Callander v Body Corporate 91384

[2023] NZHC 215

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-000118

[2023] NZHC 215

BETWEEN

MARY-JANE CALLANDER

Applicant

AND

BODY CORPORATE 91384

First Respondent

.../intituling cont over

Hearing:	On the papers
Judgment:	20 February 2023

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 20 February 2023 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Harkness Henry, Hamilton.

CALLANDER v BODY CORPORATE 91384 [2023] NZHC 215 [20 February 2023]

MAREE JENIFER BURLEY and PAUL STUART ARTHUR MULDOON, JESS WYBRANT, MAUREEN JANETTE DELLOW-JACKSON, ROSS ANDREW DELLOW and ERIN CLAIRE DELLOW- KANE, ANNA ELIZABETH HO and

TU ANH HO, GAYWEN MURIEL PRUDEN and MERVYN CHARLES PRUDEN, LUCY KATE JOHNSTONE, HELENA MAUREEN GILLETT, AMY DIANNE ROBINSON, CAROLINE ANNE GATENBY and PHILLIP JAMES GATENBY, MAXINE MARY McGINLAY and MARY FRANCES HACKSHAW, HELEN ANNE THOMAS, THE RAGLAN HOSPITAL CHARITABLE TRUST BOARD, ADA MAGUIRE, PATRICK MAGUIRE,

PHILLIP TAMATI and MARION MAGUIRE, DEBBY VAN DER SCHEER and BRUNO DAVID, PATRICK O’NEILL, DAVID GADSBY and BRONWYNE GADSBY, NORRIS

PEART, JANET PEART and BRYAN WHITE, GORDON JOWSEY and CELIA JOWSEY, and JOAN OLIVER

Second Respondents

[1]        Mary-Jane Callander owns one of the units in a body corporate development in Raglan. Ms Callander applies to appoint an administrator to the body corporate on the bases it is dysfunctional, not complying with its statutory duties, has made unlawful decisions, and lacks proper governance.

[2]        The application has been served on the body corporate and the other owners. The application is unopposed; indeed, neither the body corporate nor another owner has taken any step in the case. For this reason, I decide the case on the papers.

[3]        The High Court may appoint an administrator to a body corporate under s 141 of the Unit Titles Act 2010. The section does not identify criteria. The learned authors of Hinde McMorland & Sim Land Law in New Zealand observe:1

The Court has been given a wide and open-textured discretion under which it “would be unwise to attempt to define exhaustively the circumstances in which the discretion ... should be exercised”. While the discretion must be exercised in a principled way, it should not be fettered; “everything turns on the facts of the particular case, with the Court’s discretion being informed primarily by 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 Act is based”.

[4]        Case law under s 141 reflects the importance of the facts in each case, consistent with the observations just above.

[5]        Ms Callander has filed an affidavit in support of the application. I am satisfied her concerns of dysfunction, non-compliance with statutory duties, unlawfulness, and lack of proper governance, are reasonably grounded.2 Furthermore, the body corporate has no chairperson.

[6]        Given all this, I am satisfied appointment of an administrator is warranted on the terms identified in the application.

1      Hinde McMorland & Sim Land Law in New Zealand (online) at 14.067 citing Heath J in

Low v Body Corporate 384911 (2011) 12 NZCPR 142 (HC).

2      This is not to conclude these concerns have been proved; the conclusion is that the concerns are reasonably grounded.

[7]Ms Callander should have 2B costs.

……………………………..

Downs J