Body Corporate 384684 v Constable
[2024] NZHC 1259
•22 May 2024
| IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE |
| CIV-2024-404-863 [2024] NZHC 1259 |
| UNDER | Section 74 of the Unit Titles Act 2010 and Part 19 of the High Court Rules |
| IN THE MATTER | of the “Uptown Apartments” |
| BETWEEN | BODY CORPORATE 384684 Applicant |
| AND | KERRY MICHAEL ARTHUR CONSTABLE, KATHRYN ANN CONSTABLE First Respondents Continued... |
| Hearing: | On the papers |
Counsel: | B M Foster for the Applicant |
Judgment: | 22 May 2024 |
JUDGMENT OF WHATA J
Solicitors:
Grant & Co, Auckland
BODY CORPORATE 384684 v CONSTABLE [2024] NZHC 1259 [22 May 2024]
LYNETTE WINIFRED STENHOUSE
Second Respondent
PAXOS INVESTMENTS LIMITED
Third Respondent
PND HOLDINGS LIMITED
Fourth Respondent
BIN WANG, Software Developer and LIN WANG, S
Fifth Respondent
KOK CHUAN TAN, Accountant and BAN HWA GOH
Sixth Respondent
OTTI LIMITED
Seventh Respondent
HELEN JOANNE DUYVESTYN
Eighth Respondent
DAVID CLIFFORD CANNON and DINAH CAROLINE SAXBY
Ninth Respondent
FERNER TRUSTEES NO 2 LIMITED
Tenth Respondent
MYMA LENA COPPLESTONE and COPPLER ENTERPRISES LIMITED
Eleventh Respondent
JEAN I SUAN OOI
Twelfth Respondent
LBN UPPER QUEEN STREET LIMITED
Thirteenth Respondent
ALI HASHEMIFAR and MANA AHMADIVOSTAKOLAEE
Fourteenth Respondent
GRACEY INVESTMENTS LIMITED
Fifteenth Respondent
VOLUBILIS INVESTMENTS LIMITED
Sixteenth Respondent
KIRAN LATA
Seventeenth Respondent
KROTCHAKORN SIRIAWAT,
Eighteenth Respondent
GA-YOUNG LEE
Nineteenth Respondent
MAKORORI INVESTMENTS LIMITED
Twentieth Respondent
ALISON JEAN WRIGHT and MARCUS JOHN SMITH
Twenty First Respondent
QIANG WANG
Twenty Second Respondent
ALISDAIR SIMPSON and
KATIE LEIGH
Twenty Third Respondent
QI TONGLIANG and QI JUANG LIANG
Twenty Fourth Respondent
ANGELA MARIE MATTHEWS
Twenty Fifth Respondent
MAGIC AND DREAMS LIMITED
Twenty Sixth Respondent
ZHIFANG CHEN
Twenty Seventh Respondent
CAROLYN JOY COLE
Twenty Eighth Respondent
PETER JAMES BRUWER, GILLIAM ROSE BRUWER and JAMES ROSE TRUSTEES LIMITED
Twenty Ninth Respondent
SUSIE DANGER WARWICK and ZED MARK ELRICK BROOKES
Thirtieth Respondent
THUY THI VU
Thirty First Respondent
CHRISTOPHER DAVID ELLIS and CATHERINE JANE KISSEL
Thirty Second Respondent
PREETIDUTTA THORPE and
CHARLES THORPE
Thirty Third Respondent
CHENPINGLAI and GUORONG YANG
Thirty Fourth Respondent
HELEN LORNA GAIR
Thirty Fifth Respondent
VANCE ABRAHAM STEWART, and VANCE EDMUND TAINUI STEWART
Thirty Sixth Respondent
JOHN KOTSALIDIS
Thirty Seventh Respondent
YUE WANG
Thirty Eighth Respondent
RAYMOND PING LEUNG CHAN
Thirty Ninth Respondent
THE REVOLUTION TRUST LIMITED
Fortieth Respondent
CAROLINE HENLEY and NICHOLAS JOSEPH ORANGE
Forty First Respondent
BATMORING LIMITED
Forty Second Respondent
SARBJIT SINGH
Forty Third Respondent
CRAEMAC HOLDINGS LIMITED
Forty Fourth Respondent
SARINA JANE GURNICK and
BRAD JAMES
Forty Fifth Respondent
STRETCH INVESTMENTS LIMITED
Forty Sixth Respondent
FISHER PROJECTS LIMITED
Forty Seventh Respondent
LIANNE MARY BROUGHTON
