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 residential and three of which are retail), eight mortgagees and the insurer.  To date no party has notified that they wish to be heard.

Decision

[3]      For the following reasons, I am not satisfied that BC 85115 has served the vast majority of the respondents.

[4]      BC 85115 sought directions as to service by application dated 19 October

2016.   It sought a direction that it serve all bar two respondents (who required personal service) by email.   The request for this direction followed a written agreement between the respondents concerned and BC 85115, clause 7 of which provided for service by email to a nominated address.2

[5]      On  2  November  2016,  the  Court  gave  the  directions  sought  in  the application.3

[6]      By affidavit sworn 2 February 2017, Mr Dennis advised that:

3.Due to the file size of two of the Documents, sending them as email attachments was not possible.  Therefore I uploaded the documents to a cloud-based storage system, with a link to the Documents being

1      High Court Rules 2016, r 19.2(za).

2      Copies of the agreements were annexed to an affidavit sworn by Mr J A Dennis on 17 October

2016.

3      Minute of Associate Judge Bell dated 2 November 2016; and Order for Directions as to Service dated 2 November 2016.

created.   The link was then sent via email, allowing the recipients to view and download the Documents ...

[7]      The email referred to was dated 8 December 2016.  It notified the recipient that the documents were “available for viewing and downloading” by clicking on the link; that the email amounted to service; and that a recipient who wished to oppose the application was required to do so within 10 working days of receipt.  The email also  notified  that  the  next  scheduled  event  was  the  “First  Call  Hearing”  on

13 February 2017.

[8]      BC  85115  received  two  responses  to  this  email.     In  its  response  of

8 December  2016,  Westpac  advised  that  it  was  “unable  to  open  Google  drive documents due to potential virus risks”.  By email dated 15 December 2016, an ASB representative advised that he could not “access the documents when we open the link”  and,  later,  that  he  could  not  access  another  “dropbox”  mechanism  that Mr Dennis arranged.

[9]      I do not accept that emailing a link to a cloud storage facility is the same as, or equivalent to, sending the documents themselves by email.  That was the form of service agreed with the affected respondents, and the direction as to service that was sought and given.

[10]     The responses from Westpac and ASB evidence that they declined or were unable to access the cloud storage site to which the documents had been uploaded.

[11]     Counsel for BC 85115 stated that, as those were the only two responses received, it was open to me to infer that all other recipients were able to view the documents, as if they had been emailed.   I am not willing to draw that inference. The Court will always be concerned to ensure that service is effected in accordance with the High Court Rules or its direction.  A variation to the direction should be sought if it is not possible to effect service as anticipated.

[12]     BC 85115 must make a fresh application for directions which should also provide for notice to be given of another date for mention.

[13]     An application for settling a scheme under s 74 is an important legal matter. In this case, the documents to be served comprise some 400 to 450 pages.   The scheme itself reserves considerable discretion to BC 85115, as I discussed with counsel yesterday.    Moreover, this is predominantly a residential unit title development, and some of the registered proprietors of units may be elderly or have a limited grasp of English.  The method of service proposed must be sufficient to ensure that all are fully and fairly informed of the scheme proposed, and a recipient should be given sufficient time to consult their legal adviser.  For myself, I would not have thought emailing such voluminous documents with a time period for opposition so close to Christmas was adequate.  It follows from what I am saying that BC 85115 should reflect on what is a proper course before making a fresh application and whether in this particular instance personal service might be a better course.

..................................................................

Peters J