Bremner v Body Corporate 51615
[2025] NZHC 2339
•19 August 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2025-485-225
[2025] NZHC 2339
BETWEEN ADRIENNE JEAN BREMNER
Applicant
AND
BODY CORPORATE 51615
Respondent
DAPHNE PATRICIA COLEMAN
Interested Party
Hearing: 11 August 2025 Counsel:
A J Knowsley and G W J Goodwin for Applicant C P S Tatley for Interested Party
Judgment:
19 August 2025
JUDGMENT OF GENDALL J
Introduction
[1] The respondent, Body Corporate 51615 (the body corporate) is the body corporate for a longstanding unit title development situated at 15-25 White Lines West, Woburn, Lower Hutt. It comprises of six single-storey, standalone residential units (Units A through F), built in 1981. The owners of those six units are the members of the body corporate, and one serves as chairperson. They share a common driveway.
[2] The present application has been brought by Adrienne Bremner, the owner of Unit D. Ms Bremner seeks an order under s 141 of the Unit Titles Act 2010 (the UTA) appointing an administrator for the body corporate. She alleges that the body corporate has been persistently dysfunctional and that the owners are unwilling to cooperate to resolve ongoing issues, hence the need to appoint an administrator. She
BREMNER v BODY CORPORATE 51615 [2025] NZHC 2339 [19 August 2025]
says too that the body corporate does not comply with various requirements under the UTA. Examples of this alleged non-compliance and dysfunctionality include outstanding maintenance issues with regard to the common property, questions of under-insurance, poor documentation of meetings, and no long-term maintenance planning, among other matters which I detail below.
[3] Ms Bremner had taken some of her concerns to the Tenancy Tribunal in 2023. The Tribunal made remedial orders in April 2023, but to date it seems those orders have not been complied with. She has also made an application for assistance to the Ministry of Business, Innovation and Employment (MBIE) Tenancy Compliance and Investigations team, but this was unsuccessful for lack of jurisdiction. Accordingly, Ms Bremner says that she has exhausted all other methods of ensuring compliance, and asks this Court to exercise its discretion to appoint an administrator.
[4] Ms Bremner proposes that Everything Body Corporate Limited (EBC) be appointed as the administrator and that this be for an indefinite term. Annual fees would be payable at a base rate of $4,600 including GST for nominated tasks. These would comprise listed financial, administrative and record-keeping tasks. Additional tasks would attract an hourly rate payment.
[5] The application is opposed by the interested party, Daphne Coleman, the owner of Unit E. Ms Coleman has the support of all other owners at the body corporate, aside from Ms Bremner. In her affidavits, Ms Coleman accepted that the body corporate had not complied with the “strict letter” of the UTA but maintained it was not dysfunctional to the extent claimed by Ms Bremner, and it was not necessary to appoint an administrator. This position has changed however and, at the hearing before me, Ms Coleman’s counsel, Mr Tatley, confirmed that it was now agreed that an administrator should be appointed.
Background
[6] The development has six standalone units. Each unit consists of a standalone house, the principal unit, and an accessory unit that comprises an attached backyard and small area on its northern side and a garden area in front. The units are positioned in a row, with Unit A furthest north and adjacent to the road, and Unit F the furthest
south / from the road. The only common property is the shared concrete driveway and fence adjoining the neighbouring property. Drainage services are laid under the shared driveway and connect via laterals to each unit.
[7] Although now Ms Coleman, and the other four unit owners she effectively represents, no longer oppose the appointment of an administrator under s 141 of the UTA, they still oppose Ms Bremner’s present application as to three matters:
(a)who to appoint as administrator;
(b)the scope of that administrator’s duties; and
(c)the term/length of that administration.
[8] Notwithstanding this it is useful, by way of further background (and also to set a picture of the body corporate stand-offs and its unfortunate history) to outline what Ms Bremner has identified as examples of dysfunctionality and non-compliance in its past operations.
[9] That timeline begins with the following historical examples of claimed dysfunction:
(a)In 2007, Ms Coleman herself organised for the fence on the common property to be repainted, and the other owners were then to repay her a share of the cost. The body corporate did not take responsibility for arranging this work.
