Body Corporate 360683 v KFM Holdings Limited
[2017] NZHC 3075
•11 December 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-2750 [2017] NZHC 3075
UNDER the Unit Titles Act 2010 IN THE MA
TTER of an application to settle a Scheme under
Section 74 of the Unit Titlews Act 2010
BETWEEN
BODY CORPORATE 360683
ApplicantAND
KFM HOLDINGS LIMITED & ORS First Respondent
AND
IAN JAMES WALLACE Second Respondent
AND
MICHAEL JOHN DE LA CROIX AND MERVYN PAUL HUXFORD
Third Respondents
AND
PACIFIC TRUST HOLDINGS NZ LIMITED
Fourth Respondent
Hearing:
11 De
Continued overleaf…
cember 2017
Appearances: JP Wo
No ap
od for Applicants
pearances on behalf of the Respondents
Judgment: 11 De
cember 2017
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 11 December 2017 at 5.00 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
BODY CORPORATE 360683 v KFM HOLDINGS LIMITED & ORS [2017] NZHC 3075 [11 December 2017]
AND PROSPERARE INVESTMENTS
LIMITED
Fifth RespondentAND
RONALD BRUCE ARCHER AND CYNTHIA ANNE ARCHER
Sixth Respondents
AND
ALISON BAKER Seventh Respondent
AND
BRIAN FREDERICK EDWARDS Eighth Respondent
AND
RESULTS PROPERTIES LIMITED Ninth Respondent
AND
SHANE MICHAEL GOSS, KELLY MAREE FOWLER, NATALIE FRANCES BROOME AND KIRSTEN THERESE GOSS
Tenth Respondents
AND
ROGER JOHN WATSON AND JUNE WINIFRED WATSON
Eleventh Respondents
AND
DAVID ALAN LEGGOE Twelfth Respondent
AND
ALISON MARGARET HOLST AND PETER EUGENE HOLST
Thirteenth Respondents
AND
FEDERICK JAMES FELTON AND DIANE RHYS FELTON
Fourteenth Respondents
AND
BRETT WALLACE ARCHER AND PRISCILLA ANN MACINDOE Fifteenth Respondents
AND
STANDARD 320 LIMITED Sixteenth Respondent
AND
LARA NICOLE WEAVER (NEE PENNEY) AND RODD DEAKEN PENNEY
Seventeenth Respondents
AND CAROLYN MARGARET NICHOLS
AND ALFRED GORDON NICHOLS Eighteenth Respondents
AND
CLARENCE HUGH NICHOLSON Ninteenth Respondent
AND
KAREN MAY ARCUS Twentieth Respondent
AND
THOMSON TRUSTEE AUCKLAND LIMITED
Twenty-first Respondent
AND
MARY KATHLEEN SCHOLLUM Twenty-second Respondent
AND
JESSIE MIDDLEMESS GRAHAM Twenty-third Respondent
AND
JOHN GRAHAM FORSTER AND JULIE MICHELLE FERGUSON
Twenty-fourth Respondents
AND
CHERRY PATRICIA HICK, CECIL WAYNE HICK AND CAROL ANNE CAMPBELL
Twenty-fifth Respondents
AND
BRIAN JOHN CARRAN Twenty-sixth Respondent
AND
MATTHEW JOHN MCEWAN Twenty-seventh Respondent
AND
CAMPBELL JOHN TAYLOR Twenty-eighth Respondent
AND
WAIORA INVESTMENTS LIMITED Twenty-ninth Respondent
AND
ROSS & FELI INVESTMENTS LIMITED
Thirtieth Respondent
AND
BANK OF NEW ZEALAND Thirty-first Respondent
AND
ANZ BANK NEW ZEALAND LIMITED
Thirty-second Respondent AND
KIWIBANK LIMITED Thirty-third Respondent
AND
WESTPAC NEW ZEALAND LIMITED Thirty-fourth Respondent
AND
FM CUSTODIANS LIMITED Thirty-fifth Respondent
AND
DOMINION FINANCE GROUP LIMITED
Thirty-sixth Respondent
AND
B.C. MC NIECE SOLICITORS NOMINEE COMPANY LIMITED Thirty-seventh Respondent
AND
PEPPER NEW ZEALAND (CUSTODIANS) LIMITEDU Thirty-eighth Respondent
AND
CITYWIDE CAPITAL LIMITED Thirty-ninth Respondent
AND
KIM MAREE FRANCIS Fortieth Respondent
AND
CHUBB INSURANCE NEW ZEALAND LIMITED
Forty-first Respondent
[1] Body Corporate 360683 has applied for an Order under s 74 of the Unit Titles Act 2010 approving a Scheme under the Act for the carrying out of repairs to a complex known as ‘The Orewa Grand Apartments’.
[2] All of the respondents have been served and none opposes the application. [3] I accept Mr Wood’s submissions that:
(a) approval for the Scheme may be granted without a hearing;1
(b) there is no reason to delay;
(c) granting the orders will avoid the need for scheduling further Court time on a matter that is not controversial; and
(d)the Court has sufficient information to decide whether or not to grant the Scheme.
[4] Having read the comprehensive affidavit and Mr Wood’s helpful submissions
I am satisfied:
(a) The building has been destroyed or damaged.
(b)A Scheme is appropriate in the circumstances and the Court should approve the Scheme in the exercise of its discretion. The cost of remedial work is estimated to be in excess of $10 million and the Body Corporate does not have sufficient funds to meet these costs. That requires a Scheme to enable the Body Corporate to raise funds, by way of levies, in advance of the repair and to carry out the repair work on all units in unison.
(c) The terms of the proposed Scheme provide an appropriate balance for the interests of all owners.
1 Body Corporate 073471 v Dynasty Hotel Investments Limited [2013] NZHC 1127; Body
Corporate 205373 v Baltazaar [2015] NZHC 2827.
[5] Accordingly, the Court orders under s 74 of the Unit Titles Act 2010 that it approves the Scheme described in Schedule 1 attached to the Originating Application of the applicant dated 16 November 2017.
………………………………….
Toogood J
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