Body Corporate S73368 v Otway

This appeal concerns a dispute regarding the responsibility of the respondents, apartment owners, to pay for substantial repairs undertaken by the appellant Body Corporate on a leaking unit title apartment block at Mount Maunganui. The Body Corporate appeals the substantive decision on this dispute given by Woolford J in the High Court of 20 December 2017, and his costs decision of 17 May 2018. The Body Corporate appeals the substantive decision on the basis that the respondents were required to repair and maintain their decks pursuant to the Unit Titles Act 2010 (the UTA 2010) but refused to. The Body Corporate contends that the respondents breached r 1(e) of its operative rules by failing to repair and keep in good order their unit property, being the decks. The Body Corporate submits that as the Judge determined that the respondents did own their decks, repairs were required to stop the leaking which was causing damage to the downstairs units and other common property, so the grounds for recovery under s 127 of the UTA 2010 were met. The Body Corporate also contends that it was entitled to recover the costs of repairing the decks under s 138(4) of the UTA 2010 on the basis the repairs were to the respondents’ unit property. The Body Corporate argues that the Judge erred in determining recovery under s 138(4) on this basis. The Court found that the Judge did not err in determining that the Body Corporate was unable to recover from the respondents any of the repair costs under s 127 of the UTA 2010. The Court found that the relationship between ss 138(4) and s 126 of the UTA 2010 created some potential difficulty here. The Court found that the Body Corporate was not entitled to recover costs from the respondents on the basis of s 138(4). The Body Corporate appeals the costs decision on the basis that it says the respondents’ email of 7 August 2017 was not a Calderbank offer and, therefore, should not have warranted costs being awarded to the respondents. The Court found that the respondents’ 7 August 2017 offer was sufficiently clear and unambiguous to be taken into account by the Court under r 14.11. The Court found that the respondents’ offer was more beneficial than the outcome. The appeals are dismissed. The appellant must pay the respondents one set of costs for a standard appeal on a band A basis and usual disbursements.