Body Corporate 407798 v Maltby - [2023] NZHC 3064

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001058

[2023] NZHC 3064

UNDER the Unit Titles Act 2010

IN THE MATTER OF

an application for orders establishing a scheme under s 74 of the Unit Titles Act 2010

BETWEEN

BODY CORPORATE 407798

First Applicant

DAVID CYPRIAN BARKER EMMA BRONWYN BARKER

Second Applicants

AND

THE OTHER RESPONDENTS (as set out

in Schedule 1)

First to Twenty-Third Respondents

Hearing: 21 September 2023

Appearances:

K Wendt for the Applicants

No appearance by or for the Respondents

Judgment:

31 October 2023

JUDGMENT OF WALKER J

This judgment was delivered by me on 31 October 2023 at 4.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

BODY CORPORATE 407798 & ORS v MALTBY & ORS [2023] NZHC 3064 [31 October 2023]

[1] This is an originating application by Body Corporate 407798 (the Body Corporate) for an order establishing a scheme under s 74 of the Unit Titles Act 2010 (the Act). It relates to a residential unit title development at 21 Birdwood Crescent, Parnell, Auckland (the Development).

[2] The Development comprises 24 townhouses (the principal units) in seven standalone buildings together with accessory units and common property. The Body Corporate manages the affairs of the Development under the Act.

[3] The Body Corporate discovered that parts of the Development have been damaged and require repair to an extent that this Court’s jurisdiction under s 74 of the Act is engaged.

[4] The proposed scheme is required to allocate the cost of applying for the scheme and for the remediation project amongst unit owners and to set out the rights, duties and obligations of owners in relation to the remediation project.

[5] The proposed scheme is annexed to the application. The applicants submit it is the same scheme that had “broad support” from owners at an Extraordinary General Meeting (EGM) held on 29 March 2023.

Preliminary

[6] All respondents have been served with the application. They are all affected parties, namely the registered unit owners, the registered mortgagees of units in the development and the Body Corporate’s insurer.

[7] All registered owners except for the twenty-first respondents were served pursuant to written service authorisations on 6 June 2023. The twenty-first respondents were served on 19 July 2023 pursuant to substituted service orders. No notices of opposition were filed.

[8] The Body Corporate’s manager has confirmed that on 17 July 2023, she notified all unit owners of the hearing date and circulated a minute of Moore J who

directed the owners be notified. Notification of all unit owners was circulated via email and the owners’ portal.

[9] Counsel for the applicants confirmed at the hearing that enquiries were made of the Body Corporate’s manager and chairperson who confirmed that no owner has made any contact with either to notify any opposition to the scheme application.

[10] No respondents appeared at the hearing. Accordingly, the applicants proceeded by way of formal proof with the application for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Body Corporate 407798 v Maltby and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NZHC 3064
Decision Date: 31 October 2023

CaseChat Overview and Summary

This case involves an originating application by Body Corporate 407798 (the Body Corporate) for an order establishing a scheme under section 74 of the Unit Titles Act 2010. The application pertains to a residential unit title development at 21 Birdwood Crescent, Parnell, Auckland (the Development). The proposed scheme aims to allocate the costs associated with a remediation project and to outline the rights, duties, and obligations of the unit owners in relation to the remediation project. The application was heard on 21 September 2023, with K Wendt appearing for the applicants and no appearance by or for the respondents. Judgment was delivered by Walker J on 31 October 2023.

The primary legal issues that the court needed to decide included whether the damage to the Development was substantial enough to warrant the court's jurisdiction under section 74 of the Unit Titles Act 2010, whether the proposed scheme was appropriately detailed to enable unit owners and the court to judge its effectiveness, whether the scheme had broad support, and if the scheme was fair and balanced in all the circumstances. The court also needed to determine if the scheme complied with the principles established in Tisch v Body Corporate No 318596.

The court found that the damage to the Development was indeed substantial and that the court's jurisdiction under section 74 of the Unit Titles Act 2010 was engaged. The court was satisfied that the proposed scheme was appropriately detailed and provided sufficient information for the court and unit owners to judge its effectiveness. The court found that the scheme had broad support, as the majority of owners who participated in the discussions and voted at the Extraordinary General Meeting (EGM) approved the scheme. The court concluded that the scheme was fair and balanced in all the circumstances and complied with the principles established in Tisch v Body Corporate No 318596.

The court made the following order: "Settling a scheme for the reinstatement of the buildings in the unit title development at 21 Birdwood Crescent, Parnell, Auckland under s 74 of the Unit Titles Act 2010 (the Act) the terms of which are set out in Schedule 2 of the Originating Application dated 16 May 2023 as amended by the resolutions passed at the EGM dated 29 March 2023." As no party opposed the application, no order for costs was sought. Leave to apply for any consequential directions was granted.

Orders