Body Corporate 329331 v Escrow Holdings Forty-One Limited

[2019] NZHC 2496

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-0229

[2019] NZHC 2496

IN THE MATTER

of Sections 319 and 320 of the Property Law Act 2007

AND IN THE MATTER

of an application under Part 19, Rule 19.5 High Court Rules

BETWEEN

BODY CORPORATE 329331 (IN ADMINISTRATION)

Applicant

AND

ESCROW HOLDINGS FORTY-ONE LIMITED

First respondent

KALLINA LIMITED
Second respondent

BODY CORPORATE 341188

Third respondent

Hearing:

On the papers

Counsel:

C P Browne and N J Foster for the applicant

T J Herbert for the first and second respondents T M Bates for the third respondent

Date of judgment:

2 October 2019

JUDGMENT OF JAGOSE J

The judgment was delivered by me on 2 October 2019 at 4.30pm.

Pursuant to Rule 11.5 of the High Court Rules

Solicitors/Counsel:

Wilson Harle, Auckland

T J Herbert Barrister, Auckland Legal Vision, Auckland

……………………………… Registrar/Deputy Registrar

BODY CORPORATE 329331 v ESCROW HOLDINGS FORTY-ONE LIMITED [2019] NZHC 2496 [2 October

2019]

[1]My interim judgment of 28 March 2019 concluded:1

It is just and equitable the applicant be authorised under s 320 of the Property Law Act 2007 to enter part of the respondents’ land (Lot 4, Deposited Plan 126975 in the North Auckland Land Registry), to repair the building on its land (Lot 5, Deposited Plan 126975 in the North Auckland Land Registry).

Terms and conditions for such entry required further evidential support, as indicated in that judgment.2

[2]           By joint memorandum dated 1 October 2019, a copy of which is annexed to this judgment, the parties have tendered agreed proposed conditions for entry. I am satisfied those proposed conditions provide the necessary detail for the making of an order under s 320.3

[3]           I therefore order the applicant is authorised under s 320 of the Property Law Act 2007 to enter part of the first and second respondents’ land (Lot 4, Deposited Plan 126975 in the North Auckland Land Registry), to repair the building on its land (Lot 5, Deposited Plan 126975 in the North Auckland Land Registry), on the conditions set out at the Schedule to the joint memorandum of counsel dated 1 October 2019.

[4]I reserve leave to:

(a)any party to apply for further orders as may be necessary to give effect to my order at [2], on ten working days’ notice to the other parties; and

(b)the respondents to make a claim if the applicant fails to make good any damage to the respondents’ property or to indemnify the respondents as required by clause 9 of the Schedule.

[5]By consent, there is no issue as to costs.

—Jagose J

1        Body Corporate 329331 v Escrow Holdings Forty-One Limited [2019] NZHC 600 at [41].

2 At [42].

3 At [36].

IN THE HIGH COURT OF NM zEALAND

AUCKLAND REGISTRY

I TE KÔTI MATUA 0 AOTEAROA TÄMAKI MA î£AURAU ROHE

CIV-2019-404-Zg9

IN THE MATTER OF

AND IN THE MATTER

BETWEEN

AND

AND

Sections 319 and 320 of the Property Law Act 2007

of an application under Part 19, Rule 19.5 High Court Rules

BODY CORPORATE 328331 (IN ADMINISTRATION}

Applica nt

ESCROW HOLDINGS FORTS-ONE LIMITED

First Respondent

KALLINA LIMITED

Second Respondent

 

JOINT MEN g RANDUM OF COUNSEL gEEKING ACCESS ORDERS av

CONSENT

1 OCTOBER gO18

Next event 2 October 2019 Judicial Offiœr Jagose J

Chris Brune / Natalie Foster

M*YITPLEASETHECOURT:

2.        The parties seek that:

@)    the2OcmMr20l9fieanngbevaeted

Aunsel(oriheApp!cani

Counsel for the First and Second Respondents

SCHEDULE- PROPOSEDGONDITIONS

1.APPOINTMENT OF GARY CHESTER

1Gary Chester is appointed as an indeœndent  œrson  to  oversee complia nce with thèse conditions (“Conditions")

2The appiicant is to pay Gary Chester for his time at his usual hourly rate

3II any party considers that the Conditions have been or are being breached, that party may make a written complaint to Gary Chester

4On receiving a written complaint, Gary Chester is to make any necessary investigations to determine whether the Conditions have been or are being breached

5If Gary Chester concludec that the Conditions have been or are being breached, he shall iscue a written directive requiring the party in breach to take steps to remecly the breach within a prescribed time and the oarty in breach shall comply with that directive within that time

z.       ACCESS AREA

2.1The applicant may, through its employees, agents or contractors, enter and re-enter:

The area inside the temporary fenœ line (“Fenced Area") marked on the diagram a t annexure "I“ of the affidavit of Dale Russell Sadler dated 24 May 2019 ("gadIer Aff idavit"); and

(b)      The basement carpark underneath the carparking deck at 19 Hargreaves Street (“Carpark Basement')

together the ( ‘Access Area')

for the soie purpose of carrying out remedial works ("Works") on The Ridges apartment building at 23 Hargreaves Street (“Complex")

s.       TIME AND DURATION OF ACCESS

3.The applicant may enter and re-enter the Access Area at ariy time until the completion of the Works (“Acoess Period")

3.2For the duration of the Access Period, the applicant will have the right of exclusive occupation of the Fenced Area

3.3The applicant shall allow the respondents and their agents to inspect the Fenced Area at all reasonable times and on reasonable prior written notice (except in an emergency where no notice is required) and in

comp#ance with healh and saeQ requiremerrs io ensure 1ha1 the Condlonsare be›ng omerved

3.4For the period in which the Propping is being installed in the Carpark Basement by the applicant or its agents, the applicant will have controlling occupation of the Carpark Basement

3 ö Prior to the Propping being installed, the applicant  must  give  the  respondents 1d days written notice of the dates on which the installation or removal is to occur and the carparks in the access way and Carpark

3+68-1329-9213 v 2

Basement that must be vacated during the installation or during specific parts of the installation ("Notice of Installation’ )

3.6 The parties are to confer on the times on those days that the necessary carparks in the access way and Carpark Basement will be vacated w ith the aim of minimising disruption If the  parties  cannot  agree,  either  party may request that Gary Chester makes a determination

3.7      The respondents must use reasonable endeavours to ensure that the carparks in the access way and Carpark Basement set out in the applicant’s written Notice of Installation are vacant at the times agreed between the parties or ordered by Gary Chester.

3.8 During the installation of the Propping, the applicant shaft allow the respondents and their agents to insœct the Carpark Basement at ali reasonable times and on reasonable prior notice (except in an emergency where no notiœ is required) and in compiiance with health and safety requirements to ensure that thèse Conditions are being observed.

4.MEAN g OF ACCESS

The applicant may enter the Access Area by using the vehicle entrance from the access lane to the  rear  of 19,  21  and 23  Hargreaves  Street (' Access Lane") or from 23 Hargreaves Street itself

42 When using the Access Lane, the applicant must comply with the Tra ffic Management Plan prepared by Evolution Traffic Management Limited and must not impede any existing caraarking spaces present upon or bordering the Access Lane except during the installation and removal of propping as provided for in paragraphs 3.5 to 3. 7

H 3 The applicant may not block the Acœss Lane for longer than 30 minutes without giving the respondents 1 working day s notice of its intention to do so and shall use all reasonable endeavours to ensure that such blockage occurs outside normal working hours and for the least possible duration.

s.       MATERIELS AND EQUIPMENT

5.The applicant may enter the Access Area with any vehicles, appliances, machinery, equipment or materials reasonably necessary for the purpose of carrying out the Works (Equipment) on the Complex provided that the use or presence of the Equipment in the Access Area does not breach any other of the Conditions.

6.CONDITIONS OF USE

6.  1      The appiicant shaft ensure that:

(a)           the Equipment is kept in good condition and maintained in a good and workmam ike manner consistent with best practice and with the degree of skill, care and diligence as is reasonably to be expected of a skilled, competent and properly qualified person experienced in maintaining Equipment of a similar size, scope and complexity and in full compliance with the instructions of the manufacturer and any requirements of the supplier of the Equipment;

(b)           the Equipment is regularly inspected at proper intervals by an appropriately qualified and experienced person and that any recommendation made to carry out any works or remedy any

3+68-1329-9213. v 2

defects that are necessary to put and keep the Equipment safe and in good condition are immediately carried out;

(c)           if requested by the respondents, the applicant shall supply without charge copies of any inspection reports and confirmation from the inspector that any rea mmendations have been implemented,

(d)          all proper safety precautions are taken and all lighting and safety devices in, on or relating to the Equipment function properly at all times,

(e)           the security of the respondents' property is not compromised by the Equipment and all reasonable steos are taken to ensure that the Equipment is kept secure and that all reasonable steos are taken to avoid unauthorised access to or use of the Equipment or vandalism to it; and

(f)           the Equipment (and any protection related thereto) is erected, used, dismantled and removed from the Fenced Area in a good and workmanlike manner consistent with best practice and with the degree of skill, care and diligence as is reasonably to be expected of a skilled, competent and properly qualified person experienced in erecting, dismantling and removing Equipment of a similar size, scope and complexity.

