Body Corporate 68792 v Memelink

[2015] NZHC 854

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-202 [2015] NZHC 854

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:	24 April 2015
Appearances:	J K Mahuta-Coyle for Applicants H Memelink in Person A H de Vries in Person
Judgment:	28 April 2015

JUDGMENT (NO 2) OF BROWN J

BODY CORPORATE 68792 v SYNERGY ENTERPRISES LTD & ORS [2015] NZHC 854 [28 April 2015]

[1]      As provided in para [11] of my judgment of 18 March 20151  the proceeding was called again on Friday, 24 April 2015.   Before the Court were the following documents:

(a)       report by interim administrator dated 21 April 2015; (b)         affidavit of A de Vries dated 10 April 2015;

(c)       notice of opposition signed by H Memelink dated 10 April 2015; (d) affidavit of H Memelink dated 14 April 2015;

(e)       affidavit of P H Martens dated 23 April 2015;

(f)       memorandum of counsel for the applicants dated 23 April 2015; (g)   email from Mr de Vries received by the Court on 24 April 2015.

[2]      In addition Mr Memelink handed up at the hearing a memorandum and a further affidavit in reply to the affidavit of Mr Martens.

[3]      The Court records its appreciation for the thorough and helpful report of the interim administrator dated 21 April 2015.

[4]      Mr Mahuta-Coyle sought an order that the Court extend Mr Greenwood’s appointment for a further four weeks to enable a proposed meeting of stakeholders to be held in an attempt to resolve or agree as many of the disputed issues as can be resolved as a first step.

[5]      I heard at some length from Mr Memelink and Mr de Vries.  While he would have preferred a shorter period of extension, Mr Memelink did not oppose the four week extension but expressed his concern about the “damages” position which he requested  be  noted.    Mr de Vries  was  only  disposed  to  agree  to  a  two  week

extension.

1      Body Corporate 68792 v Synergy Enterprises Ltd & Ors [2015] NZHC 519.

[6]      I consider that, given the need for a meeting date to be found which is convenient to Mr Greenwood and all the stakeholders including Mr K Ross, whom I was advised is currently in Australia, a four week extension is necessary in order to enable a productive meeting to be arranged.   I advised the parties that I would adjourn the matter to a date on or about Friday, 22 May 2015.   Because I have judicial commitments on 22 and 25-26 May I direct that this proceeding is to be called again before me at 10.00 am on Wednesday, 27 May 2015.

[7]      In para 27.5 of his report the interim administrator identifies some immediate tasks that should be adopted by the Body Corporate which include taking the step to fine tune the operational rules, to have them formally adopted once owners are consulted and to have them registered.  That recommendation is intended to address the situation explained at paras 13.1 to 13.3 of the report.  Both Mr Memelink and Mr de Vries agreed at the hearing that the interim administrator should proceed with that task.

[8]      Mr Memelink also agreed to sign the agreement annexed to the letter at Appendix 9 to the report, provided that the second paragraph of that agreement was deleted, namely the reference to his having not filed proceedings against the Body Corporate in the District Court.

[9]      I take this opportunity to encourage the parties to participate co-operatively in the proposed meeting and to endeavour to find a resolution to the various points of dispute.  I explained to the parties in the course of the hearing that if resolution is not achieved, then it will be necessary to consider taking the following steps:

(a)       the appointment of the administrator for an indefinite period;

(b)the appointment of a chartered accountant to undertake a forensic accounting exercise concerning the levy claims as recommended by the interim administrator at para 10.4 of the report;

(c)      the filing of formal pleadings with a view to the determination of various legal issues which are prominent in the overall dispute, in particular the legality or otherwise of the EGM which Mr Memelink purported to call.

[10]     Leave is reserved to the interim administrator to apply for any directions which may be necessary to facilitate the stakeholders meeting.

[11]     Costs in relation to the hearing on 24 April 2015 are reserved to be resolved in the substantive determination of the originating application.

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt

Brown J