Body Corporate 379933 v Form Property Group Limited (in liq)

[2015] NZHC 3087

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2015-404-002868

[2015] NZHC 3087

UNDER

the Property Law Act 2007

BETWEEN

BODY CORPORATE 379933 AND GRAFTON ROAD LIMITED

Applicants

AND

FORM PROPERTY GROUP LIMITED (IN LIQ)

Respondent

Hearing:	[On the Papers]
Counsel:	S A Grant for the Applicants
Judgment:	7 December 2015

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 7 December 2015 at 3.45 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BODY CORPORATE 379933 and GRAFTON ROAD LTD v FORM PROPERTY GROUP LTD (IN LIQ) [2015]

NZHC 3087 [7 December 2015]

Counsel:     S A Grant, Auckland

Solicitors:    Turner Hopkins (B P Hopkins). Auckland

Introduction

[1]    The applicants seek leave under r 19.5 of the High Court Rules to commence this proceeding by way of originating application under part 19 of the High Court Rules. Directions as to service in the event leave is granted are also sought. The application is made on a without notice basis.

Background

[2]    The applicants seek orders pursuant to ss 323 and 325 of the Property Law Act 2007 for the removal of an extension of unit 3B5 which encroaches into an accessory unit and common property. The unit is one of a number in a commercial unit title property at 160 Grafton Road, Auckland.

[3]    The first named applicant is the Body Corporate for the building and the owner of the common property. The second named applicant (Grafton Road Ltd) is a tenant in common in relation to the accessory unit.

[4]    The respondent, Form Property Group Ltd (in liq), is the owner of the unit. It was placed into liquidation on 12 February 2015. The liquidators have provided their written consent to the commencement of the proceeding pursuant to s 248(1)(c)(i) of the Companies Act 1993.

Relevant principles

[5]    Rule 19.2 lists a number of applications which must be brought by originating application. These include applications under specified provisions of the Property Law Act 2007. Section 323 is not one of the listed sections.

[6]    Rule 19.5 of the High Court Rules permits the Court to allow an application to be commenced under part 19 if it is in the interests of justice to do so.

[7]    In Hong Kong and Shanghai Banking Corp v Erceg, Justice Asher reviewed a number of cases granting leave and observed the following:1

[25] These cases show that the type of proceeding suited to the originating application procedure is a straightforward application, not requiring detailed pleadings or interlocutory orders for its fair resolution. Such a type of proceeding tends to be an application under a specific statutory provision, where the issue that arises can be clearly defined, and the issues confined. The procedure is not well suited to the determination of substantive rights involving the application of common law doctrines as distinct from statutory tests. It is not well suited to cases involving multiple parties, and cases where there is the possibility of cross-claims or counterclaims.

Decision

[8]    The application in this case is under a specific statutory provision. The issue is relatively confined being whether or not the encroachment should be removed. It is not anticipated that there will be any dispute about the evidence in this case. The basic facts (ownership of property, the unit plan, the placement of walls) may be readily established by affidavit evidence. At this stage there appears to be no need for particularised pleadings. Nor is there likely to be any need for discovery, with the key documents able to be annexed to affidavit evidence.

[9]    On this basis I am satisfied that it is in the interests of justice to proceed by way of originating application in the particular circumstances of this case.

[10]   Directions as to service and the allocation of a timetabling conference are also sought. The application will be served on all other owners and occupiers in the Body Corporate, together with the Auckland Council. A direction is sought that only the mortgagees of the unit at issue (unit 3B5) be served. The applicants say that service on the other mortgagees of the units is not necessary given that the only effect of the order sought will be to increase the security the subject of the mortgage.

[11]I am satisfied that these directions are appropriate in the circumstances.

1      Hong Kong and Shanghai Banking Corp v Erceg (2010) 20 PRNZ 652 (HC) at [25].

Result

[12]I make the following orders:

(a)Leave is granted pursuant to r 19.5 of the High Court Rules to permit the proceeding to be commenced by way of originating application;

(b)The applicants are directed to serve the originating application and supporting affidavit evidence on:

(i)all other owners and occupiers of the unit title property at    160 Grafton Road, Auckland; and

(ii)The Auckland Council.

(c)The applicants shall serve the mortgagees of unit 3B5, but are otherwise relieved from serving all other mortgagees of the other units.

(d)The application shall be listed for a telephone conference at the first available date in 2016.

Edwards J