Body Corporate 81340 v Knight
[2018] NZHC 2143
•20 August 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CIV 2016-485-220
[2018] NZHC 2143
BETWEEN BODY CORPORATE 81340
Applicant
AND
ZENA RENEE KNIGHT AND YEE GOOD FORTUNE INVESTMENTS LIMITED
Respondents
AND
WINIFRED MARIA BOSCH; and WINIFRED MARIA BOSCH,
EDWIN FREDERICK RUTHVEN COOKE and NICKOLAS MAXWELL COLE as
executors of the estate of Florus Bosch; and NICHOLAS MAXWELL COLE; AND GEERTRUDIA JACOMINA COLE; AND BLAIR ALLEN McCARDLE AND JOHN VINCENT McCARDLE
Interested Parties
Hearing: 30 April 2018 Counsel:
A J Knowsley and D W Hunt for Applicant N B Dunning for Respondents
Judgment:
20 August 2018
JUDGMENT OF ELLIS J
BODY CORPORATE 81340 v KNIGHT AND YEE GOOD FORTUNE INVESTMENTS LTD [2018] NZHC 2143 [20 August 2018]
[1] Ms Knight and Yee Good Fortune Investment Ltd (Yee), own units in an apartment complex which, due to its proximity to the Paraparaumu Golf Course, is known as “the Links”.1 The complex has weathertightness issues. Steps have, since 2011, been taken to remediate these. Further work is required. But the applicants are engaged in a longstanding dispute with the Body Corporate and with the majority of unit holders both as to the nature of the remedial work required and about how payment for both past and present works should be apportioned. They have refused to pay the special levies that have been struck and (in Yee’s case) have stopped paying general levies. The say the levies are unlawful, although Yee has had judgment entered against it in that regard.2
[2] The present object of the applicants’ dissent is the Body Corporate’s originating application for the approval of a scheme under s 74 of the Unit Titles Act 2010 (the 2010 Act). That application has a four-day hearing scheduled for October 2018.
[3] Ms Knight and Yee have applied to have the Body Corporate’s s 74 application struck out. They say that the draft scheme lacks merit and is being improperly sought by the Body Corporate. Although I will come back to the particular arguments advanced on their behalf later in this judgment, I record at the outset my view that such an application seems inapt. I say that because:
(a)it cuts across the purpose of the originating application process;
(b)it is indisputable (and as I understand it the applicants do not really dispute) that a scheme is required and, indeed, there have been Court directions to that effect;3
1 Ms Knight owns Unit 13 and Yee owns Unit 6. For convenience, I refer to them as “the applicants” in this judgment because it is their application for strike out which is its subject.
2 Yee Good Fortune Ltd v Body Corporate 81340 [2017] NZHC 611 (the recent result noted at the end of this judgment).
3 Discussed below at [28].
(c)it seems inconsistent with what s 74 plainly contemplates can be an iterative settlement/approval process;4 and
(d)many of the factual matters raised by the applicants in support of their application are both complex and contested.
[4] The inaptness of the application was further highlighted by the fact that the synopsis of submissions filed on behalf of the applicants was almost four times the length stipulated in HCR 7.39. In apologising for this Mr Dunning said that the length might be “justified in part by this being in effect a substantive hearing, albeit in truncated format …”.
[5] I am simply not willing to proceed on an “in effect substantive” basis. It was quite clear from the material put before the Court that more than the day allocated for the strike out would be required to engage with the factual material properly. And nor do I accept Mr Dunning’s submission that contested facts are capable of summary resolution.5 I propose to deal with the application for strike out on the orthodox basis that it can only succeed if, for reasons of law or indisputable fact (if any), it is established that the proposed s 74 scheme could not be approved.
[6] All that said, however, the review I have been required to undertake of the relevant law and of the proposed Links scheme has not, I think, been wholly in vain. If nothing else, my review has highlighted a number of issues that, in my view, could productively be addressed by the Body Corporate prior to the substantive hearing in October. More particularly, I tend to agree with Mr Dunning that there are some potential difficulties with the scheme as presently drafted which, although not warranting a “strike out”, require further consideration.
4 By which I mean the Court’s ability, particularly in a contested case, to engage with the detail of a proposed scheme and to suggest amendments to it. By way of example, see the series of judgments given by Heath J in the Meader application for a scheme (discussed later below).
5 It is, I think, telling that Mr Dunning’s submission that the present was a case where the Body Corporate’s position was so demonstrably contrary to indisputable fact and so plainly contrary to law that the matter ought not be allowed to proceed further was immediately followed by the proposition that the case involved a “cover-up by some of the personalities involved” some of whom give “the impression of being fraudulent or at least dishonest”.
[7] Before I get to those, however, it is necessary to say something about schemes, generally, and about the background to the issues presently faced by the owners of the Links.
Schemes under s 74
[8] In terms of an overview of the law relating to the settlement of schemes under the 2010 Act, the starting point is s 74 itself, which states:
74 Scheme following destruction or damage
(1)This section applies if any building or other improvement comprised in any unit or on the base land is damaged or destroyed, but the unit plan is not cancelled.
(2)The High Court may, by order, settle a scheme on the application of—
(a)the body corporate; or
…
(3)A scheme under subsection (2) may include provisions—
(a)for the reinstatement in whole or in part of the building or other improvement; or
…
(6)On any application to the High Court under subsection (2), the following persons have the right to appear and be heard:
(a)any person having or claiming to have any estate or interest in any unit or in the whole or part of the base land; or
(b)any insurer who has effected insurance on the buildings or other improvements comprised in any unit or in the whole or part of the base land.
(7)In the exercise of its powers under subsections (2) and (3), the High Court may make any orders that it considers expedient or necessary for giving effect to the scheme, including orders—
(a)directing the application of any insurance money; or
(b)directing payment of money by or to the body corporate or by or to any person; or
(c)directing the deposit of an appropriate new unit plan; or
(d)imposing any terms and conditions that it thinks fit.
(8)The High Court may cancel, vary, modify, or discharge any order made by it under this section.
(9)The High Court may make any order for payment of costs that it thinks fit.
[9] In Tisch v Body Corporate No 318596, the Court of Appeal identified a three-step process for the purpose of settling a scheme:6
(a)The Court must be satisfied that the building has been damaged or destroyed.
(b)If so satisfied, the Court must decide whether to settle a scheme. That is, the Court must determine whether a scheme is appropriate in the circumstances.
