ANZ N.itioii.il B.ink Limited | 354 |
| 4I & AU 40- 41 | 119942 | Meakins Trustee Co Limited | IVestla.ie NZ Limited | 384 |
| Total Ownership Interest | 10000 | |||
SCHEDULE 2
SCHEDULE 3 – PART 1
SCHEDULE 3 – PART 2
0
5
1