Body Corporate 68792 v Memelink - [2018] NZHC 1735

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2015-485-202

[2018] NZHC 1735

IN THE MATTER of section 141 of the Unit Titles Act 2010

IN THE MATTER

of an application to extend administration and related orders

BETWEEN

BODY CORPORATE 68792

First Applicant

AND

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

Second Applicants

HARRY MEMELINK AND IAN TREVOR NEILL HAMILTON

Respondents

Hearing: 7 August 2017

Appearances:

D G Dewar for Applicants Q S Haines for Respondents

Judgment:

21 September 2017

Reasons:

13 July 2018

JUDGMENT OF CLARK J (REASONS)

Introduction

[1] On 21 September 2017, I issued judgment granting an application by Body Corporate 68792 (the Body Corporate) to extend the appointment of the administrator

BODY CORPORATE 68792 v SYNERGY ENTERPRISES LIMITED, MCKERNAN, SCHECKTER AND ARDEN [2018] NZHC 1735 [13 July 2018]

and for related orders.1 I made the following orders in relation to the application to extend administration:

(a)The appointment of the Administrator is extended until further order of this Court.

(b)The respondents may apply to end the administration on four weeks notice.

(c)Interchange Properties Ltd is joined as an applicant.

(d)Luxe One Ltd and Spider Properties Ltd are joined as respondents.

[2] The following orders and directions were also made in respect of the respondents:

(a)All items stored in the part of the common area known as Unit 4 are to be removed within seven days.

(b)All residential occupancies of units within the development are to cease within seven days of the date of this judgment.

(c)All assorted debris, furniture items, pallets, building components, timber and rubbish that is currently stored in the auxiliary units and on the auxiliary units, including the unwarranted and unregistered yellow truck used for storage of timber is to be removed within seven days. Failing compliance the Administrator is permitted to appoint an agent to remove the items.

(d)Subject to having 24 hours notice, the respondents are to permit the applicants’ appointed agents and contractors access, at all reasonable times during working hours, to the respondents’ units for the purpose of undertaking all inspections, report and work associated with the issue of a Building Act 2004 warrant of fitness in respect of the complex.

(e)The administrator is not required to respond to any communications from the respondents other than those from the respondents’ solicitor.

[3] With one exception the orders made reflected the orders sought. I declined to direct that the Body Corporate may issue a special levy in respect of administration costs.

[4]This judgment contains my reasons.

1 Body Corporate 68792 v Memelink [2017] NZHC 2296.

Background

[5] The first applicant, the Body Corporate, is the body corporate in respect of a unit title development in Lower Hutt. The Body Corporate has been managed by an administrator since 18 March 2015 due to a “long and troubled history of conflict” between its members.2 On that date, John Greenwood was appointed administrator on an interim basis.3…

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 68792 v Memelink 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: [2018] NZHC 1735
Decision Date: 21 September 2017

CaseChat Overview and Summary

Body Corporate 68792 sought an extension of the appointment of an administrator for a unit title development in Lower Hutt and related orders. The respondents, Harry Memelink and Ian Trevor Neill Hamilton, opposed the application. The High Court of New Zealand granted the application and extended the appointment of the administrator, Robert Naylor, until further order. The Court also made various orders against the respondents, including requiring the removal of items from common areas and auxiliary units, and permitting the administrator's agents and contractors access to the respondents' units for the purpose of obtaining a building warrant of fitness. The Court declined to direct that the Body Corporate may issue a special levy in respect of administration costs.

The Court found that the dysfunctionality and conflict within the Body Corporate persisted, making the continued appointment of an administrator necessary. The Court considered the evidence of Mr Naylor, who had been appointed administrator, as well as other unit owners who supported the continuation of administration due to the ongoing conflict with Mr Memelink. The Court found that the orders made were essential to assist the administrator in the interests of the community of owners. The Court also found that the costs of the administrator directly attributable to actions against the Body Corporate by Mr Memelink and Mr Kooiman should not be borne by the Body Corporate, but rather by the unit owner whose fault rendered necessary the administrator's acts.

Orders