Douglas v Body Corporate 10209
[2025] NZCA 358
•5 September 2025 at 12 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA44/2025 |
| BETWEEN | ANDREW ALEXANDER DOUGLAS, |
| AND | BODY CORPORATE 102029 |
| AND | MAUD JOHNS LIMITED |
| AND | JOANNE LEE UNDERDOWN |
| AND | VEER CHARAN |
| AND | LE MANS PROPERTY LIMITED |
| Hearing: | 15 May 2025 |
Court: | Woolford, Jagose and Powell JJ |
Counsel: | P J K Spring and A Wang for Appellants |
Judgment: | 5 September 2025 at 12 pm |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellants must pay costs to the second to fifth respondents for a standard appeal on a band A basis, together with usual disbursements.
REASONS OF THE COURT
(Given by Jagose J)
The appellants—being three of the seven unit owners in, together comprising the members of the body corporate of, a unit title development subdividing base land in Auckland’s Freemans Bay—appeal the 6 December 2024 judgment of Anderson J in the High Court at Auckland.[1]
[1]Douglas v Body Corporate 102029 [2024] NZHC 3695, [2025] 2 NZLR 438 [judgment under appeal].
On the unit owners’ disagreement if to demolish and rebuild (as the appellants wish) or sell (as the second to fifth respondents wish) the economically irreparable development, the Judge authorised cancellation of the unit plan under s 188 of the Unit Titles Act 2010 (the UTA), with effect to dissolve the body corporate under s 185(1), and ordered sale of the resultant co‑owned property under s 339 of the Property Law Act 2007 (the PLA) for division of the proceeds among the co‑owners.[2]
[2]At [84].
The judgment since has been made final.[3] Execution of the judgment and implementation of the final orders are stayed pending appeal.[4]
Statutory context
[3]Douglas v Body Corporate 102029 [2025] NZHC 983 [final judgment].
[4]Douglas v Body Corporate HC Auckland CIV-2023-404-2182, 7 March 2025 (Minute of Anderson J) at [4(a)]); and final judgment, above n 3, at [16].
The UTA’s purpose is:[5]
… to provide a legal framework for the ownership and management of land and associated buildings and facilities on a socially and economically sustainable basis by communities of individual owners and, in particular,—
(a)to allow for the subdivision of land and buildings into unit title developments comprising units that are owned in stratum estate in freehold or stratum estate in leasehold or licence by unit owners, and common property that is owned by the body corporate on behalf of the unit owners; and
(b)to create bodies corporate, which comprise all unit owners in a development, to operate and manage unit title developments; and
(c)to establish a flexible and responsive regime for the governance of unit title developments; and
(d)to protect the integrity of the development as a whole.
[5]Unit Titles Act 2010 [UTA], s 3.
Unit owners have “all the rights derived from being registered as the owner of the stratum estate in a unit” and hold a share in the common property owned by the body corporate.[6] They are entitled, as a body corporate member, to exercise a vote in respect of their unit as defined by ownership interest, and to have quiet enjoyment of their unit without interruption by others.[7]
[6]Section 79(a)–(b).
[7]Section 79(c)–(d).
Unit owners must repair and maintain their unit and keep it in good order to avoid damage or harm to the development.[8] The body corporate must repair and maintain the common property, which duty “includes … a duty to manage (for the purpose of repair and maintenance), to keep in a good state of repair, and to renew where necessary”.[9]
[8]Section 80(1)(g).
[9]Section 138(1)(a) and (5)(c).
Unit owners may apply to the High Court for cancellation of the unit plan.[10] The Court relevantly may authorise cancellation if it is satisfied:[11]
… it is just and equitable that the body corporate be dissolved and the plan cancelled having regard to—
(i)the rights and interests of any creditor of the body corporate; and
(ii)the rights and interests of every person who has any interest in any unit or in the base land or in any part of the base land; …
[10]Section 187(1). So too may the body corporate but only “after a special resolution to do so”. A ‘special resolution’ requires an affirmative 75 per cent vote by eligible voters: s 98(4).
[11]Section 188(2)(a).
On such authorisation, the body corporate also is to be dissolved, for distribution of its funds, property and money among the unit owners generally in accordance with their ownership interest.[12] If the development’s buildings or other improvements are “damaged or destroyed, but the unit plan is not cancelled”, the High Court may settle a scheme, including “for the reinstatement in whole or in part of the building or other improvement”.[13]
Factual background
[12]Section 185.
[13]Section 74.
There is no dispute the integrity of this development is seriously compromised, initially by watertightness issues leading to identification of “serious problems with ground stability complicated by public stormwater and wastewater services under the site”,[14] rendering the development “not economically viable to repair”, uninsurable, untenantable and presenting health risks to occupiers.[15]
[14]Judgment under appeal, above n 1, at [4].
[15]At [1].
Decade‑long disagreement between unit owners on the appropriate response to those issues led to the High Court’s unopposed appointment of an administrator:[16]
… [f]or the initial purpose of making a recommendation to the Court for the future of the development given the presence of serious weathertightness defects and other building defects resulting in damage to the property.
The administrator identified three options—to remediate the existing structures, to sell the development as a whole in its existing state or to demolish the structures and rebuild—and recommended the last.[17]
[16]Douglas v Body Corporate 102029 HC Auckland CIV-2023-404-2182, 1 November 2023 (Minute of Lang J) at [2].
[17]Douglas v Body Corporate 102029 HC Auckland CIV-2023-404-2182, 8 May 2024 (Minute of O’Gorman J) at [1].