(g)           access and re-access occurs, the Works are carried out and the Equipment is utilised in accordance with the methodology set out in the Sadler Affidavit and  the  Brosnan  methodology (Annexure “A" to these conditions)  or  as  may  otherwise  Le agreed in writing between the parties If any  party  seeks  a devlation from the methodology  set  out  in  the  Sadler  Affidavit, but that deviation is not agreed to by ali parties, the party seeking the deviation may refer the matter to Gary Chester who will make a determination.

z.       PROPPING AND WEIGHT REQUIREMENTS

7.1      The applicant will install propping (“Propping™) in the Caroark Basement as in the design prepared by KCL (Annexure "B" to these conditions) or in accordance with any other design agreed by the parties (“Propping

7.2     Any party may refer a disagreement regarding the Propping Design to Gary Chester who will determine the design to Le installed as the Propping Design

73Until  the  installation  of the Propping  is complete,  the applicant  will not allow onto the deck any vehicles, appliances, machinery or Equipment that exceeds:

(a)           A uniformly distrlbuted design live load of 250 kgs/m", or

(b)           A maximum single weight of 2,500 kgs

7.4      Once installation of the Propping is complete, the applicant must limit the loads on the deck to those allowed for in the Propping Design and must comply with the restrictions on the placement of loads provided in the Propping Design

3+68-1329-9213. v 2

The respondents will not require the applicant to remove or dismantle the Propping at the completion of the Works as the resandents intend to utilise the Propping for their own purposes

8.HEALTH AND SAFETY

84 The applicant shall comply with all health and safety requirements and regulations as may be appiicaDie to the work carried out in the Access Area

82 The applicant shall comply with the Site Specific Safety Plan prepared by

Brosnan Construction

9.BODY CORPORATE'S INDEMNITY

94 The applicant must make good any damage to the respondents property

caused by the entry onto the Access Area

92The  applicant  must  r eimburse   the  resandents   in  full  for  any  costs, ex penses ar loss arising from the entry to the Access Area or from the operation of these Conditions

9.3Prior to commence ment of work in Access Area by the applicant, the applicant will (at its ow n cost) procure a written report from Solid Floors Limited as to the condition of the weathertight topping in tLie Access Area (" Dilapidation Survey™) and will provide the Dilapidation Survey to the respondents

94The applicant  wiII (at its own cost), through Brosnan Construction,  carry out inspections of the access area no less than monthly and will provide a re art to the respondents of the condition of the Access Area

9.5if dama ge to the topping of the Access Area becomes apaa rent, the applicant will refer the report to Gary Chester and wit I comply forthwith with any directions which he  gives reiating to  its protectio n or  in terim re aair

10.INSURANCE

0.Prior to the Access Period commencing and during the Access Period, the applicant shall obtain and maintain fully comprehensive public liability insurance in a sum not less than $3.000,000 far each and every eta inn arising in respect of access to the Access Area under this order and the applicant shall ensure thaI

(a)           a copy or this order has been produced to and acknowledged by the insurer,

(b)           the interest of the respo ndenls have been noted on the oolicy,

{c)

3 468-1329-9 213 2

all current premiums are paid and up to date,

the applicant complies in all respects with the terms of the insurance and does not allow that insurance to lapse and

satisfactory evidence is produced to the respondents (when reasonably requested) that the insurance is valid and subsisting and that all premiums due have been properly paid

11.     LEAUERESERUEDTO SEEKFURTMERORDERS

Leave is reserved for the parties to apply for further orders as may be necessary to give effect to this order provided that any application is made on 10 working days’ notice to the other party

Leave is reserved for the respondent to make a cial m if the applicant fails to make good any damage to the respondents prooerty or to indemnify the respondents as required by paragraph 9 above

3468-1329-9213    2

ANNEXURE A

Western Podium Temporary Propping Methodology

1          Scanning of Existing Structure

•    The existing structure is to be scanned at all connection locations.

•    The reinforcing found will be marked on the surface of the existing structure using a non-permanent marking product that can be cleaned or sanded off upon completion.

•    Once the reinforcing is marked, Brosnan, KCL, the Steel Contractor and Brown & Thompson, if they wish, can assess the connection locations against the current fixing design.

•    If the fixing locations are too congested with reinforcing the connection plates may need to be redesigned to accommodate fixings outside the congested areas.

•    Following this inspection and connection decisions, shop drawings can be progressed and the steel elements fabricated. Once we can see the impact of the existing reinforcing a decision can be made as the whether we:

a Use blank connection plates and drill them on site to miss the reinforcing.

OR

a Build connection plate templates to copy in fabrication.

2          Steel Delivery

•    The steel will be delivered on an eight-wheeler fixed deck truck at weekends (Possibly commencing on a Friday night) or as may be otherwise agreed between all affected parties.

