Body Corporate 86105 v Leslie

[2021] NZHC 924

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-483

[2021] NZHC 924

UNDER

the Unit Titles Act 2010

IN THE MATTER

of an Originating Application for Orders establishing a Scheme under section 74 of the Unit Titles Act 2010

BETWEEN

BODY CORPORATE 86105

First Applicant

MARTIN PHILLIP CAWLEY AND DIANE MAY CAWLEY

Second Applicants

AND

MARTIN DONALD LESLIE AND LIANG

ZHONG as Trustees of the MARTIN D LESLIE FAMILY TRUST
First Respondents

OTHER RESPONDENTS

As listed in Schedule One to the Originating Application

Second Respondents

On the papers
Counsel:	K L Wendt for Applicants
Judgment:	28 April 2021

JUDGMENT OF THOMAS J

Introduction and background

[1]                  Body Corporate 86105 (the Body Corporate) has applied for an order discharging the scheme under s 74 of the Unit Titles Act 2010 (the Act) to reinstate a unit title development located at 120 The Terrace, Wellington (the Scheme).

BODY CORPORATE 86105 v LESLIE [2021] NZHC 924 [28 April 2021]

[2]                  In granting the orders to settle the Scheme, Clark J usefully summarised the background to the proceeding as follows:1

The building was built around 1968 as a commercial premises and converted in 1997 mainly to residential apartments. At the time of the conversion, two new levels were added to the top of the building. The new levels 14 and 15 contain five double-storey apartments. The building now comprises 121 principal units: 95 residential, 3 retail, 1 electricity substation and 22 carparks.

The lighter penthouse structure was constructed with timber framing and a cladding/plaster system finish. Weathertightness issues became apparent around 2007 and since that time the Body Corporate has investigated the defects and damage (primarily to the penthouse units) and repair options. Construction plans were developed, building consents were sought and granted and initial remediation work commenced in October 2017. These resolutions were incorporated into a draft scheme. A motion was passed later in November to approve the draft scheme. An originating application to settle the scheme was filed in the High Court on 28 June 2018.

The application was opposed by some owners who disagreed with the proposed apportionment of the costs.

The differences between the parties have now been resolved. At an Annual General Meeting on 28 May 2019 (the 2019 AGM), owners of 52 units were represented either in person or by proxy or postal vote. A majority voted to accept the cost apportionment proposal which is reflected in the scheme which the Court is now asked to settle.

[3]                  The Scheme required the following steps to be completed for discharge to occur:

(a)completion of the reinstatement project to be deemed completed on the issue of a Code Compliance Certificate for the repairs by the relevant building consent authority (in this case, the Wellington City Council) and when a new Unit Plan had been deposited with the Registrar- General of Land, if required;

(b)the Body Corporate giving written notice to the Court and serving all affected parties that the reinstatement is complete, by way of memorandum attaching a copy of the Code Compliance Certificate and new Unit Plan (if any); and

1      Body Corporate 86105 v Leslie [2019] NZHC 1853 at [2]-[5].

(c)on receipt of notice from the Court that the order settling the Scheme has been discharged, the Body Corporate is to forward a copy of that discharge notice to the Registrar-General of Land, requesting that the Scheme notice registered on the Supplementary Record Sheet under   s 74(5) of the Act be removed.

[4]                  In his affidavit in support of the application, Mr Johannes Viljoen, the manager of the Body Corporate, has confirmed that the building remediation work has been completed, and the owners of the Body Corporate have been notified about its intention to discharge the s 74 order.

[5]                  Mr Viljoen exhibited the Code Compliance Certificate to his affidavit, as well as evidence of giving notice to all Body Corporate unit owners of the completion of the Scheme and intention to request its discharge. He confirmed that no new unit plan was required.

[6]                  Katherine Thornber’s affidavit provides evidence of notices of completion and the intention to discharge the Scheme being conveyed to all mortgagees and insurers for the development who were named as parties to the application for the Scheme.

[7]                  These various notices specified that any opposition to the discharge had to be notified to Mr Viljoen within two weeks. No such opposition has been received.

Result

[8]                  Under s 74(8) of the Act, this Court may cancel, vary, modify, or discharge any order made by it under that section. The relevant requirements for discharging the Scheme under s 74 have been met. I therefore order:

(a)the Scheme settled under s 74 of the Act by Clark J on 1 August 2019 be discharged under s 74(8); and

(b)that the notice lodged under s 74(5) of the Act be removed from the Supplementary Record Sheet for the Body Corporate.

Thomas J

Solicitors:
Gibson Sheat, Wellington for Applicants