(c)If the Court considers a scheme is appropriate, it must then determine what the terms of the scheme should be.
[10] I interpolate at this point that there can be no doubt that steps one and two have already been answered in the present case. The Links has undoubtedly been damaged and, as noted earlier, it is accepted that a scheme is necessary.
[11] As far as the third step is concerned, the overall aim must be to balance the interests of each unit holder and to arrive at terms that achieve the outcome fairest to all. The Court in Tisch identified five (inclusive) factors which are likely to be relevant to an assessment of appropriate terms. It noted:7
6 Tisch v Body Corporate No 318596 [2011] NZCA 420, [2011] 3 NZLR 679 at [35]. Although Tisch concerned the approval of a scheme under s 48 of the Unit Titles Act 1972, it was decided after the passage of the 2010 Act, and the Court noted (at [26]) that s 74 is “essentially the equivalent” of s 48.
7 At [44] – [49].
(a)a proposed scheme with broad support is preferred because the greater the level of support from owners, the more likely it is that the scheme does justice between then;
(b)the scheme should be appropriately detailed, because the more detailed it is the less scope there will be for future misunderstanding and disagreement;
(c)the scheme should have retrospective effect, provided the Body Corporate has acted in accordance with it prior to the Court’s approval;
(d)generally speaking, the scheme should be aimed at enabling the necessary repairs to be done to the same standard at the same time, because that approach is most likely to:
(i)be fair as between unit holders;
(ii)maximise efficiency;
(iii)minimise cost and disruption; and
(e)the terms of the scheme should not depart from the Act and the relevant Body Corporate Rules any more than is reasonably necessary to achieve fairness between the unit holders in the particular circumstances.
The problems at the Links
[12] The Links complex was constructed in the mid-1990s. It comprises 13 storeys (excluding the basement) and 28 units. It has what is commonly called a “wedding cake” structure, whereby the rooves of the units on one storey form the decks of the units on the storey above. The complex was subsequently found to have water ingress issues.
[13] As I understand it, the Body Corporate’s initial position was that the Links was not a “leaky building” (as that term is commonly understood in this country) but rather a building which suffered from leaks that were largely due to a lack of historical maintenance. It was for this reason that at some relatively early point (the date is not entirely clear to me) the programme of proposed repairs began to be referred to as the “deferred maintenance project” (DMP).
[14] In any event, on 16 July 2011, on the basis of expert advice, the Body Corporate resolved to spend $1,466,000 to carry out repairs to the curtain wall, the decks and balconies. It also resolved that the costs of the repairs would be paid by the unit holders by way of a special levy calculated in accordance with their unit entitlements.
[15] It is now, I think, accepted by all that the curtain wall is common property for which the Body Corporate has always been responsible, and for the repair of which owners should be levied on a unit entitlement basis under both the 2010 Act and the Unit Titles Act 1972 (the 1972 Act). The ownership of the decks and balconies, which include individual decks attached to each of the units and two large decks on the podium,8 has proved more difficult. The advice obtained by the Body Corporate, was that the surface area of the two large decks was the responsibility of the owners of the two podium level units but the outside faces of the decks were part of the common property and therefore the responsibility of the Body Corporate. Similarly, the other decks, together with the balconies, railings and balustrades attached to individual units were the property of the relevant unit holder, but the outside faces of the balconies were common property.
8 The large decks form part of the two units on the podium level, and act as the roof for the rest of the building.
[16] This complex blend of ownership meant that there was a problem with the Body Corporate’s 2011 special levy resolution. In subsequent Tenancy Tribunal proceedings between the Body Corporate and Yee over unpaid levies, the adjudicator held that under the 1972 Act, the Body Corporate could only impose levies on a unit entitlement basis in order to meet the cost of repairs to common property.9 Any responsibility for repairing individual units (which, as I have said, included in large part the decks and balconies) and any power to levy for such repairs was limited to cases in which the need for the repairs could fairly be seen as incidental to the Body Corporate’s obligations to maintain and repair common property.10 The Adjudicator held that the special levies were ultra vires and that Yee had no obligation to pay them, to the extent they related to repairs to the decks on the podium.
[17] After further toing’s and froing’s which are not presently material, at an EGM on 29 June 2013 a majority of owners agreed to alter the allocation of the (now increased) repair costs, based on a report received by the Body Corporate from Maltbys. The new allocation meant that:11
(a)the amount of the levy payable for the decks on the podium was calculated and apportioned separately to the two unit holders who owned those decks;
(b)the cost of repairs to the decks on the first floor was calculated and apportioned separately to the unit owners who owned those decks; and
(c)the common property was treated together and the cost of repairs apportioned on the basis of the remaining owners’ unit entitlements.
[18] Notwithstanding this revised apportionment it seems that Yee and another owner still refused to pay. The Body Corporate went back to the Tenancy Tribunal.
9 Body Corporate 81340 v Yee Good Fortune Investments Ltd TT Wellington 12/00048/UT, 6 March 2013. Also see ss 15(2) and 33 of the 1972 Act. Although the Tenancy Tribunal proceedings arose after the commencement of the Unit Titles Act 2010 the Adjudicator held that, due to the transitional provisions in the 2010 Act, it was the 1972 Act that continued (at that time) to apply.
10 No evidence was adduced in the Tenancy Tribunal to suggest it could not be determined which repairs related to common property and which related to the individual units.
11 The comparative effect of the Maltby allocations is discussed later in this judgment at [37] – [38].
This time, the Tribunal held there was no error in the new allocation and found in favour of the Body Corporate.12 That decision was upheld on Yee’s appeal to the District Court. Although that decision has not been made available to me it is apparent from a later decision of this Court that the District Court Judge found that:13
… the Tribunal was correct to find in favour of the Body Corporate. The curtain walls were common property and the Body Corporate proceeded appropriately to determine the levies for this. The decks were not common property but could be regarded as incidental to the work on the common property (as the damage was found as part of the repair work on the common property) and in any event are a building element in respect of which the Body Corporate is expressly authorised to recover the costs of repair. There was no evidence before the Tribunal that the levies were anything other than an accurate and fair representation of [Yee’s] share of the costs.
[19] It is apparent from the reference to the decks being a “building element” that the Courts were by then proceeding on the basis that it was the 2010 Act that applied to the remediation work and to the dispute.14 It is therefore necessary to interrupt the factual narrative at this point to say something about that Act.
