Body Corporate 88125 v Beaven
[2023] NZHC 3480
•1 December 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2022-419-000281
[2023] NZHC 3480
UNDER the Unit Titles Act 2010 IN THE MATTER OF
a scheme of repair for Body Corporate 88125
BETWEEN
BODY CORPORATE 88125
Applicant
AND
ROSS ANTHONY BEAVEN
First Respondent
JAY TAY LIMITED
Second RespondentBRENTWOOD HOTEL LIMITED
Third Respondent
(intituling cont’d over page)
Hearing: On the papers Counsel:
T Braun and J Perry for the Applicant
Judgment:
1 December 2023
JUDGMENT OF WALKER J
This judgment was delivered by me on 01 December 2023 at 2.30 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors:
Braun Bond & Lomas Ltd, Hamilton.
BODY CORPORATE 88125 v BEAVEN [2023] NZHC 3480 [1 December 2023]
NIGHTSHADE COMPANY LIMITED
Fourth Respondent
MD & K LIMITED
Fifth Respondent
HEYMISH LIMITED
Sixth Respondent
MOUNTAIN HIGH INVESTMENTS LIMITED
Seventh Respondent
PETER JAMES CLEMENS
Eighth Respondent
LEE MONNA 2007 LIMITED
Ninth Respondent
NEW IMAGE INVESTMENTS LIMITED
Tenth Respondent
LEONIDAS INVESTMENTS LIMITED
Eleventh Respondent
MULQUEEN INVESTMENTS LIMITED
Twelfth Respondent
MAHAN COMMERCIAL PROPERTIES LIMITED
Thirteenth Respondent
PAUL LEONARD McSHEFFREY
Fourteenth Respondent
POTENZA INVESTMENTS LIMITED
Fifteenth Respondent
SHIVALI INVESTMENTS LIMITED
Sixteenth Respondent
IAN DARENEEL and HELEN MARGARET DARNELL
Seventeenth Respondent
WARD GR LIMITED
Eighteenth Respondent
SUNNY BAY TRADING LIMITED
Nineteenth Respondent
RIVERVIEW PROPERTY GROUP LIMITED
Twentieth Respondent
ADDSN GROUP LIMITED
Twenty-first Respondent
ASB BANK LIMITED
Twenty-second Respondent
WESTPAC NEW ZEALAND LIMITED
Twenty-third Respondent
ANZ NATIONAL BANK LIMITED
Twenty-fourth Respondent
BANK OF NEW ZEALAND
Twenty-fifth Respondent
DOMINION FINANCE GROUP LIMITED
Twenty-sixth Respondent
[1]This is an application on notice for:
(a)the discharge of a Scheme pursuant to s 74(8) of the Unit Titles Act 2010 (the Act); and
(b)removal of the 26th respondent from the proceeding.
[2] An affidavit of service confirming service on the respondents has been filed. No steps have been taken by any respondent.
[3] The application is supported by an affidavit of Rachel Allardice, the chairperson of the Body Corporate.
[4] In view of the lack of opposition, the applicant requested that I deal with the application on the papers.
Background
[5] On 22 February 2023, Downs J granted an application by the Body Corporate for the settlement of a Scheme pursuant to s 74 of the Act. This was in respect of the carrying out of building works to address moisture ingress, the presence of asbestos and inadequate passive fire protection.
[6] Those building works required under the Scheme were carried out between March 2021 and May 2023. A Code Compliance Certificate has now been issued.
[7] At the Annual General Meeting of the Body Corporate, the members unanimously voted in favour of the Body Corporate taking all necessary steps to obtain a discharge of the Scheme.
[8] The applicant contends that, as the remedial works have now been completed, the Scheme is no longer appropriate nor necessary.
[9] Section 74(8) of the Act provides that the High Court may cancel, vary, modify or discharge any order made by it under s 74. It is commonplace for a Body Corporate to apply for discharge once the building works have been completed.
[10] The 26th respondent was placed into liquidation on 15 May 2009 and was removed from the Companies Register on 19 March 2019. It is to be removed as a party to this proceeding.
[11] Being satisfied that all respondents have been served as confirmed by the affidavit of service, and there being no opposition, I make the orders set out in paragraph 1 of the applicant’s memorandum as to judgment dated 23 November 2023.
[12]The applicant does not seek costs.
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Walker J
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