(b)In 2012, Ms Coleman commenced building a shed on the common property. A meeting was held to discuss its non-compliance, which she did not attend. Ms Bremner wrote a letter to her requesting compliance and advising that consent of the body corporate was required to build the shed elsewhere. The proposed shed was then built on Ms Coleman’s own property (Unit E), without consent from the body corporate, and apparently still non-compliant with Hutt City Council requirements.
(c)In 2018, the owner of Unit F received advice from a drainlayer that the drainage on the common property required servicing. A body corporate meeting was called, and all owners agreed to proceed with the drainage servicing to the common property. However, that meeting was not documented, and the servicing never took place because one of the owners decided the next day “it was unnecessary”.
(d)In 2019, the owner of Unit C sought to sell her property. During this process, she became aware of the requirement for the body corporate to put in place a long-term maintenance plan (LTMP), which had never been undertaken.
[10] A little later, on 15 March 2020, Ms Bremner arranged for the body corporate to hold a meeting to discuss compliance with the UTA and Unit Titles Regulations 2011 (UTR). During that meeting, she was appointed as chairperson. Once appointed, it appears that she spent some time researching the obligations of a body corporate and identified the following issues:
(a)very few meetings had been held, including no AGMs, and no meetings had been documented;
(b)the body corporate had no bank account and did not collect levies from the owners;
(c)it had no financial accounts;
(d)it had no LTMP or long-term maintenance fund (LTMF);
(e)the properties had been collectively insured, with the premiums being paid (presumably equally) by each owner directly to the insurer (and not in accordance with utility interests);
(f)in her opinion, the building replacement value for the insurance was insufficient and progressively lagging further behind market values;
(g)it was unknown to property owners what comprised the common area and the extent of boundaries; and
(h)the property owners were unfamiliar with the body corporate rules.
[11] In July 2020, Ms Bremner called a meeting of the body corporate to outline the requirements for complying with the UTA and UTR. She raised the requirement to have a LTMP, and to have a LTMF to fund that work.1 She reiterated the importance of this at the body corporate’s first AGM on 13 September 2020. At the AGM, three owners objected to the body corporate setting up a bank account and sought to waive the requirement to establish a LTMF. However, it was agreed that the body corporate would progress with a LTMP.
[12] In December 2020, a LTMP proposal was provided to the body corporate. A voting form was sent to all owners in April 2021 asking them to vote on a range of matters: whether to approve the LTMP and to establish a long-term contingency fund levied at $20 per week, and whether to set up a bank account. Three owners voted against approving these items. Therefore, they did not proceed.
[13] In late 2021, Ms Bremner began engaging a lawyer and contacting the Tenancy Tribunal. On 6 May 2022, she submitted a final application. Mediation was scheduled. However, it was repeatedly postponed and then finally cancelled because the other owners declined to attend.
[14] On 17 August 2022, an extraordinary general meeting (EGM) of the body corporate was held. At this meeting, Ms Coleman raised issues with the proposed LTMP. These included that it appeared to address items beyond the shared driveway and fence. The body corporate voted against adopting the plan in its then-current form. It agreed, however, to establish a LTMF (without deciding on an amount to be levied). The body corporate also voted against first, establishing a contingency fund for works in relation to the drainage and other unexpected works and raising an annual levy, secondly, establishing and maintaining an operating account, and thirdly, reimbursing
1 Under s 117 of the Unit Titles Act 2011 [UTA], a body corporate can decide, by special resolution, not to establish a LTMF. However, there is no record of such a resolution being passed.
Ms Bremner’s legal costs in seeking compliance with the UTA. A motion of no- confidence against Ms Bremner as chair was put forward but no vote was taken on the motion.
[15] On 19 September 2022, an AGM was held. The body corporate voted to accept Ms Bremner’s resignation and to appoint Ms Coleman as chairperson. Votes against raising a range of levies and a contingency fund for works, and against adopting the original professionally-prepared LTMP (in favour of independently drafting its own LTMP) were also taken.
[16] On 11 October 2022, Ms Bremner received an insurance valuation for the development at $4,612,000. Despite this, the development was currently insured then it appears at $3,702,832.
[17] In November 2022, a meeting was held, during which the alternate LTMP was presented and approved by five of the six owners. The dissenter, Ms Bremner, maintained this LTMP was not fit for purpose and did not meet the requirements of the UTA and UTR. She said it failed to cover the common property, building elements and infrastructure of the development, it failed to state the estimated age, life expectancy and cost of maintenance and replacement of each item covered, and it failed to state whether there was a LTMF or the amount to be applied to maintain the fund each year. Ms Bremner also contended that the proposed $16 per week levy was not calculated in accordance with the utility interests of each unit owner.