The 2010 Act
[20] The purpose of the changes wrought by the 2010 Act have been discussed by this Court in a number of decisions, most notably in Muir J’s judgment in Wheeldon v Body Corporate 342525.15 There, he said:
[36] The UTA 2010 was passed against a background of tension within the authorities about the powers of a body corporate to undertake work within unit boundaries. In Body Corporate 188529 v North Shore City Council (Sunset Terraces) Heath J identified a clear distinction between common and private property rights, holding that the Unit Titles Act 1972 contemplated corporate responsibility for the maintenance and repair of common property only. In that case the relevant plan had identified the boundary between private and common property as the “external face of exterior walls and glass adjoining common property in accessory units and to the centre line and walls between adjoining units”. So the outside face of each exterior wall was part of an individual unit. On that basis Heath J found that an amendment to r 2(b) of the
12 Body Corporate 81340 v Yee Good Fortune Investments Ltd TT Wellington 12/00048/UT, 15 July 2013.
13 Yee Good Fortune Investments Ltd v Body Corporate 81340, above n 2, at [22]. This decision involved a later, unsuccessful attempt by Yee to halt enforcement proceedings by having the District Court judgment set aside.
14 By virtue of s 221 of the 2010 Act. “Building elements” will be discussed in more detail, shortly, below.
15 Wheeldon v Body Corporate 342525 [2015] NZHC 884, (2015) 16 NZCPR 829 (upheld on appeal in Wheeldon v Body Corporate 34525 [2018] NZCA 20) (footnotes omitted).
default rules, whereby the Body Corporate assumed an obligation to keep in a good state of repair the exterior and roof of the building, was ultra vires the 1972 Act.
[37] By contrast, Harrison J in Young & Ors v Body Corporate 120066 adopted a more expansive role for the Body Corporate. In circumstances of disunity among the owners (which closely mirror those in the present case) and where a majority of owners contemplated a “complete and bespoke upgrade of the whole complex”, whereas the plaintiffs favoured “targeted repairs based on the individual needs of each unit”, his Honour held that the unusual configuration of the complex (a “wedding cake” structure again emulated in the present case) required the Body Corporate to repair parts of the exterior that were not common property. His Honour based that decision on the fact that leakage through a failure to keep the exterior in good condition placed at risk the development as a whole including the common property.
[38] I accept Mr Allan’s submission that the purposes and effect of the 2010 Act was to enshrine the more flexible position contended for by Harrison
J. To the extent necessary, there is ample support for that proposition in the legislative history of the Act. When introducing the then Unit Titles Bill to Parliament for its first reading, the Minister for Housing noted that the Bill proposed a “fundamental rewrite of the existing legislation” and that its “key changes include promoting sound property management practices”. He observed that “a body corporate needs to be able to act quickly and decisively on behalf of all unit owners and for the good of the development as a whole when repairs and maintenance need to be done”. He then noted that the responsibilities of the Body Corporate for repair and maintenance “will be widened to include building elements and infrastructure that affects more than a single unit” and that “this will mean, for example, that if an apartment block has a leaky roof, it will be the Body Corporate’s responsibility to fix it rather than the responsibility of the owner of the top floor apartment”.
[39] At the Committee stage of the Bill there was specific reference to the divergence in approach of the High Court authorities and to the fact that cl 122 (which became s 138 in the Act) followed the approach that the High Court took in the Young case. Reference was made to the clause being a “practical, fair and pragmatic contribution to solving the problem of leaky homes” and of it taking a “common-sense and pragmatic approach”.
[21] Section 138 of the 2010 Act assumes some importance in the present case. It imposes expanded repair and maintenance obligations on bodies corporate. As well as requiring them to repair and maintain common property and any assets designed for use in connection with the common property, it imposed similar obligations in relation to “any building elements and infrastructure that relate to or serve more than 1 unit”.16
16 Section 138(1)(d). The issue of when a building element can be said to “relate to or serve more than 1 unit” was discussed by the Court of Appeal in Wheeldon v Body Corporate 342525 [2016] NZCA 247, (2016) 17 NZCPR 353.
[22]The term “building elements” is defined in s 5 as including:17
… the external and internal components of any part of a building or land on a unit plan that are necessary to the structural integrity of the building, the exterior aesthetics of the building, or the health and safety of persons who occupy or use the building and including, without limitation, the roof, balconies, decks, cladding systems, foundations systems (including all horizontal slab structures between adjoining units or underneath the lowest level of the building), retaining walls, and any other walls or other features for the support of the building.
[23]Section 138 goes on to provide:
(3)The body corporate may access at all reasonable hours any unit to enable it to carry out repairs and maintenance under this section.
(4)Any costs incurred by the body corporate that relate to repairs to or maintenance of building elements and infrastructure contained in a principal unit are recoverable by the body corporate from the owner of that unit as a debt due to the body corporate (less any amount already paid) by the person who was the unit owner at the time the expense was incurred or by the person who is the unit owner at the time the proceedings are instituted.
[24] The position set out in s 138(4) is largely consistent with the more general position in relation to the recovery of the costs of repairs set out in s 126, which (like s 33 of the 1972 Act, before it) provides:
(1)This section applies where the body corporate does any repair, work, or act that it is required or authorised to do, by or under this Act, or by or under any other Act, but the repair, work, or act—
(a)is substantially for the benefit of 1 unit only; or
(b)is substantially for the benefit of some of the units only; or
(c)benefits 1 or more of the units substantially more than it benefits the others or other of them.
(2)Any expense incurred by the body corporate in doing the repair, work, or act is recoverable by it as a debt in any court of competent jurisdiction (less any amount already paid) in accordance with the following:
17 The term “infrastructure” is also inclusively defined in s 5, but is not presently relevant.
(a)so far as the repair, work, or act benefits any unit by a distinct and ascertainable amount, the owner at the time when the expense was incurred and the owner at the time when the action is instituted are jointly and severally liable for the debt; or
(b)so far as the amount of the debt is not met in accordance with the provisions of paragraph (a), it must be apportioned among the units that derive a substantial benefit from the repair, work, or act rateably according to the utility interest of those units, and in the case of each of those units, the owner at the time when the expense was incurred and the owner at the time when the action is instituted are jointly and severally liable for the amount apportioned to that unit.
(3)Despite subsection (2)(b), if the court considers that it would be inequitable to apportion the amount of the debt in proportion to the utility interest of the unit owners referred to in that paragraph, it may apportion that amount in relation to those units in the shares as it thinks fit, having regard to the relative benefits to those units.