Forty Eighth Respondent
CATAPYRRHA INVESTMENTS LIMITED
Forty Ninth Respondent
VICKY LAM
Fiftieth Respondent
KTD INVESTMENTS LIMITED
Fifty First Respondent
KALAHARI PROPERTIES LIMITED
Fifty Second Respondent
JOHANNES HENDRIKUS POUWELS and
FRANCES ANNE POUWELS
Fifty Third Respondent
RYLAND PROPERTIES LIMITED
Fifty Fourth Respondent
SPRINGBOK PROPERTIES LIMITED (FOMERLY UPTOWN TRUSTEES LIMITED)
Fifty Fifth Respondent
CANFIELD INVESTMENTS LIMITED
Fifty Sixth Respondent
PETER GEORGE ADAMS and CATHERINE EDNA ADAMS
Fifty Seventh Respondent
CAROL ANNE COLE
Fifty Eighth Respondent
CROMPTON INVESTMENTS LIMITED
Fifty Ninth Respondent
KARYN KLARWILL and RODNEY GEROGE KLARWIL
Sixtieth Respondent
JENNIFER LESLEY WATT and HEIMSATH ALEXANDER TRUSTEE LIMITED
Sixty First Respondent
OLD SOAK HOLDING LIMITED
Sixty Second Respondent
JANE ROSALINE HUNTER
Sixty Third Respondent
MCCULLOCH CORPORATION LIMITED
Sixty Fourth Respondent
MICHAEL IAN JACKSON, and MARIE-THEREZE DONLON
Sixty Fifth Respondent
TONY CARL BLADES, ELIZABETH ANN SABINA BLADES and FIONA LEIGH DENTON-GILES
as trustees of the ISSAQUAH TRUST
Sixty Sixth Respondent
CAROLYN ANNE PHILLIPS
Sixty Seventh Respondent
MATT MCLEAN PEARSON, SCOTT CHARLES LUXFORD PEARSON,
RENA MARIE PEARSON
Sixty Eighth Respondent
CLEM DEVINE
Sixty Ninth Respondent
GALATEIA LIMITED
Seventieth Respondent
HUGH DAVID PARRIS and KERRI ANN DEWE
Seventy First Respondent
WATARI BOEDIONO and JOHANES KEVIN KANTONO
Seventy Second Respondent
GORDON OSWALD GREER
Seventy Third Respondent
MAZIAH BINTI MOHD ZAINI
Seventy Fourth Respondent
HEMATITE LIMITED
Seventy Fifth Respondent
INTEGRITY TRUSTEES LIMITED and THREE SONS TRUSTEES LIMITED
Seventy Sixth Respondent
ALISDAIR ROY WATKINS and ASHDON TRUSTE LIMITED
Seventy Seventh Respondent
FAN ZHU
Seventy Eighth Respondent
GAVIN DOUGLAS STEWART
Seventy Ninth Respondent
GRAHAM GEORGE STRATTON
Eightieth Respondent
LUDO LIFESTYLE LIMITED
Eighty First Respondent
DIVINE CREATIVITY LIMITED
Eighty Second Respondent
RACHEL GRACE MCBRIDGE and
ROBERT FOJTIK
Eighty Third Respondent
ELMHURST LIMITED
Eighty Fourth Respondent
ZANE HASLAM MCLARIN, JOHN ALFRED MCLARIN, and
GLEN EDWARD ROBSON as trustees of the
ZANE H MCLARIN TRUST
Eighty Fifth Respondent
ASB BANK LIMITED
Eighty Sixth Respondent
ANZ BANK NEW ZEALAND LIMITED
Eighty Seventh Respondent
LBNKAR HOLDINGS LIMITED
Eighty Eighth Respondent
KIWIBANK LIMITED
Eighty Ninth Respondent
WESTPAC NEW ZEALAND LIMITED
Ninetieth Respondent
BANK OF NEW ZEALAND
Ninety First Respondent
MORTGAGE TRUST HOLDING
COMPANY LIMITED
Ninety Second Respondent
THE HONG KONG AND SHANGHAI BANKING CORPORATION LIMITED
Ninety Third Respondent
JODIE CARLENE SALMOND
Ninety Fourth Respondent
1.I have an application for scheme of repairs before me. The full background is helpfully set out in the memoranda of counsel for the applicants dated 26 March 2024 and 17 May 2024.
1.In summary, Body Corporate 384684 is the Body Corporate for the Uptown Apartments, which is a 91 unit complex located at 10-14 Upper Queen Street in Auckland’s CBD.
