Body Corporate 85115 v Middlemiss - [2017] NZHC 382

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2016-470-170 [2017] NZHC 382

UNDER the Unit Titles Act 2010

IN THE MATTER

of an application for approval of a scheme pursuant to s 74

BETWEEN

BODY CORPORATE 85115
Applicant

AND

JENNIFER ANNE MIDDLEMISS, REDOUBT TRUSTEES, COLIN GEORGE COWAN AND MSCA TRUSTEES

First Respondent

ERIC BENNETT AND CAROLE MILDRED BANKS

Second Respondent

Continued over

Hearing: 7 March 2017

Appearances:

D P Shore and J A Dennis for Applicant

Judgment:

9 March 2017

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 9 March 2017 at 9 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: McCaw Lewis, Hamilton

BODY CORPORATE 85115 v MIDDLEMISS [2017] NZHC 382 [9 March 2017]

ANDDAVID JOSEPH AND GERALDINE GRACE SLATER
Third Respondent
ROBERT JAMES PETTIGREW AND EVELYN GRACE PETTIGREW Fourth Respondent
JENNIFER ANN COLLIER Fifth Respondent
ANDREW JON DWEN AND HANS RICHARD GURAU
Sixth Respondent
GRAEME WILLIAM MOYLE, VICTORIA ROSEMARY MOYLE AND PAUL JOHN DICK
Seventh Respondent
EUROPEAN STONE MASONS LIMITED
Eighth Respondent
RICHARD LESLIE COMBES Ninth Respondent
KEVIN GEORGE BRETT, KIM ELIZABETH BRETT AND BAN TRUSTEE CO LIMITED
Tenth Respondent
MARLENE DAWN ANDERSON Eleventh Respondent
HILTON JOHN EARLEY AND CYNTHIA PEARL EARLEY Twelfth Respondent
GARY RAYMOND JONES AND LYNNE MARIE ZYZA
Thirteenth Respondent
DAVID JOSEPH SLATER AND GERALDINE GRACE SLATER Fourteenth Respondent

Continued over

DON EDWARDS OPTIONS LIMITED Fifteenth Respondent

JAMES FRASER EMSLIE Sixteenth Respondent

MARK CLAMPITT LOVEYS AND VALERIE JEAN MILLS
Seventeenth Respondent

JAMES DAVID MILNE AND KERRY THOMAS STOTTER
Eighteenth Respondent

THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED Nineteenth Respondent

GEORBYN PROPERTIES LIMITED Twentieth Respondent

NOEL FREDERIK BANFIELD AND MARIA ANGELES BANFIELD Twenty-first Respondent

ANDREW WILLIAM ARTS, LYNNE MAREE ARTS, ALAN BRUCE CANDY, LYNNE MARIE ARTS, ANDREW WILLIAM ARTS AND ALAN BRUCE CANDY
Twenty-second Respondent

BRIAN JAMES GIBBONS AND AVRIL GLORIA BOWLES
Twenty-third Respondent

WARREN DOUGLAS DOEL AND CHRISTINE ANNE KING
Twenty-fourth Respondent

DAVID ROBERT HERON, LLANA MAREE HERON, PAUL KENNETH HICKEY AND COLEEN LORRAINE HICKEY
Twenty-fifth Respondent

Continued over

ROBIN DAVID BRADLEY Twenty-sixth Respondent

MAGG HOLDINGS LIMITED Twenty-seventh Respondent

THE NATIONAL BANK OF NEW ZEALAND
Twenty-eighth Respondent

BANK OF NEW ZEALAND Twenty-ninth Respondent

WESTPAC NEW ZEALAND Thirtieth Respondent

ASB BANK LIMITED Thirtieth-first Respondent

CAROLINE ANNE HAWKINS Thirty-second Respondent

MORTGAGE HOLDING TRUST COMPANY LIMITED
Thirty-third Respondent

FM CUSTODIANS LIMITED Thirty-fourth Respondent

ANZ BANK NEW ZEALAND Thirty-fifth Respondent

AON NEW ZEALAND Thirty-Sixth Respondent

Introduction

[1] By originating application dated 19 October 2016, commenced under High Court Rules, Part 19 (“application”),1 the applicant (“BC 85115”) seeks an order settling a scheme under s 74 Unit Titles Act 2010 (“Act”).

[2] By s 74(6) of the Act, any person having an estate or interest in any unit in the development and any insurer who has effected insurance on any part of the development has the right to appear and be heard on the application. There are
36 respondents to the application, these comprising the registered proprietor of the units in the development (26 of which are…

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.

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Details

Case: [2017] NZHC 382
Decision Date: 9 March 2017

CaseChat Overview and Summary

The High Court of New Zealand, Tauranga Registry, was presented with an application by Body Corporate 85115 to approve a scheme under Section 74 of the Unit Titles Act 2010. The application involved 36 respondents, which included the registered proprietors of the units in the development, mortgagees, and an insurer. The primary objective of the application was to settle a scheme that would govern the operation and management of the unit title development. The court was tasked with determining whether Body Corporate 85115 had appropriately served the scheme documents to all relevant parties in accordance with the High Court Rules and the direction given by the court.

The court had to decide whether Body Corporate 85115's method of serving the scheme documents complied with the requirements of the High Court Rules and the direction given by the court. The key issue was whether emailing a link to a cloud storage facility where the documents were uploaded was equivalent to sending the documents themselves by email, as agreed with the affected respondents. The court needed to assess if this method ensured that all recipients were fully and fairly informed of the proposed scheme and if it provided sufficient time for them to consult their legal advisers.

In its judgment, the court found that emailing a link to a cloud storage facility did not equate to sending the documents themselves by email. The responses from Westpac and ASB indicated that they either declined or were unable to access the cloud storage site, demonstrating that the method of service was not effective for all recipients. The court emphasised the importance of ensuring that service is effected in accordance with the High Court Rules or its direction and that any variation to the direction should be sought if it is not possible to effect service as anticipated. The court concluded that Body Corporate 85115 must make a fresh application for directions, providing for notice to be given of another date for mention. The court also highlighted the need for a method of service that is sufficient to inform all recipients adequately, considering the complexity and importance of the scheme.

The court ordered that Body Corporate 85115 must make a fresh application for directions regarding the service of the scheme documents. The court suggested that Body Corporate 85115 should consider whether personal service might be a better course in this particular instance, given the nature of the unit title development and the potential challenges faced by some of the registered proprietors. The court's decision underscores the importance of ensuring proper service of legal documents in complex and significant matters such as the approval of a scheme under the Unit Titles Act 2010.

Orders