[25] In Wheeldon, Muir J held that the obligation placed on bodies corporate by s 138 is superior to that contained in s 80(1)(g), which requires the owner of a principal unit to “repair and maintain the unit and keep it in good order to ensure that no damage or harm, whether physical, economic, or otherwise, is, or has the potential to be, caused to the common property, any building element, any infrastructure, or any other unit in the building”. He said:18
[72] I reject both the plaintiffs’ and the defendant’s arguments on this issue. In my view, subject to the question of procedural regularity to which I will later return, once a decision has been taken by a body corporate to discharge its duties under s 138(1)(d) the onus is on any party (here the plaintiffs) to prove, on the balance of probabilities, that the jurisdictional requirements of the section are not satisfied. In so far as those jurisdictional requirements are concerned, however, I do not regard as a complete answer the fact that the Body Corporate has acted on expert advice with “some material” to justify its decision. I accept in that sense the plaintiffs’ reference to “jurisdictional facts”. If the plaintiffs are able to demonstrate on the balance of probabilities that the various criteria of s 138(1)(d) are not engaged, then there can be no duty to undertake repairs within unit property and the proprietor’s entitlement to quiet enjoyment, under s 79(d), must prevail.
…
18 (footnotes omitted).
[74] I accept … the defendant’s submission that, provided the Body Corporate has acted on expert advice, that the expert engaged was suitably qualified, and that the advice was given in good faith, how the Body Corporate chooses to act, whether by way of the “holistic” solution proposed by the defendant or the targeted repairs for which the plaintiffs vigorously contend, is a matter for the Body Corporate and its decision should, ordinarily, be respected even if contrary views are tenable. However, that position assumes vires.
[75] This accords with the approach of Asher J in LV Trust Holdings Ltd v Body Corporate 114424 where a distinction was drawn between the position of minorities in relation to economic issues affecting them alone and the position of such minorities with regard to decisions affecting the development as a whole. His Honour noted in respect of the competing schemes before him:19
[60] The fact that the applicants are in a minority of one and the majority of 14 are against their proposal is far from conclusive in the particular circumstances of this case. The assumption referred to in Tisch that the greater level of support from owners with the proposed scheme, the more likely it is to do justice, does not in all circumstances follow. As the Court of Appeal observed, the assumption does not invariably apply because a majority of owners may support a scheme that is unfair to the minority.
[61] When the majority of owners will financially benefit and the minority will financially suffer, the majority support may do no more than reflect that unfairness. The position is different where the issue is one of method or scope, or aesthetics. If, for instance there is broad support for a particular colour scheme or design, that is likely to be highly persuasive. Not so when it is just a question of who out of the various owners should pay with division along payment lines.
[26] For present purposes, then, the most material change effected by the 2010 Act is that the Body Corporate is now required to repair damage to building elements such as decks and balconies regardless of whether they form part of unit property. The difficulty is that, absent a s 74 scheme it:
(a)cannot levy in advance to pay for such repairs; and
(b)can only recover those costs from the individual unit holder(s) of whose property the decks and balconies form part, regardless of the importance of the repairs to the integrity of the building as a whole or to the owners as a group.
19 (emphasis in original).
[27] Other relevant changes wrought by the new Act relate to the financial management of bodies corporate and, in particular those provisions which deal with “Long-term maintenance plans, funds, and ancillary matters”.20 Those provisions include:
(a)section 115, which requires a body corporate to establish and maintain an operating account for certain specified purposes and to establish a current account at a bank;
(b)section 116 which requires a body corporate to establish a “long-term maintenance plan” (LTMP) covering a period of at least 10 years and whose purpose is to:
(i)identify future maintenance requirements and estimate the costs involved;
(ii)support the establishment and management of the funds;
(iii)provide a basis for the levying of owners of principal units; and
(iv)provide ongoing guidance to the body corporate to assist it in making its annual maintenance decisions;
(c)section 117 which generally requires a body corporate to establish and maintain a long-term maintenance fund (LTMF) which may only be applied towards spending relating to the LTMP and places spending limits on single maintenance items;
(d)section 118 which permits a body corporate to establish and maintain one or more contingency funds to provide for unbudgeted expenditure;
(e)section 119 which permits a body corporate to establish and maintain a capital improvement fund to provide for spending that adds to or
20 Contained in subpt 13 of pt 2 of the Act.
upgrades the unit title development if that spending is not provided for in the long-term maintenance plan; and
(f)section 120 which requires a body corporate to establish, in accordance with any regulations, either:
(i)separate bank accounts for each of the funds; or
(ii)a single bank account in which the respective funds are kept entirely separate and are able to be identified.
[28]But back, now, to the Links.
The Newland dispute
[29] As well as its dispute with Yee (discussed earlier), the Body Corporate has, historically, been engaged in District Court proceedings involving the owner of Unit 19, Ms Deborah Newland.21 At some point, the Body Corporate sought summary judgment against Ms Newland for unpaid levies totalling $117,757.13. This comprised amounts said to be owing to the LTMF and ordinary levies.22
[30] In a decision dated 12 February 2016, the District Court found that Ms Newland had no defence to the amount owing for ordinary levies.23 The Judge held that the resolutions imposing these levies were properly made and the expenses incurred against the operating account fell within s 115 of the 2010 Act.
[31] But the Judge also found that Ms Newland had raised an arguable defence to the levies for the LTMF because these funds were being used to pay for remediating the leaks (which, by then, was estimated to cost in excess of $2,000,000). The Judge noted that much of the work had already been done and pre-dated the resolutions imposing the levies. He said LTMFs under s 116 were intended to meet the costs of
21 Ms Newland has since died, but had prepared (but not executed) an affidavit for use in support of the applicants just prior to her death. Ms Newland was the owner of Unit 19.
22 The obligation imposed on bodies corporate to establish a long-term maintenance fund was another new feature of the 2010 Act.