[18] At the end of December 2022, two members were elected to the body corporate committee at a Christmas function, and a bank account was finally set up for the body corporate by the chairperson. Levies were paid into that account.
Tenancy Tribunal orders
[19] Tenancy Tribunal hearings addressing body corporate issues were held in March and April 2023. On 13 April 2023, the Tribunal made the following orders by consent:
(a)That the body corporate adopt a LTMP that meets the requirements of s 116 of the UTA and reg 30 of the UTR within 30 working days.
(b)That Ms Coleman remove the shed located at the boundary at her cost, within 30 working days.
(c)That the body corporate arrange for the performance and condition of all drainage infrastructure to be professionally inspected within 30 working days.
(d)That the decision to elect the body corporate committee at the Christmas function was void. The body corporate was to call an EGM within 30 working days of the date of the order for the purpose of either forming a committee or resolving not to form one.
[20] An order for costs in Ms Bremner’s favour was also made. This has now been paid.
[21] It seems, however, that the body corporate did not respond to the Tribunal’s other orders within the required 30 working days, and it has still not fully complied with the orders. Ms Bremner complains that a new LTMP has not been sought or adopted, and the owners continue to be levied in accordance with the old LTMP introduced back in November 2022. There remain continuing disputes between the owners over this LTMP issue.
[22] The parties do agree that the body corporate failed to comply with the Tenancy Tribunal order requiring it to resolve whether or not to form a committee within the specified period. However, Ms Coleman says in response that a committee was voted in at the AGM some time later, in December 2023.
[23] Ms Bremner notes too that the body corporate failed to comply with the order to organise a professional drainage inspection. A visual inspection from the ground surface only was carried out by Leslie Drain Clearing Limited in May 2023. The
invoice for that inspection assessed the main pipe as in good condition and free flowing but said that some sumps needed to be cleaned out and new grate lids installed.
[24] Ms Bremner says, however, that a visual inspection from the surface cannot sufficiently comply with the order to inspect the condition and performance of all drainage infrastructure. She arranged a site visit and requested a quotation from two drainage contractors in October and November 2023, but has not progressed the work resulting from either quotation. She maintains this is due to concerns that she will not be reimbursed by the unit owners if she pays for the work.
Further developments
[25] On 7 December 2023, the body corporate held another AGM. There, Ms Sarah McPeake was appointed as chairperson. Ms Bremner says no financial records were presented at the meeting and the body corporate had not taken any steps to comply with the Tribunal orders. In addition, the LTMP was deferred with no timeframe set to complete it. No minutes were sent out for this meeting, it seems, until May 2025.
[26] Ms Bremner alleges that the chairperson is also failing to comply with her duties, as detailed under reg 11 of the UTR. This includes, she maintains, by failing to sufficiently monitor the body corporate bank account.
[27] In July 2024, Ms Bremner applied to the MBIE Tenancy Compliance and Investigations team requesting their intervention into the body corporate. MBIE declined to consider the matter, on the grounds that it had already been before the Tenancy Tribunal.
[28] All this led to Ms Bremner’s belief that she now had no other option than to bring the present application for the appointment of an administrator.
[29] Since filing her application, an EGM was held on 9 May 2025. Ms Bremner says she requested financial statements for the bank account in advance, but these were not provided at that meeting. At the EGM, a motion was passed by majority to engage a body corporate manager for a period of 12 months. Ms McPeake said that she would
obtain quotes from providers ahead of the next meeting and include them in the AGM agenda.
[30] Another AGM was held on 23 May 2025. The agenda was submitted three days before the meeting. No property manager proposals or details were included. A proposal from potential managers, Crockers, was emailed to all owners one day prior to the meeting. The body corporate agreed to appoint a manager by the target time of the end of June 2025.
[31] As of the date of this hearing, no progress has been made in appointing a body corporate manager. Ms Coleman says this is largely because of the current application, and the body corporate had decided not to proceed with appointing a manager until administration issues were resolved.
[32]In the meantime, no updated LTMP has been produced.
[33] On 23 July 2025, the body corporate did arrange for an insurance valuation, which was recorded as $3,987,000. The units are currently insured for a reinstatement value of $3,702,832.