•    Offloading will occur in one of two ways:

a The truck will have a Hiab-type truck-mounted crane which may be able to lift the steel off and place it outside the door to the basement.

OR

a If the gradient of the road is too steep for this to occur safely, a small crane will establish at the lower corner of the driveway as shown on Appendix A and offload the truck.

•    The steel will be moved from the ground in front of the basement roller shutter door into the basement area by forklift.

•    Notable other requirements for the steel delivery:

a The parking bays along the retaining wall as shown on Appendix B are required to be vacant.

a Access for public will be closed to the entire area as shown on Appendix B.

a The basement carpark will inaccessible for anyone while and until all steel is installed inside the basement in stages as described below.

a The lane behind 19 and 21 Hargreaves will be used as 2-directional traffic for the steel delivery trucks.

3          Steel Installation

•    The steel will only be installed over weekends. (From a Friday night to a Sunday night) During these weekends access to the basement carpark will not be available to be used by anyone.

•    If a certain staged area cannot be completed in a weekend, the remaining steel for this area will be moved inside and access will be available during the week to the users in the half of the basement not under construction. The steel installation will then continue the following weekend and all access will be closed again. And so on and so forth.

•    The steel will be installed using a forklift.

•    The steel will be fixed using chemical anchors on the blockwork and spatec anchors on the concrete.

•    The steel installed using chemical anchor will have to be supported while the chemical sets. We will try and use acrow props for this, but they will have to be fixed to the steel in some way. This is still not decided. Considering the ground levels are sloping acrow props may not be practical and small self-standing towers may be necessary at each of these locations.

•    The steel has for the most-part been designed to leave a gap behind where there are electrical conduits run ning along the existing structure.

•    We will shim behind and not grout.

•    The fire hose reel pipe will have to be re-routed.

•    The electrical items near the Roller Shutter door may need to be re- routed also. This will be determined upon set out.

4           Base Construction

•The construction of the bases, who is actually doing it and which base option is being constructed needs to be agreed and the details surrounding this are un known to Brosnan at this stage.

The timing around the installation will be finalised upon a go ahead, but in principal it should be able to happen in line with the programme and details previously submitted, but with a revised start date.

ANNEXURE B

ËCL

BROSNAN CONSTRUCTION

23 Hargreaves St, Auckland Temporary Propping Design

18850

ew e   d      ’+    "’     AcEMz

PRODUCER STATEMENT - PS1 — DESIGN

ISSUED BY: . . .‘. '*.!'%°.'"..*. .e- 'c-e.*-L ...............................................................

WOBESUPPLEDTO:.A’“ ’# 0"’°!........................................... ..

lwREsPECToF:I° P )?fif°PP'qQ%*éN'Ve%1e)"°Pé°°\°"°'"#W" 7'°%%•%é!#"e!• w

by;   3,§,d9'g',e,gve,S„§, g„ee,'„P  ons„o*.°.y,..^."...!.•  .^..!.°.!!...........................  .  .

. LOT..........         gp//697S

We have been engaged by the owner/developer referred to above to provide:

Temporary propping design for western car deck under heavy vehicles loading (see attached Appendix)

services in respect of the requirements of Clause(s)..  g..................................... of the Building Code for:

@ All or @ Part only (as specified in the attachment to this statement), of the proposed building work. The design carried out by us has been prepared in accordance with:

@  Compliance Documents issued by the Ministry of Business. Innovation & Employment.     .!.; .............................................. or

Alternative solution as per the attached schedule.... . ..... .

The proposed buildIng work covered by this producer statement 1s described on the drawings titled:

(i Si‘te verification of th'e foIIowing'des gn ssumptions .G643.insgectian.required.... .

(ii) All proprietary products meeting their performance specification requirements;

'             ” ” ” ”    (Na     ”of Design P+ fe   'onat)”  "   ”  "” ” " ”          ,         “        “ ”

J am a member or: @s Eng sneering New zealand Q NziA and fraid the ioiiowing quaiifications: ... .....!'!!'.............ñ.'.............................................................................................................................................. ,

T     D  sgg   ’”’     '     ' e'    !              ' ' current policy of Professional Indemnity Insurance nO less than $200 OOO'. SIGNED BY. .“ "./. "' ..................................................................(Signature)... .

eeing

CL     Eergnce

In Respect oI

Tempor ypr0ppIngdesgnéran exisingcardeskunde heavyvehisle

PRODUCER                Exclusions

STATEMENT APPENDIX

B 2 Compliance

Document List

SP-01 rev A SK  02  rev B

SK*04 rev A SK-05 rev A SK 06 rev A SK-07 rev B SK 08 rev B SK-O9 rev A