23 Body Corporate 81340 v Newland [2016] NZDC 1963.
anticipated future maintenance so that the burden would not suddenly fall on the owners at some future time. They were not to gather funds to pay for already identified defects of the nature and scale confronting the Body Corporate of the Links. The Judge observed that the appropriate way of funding the remediation works was by way of an application to this Court for the settlement of a scheme under s 74. He recorded his understanding that, in fact, a s 74 application was already in train.24
Option 2
[32] In the meantime, in September 2015 the Body Corporate engaged the building surveyors, Hampton Jones, to report on, cost and supervise the remediation work still required. Its final report put forward three options with estimated costings for each. The second option, the estimated cost of which was more than the first and less than the third, has been accepted by the Body Corporate, indicates completion costs of a further
$2,029,189.25 The future repairs required under the second option are:
·Remove ground and first floor level pavers and tiles and install pavers on risers. Repair membrane as required and alter and add to rainwater outlets.
·Repair including re-cladding areas where timber decay has become extensive at the ground and first floor.
·Replace external aluminium doors and windows where defective on multiple levels or where providing unsuitable clearances.
·Undertake glazing rainscreen cladding repairs to the Kapiti face of the building.
·Address all balcony membranes and pressure bars to reduce future risk of leaks.
·Replace the swimming pool enclosure timber framed structure and cladding systems.
·Reclad the building in 2030/2032.
·Full remedial repairs on deck/balconies 2030/2032
24 Indeed, in an (apparently) earlier minute issued by Judge Jan Kelly, she recorded as a term of a settlement reached between Ms Newland and the Body Corporate that:
Body Corporate agrees to proceed to make an application to the High Court as soon as possible, seeking an order to settle a scheme pursuant to s 74 Unit Titles Act 2010. It is agreed that the proposed scheme will reflect the requirements of the Unit Titles Act 2010, together with any specific changes agreed to by owners by resolution, with a separate resolution for each adjustment.
25 This sum does not include the $370,000 which is said to be necessary for repairs to swimming pool. The Body Corporate is of the view that this work, too, properly forms part of the LMP.
[33] The reason the first and second options were considerably less expensive in the short to medium term than the third was because each was premised on the recladding of the building not immediately being necessary. Rather (as can be seen above) those options had the reclad as occurring in over ten years’ time (in 2030/32) and thus effectively forming part of the LTMP (albeit that the report does not express it in that way).26
The decision about cost allocation under the proposed scheme
[34] At an EGM on 31 October 2015 the Body Corporate agreed to engage Mr Roger Levie of the Home Owners and Buyers Association Inc (HOBANZ) to make a recommendation about the allocation of costs under a proposed scheme based on the DMP. His report (dated 10 February 2016) recommended that costs be allocated on the basis of utility interest.
[35] The scheme which has since been submitted to the Court for approval received majority support from owners at an EGM on 19 March 2016. The meeting’s principal resolution was that:
That the Links Body Corporate No. 81340 applies to the High Court to settle a scheme pursuant to Section 74 of the Unit Titles Act 2010, the terms of which provide for the allocation of the costs of the Deferred Maintenance Project on the basis of Utility Interest.
[36] Neither of the applicants was eligible to vote at this meeting due to their historical (and continuing) refusal to pay levies. According to the chair of the Body Corporate, Mr Rex Nicholls, 16 of the 19 eligible voters agreed with this resolution.
[37] On the basis of the evidence before the Court it is unclear to me exactly what difference it makes to the applicants in money terms if the Body Corporate levies for the repairs based solely on unit entitlement rather than on the basis that unit entitlement determines only the costs allocation for common property (with actual ownership of the building elements determining the remainder). I was, however taken to the earlier schedule prepared by Maltbys (see [17] above) which may give a sense of the
26 As I understand it, this is one of the principal points with which the applicants disagree.
difference. It indicates that based on what was (at that point) projected expenditure of
$1,883,002:
(a)Under the unit entitlement approach:
(i)Unit 6 (Yee) would pay $52,103;
(ii)Unit 13 (Knight) would pay $79,453; and
(iii)Unit 19 (Newland) would pay $85,968.
(b)Under the combined approach:
(i)Unit 6 (Yee) would pay $49,172;
(ii)Unit 13 (Knight) would pay $66,086; and
(iii)Unit 19 (Newland) would pay $70,115.
[38]In other words, under a unit entitlement approach:
(a)Unit 6 (Yee) would pay $2,931 more than under the combined approach;
(b)Unit 13 (Knight) would pay $13,367 more than under the combined approach; and
(c)Unit 19 (Newland) would pay $15,853 more than under the combined approach.
[39] By contrast, the owners of Units 1, 2, 3, 23 and 24 (all of which have large decks) would be considerably better off - by $51,266, $33,262, $48,772, $26,344 and
$39,529 respectively - under a unit entitlement based levy.
[40] While it is thus possible (to a greater or lesser extent) to see the source of the applicants’ grievance, it is notable that there are a number of other owners who voted in favour of the proposed scheme who would also be worse off under a unit entitlement levy. Included in these is Mr Nicholls himself (he is the joint owner of Unit 18) for whom the difference amounts to $6,005. And it seems none of the owners of Units 15, 17 and 21, whose disadvantage is the most severe (on a par with Ms Newland’s) voted against the resolution.27
The proposed scheme
[41] Following the resolution referred to in [35] above, the s 74 application was filed in April 2016. It was accompanied by an affidavit from Mr Nicholls who sets out the history of the matter in much more detail than I have done.
[42] I was advised by counsel for the Body Corporate that the terms of the scheme itself are largely based on the scheme approved by Heath J in the relatively early case of Body Corporate 172108 v Meader (No 3).28 I was given a copy of the Meader scheme at the hearing.
[43] Having since compared the two side by side I acknowledge that the two are similar in many respects. By and of itself, however, such similarity does not mean that the proposed scheme is appropriate here; the cases make it clear that context is everything. Nonetheless, it can reasonably be inferred from the fact that the Meader scheme passed judicial muster that the present scheme - at least to the extent of its similarities – could not possibly be so untenable that the s 74 application should be summarily struck out.
[44] Having acknowledged the similarities, however, there are also some important material differences between the two schemes. I consider that these differences constitute a useful stepping off point for the later discussion of the applicants’ present concerns and, potentially, for the substantive hearing of the s 74 application. I therefore set these differences out below.
27 The minutes of the 19 March 2016 EGM suggest that Unit 15 voted in favour, Unit 17 did not vote and Unit 21 voted in favour but was ineligible.
28 Body Corporate 172108 v Meader (No 3) (2010) 12 NZCPR 181 (HC).
[45]First the preamble to the Meader scheme states (inter alia) that:
The scheme authorises the repair of the Building generally in accordance with the building work approved by Auckland City Council in building consent B/2008/28758 dated 23 July 2009 (the “Building Consent”), subject to the terms of the scheme.