[34] On 31 July 2025, Scott Topham, an inspector with CheckHome Limited, carried out an external inspection of the premises. Although Mr Topham noted that some maintenance was required, for example on glazing units and aspects of roofs, the overall condition of the premises was listed as “average” and “consistent with dwellings of approximately the same age and construction”. Ms Coleman says that this suggests there are no serious maintenance issues that will immediately threaten the integrity of the buildings.
Legal principles
[35]The application is made under s 141 of the UTA, which relevantly states:
141 Appointment of administrator
(1) The body corporate, a creditor of the body corporate, or any person having a registered interest in a unit, may apply to the High Court for the appointment of an administrator.
…
(3) The High Court may, in its discretion on cause shown, appoint an administrator for an indefinite period or for a fixed period on such terms and conditions as to remuneration or otherwise as it thinks fit.
[36] In Low v Body Corporate 384911, Heath J held that the Court’s discretion in these cases will be primarily informed by:2
[37] …the functions of a body corporate and the ability of those with responsibility for its affairs to carry out their duties fairly, against the background of the underlying principles on which the [UTA] is based.
[37] In Body Corporate 201036 v Whai Rawa Railway Lands LP, the Court of Appeal agreed with Heath J’s analysis, finding that:3
[81] …The objective of appointing administrators must be to ensure that the body corporate is placed in a position in which it can meet its statutory obligations and fulfil the stated purposes of the UTA, especially the need to preserve the integrity of the development.
[38] In Gibson v Body Corporate 384911, Ellis J noted, after reviewing previous case law, that a factor potentially relevant to whether “cause” for the appointment of an administrator has been shown includes “the existence of any dysfunctionality”.4 However, the “mere existence” of such dysfunctionality “would not automatically lead to the appointment of an administrator. The reasons for [its] existence may be relevant, as would be any alternative remedies.”5
[39]More recently, in Parkinson v Body Corporate 62124, Grice J said:6
[69]In determining whether to appoint an administrator to a dysfunctional body corporate, I note the following factors may be relevant:
(a)the extent of dysfunctionality in the body corporate between the unit owner members;
(b)the duration of such dysfunction;
(c)the apparent willingness or otherwise of the parties to cooperate to resolve the dysfunction;
2 Low v Body Corporate 384911 (2010) 12 NZCPR 142 (HC).
3 Body Corporate 201036 v Whai Rawa Railway Lands LP [2024] NZCA 151.
4 Gibson v Body Corporate 384911 [2012] 1 NZLR 84 (HC) at [71].
5 At [72].
6 Parkinson v Body Corporate 62124 [2023] NZHC 2022 [Parkinson No 1].
(d)previous attempts at resolving the issues in dispute, and the expected likelihood of such resolution occurring in the future;
(e)the existence of any previous court or tribunal determinations, any relevant comments made in those decisions, and the subsequent compliance or otherwise with the orders made in those determinations;
(f)the nature and seriousness of the issues in dispute;
(g)any relevant professional evidence in relation to the issues in dispute;
(h)whether the issues in dispute mean the body corporate is in breach of the unit titles legislation, and the extent and duration of any such breach;
(i)the presence of any third parties affected by the dysfunction, and the effect, including any risk posed to them, of the dysfunction on them;
(j)the operational and financial organisational structures currently in place, the extent of dysfunction in respect of those structures, and the ability or otherwise of the body corporate to operate functionally;
(k)the size of the body corporate, and its ability to meet the costs of an appointed administrator; and
(l)any other relevant matter.
Conclusion on s 141 appointment
[40] The appointment of an administrator under s 141 of the UTA is a serious step for a variety of reasons. Importantly, such an appointment can be costly and particularly significant for the few owners in a small body corporate, such as the one in this case.
[41] From all the historic incidents and evidence I have noted above, it is clear to me that this body corporate is dysfunctional and, as a result, this has detrimentally affected its governance and operations. Over quite some time, the owners have shown little ability to all work together to form a proper governance structure and this has been contrary to the UTA and their overall interests as owners.
[42] At the “eleventh hour”, it seems all the unit owners agree for the first time that an administrator should be appointed. Irrespective of this, I would have concluded in
any event that this body corporate has, for some time, been dysfunctional to such an extent that it is unlikely to function as required under the UTA, and therefore an administrator needs to be appointed. An order to this effect will follow.
