Douglas v Body Corporate 102029 - [2025] NZSC 172

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 116/2025
[2025] NZSC 172

BETWEEN	ANDREW ALEXANDER DOUGLAS, IAN STUART PETRY, LEONARD ELLSWORTH KURPUIS AND JOHN FRANCIS MATHER Applicants
AND	BODY CORPORATE 102029 First Respondent MAUD JOHNS LIMITED Second Respondent JOANNE LEE UNDERDOWN Third Respondent VEER CHARAN Fourth Respondent LE MANS PROPERTY LIMITED Fifth Respondent

Court:	Glazebrook, Ellen France and Williams JJ
Counsel:	P J K Spring for Applicants No appearance for First Respondent S E Wroe for Second to Fifth Respondents
Judgment:	21 November 2025

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.
B The applicants must pay the second to fifth respondents one set of costs of $2,500.

____________________________________________________________________

REASONS

Introduction

The applicants seek leave to appeal against a judgment of the Court of Appeal.[1] The proposed appeal concerns a unit title development built in 1984. The applicants, who are resident owners, hold the stratum estate for three of the units. The second to fifth respondents, who hold their units as investments, own the other four. It is common ground that the units are essentially not habitable and are unable to be repaired. The problems have been evident for some 10 years. The options now identified are rebuilding (the applicants favour this option) or cancelling the unit plan and making an order for sale (the respondents favour this option).
[1]Douglas v Body Corporate 102029 [2025] NZCA 358 (Woolford, Jagose and Powell JJ) [CA judgment].
A court-appointed administrator, in a March 2024 report, recommended that the better option for the owners was to demolish and rebuild. The respondents did not agree with the recommendation, pointing to the risk and uncertainty associated with a rebuild. They said they were not in a position to raise finance for the rebuild and that they would be forced to sell their units. The respondents commissioned a further report (the Levie report) which concluded a collective sale was the better option. The administrator provided an addendum to his report analysing the Levie report and reiterating his previous recommendation.
The applicants then applied to the High Court for cancellation of the unit plan under s 188 of the Unit Titles Act 2010 and an order for sale under s 339 of the Property Law Act 2007. The respondents applied for an order under s 74 of the Unit Titles Act for the Court to approve a scheme for reinstatement.

The High Court decision

In the High Court, in an interim judgment of 6 December 2024, Anderson J made an order under s 188 of the Unit Titles Act cancelling the unit plan and made a sale order under s 339 of the Property Law Act.[2]
[2]Douglas v Body Corporate 102029 [2024] NZHC 3695, [2025] 2 NZLR 438 (Anderson J) [HC interim judgment]. This judgment has since been made final: Douglas v Body Corporate 102029 [2025] NZHC 983 (Anderson J).
In brief, the Judge considered that there was a greater risk of a worse…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZSC 172
Decision Date: 21 November 2025

CaseChat Overview and Summary

The applicants, Andrew Alexander Douglas, Ian Stuart Petry, Leonard Ellsworth Kurpuis and John Francis Mather, sought leave to appeal against a decision of the Court of Appeal which dismissed their appeal against the High Court's order cancelling the unit plan of a unit title development and ordering a sale. The second to fifth respondents, Maud Johns Limited, Joanne Lee Underdown, Veer Charan and Le Mans Property Limited, who hold their units as investments, opposed the application. The first respondent, Body Corporate 102029, did not appear. The applicants alleged that the Court of Appeal made four errors in law: (a) it did not apply the correct standard of proof; (b) it misapplied the Unit Titles Act by prioritising the cancellation of the unit plan over the mandatory duties to repair and reinstate; (c) it failed to address the alleged errors in the High Court's analysis; and (d) it misapplied the statutory purpose of the Unit Titles Act.

The court found that none of the alleged errors of law had the potential to change the outcome of the case. The court noted that the decision related to the particular facts and circumstances of the case and was not of general or public importance. The court also found that there was no evidence of a miscarriage of justice. The court concluded that the applicants had not demonstrated that any of the alleged errors of law had the potential to change the outcome of the case. The court dismissed the application for leave to appeal and ordered the applicants to pay the second to fifth respondents one set of costs of $2,500.

The court found that the Court of Appeal's decision was correct and that the High Court's order cancelling the unit plan and ordering a sale was just and equitable. The court noted that the Court of Appeal had considered the evidence and had concluded that the rebuild scenario had a greater risk of a worse outcome. The court also found that the Court of Appeal had correctly applied the Unit Titles Act and had not misapplied the statutory purpose of the Act. The court concluded that the applicants had not demonstrated that any of the alleged errors of law had the potential to change the outcome of the case. The court dismissed the application for leave to appeal and ordered the applicants to pay the second to fifth respondents one set of costs of $2,500.

Orders