[46]This can be compared with the statement in the draft scheme that:
The scheme authorises the repair of the Links generally in accordance with the Links Deferred Maintenance Project (“the DMP”) as updated from time to time and subject to the terms of the scheme. The Body Corporate has agreed that the DMP is part of the Long Term Maintenance Plan (“the Plan”) for the Links, but it has not yet been included in the physical version of the Plan.
[47] There seem to me to be a number of possible difficulties arising from this difference. Building work approved in a specific building consent (as identified in the Meader scheme) is readily identifiable. By contrast, in the present draft scheme:
(a)The DMP is not defined or set out in, or annexed to, the proposed scheme or to Mr Nicholls’ affidavit. This makes any meaningful consideration or analysis difficult. Indeed, Mr Dunning says that the DMP does not in fact exist in any coherent form. That may or may not be correct.
(b)Relatedly, it is unclear how the DMP relates to the Hampton Jones Report which (as I understand it) is what outlines the work yet to be done, and (I would have thought) sought to be authorised by the scheme.
(c)Thirdly, and as I understand it, it has now been accepted by the Body Corporate that “deferred maintenance plan” is an unhelpful descriptor for the planned (or past) remediation works.29 Nor (for the same reasons that the District Court held in the Newland proceedings) should the remediation plan properly form part of the “long term maintenance” plan.
29 I was advised that it may now be referred to as a “contingency” plan or fund.
[48] The second potentially material departure from the Meader scheme is the omission from cl 5.1 of the obligation (at cl 5.1(a) in Meader) on the Body Corporate to “Identify the extent to which Costs relate to Repairs to the Common Property and to any Unit or Units”. I suspect, however, that this is explicable by the fact that this work has already been done and approved by the Body Corporate (see the discussion of cl 10.1 below). But if not, clarification may be necessary.
[49]Thirdly, there is a change to cl 6.3 which, in the Meader scheme, reads:
Any levy raised under this Scheme shall have the same legal status as a levy validly raised under s15 of the Act.30
[50]But cl 6.3 of the draft scheme states:
Until such time as a section 74 scheme is approved by the Court Levies shall be calculated in accordance with each Owner’s utility interest. Once a scheme is in place levies will be calculated on that [sic] basis of that scheme.
[51] There is a slightly Alice in Wonderland-ish aspect to this clause. Although I accept that:
(a)the scheme would allocate costs on a unit entitlement basis; and
(b)Tisch makes it clear that schemes should have retrospective operation provided the pre-scheme decisions have made in accordance with it;
it is odd to have a clause in an as yet unapproved scheme purporting to authorise the raising of levies today that are not in accordance with the Act.31 Beyond making that observation, however, I do not propose to comment further.
[52] Clause 7 in both schemes deals with the Body Corporate’s powers in the event that it has insufficient funds to carry out timely repairs. Unlike the Meader scheme, the ambit of cl 7 in the Links scheme is limited to cases where the lack of funds is due to defaulting owners, although in Meader the wording of the provision contemplates
30 There is no direct equivalent in the 2010 Act to s 15 of the 1972 Act. The general power to levy is found in s 121.
31 It is unclear to me why the clause does not also seek to give levies raised under the scheme the status of levies raised under the 2010 Act.
that this is the most likely scenario. What is possibly more perplexing is the omission from cl 7 in the proposed Links scheme the remedial subclauses in the Meader scheme which require repayment to owners who have been required to contribute due to another’s default and which make defaulting owners liable for any consequential losses and costs.
[53] Clause 10 of both schemes relates to the allocation of costs and is therefore critical. But the proposed allocations are quite different.32 In the Links scheme, it is subcl 10.2 that is the substantive allocation provision. It states:
Costs incurred or projected as at the date this scheme is settled, or yet to be calculated but still part of the DMP, will be allocated based on the scheme defined by the section 74 decision, being based on utility interest, as approved by the overwhelming majority at the EGM dated 19 March 2016.
[54] This is, of course, the crux of the present applicants’ concern. Mr Dunning says that it involves an unnecessarily radical and unjustified departure from the allocation contemplated by the 2010 Act. So, a comparison with the Meader equivalent may, again, be instructive. It involved a minimal departure from the 1972 Act and provided:
10.1Where Repairs can be identified with a specific Unit, the Cost of such Repairs shall be borne by the Owner or Owners of that Unit.
10.2Where Repairs are carried out to Common Property, the provisions of the Act shall apply.
10.3Subject to any specific provision to the contrary in this scheme, where repairs involve both Units and Common Property, the Cost of such Repairs shall to the extent possible be apportioned to each Owner on the basis of that owner’s legal title to part of the Building.
[55] It might, nonetheless, be observed that the Meader scheme was approved under the 1972 Act, which did not impose responsibility on bodies corporate for undertaking repairs to building elements and infrastructure. Arguably, a scheme which allocates the costs of such repairs on a unit entitlement basis involves less of a departure from
32 Clause 10.1 of the Links scheme provides that boundaries of Units, Accessory Units and common property shall be based on the Wynne Peterson [sic] report dated 17 December 2010 and a Rainey Collins legal opinion dated 16 February 2011, adopted by the Body Corporate at its AGM on 14 May 2011. That (I think) is relatively uncontroversial.
the 2010 Act than a scheme that did so under the earlier Act. Beyond that, however, I do not presently propose to comment.
[56] Next, there is the question of accounting (cl 11), a matter which has been the touched on in the context of the litigation involving Ms Newland. In that respect, the Meader scheme provided that:
The Body Corporate shall keep all funds paid by an Owner under this scheme in a separate named account identifiable to the Owner until such time as the funds are paid out by the Body Corporate pursuant to this scheme. An Owner shall have no right to demand a return of any funds credited to that Owner’s account until such time as the Repairs are completed in full.
[57] By contrast, the equivalent provision in the proposed Links scheme simply states:
The Body Corporate shall keep all funds paid by Owners in relation to the scheme/the DMP in a coded account.
[58] There may be issues about the adequacy of this clause in terms of the Body Corporate’s wider obligations to account to its members.
[59] And lastly, there is the dispute resolution clause (cl 13). The potentially material points appear to me to be as follows.
