Body Corporate 366567 v Yang

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2377

[2022] NZHC 2240

BETWEEN

BODY CORPORATE 366567

Applicant

AND

NAN YANG & THE PERSONS LISTED IN SCHEDULE 1

First Respondents

ANZ BANK NEW ZEALAND LIMITED
Second Respondent

ASB BANK LIMITED
Third Respondent

BANK OF NEW ZEALAND LIMITED
Fourth Respondent

Continued over

Hearing:	19 August 2022
Appearances:	N Prachankhet for Applicant
Judgment:	2 September 2022

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 2 September 2022 at 4.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Grimshaw & Co, Auckland

BODY CORPORATE 366567 v YANG [2022] NZHC 2240 [2 September 2022]

AND

GORE STREET HOLDINGS LIMITED (REMOVED FROM THE COMPANIES REGISTER)

Fifth Respondent

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
Sixth Respondent

KIWIBANK LIMITED

Seventh Respondent

MORTGAGE HOLDING TRUST COMPANY LIMITED
Eighth Respondent

WESTPAC NEW ZEALAND LIMITED
Ninth Respondent

AIG INSURANCE NEW ZEALAND LIMITED
Tenth Respondent

STANDARD CHARTERED BANK LIMITED

Eleventh Respondent

LLOYDS BANK PLC LIMITED
Twelfth Respondent

OCBC WING HANG BANK LIMITED
Thirteenth Respondent

OVERSEAS-CHINESE BANKING CORPORATION LIMITED
Fourteenth Respondent

DSB BANK (HONG KONG) LIMITED
Fifteenth Respondent

JUN LIANG

Sixteenth Respondent

Introduction

[1]                 By originating application dated 15 December 2021, and pursuant to s 74(2) Unit Titles Act 2010 (“Act”), Body Corporate 366567 (“BC 366567”) applies for an order settling a scheme of repair following destruction or damage (“scheme”). The terms of the scheme are annexed marked Schedule A to the application.

Facts

[2]                 BC 366567 is the body corporate of a large (378 unit) unit title development situated in Central Auckland.

[3]                 The respondents to the application are the unit owners, their mortgagees or charge holders, and AIG, which is the insurer of BC 366567. Service on all those the Act requires be served has been effected or dispensed with by order of the Court. The required information has also been lodged with Land Information New Zealand. None of these parties has expressed opposition to the scheme or the making of the order sought.

[4]                 The significant deficiencies and defects in the development are identified in an affidavit of Mr T Jones, sworn on 11 December 2021. Mr Jones is a chartered and registered building surveyor. In his affidavit, Mr Jones also identifies the scope of the extensive remedial works required.

[5]                 At an Extraordinary General Meeting (“EGM”) on 22 November 2021, a unanimous resolution was passed that BC 366567 would apply to this Court for an order settling the scheme.

Relevant law

[6]                 The principles to be applied in determining an application under s 74 are well established in cases such as Tisch v Body Corporate No 318596.1 Although Tisch was decided before the Act came into force, it continues to apply.2

1      Tisch v Body Corporate No 318596 [2011] NZCA 420, [2011] 3 NZLR 679.

2      Body Corporate 114424 v LV Trust Holdings Ltd [2014] NZCA 21 at [27]; and Gu v Body Corporate…