Body Corporate 340942 v Packwood

[2018] NZHC 649

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-3083

[2018] NZHC 649

UNDER

the Unit Titles Act 2010

IN THE MATTER

of an Application for Orders Establishing a Scheme under Sedtion 74 of the Unit Titles Act 2010

BETWEEN

BODY CORPORATE 340942

First Applicant

JANICE CHRISTINE JOHNSON
Second Applicant

AND

ELWYN MAVIS PACKWOOD

First Respondent

cont …/2

Hearing:	11 April 2018
Appearances:	D R Bigio QC and T L Utama for the Applicants No Appearance for the Respondents
Judgment:	11 April 2018

ORAL JUDGMENT OF PALMER J

Counsel/Solicitors:

D R Bigio QC, Auckland Anthony Harper, Auckland

BODY CORPORATE 340942 v PACKWOOD & ORS [2018] NZHC 649 [11 April 2018]

ANDREW SHAUN HOLDING, SANDRA HOLDING AND JENNIFER EDITH

ROSWELL
Second Respondents

DEREK GEORGE BOWMAN, JEAN BOWMAN, AND BRUCE CYRIL MCNIECE

Third Respondents

CHRISTINE LEE CARR AND DEBORAH ANNE EVANS

Fourth Respondents

JOHN SAMUEL RUDD AND GREEN VALLEY TRUSTEES LIMITED

Fifth Respondent

DOROTHY MARIA ESADNI, HECTOR ADOLF JOHN DOMINIC EDADNI,

CHRISTOPHER PAUL CARUANA, JOSEPH THOMAS CARUANA, AND PAULINE JOSEPHINE CARUANA

Sixth Respondents

GREGORY MURRAY AND LYNNE MURRAY

Seventh Respondents

PATCHAYA RAMMANIYA
Eighth Respondents

H W H HOLDINGS LTD
Ninth Respondent

TRAMS INVESTMENTS LIMITED
Tenth Respondent

RONALD WALTER STROUD AND BARBARA MERCY STROUD

Eleventh Respondents

KEVIN REEVES BROWNE, JUDITH LYNETTE BROWNE AND CHD

TRUSTEES NO. 9 LIMITED

Twelfth Respondents

ANN JANE SMITH AND BLB TRUSTEES LIMITED

Thirteenth Respondents

LESLIE ROY BROWN, MABEL DOROTHY BROWN AND JANICE CHRISTIAN JOHNSON

Fourteenth Respondents

CATHERINE GRACE BOOTH AND DILYS BOOTH

Fifteenth Respondents

STEWART DAVID JOHNS AND KAREN MARGARET JONES

Sixteenth Respondents

ELSIE EDGINTON, RONNIE EGINTON AND DAVID ANDREW EDGINTON

Seventeenth Respondents

CLIFFORD SEYMOUR WHITELAW AND WILLIAM FRANCES MCENTEE

(as Executors)

Eighteenth Respondents

BEVERLY DENISE BANKS,

LAWRENCE JOHN BANKS AND ANDREW OWEN THOMAS

Nineteenth Respondents

LLOMA ZARA BRIDGENS
Twentieth Respondent

LYLE JOHN MCILRAITH, WALTER HUGH KETTELWELL AND MALCOLM EVERARD TAYLOR

Twenty-First Respondent

GRANT ALEXANDR DRINKROW AND KAREN CHRISTINE DRINKROW
Twenty-Second Respondents

ASB BANK LIMITED
Twenty-Third Respondents

BANK OF NEW ZEALAND
Twenty-Fourth Respondents

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED

Twenty-Fifth Respondents

CHUBB INSURANCE NEW ZEALAND LIMITED (ORION INSURANCE)

Twenty-Sixth Respondent

[1]    Body Corporate 340942 and Ms Janice Johnson apply under s 74 of the Unit Titles Act 2010 to settle a reinstatement scheme of repairs of the Body Corporate’s buildings at 12 Selwyn Road, Howick, Auckland. The buildings have suffered water damage compromising their structural integrity and the health and safety of the occupants. The scheme is attached to the application as Schedule 2. The application is supported by an extensive affidavit of Ms Johnson. At an extraordinary general meeting of 14 November 2016, 21 owners present voted in favour of it, one against and there was one abstention.  All owners present at an annual general meeting on    7 February 2017 voted in favour of the proposal. The application and affidavit have been served on all respondents. No opposition has been filed and no one appeared in opposition today, or at any previous call.

[2]    The Court of Appeal has set out a three-step process for considering an application to settle such a scheme.1 In accordance with those steps, and on the basis of the application and affidavit:

(a)I am satisfied the buildings have been damaged.

(b)I consider the proposed reinstatement scheme is appropriate in the circumstances. It has broad support, is sufficiently detailed and has appropriate effect.

(c)I approve the terms of the scheme as proposed by the applicants, including the allocation of cost which I consider fair. The terms depart from the Act and from the body corporate rules no more than is reasonably necessary.

[3]I order the settling of the scheme of reinstatement sought by the applicants.

………………………….

Palmer J

1      Tisch v Body Corporate 318596 [2011] NZCA 420, [2011] 3 NZLR 679 at [35].