[60] Under the Meader scheme the clause provides that objections to a body corporate decision relating to the scheme may be made and are to be referred to arbitration where:
(a)there are five or more owners,33 whose objection in monetary value cumulatively exceeds $30,000; or
(b)one unit owner has an objection which in monetary terms exceeds
$10,000. Upon receiving notice of such an objection, the Body Corporate shall refer the matter to arbitration.
33 Or around ten per cent.
[61] Objections must be made within 15 working days of receiving notice of the subject matter of the objection.
[62] Under the proposed Links scheme objections are limited to “matters relating to but not covered by the scheme, which have arisen since the time the scheme was approved by the Court”. An objection may only be made by at least 8 owners, or 26 per cent of all owners, and where the objection in money terms cumulatively exceeds $200,000. Objections must be made within 10 working days of receiving notice of the subject matter of the objection.
[63] There can be little doubt that the proposed scheme gives more limited scope for objection. That may or may not be unfair or problematic; the benchmark must be one of fairness in the context of the Links and its own particular issues. While at first glance, the limiting of objections to matters relating to but not covered by the scheme, which have arisen since the time the scheme was approved, seems potentially unclear, on reflection it’s ambit is the same as the clause in Meader. More particularly, it makes sense that:
(a)the scheme is regarded as addressing all historical issues; and
(b)if a matter is covered by the scheme then a decision in accordance with it should not be able to be challenged.34
The grounds advanced for striking out the s 74 application
[64] In his written submissions Mr Dunning articulated at some length the applicants’ criticisms of the proposed scheme, and their grounds for seeking to have the s 74 application struck out. It seems to me the simplest and most complete way to deal with these is briefly to address each in turn. Each proposition advanced by Mr Dunning is intended to be encapsulated in the italicised headings I have adopted.
34 So, for example, no objection could properly be taken to a levy based on the costs allocation method approved by the scheme. Were it otherwise, one of the central purposes of the scheme would be defeated.
Scheme improperly sought to validate Body Corporate’s unlawful conduct in attempting to remediate The Links and to sanction its having continued with the DMP even after it became obvious that it was unlawful
[65] I have referred to what I see as potential difficulties with the reference in the proposed scheme to the DMP, above.
[66] Beyond that, however, this proposition is largely conclusory which, without more, gets the applicants nowhere. To the extent it is an objection to the Scheme’s retrospective operation, Tisch makes it clear that the scheme can have retrospective effect, provided the Body Corporate has acted in accordance with it prior to the Court’s approval. And almost by definition, there will be aspects of a scheme which render lawful what would otherwise be unlawful (in the sense of being beyond the scope of the 2010 Act and the Body Corporate Rules).
Scheme improperly sought to provide Body Corporate’s management committee with the means of imposing levies on its members that it was not and is not able to lawfully impose under either the 1972 UTA or the 2010 UTA
[67] See above. The whole point of a scheme is to authorise departure from the Act. The question is whether it does so in a way that is fair and appropriate. Without more, there is nothing in this proposition.
Scheme improperly sought to validate retrospectively the unlawful imposition and collection of levies
[68] See above. Tisch makes it clear that schemes can operate retrospectively. Without more, there is nothing in this proposition.
Scheme improperly sought to justify Body Corporate’s issue of proceedings and enforcement of judgment and orders obtained against its members
[69] Those proceedings have been determined on their merits. There is nothing in this contention.
Scheme improperly sought to validate Body Corporate’s management practices, particularly financial practices and expenditure of members’ funds
[70]See above generally, and in particular at [67].
Scheme improperly sought to protect Body Corporate management from civil action
[71] The indemnity provisions are materially identical to those approved in Meader. Prior to that approval, the appropriate extent of Body Corporate liability had been specifically considered and discussed in some depth by Heath J.35
Scheme improperly sought to distract members from the claim that the remediation work has failed, and will continue to do so if the building is not reclad
[72] To the extent this is an allegation of dishonesty or bad faith on the part of the Body Corporate it is quite unsuitable for determination in a strike out. In any event, it is plainly based on matters that are disputed and would likely require expert evidence to determine. The various authorities discuss how the Courts should approach and assess the appropriateness of operational/remedial choices made by bodies corporate.
The scheme is inappropriate because it is outside the scheme of both the 1972 UTA and the 2010 UTA
[73] Without more, this is not a valid objection. Tisch only makes it clear that departures from the statutory schemes should be no more than is necessary. I have referred to one possible issues in that respect at [53] – [55] above. The question is whether the departures (and in particular the cost allocation methodology) are appropriate in the particular circumstances. That is not an issue which is so clear-cut it can be determined on a strike out application.
The scheme is inappropriate because the DMP has involved and will continue to involve work on privately owned decks, balconies, cladding and doors and windows for which the body corporate is not responsible
[74] Under the 2010 Act the decks, balconies and cladding are building elements, for the repair of which the Body Corporate is, clearly, responsible. Although not drawn to my attention by Mr Dunning, this Court has previously and rightly ruled against Yee (in the context of a dispute with a different body corporate) on a very similar issue.36
35 Body Corporate 172108 v Meader (No 2) (2010) 12 NZCPR 181 (HC) at [26] to [29].
36 Yee Good Fortune Investments Ltd v Body Corporate 392619 [2017] NZHC 723, (2017) 18 NZCPR 504.
The scheme is inappropriate because the Body Corporate has had no authority to pursue the DMP and has proceeded without the authority of either s 48 1972 UTA or s 74 2010 UTA
[75] See above. The proposition is illogical because, on that analysis, the Body Corporate would never be able to pursue a scheme. This is contrary to Mr Dunning’s concession that a scheme is required.
The remediation work thus far has been done without definitive investigation into the causes of the leaking, with no authoritative evidence of decks (or balconies) leaking as claimed, no adequate scope of works, with little or no prospects of success. It ignored expert reports attributing the cause of the leaks to the cladding, and a lack of maintenance for which the Body Corporate was responsible
[76] This is plainly a matter of dispute and may require recourse to expert evidence to resolve. It is wholly unsuited to consideration on a strike out application.
The Links is a potential earthquake risk and a safety risk neither of which is addressed by the DMP
[77] The focus of a scheme is not on addressing future risk but is premised (as s 74 makes clear) on repairing existing damage. To the extent such risks exist, one would have thought it may be a matter for the local Council.
The scheme is inadequately detailed in that there is little evidence of what the DMP entailed, how much of it has been completed or what the Body Corporate's intentions are in relation to the work originally contemplated.