1.The Body Corporate has applied for an order settling a scheme of repairs under s 74 of the Unit Titles Act 2010 (UTA). Affidavits in support of the application have been filed by:
a.The Body Corporate Chair, Mr Watts; and
a.Two consultants engaged by the Body Corporate:
i.Mr Bundy a building surveyor; and
i.Mr Dillon who is the client representative for the remedial works project.
i.As they attest the Uptown complex is suffering from weather-tightness defects. These have largely manifested as leaks around the balconies of the tower block of the complex although the basement is also affected. The remedial work is being done in two stages. Stage one, the “Prototype” repairs, has already been completed. Stage two has recently commenced; it will address the remainder of the work required to fix all issues for the buildings and to obtain a code of compliance certificate. Mr Dillon confirms a building consent necessary for the Body Corporate to complete the remedial work has been granted by Auckland Council. Work under that building consent has already commenced by the Body Corporate’s remedial contractor Brosnan Construction Limited.
i.Counsel also advise the nature of the defects affecting the complex and the fact that the work required to fix them falls primarily within unit property means the default apportionment in the UTA is unsuitable. It is submitted, apportioning the cost of
repairs on a utility interest basis will result in some units bearing a disproportionate burden and, in effect, subsidising unit property repairs to other units.
i.I am further advised the scheme will address this imbalance between units and owners by apportioning the costs on a “gross percentage” basis, which is a formula reached in discussion with and through calculations by the Body Corporate’s quantity surveyors BQH Ltd. The shares payable by each unit owner factor in the percentage of the remedial costs that relates to each individual unit and adds to that a utility interest share of the repairs to the common property, to reach a final percentage of the total remedial costs (gross percentage share). It is this percentage of the total remedial costs that each unit will be levied to pay as outlined in clause 14 of the Scheme.
i.There is also evidence that the unit owners have resolved to approve the scheme and this application.
Service
i.I have affidavit evidence that confirms that all named respondents to the application have been served.
Updating advice as to owners
i.Counsel also advise that:
a.Two units have changed ownership since the application was filed. Those affected units are:
i.Unit 2F, which is now owned by Tarragon Heath Mann, Brooke Emma Mann and Ben Wickins in their capacity as trustees; and
i.Unit 3C, which is now owned by Andrew Spencer Murray and Murray Trustees Services Limited in their capacity as trustees.
a.The previous owner to unit 2F, the twenty-fifth respondent, Angela Marie Mathews ought to be struck out as a respondent because she no longer has an interest in any unit in the complex.
b.The ninety second respondent mortgagee, The Hongkong and Shanghai Banking Corporation Limited (HSBC) no longer needs to be named as a respondent, as its mortgage over Unit 11E has been discharged.
a.Consequential orders are therefore necessary in terms of the pleadings.
No opposition
a.The time for filing a notice of opposition has now expired. No notice of opposition has been filed with the Court.
Outcome
a.I am satisfied as per the application, the supporting affidavits, and counsel’s memoranda:
a.The proposed scheme has broad support.
a.The proposed scheme is appropriately detailed in the schedule.
a.The antecedent work done in preparation for the proposed scheme is in accordance with the scheme.
a.The work to be undertaken pursuant to the proposed scheme will be done at the same time and to the same standard.
a.The proposed scheme departs from the Act and the body corporate rules no more than is reasonably necessary to achieve what is fair between the unit owners in all the circumstances.
a.There shall also be an order approving the scheme accordingly (attached at Appendix 1).
a.I also make the following orders:
b.Striking out, pursuant to r 4.56(1)(a) of the High Court Rules 2016 (HCR), the following respondents:
i.The Twenty-Fifth Respondent, Angela Marie Matthews
i.The Ninety-Third Respondent, The Hong Kong and Shanghai Banking Corporation Limited;
a.That the registered owners of Unit 2F, Tarragon Heath Mann, Brooke Emma Mann, and Ben Wickins, be joined to the proceeding as the Ninety-Fifth Respondents, pursuant to HCR 4.56(1)(b)(i);
a.That the registered owners of Unit 3C, Andrew Spencer Murray and Murray Trustee Services Limited, be joined to the proceeding as the Ninety-Sixth Respondents, pursuant to HCR 4.56(1)(b)(i); and
a.Directing, pursuant to HCR 6.8(1)(b) that:
i.Service on the Ninety-Fifth Respondents be treated as effective from 2 May 2024; and
i.Service on the Ninety-Sixth Respondents be treated as effective from 3 May 2024.
Whata J
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