Remaining issues
[43] The three remaining issues to be determined here, given that all parties accept now that an administrator should be appointed for the body corporate under s 141 of the UTA, are:
(a)Who should be appointed as the administrator of the body corporate?
(b)How long should the appointment be for?
(c)What should the scope of that appointment be?
Who should be appointed as administrator?
Submissions
[44] In considering the important attributes required in any administrator appointed under s 141 of the UTA, Grice J in Parkinson v Body Corporate 62124 noted that they need to be “suitably qualified and skilled, impartial and will seek the input of all parties into any decision-making.”7
[45] Ms Bremner says that EBC is the most suitable administrator option, and indeed the only available option, for the body corporate at this point. She confirms that she contacted 26 other property management companies to enquire as to whether they would take the role as administrator. Only three other proposals were received. Two of these companies eventually declined the role. The third company’s proposal was less comprehensive and more expensive than that of EBC. Ms Bremner says that EBC is therefore the best value administrator available.
7 Parkinson v Body Corporate 62124 [2023] NZHC 3050 [Parkinson No 2] at [8].
[46] Although EBC is not Wellington-based, having its operations in Tauranga, Ms Bremner notes that they act as the administrator for several body corporates across New Zealand. She maintains that they have a strong reputation and extensive experience, and that their proposal is comprehensive, covering all the tasks which are required for the body corporate. EBC can therefore properly act as the administrator, even from Tauranga. They have also consented to the appointment.
[47] In opposition to Ms Bremner on this issue, Ms Coleman suggests EBC is not a suitable administrator for the body corporate. She says that it would not be realistic for EBC to perform administration duties remotely from Tauranga. Most of the owners, she says, are elderly and not “tech savvy”. She suggests that it is likely EBC will have to regularly attend the body corporate in person, and associated travel costs have not been allowed for in the base fee component of EBC’s proposal.
[48] Similarly, Ms Coleman claims that several other costs are not included in the base fee component of EBC’s proposal. These include a range of tasks — preparation and implementation of the LTMP, convening and attending meetings other than the AGM, facilitating or enabling non-regular maintenance work, or arranging a tender process for any such maintenance, management and assisting with repair projects, and undertaking those duties of the chairperson or committee as required by the UTA which are not already provided for in EBC’s proposal. She says that the actual cost of EBC’s administration is therefore likely to be significantly more than the $4,600 plus GST base fee.
[49] Ms Coleman expresses concern too that Ms Bremner and EBC have not provided any pathway for the eventual appointment of a manager to assist and guide the body corporate when the administrator’s term of appointment comes to an end. She says that Ms Bremner “cannot seriously consider that administrators will run the body corporate until the end of time”. Any order for administration should provide for a pathway toward the eventual management of the body corporate.
Analysis
[50] At the outset, I note that the only potential party for appointment as administrator put forward to the Court here is EBC. Ms Coleman (both for herself and
presumably also the remaining owners other than Ms Bremner), despite their stated opposition to EBC, have made no suggestion of any alternative party. In my view, this is not insignificant.
[51] From all the material before the Court, I accept that EBC are suitably qualified and experienced in body corporate operations and management to properly undertake here the role of administrator under s 141 of the UTA. I accept too that, particularly being based in Tauranga, they are impartial and any potential for bias or a conflict of interest on their part is unlikely to arise.
[52] In some respects, it is true that the fact that EBC is based outside the Wellington region may be less than ideal. However, I am satisfied that, with the use of modern technology, including applications such as Zoom, meetings can be properly conducted at a distance. With that in mind, much of Ms Coleman’s objection to EBC as not being “on the spot” largely falls away. I also do not accept Ms Coleman’s suggestion that the owners will be incapable of utilising this technology for distant communications and meetings. With assistance, I have no doubt that this can be remedied.
[53] I note too that the costs of administration will always be an issue but, as I see it, with careful liaison and communication between the parties as issues arise and are addressed, these can be reasonably controlled. I am also satisfied that EBC, throughout its work, will make reasonable attempts to seek the input of all parties into any significant decision-making.
[54] This leads me to Ms Coleman’s final point of concern, that EBC have not provided any pathway for the eventual appointment of a manager or some other person to guide the body corporate when its term of appointment ends. That point, in my view, is one that is validly made. But, I imagine and hope in this case, it is one that any administrator, including EBC, would customarily address as its role comes to a conclusion.
