Body Corporate 338356 v Jee
[2017] NZHC 1861
•7 August 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2017-404-000186 [2017] NZHC 1861
BETWEEN BODY CORPORATE 338356
Applicant
AND
YUNG CHUN JEE AND JIN AE JUNG
& ORS
First RespondentsASB BANK LTD Second Respondents
PEPPER NEW ZEALAND (CUSTODIANS) LTD Third Respondents
WESTPAC NEW ZEALAND LTD Fourth Respondent
ANZ BANK NEW ZEALAND LTD Fifth Respondent
PROPERTY EQUITY FINANCE LTD Sixth Respondent
cont:…/2
Hearing: 7 August 2017 Appearances:
C Baker for the Applicant
Minute:
7 August 2017
JUDGMENT OF PALMER J
This judgment is delivered by me on 7 August 2017 at 1.30pm pursuant to r 11.5 of the High Court Rules.
Solicitors:
..................................................... Registrar / Deputy Registrar
Price Baker Berridge, Auckland
BODY CORPORATE 338356 v JEE AND JUNG & ORS [2017] NZHC 1861 [7 August 2017]
…/2
NEW ZEALAND FINANCE AND INVESTMENT SERVICES PTY LIMITED
Seventh Respondent
BANK OF NEW ZEALAND Eighth Respondent
CHRISTINE MARY MCGILL Ninth Respondent
Summary
[1] The Body Corporate of 76 units at the St Paul’s Apartments, at 4 St Paul Street in Auckland, has applied to settle a reinstatement scheme of repairs under the Unit Title Act 2010. It has had difficulty serving all the respondents. The Body Corporate is keen to have the scheme settled in order to get on with the repairs. I approve the scheme and direct that my order lie in Court until five working days after the filing of the affidavit of service on two remaining respondents.
Service
[2] Service has not been fully effected on three of the respondents.
[3] On 12 June 2017 Brewer J made an order for substituted service on Ms Pei- Ching Lin by way of email and service at 22 Harper Street, Chatswood, North Shore, Auckland. An affidavit by Ms Monique MacGregor of 14 July 2017 exhibits an email response from Ms Lin on 28 June 2017 which indicates Ms Lin received the emailed documentation. However, 22 Harper Street is vacant and service there cannot be effected. I revoke the requirement for personal service at 22 Harper Street. Service has been effected on Ms Lin.
[4] Service of Ms Yi-Ping Chen has been unsuccessfully attempted at 4 St Paul Street, Auckland. An affidavit by Ms Mia Gray of 11 July 2017 indicates the Body Corporate Secretary provided details of the agent managing the property, Ms Tracey Boyle of Barfoot and Thompson. Ms Boyle advised Ms Gray she is in contact with Ms Chen who currently resides in China and indicated she would be willing to accept service on her behalf and forward the documents to Ms Chen. Initially Mr Baker, for the Body Corporate, asked me to dispense with service of Ms Chen. At the hearing he offered, as an alternative, substituted service on Ms Boyle. I agree that is justified. I direct, under r 6.8 of the High Court Rules 2016, instead of service on Ms Chen personally, service on Ms Boyle along with a request that she forward the documents to Ms Chen and advise Ms Chen urgently that, if she does not agree with the proposed scheme, she needs to advise the Court and the Body Corporate as soon as possible and no later than five working days.
[5] I have seen a copy of an affidavit of service on Mr Robert Tawhi indicating he was served in the outback of the Northern Territory of Australia on 17 July 2017. An original of the affidavit of service has not yet been received by counsel.
Scheme
[6] Mr Baker requested that I settle the scheme, pursuant to the Body Corporate’s application and his submissions of 4 August 2017. He submitted my order to that effect should lie in Court until the filing of the affidavit of service on Mr Robert Tawhi and Ms Yi-Ping Chen, following the approach of Courtney J in Body
Corporate 312605 v Slow Roasted Lamb Ltd.1
[7] I am satisfied this is an appropriate approach in these circumstances. All but Ms Chen have now been served. There is no indication of any opposition to the proposed scheme. It is in the interests of the Body Corporate and all those affected by the repairs to get on with the scheme. Ms Chen’s interests will be protected by my order lying in Court until five working days after the filing of the affidavit of service.
[8] The Court of Appeal has set out a three-step process for considering an application to settle such a scheme.2 In accordance with those steps:
(a) I am satisfied the St Paul’s apartments have been damaged, in accordance with the affidavit evidence of Mr Keith Rankine, a building surveyor.
(b)I consider the proposed reinstatement scheme is appropriate in the circumstances. The evidence of Mr Douglas Wilson indicates it has broad support. It is sufficiently detailed, has appropriate effect and the work will be carried out under a single building contract.
(c) I approve the terms of the scheme as proposed by the applicants, to be departed from no more than is reasonably necessary.
1 Body Corporate 312605 & Anor v Slow Roasted Lamb Ltd & Ors [2012] NZHC 905.
2 Tisch v Body Corporate 318596 & Ors [2011] NZCA 420, [2011] 3 NZLR 679 at [35].
Result
[9] In relation to service:
(a) I revoke the requirement for service on Ms Pei-Ching Lin at 22
Harper Street, Chatswood, North Shore, Auckland; and
(b)I direct, instead of service on Ms Yi-Ping Chen personally, service be effected on Ms Tracey Boyle of Barfoot and Thompson along with a request that she forward the documents to Ms Chen and advise Ms Chen urgently that, if she does not agree with the proposed scheme, she needs to advise the Court and the Body Corporate as soon as possible and no later than five working days.
[10] I also order the settling of the scheme of reinstatement sought by the applicants. I direct my order is to lie in Court until five working days after the filing of the later of the affidavits of service on Ms Yi-Ping Chen and Mr Robert Tawhi.
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Palmer J
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