Body Corporate 68792 v Memelink

[2015] NZHC 1335

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-202 [2015] NZHC 1335

IN THE MATTER

of section 141 of the Unit Titles Act 2010

IN THE MATTER

of an originating application to appoint an administrator

BETWEEN

BODY CORPORATE 68792
First Applicant

AND

SYNERGY ENTERPRISES LIMITED, JAMES AND CAROLINE MCKERNAN, STEVEN AND VALDA SCHECKTER AND GEOFFREY ARDEN

Second Applicants

AND

HARRY MEMELINK AND IAN TREVOR NEILL HAMILTON First Respondents

AND

ANTHONY HARRY DE VRIES AND GERALDINE DE VRIES

Second Respondents

AND

CUDBY & MEADE LIMITED Third Respondent

Hearing:	12 June 2015
Counsel:	J L Greenwood, Interim Administrator for First Applicant J K Mahuta-Coyle for Second Applicants M Memelink in Person A H de Vries in Person
Judgment:	12 June 2015

JUDGMENT (NO 4) OF BROWN J

BODY CORPORATE 68792 & ORS v MEMELINK AND HAMILTON & ORS [2015] NZHC 1335 [12 June 2015]

[1]      The   history   of   this   application   is   apparent   from   my   Judgments   of

18 March 2015,1 28 April 20152 and 27 May 2015.3

[2]      The  resolution  of  various  matters  in  dispute  by  negotiation  has  not eventuated.   Consequently, as the applicants foreshadowed on 27 May 2015,4  the applicants now seek a timetable for the hearing of any opposition to the application.

[3]      Since the hearing on 27 May 2015 the following documents have been filed: (a)           memorandum of Mr Memelink dated 2 June 2015;

(b)      memorandum of applicants dated 11 June 2015;

(c)       third report by interim administrator dated 11 June 2015; (d)  fifth memorandum of Mr de Vries dated 11 June 2015; (e)  memorandum of Mr Memelink dated 11 June 2015.

This morning in Court Mr de Vries handed up a sixth memorandum.

[4]      It is necessary for this proceeding to be resolved.  Consequently, I set it down for hearing on Friday, 17 July 2015 at 10.00 am. The following timetable will apply:

(a)       the applicants to file an amended application seeking a final order together with any further affidavits in support of the application by

19 June 2015;

(b)any further or amended notices of opposition together with any further affidavits in opposition to be filed by 3 July 2015;

1      Body Corporate 68792 & Ors v Memelink & Ors [2015] NZHC 519.

2      Body Corporate 68792 & Ors v Memelink & Ors [2015] NZHC 854.

3      Body Corporate 68792 & Ors v Memelink & Ors [2015] NZHC 1159.

4      At [4] of my Judgment (No 3).

(c)       any  further  report  from  the  interim  administrator  to  be  filed  by

10 July 2015.

[5]      Because the applicants will be seeking a final order for the appointment of an administrator under s 141 of the Unit Titles Act 2010 at the hearing on 17 July 2015, I strongly recommend that Mr Memelink and Mr de Vries consider obtaining either legal representation or legal advice for that hearing.

[6]      In my Judgment (No 3)5 I stated that, absent resolution having been achieved, it was likely that at today’s hearing a direction would be made that an independent chartered accountant be appointed to verify outstanding levies taking into account the credibility or otherwise of the invoices raised by Mr Memelink and Mr de Vries.

[7]      However  the  applicants’ memorandum  of  11 June 2015,  while  noting  the laudable purpose of the interim administrator to obtain a third party assessment as to the validity of the invoices raised by Mr Memelink and Mr de Vries, expresses the view that, even if a third party assessor expresses a view contrary to the views of those persons, it will make absolutely no difference unless it is somehow binding. Consequently the second applicants now submit that the appointment of a forensic accountant will only add a further layer of costs.

[8]      In those circumstances I refrain from making the foreshadowed direction at this time.   Further consideration will be given to that course at the hearing on

17 July 2015.

[9]      At Mr de Vries’ request I also refrain from making a direction at this time concerning the proposal for resolution of the NZTA dispute.

[10]     However it is apparent from the interim administrator’s third report, and in particular the advice of the insurance assessor annexed to that report, that the guttering issue in respect of Mr de Vries’ unit must be dealt with urgently.  I consider that the appropriate course is for the interim administrator to obtain a quote (as

distinct  from  the  current  estimate)  from  Thistle  Roofing  Contractors  for  the

5 At [14].

completion  of  the  guttering  work  which  has  been  identified  in  the  insurance

assessor’s email.

[11]     I direct that the interim administrator may accept that quotation, if regarded as acceptable both as to amount and proposed method of work, on the basis that the Body Corporate reserves the right to seek recovery of that cost at a later time from Mr de Vries.

[12]     Mr de Vries opposed that course.  He recognised that it is necessary for the work to be done and logically he could not quarrel with the engagement of Thistle Roofing Contractors given that he obtained the original estimate.   However unfortunately Mr de Vries is under some financial pressure at present and wishes to have some involvement in the work.

[13]     While I am conscious of Mr de Vries’ personal position, given the history of apparently inadequate work on the roof of his unit I consider it is important that there be a third party contractor to whom recourse can be had in the future should the repairs proposed prove to be inadequate in any respect.

[14]     Accordingly the interim administrator should proceed to have the guttering work attended to as soon as possible on the basis stated above.

Brown J