[78] On the state of the evidence before the Court I tend to agree with this proposition (see [47] above). Tisch makes it clear that a reasonable level of detail is desirable in a scheme. Rather than being a ground for strike out, however, it is something to which the Body Corporate should turn its mind prior to substantive hearing.
As regards to future work (option 2) the Body Corporate has expressed no intention or regard to what part or portion it might undertake or when
[79] Notwithstanding the point about detail, as far as I know it is not necessary that an actual work programme form part of scheme. Again, however, it is something that can be addressed at the substantive hearing.
It appears that some of the work it intends to do is outside the scope of the original DMP
[80] In the absence of the DMP I am unable to comment on this. It may well be correct, in which case the scheme should make that clear. But it does not warrant a strike out.
Far too much is left to the discretion of the Body Corporate
[81] For so long as the DMP is not available, I would be inclined to agree. Beyond that, a comparison with the Meader scheme does not suggest that there is anything particularly remarkable in the breadth of the powers that would be conferred here.
The work done under the DMP does not have and will not be able, in any event, to obtain building consent or achieve compliance with the New Zealand building code
[82] This seems largely to be an aspect of the wider complaint about the DMP which, for reasons already given, is not capable of resolution here. There is simply no way that the Court could engage on a strike out with whether or not the work complies or could comply with building requirements. Again, that is almost certainly a contested matter which would take expert evidence to resolve.
The Body Corporate has failed to take expert advice, shown inadequate administrative and management skills, including maintaining adequate records and financial information which would enable it to determine and recover expenditure on individual units
[83] On the face of the evidence it appears the Body Corporate has taken a good deal of expert advice. The truth of the other contentions is, no doubt, disputed. To the extent matters of past accounting and accountability are relevant (and they may be) they need to be explored in October.
The proposed sharing of the cost to each owner on a utility interest basis is unfair and the Body Corporate has made no attempt to demonstrate what the cost would be under the default scheme
[84] It is not clear to me what was meant by the “default scheme” although I suspect it refers to cost allocation under the 2010 Act. In that regard, I have noted what are, at least, the indicative comparative Maltby figures at [37] – [40] above. In any event,
I accept that one of the main, substantive, issues for the Court in October will be the fairness of the proposed scheme overall; that much is clear from Tisch. One thing that will need to be weighed in the balance are the reasons advanced by the Body Corporate and certain of its advisors for adopting a global utility interest cost allocation, against any resulting unfairness to those such as the applicants. As noted earlier, the extent of any departure from the position under the Act is clearly relevant and will need to be justified by the Body Corporate. Beyond those general comments, however, I am unable to take matters further in the context of a strike out.
The proposed scheme grants the Body Corporate unacceptably sweeping powers binding not only current but also future owners
[85] In this regard, the draft scheme is on all fours with the scheme approved in Meader, which requires a vendor of a unit to disclose the existence of the scheme and of the purchaser’s potential liability, but is otherwise binding on future owners. It is difficult to see, as a matter of logic, how a scheme could operate otherwise. And certainly, in a strike out context, it does not seem to me to be a matter that is capable of an “in principal” objection or a ruling that such a provision could never be justified.
Membership support for the DMP is of little or no significance
[86] This proposition appears to me to run contrary to Tisch where the Court of Appeal made it clear that the extent of member support for a scheme was relevant. That said, however, if (for example) the Court were to find that a scheme based on the DMP were too inchoate to warrant approval then it may well be that majority support for it would need to yield to other Tisch considerations.
It is impossible to ascertain what the outcome would be if the scheme were to be approved, because of the lack of clarity around the DMP
[87] As will be evident from my earlier comments I have a measure of sympathy for this proposition. I have already suggested that the Court may well be assisted by the provision of further information in this regard. Ultimately, the question will be whether the Court hearing the substantive application in October is satisfied with the level of detail that is contained in the scheme that it is being asked to approve.
Option 2 encompasses work that extends indefinitely into the future and would better be dealt with in the context of the Body Corporate’s LTMP.
[88] I suspect that this submission may be based on a misunderstanding of what is encompassed by Option 2. To take the most obvious example, Option 2 is predicated on the building being completely reclad over 10 years. It is tolerably clear that Option 2 contemplates that recladding is properly a LTMP matter.37
Option 2 is based only on Hampton Jones’ visual inspection of the building and limited invasive and destructive testing. It is not sufficient to instruct a building contractor to indicate repair works and should not be considered a specification. Detailed drawings and specifications will be required for the purpose of acquiring a building consent.
[89] This again relates to what I see as the vagueness around the DMP. The issue is whether more specifics can, or should, be provided to the Court in advance of the October hearing. As I have said that is a matter for the Body Corporate to consider, in light of this judgment.
Conclusion
[90] As will be evident from the discussion above I do not consider that any of the matters raised by the applicants are of a kind that could properly lead to the s 74 being struck out. As I think my comments at the outset made clear, a strike out seems conceptually ill suited to a case such as this. Equally, however, the application has raised issues which, in my view, could usefully benefit from further thought. So, to that extent I am hopeful that this has not been an exercise in futility.
Discovery issues
[91] Although the application for strike out was also based on alleged discovery failures by the Body Corporate, Mr Dunning very properly accepted that, by themselves, those failures would not warrant striking out. I observe that it appears to be the issue of discovery which has caused much of the delay since the filing of the s 74 application. While it is a process one would generally regard as inapt, in the context of an originating application, I can see that, given its centrality to the s 74
37 This is, however, a good example of why it is confusing and unhelpful to also refer to the DMP and/or the more immediate remediation as forming part of the LTMP.
application, the apparent unavailability of the DMP in any final or cohesive form may well be a legitimate concern. But for present purposes I merely record my agreement with Mr Dunning that any failures in that regard could not justify a strike out here.
Result
[92] The application to strike out the Body Corporate’s application for a scheme under s 74 of the 2010 Act is dismissed, for the reasons I have given.
[93]Costs should follow the event in the ordinary way, on a 2B basis.
Post-script: post-hearing events
[94] Lastly, I record that it has come to my attention that, subsequent to the hearing before me, Yee has been placed in liquidation, on the petition of the Body Corporate.38 I assume that that will mean that it will be unable to oppose the substantive s 74 application in October without the consent of either the liquidators or the Court. What Ms Knight may decide to do will, of course, be a matter for her.
Rebecca Ellis J
38 Body Corporate 81340 v Yee Good Fortune Investments Ltd [2018] NZHC 1472.
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