[55] For these reasons, I am satisfied that EBC, the only potential appointee put before the Court, nevertheless is suitably qualified and experienced, and is an
appropriate party to be nominated as administrator here. An order appointing EBC is to follow.
Term of appointment
Submissions
[56] Ms Bremner says that EBC should be appointed indefinitely, as the dysfunctionality of the body corporate will not be properly remedied if an administrator is appointed for only a fixed term. She maintains that a short-term appointment of an administrator would likely have the effect of achieving only a very small and temporary change to the body corporate. This would result inevitably in a return to the status quo which would mean going back to its current level of dysfunction, a position that Ms Bremner says, “has plagued its operation since its inception”.
[57] Ms Bremner argues the present case is analogous to Parkinson v Body Corporate 62124.8 The body corporate in Parkinson was at a deadlock, with disagreements between its members, and an outstanding order from the Tribunal which it had not successfully complied with.9 Despite the respondents’ concerns about administrator costs and a belief that an appointment period of nine months would be adequate, Churchman J considered in that case that an indefinite term of appointment would provide needed certainty.10 Ms Bremner says that an administrator should be appointed for an indefinite period here too but, as in Parkinson, subject to a mandatory period of review. This would allow the administrator’s removal once the body corporate was able to operate at an adequate level without its services.
[58] In response, Ms Coleman contends that a key distinction between the present case and Parkinson is that in Parkinson, there was effectively no collective decision- making process occurring.11 In this case, the body corporate’s decision-making process has not followed the UTA, but Ms Coleman claims that the owners have tried, and have taken some key actions and decisions, albeit with delays. She says that an
8 Parkinson v Body Corporate 62124 [2025] NZHC 1085.
9 At [5].
10 At [16]–[19].
11 Parkinson No 1, above n 6, at [43] and [65].
administrator will only be necessary to put the body corporate into a stable cycle of properly making decisions in compliance with the UTA. After that, Ms Coleman suggests that a manager who can guide and assist the body corporate might be appropriately appointed. Accordingly, Ms Coleman contends that only a two or three- year term of appointment would be needed here. This will be sufficient to balance the need for compliance with the UTA with the democratic rights of owners, rights that will necessarily be limited by the appointment of an administrator.
[59] Finally, Ms Coleman adds that the suggestion the body corporate would be likely to terminate an administrator at the earliest possibility opportunity is simply “otiose”. She says that, intrinsically, if an administrator is appointed by the Court, the body corporate will only be able to terminate the appointment on such terms as the Court considers appropriate.12
Analysis
[60] Section 141(3) of the UTA provides that the High Court may appoint an administrator for an indefinite period or for a fixed period.
[61] As I have made clear above, the issues and conflict within the body corporate are longstanding. However, I think that another distinguishing factor in this case from Parkinson is that in that case, an administrator had previously been appointed in 2023, for a term of “12 months or such earlier time as the issues facing the body corporate have been resolved”.13 When Churchman J later appointed an administrator for an indefinite term, it would have been apparent that the previous 12 month period had not been sufficient.
[62] Given the major issues here appear to be the lack of a compliant LTMP, a failure to comply with UTA requirements, and general administrative issues, in my view, an indefinite term of appointment is not necessary. The body corporate is clearly in a better place than the one in Parkinson was. A 12-month term was initially used in that case. In my view, in the present case, a three-year term is appropriate and
12 UTA, s 141(7).
13 Parkinson No 2, above n 7, at [23(a)].
sufficient at this stage, subject to earlier termination by the Court if the issues facing the body corporate have been properly resolved at that time.
Scope of appointment
Submissions
[63] At [57] of Ms Bremner’s initial affidavit, she provided a list of 21 tasks which EBC had indicated they will carry out for the body corporate. These are wide ranging. She says they effectively cover all duties required by the UTA and the Regulations.
[64] In response, Ms Coleman submits that that scope of appointment is wider than what is needed to address the non-compliance with the UTA. She proposes the following, which she says is of more limited scope but, she maintains, is adequate here:
Scope of appointment
(a)To establish a long-term maintenance plan.
(b)To establish the Body Corporate is compliant with its duties of repairs and maintenance.
(c)To establish the Body Corporate holds adequate documentation.
(d)To establish the Body Corporate is compliant with its duties in relation to funds and levies.
(e)To establish the Body Corporate holds adequate insurance cover.
(f)To convene and hold general meetings to decide:
(i)the appointment of a chairperson;
(ii)whether to form a committee, and if so, the extent of delegation;
(iii)whether to establish a Long-term Maintenance Fund (LTMF);
(iv)if owners resolve to establish a LTMF, then:
(1)to open a separate bank account in the Body Corporate’s name for the LTMF or hold the funds raised in the Body Corporate’s existing bank account in such a way that they are separate and identifiable; and
(2)to strike and raise levies for the LTMF.
(g)To appoint a manager to manage the Body Corporate when the administrator’s term comes to an end.
[65] Ms Bremner’s updating affidavit clarifies that her description of the tasks EBC would undertake was made simply to illustrate the duties required to manage the body corporate and not to define the scope of the appointment.
Analysis
[66] The scope of an administrator’s appointment is generally to exercise all the powers of the body corporate, to the exclusion of the body corporate and its committee, as s 141(5) and (6) of the UTA make clear:
(5)The administrator, to the exclusion of the body corporate and the body corporate committee, has and may exercise the powers of the body corporate and the committee, and is subject to the duties of the body corporate and the committee, or such of those powers and duties as the High Court orders.
(6)The administrator may, in writing, delegate any of the powers vested in the administrator and may revoke any delegation at any time.
[67] I am mindful that this case involves a small body corporate, but the reason for appointing an administrator here is so decisions the body corporate have been unable to make can be made. All parties have agreed that is necessary. I accept that, once appointed, the administrator may be required to make decisions for the body corporate that not all unit holders agree with. But, in my view, that is not a good reason for what Ms Coleman suggests should be a more circumscribed role for the administrator.
[68] Section 141(5) of the UTA states that, subject to any Court-ordered exception, an administrator has the powers of the body corporate to its exclusion. Here, in my view, EBC will need the flexibility to properly address any body corporate issues (be they expected or unexpected) that may arise. Endeavouring to limit or circumscribe its role now would not therefore be appropriate. Decision-making for body corporate matters (with consultation where appropriate), including delegation under s 141(6) of the UTA, is properly to lie with EBC here.
Conclusion
[69] For all the reasons listed above, Ms Bremner’s application largely succeeds. I conclude that:
(a)an administrator should be appointed;
(b)EBC is to be appointed as the administrator;
(c)the administrator is to be appointed for a fixed period of three years, with the right for an affected party on notice to seek Court approval to extend or reduce the period; and
(d)the administrator’s powers are not to be limited and are as set out in the UTA.
[70]I now make the following orders and directions:
(a)An order is made pursuant to s 141 of the UTA appointing Everything Body Corporate Limited the administrator of Body Corporate 51615 for a term of three (3) years from 1 September 2025.
(b)The body corporate, members of the body corporate and/or the administrator shall have the right on three (3) months’ notice to apply to this Court to seek the Court’s approval to extend or to end the administration.
(c)Such appointment of EBC as administrator is to be on the following terms and conditions (or as otherwise varied by further direction/order of this Court):
(i)the administrator shall exercise all the powers/duties imposed on the body corporate and/or the body corporate committee arising under the UTA, including, but not limited to, in relation to the governance and operation of the body corporate;
(ii)the fees, disbursements and other costs incurred by or on behalf of the administrator will be paid on or before 20 days following the rendering of an invoice;
(iii)the administrator will report to the body corporate on a regular basis;
(iv)the administrator will report to the Court at the expiration of each period of 12 months from the date of its appointment or such earlier date;
(v)the administrator is indemnified by the body corporate in carrying out its role as administrator, subject to any fraud or gross negligence;
(vi)the administrator may seek further directions or orders from the Court on one month’s notice.
Costs
[71] The applicant, Ms Bremner, has been largely successful in her application, and so I consider she is entitled to costs. I invite the parties to agree as to costs amongst themselves. If they are unable to do so, the applicant is to file and serve memoranda as to costs within 20 working days of the date of this judgment, with the respondent and the interested party to have 14 days to file and serve their memoranda in reply. Costs will then be dealt with on the papers.
Gendall J
Solicitors:
Rainey Collins, Solicitors, Wellington for Applicant Gibson Sheat, Wellington for Interested Party
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