The appellants (comprising three unit holders, together carrying 41.5 per cent of ownership interests) support the administrator’s preference. The second to
fifth respondents (comprising the other four unit holders, together carrying the
balance 58.5 per cent of ownership interests) prefer the development’s sale,[18] and sought cancellation of the unit title for that purpose.
Judgment under appeal
[18]Judgment under appeal, above n 1, at [2].
The Judge identified she was:[19]
… required to be satisfied that it is just and equitable to make an order cancelling the unit plan. The applicants must demonstrate affirmatively that it is just and equitable. Assessing what is “just and equitable” is to consider “equitable justice, the justice of the individual case”. The evaluation is to be conducted with regard to the scheme and purpose of the UTA.
[19]At [27] (footnotes omitted), referring to Lake Hayes Property Holdings Ltd v PetherbridgeHer Honour comprehended “cancellation is a last resort remedy”,[20] for determination on the individual facts of each case.[21] A discretionary order for sale of the then co‑owned land required regard for stipulated criteria.[22] Alternatively, although “also … described as a remedy of last resort”, where consensus between unit owners cannot be achieved as to repair and maintenance beyond their own unit, “a scheme under [the UTA’s] s 74 becomes necessary to enable work to embrace both”, if appropriate in the circumstances to address the development’s damage or destruction.[23] But no authority was cited to the Judge “where such a scheme was settled on an opposed basis”.[24]
[20]At [28], referring to Body Corporate 21016 v Respondents as set out in Schedule 1 to the Application [2022] NZHC 255, (2022) 22 NZCPR 808; Lake Hayes Property Holdings Ltd v Petherbridge, above n 19; and Dominion Finance Group Ltd (in rec and liq) v Body Corporate 382902 [2012] NZHC 3325, (2012) 7 NZ ConvC 96-003.
[21]At [29].
[22]At [30]–[32], referring to ss 339 and 342 of the Property Law Act 2007 (PLA); Body Corporate 177422 v Allen [2024] NZHC 121 at [10]; Body Corporate 128255 (Cowan Street) v Walden‑Jones [2023] NZHC 2223; Re Body Corporate 368694 [2021] NZHC 2731, (2021) 22 NZCPR 637; and White v VXJ Holdings Ltd [2019] NZHC 3095.
[23]At [34]–[36], referring to Tisch v Body Corporate No 318596 [2011] NZCA 420, [2011] 3 NZLR 679 at [35] and [37] (approving Fraser v Body Corporate S63621 (2009) 10 NZCPR 674 (HC) at [97]).
[24]At [37], referring to Body Corporate 212050 v Lee [2016] NZHC 2526 as an example of consensual settlement of a scheme involving complete demolition and full rebuild arising part way through remediation works.
The Judge took s 74’s reference to “but the unit plan is not cancelled” to suggest:[25]
… in the context of damage or destruction to the building/s, if cancellation of the unit plan is sought, that should be considered before turning to whether a scheme is appropriate …
and took that course, as “a contextual enquiry” with regard to “the overall perspectives of the owners, the other option, and the likely outcomes of each scenario”.[26]
[25]At [38].
[26]At [39].
The affidavit evidence before the Judge was from the administrator, comprising his report and addendum and two further affidavits and another on his behalf from a quantity surveyor, and from each of the owners as to their respective position on either rebuild or sale including valuation evidence.[27] She noted those views were informed by an offer from a developer to purchase the entire property at a price “broadly within range of market value assessments”,[28] and comparable rebuild cost estimates suggesting each owner would be liable for some $1 million in funding resulting in units each valued at some $2 million.[29] The valuation evidence disputed if owners would be better off on rebuild or sale, albeit the difference was marginal.[30]
[27]Judgment under appeal, above n 1, at [40]–[41].
[28]At [49].
[29]At [55]–[56].
[30]At [60].
Having regard for that evidence, the Judge was “sympathetic to the position of all owners”, each seriously adversely affected by their situation.[31] The “reality”, however, was resolving their disagreement would involve “forcing” one or other group “to do something they vehemently do not want to do, contrary to what they see is in their best interests”.[32] Her Honour rejected she should adopt “a presumption in favour of preserving the property rights of the owners who do not wish the plan to be cancelled”:[33]
Those who acquire unit title property do so on the basis of the statutory scheme which entitles them to rights to their stratum estate. But the statutory scheme also encompasses that in appropriate circumstances, the unit title can be cancelled against the will of other owners.
[31]At [63].
[32]At [63].
[33]At [64].
The Judge characterised her decision as being sought “in an exceptional context”, including:[34]
[T]he buildings are at the end of their economic life. The buildings are no longer fit for their intended purposes as residential units. The unit title development is going to be demolished with the site brought down to the base land. What is proposed is in substance the full redevelopment of the site, with the hope of building in accordance with the unit plan deposited on the original subdivision.
[34]At [65].
Absent Court order, such ‘redevelopment’ only could occur by an affirmative vote on a special resolution of at least 75 per cent of eligible voters, meaning the Judge was driven back to consideration of the justice and equity of cancellation.[35] In either event, unit owners’ property rights would ‘drastically’ be affected:[36]
The body corporate and owners find themselves in the position of developers, in circumstances where it is acknowledged that the body corporate will need to continue in administration to [effect] the development. There is serious dysfunction and antipathy brought about over almost a decade of indecision combined with the need for a complete rebuild. The building is not now fit for purpose and not economically viable to repair.
[35]At [68].
[36]At [69]–[71], referring to World Vision of New Zealand Trust Board v Seal [2004] 1 NZLR 673 (HC) at [86] and [95].
On balance, having regard also for the “range of uncertainties and risks” demonstrated by various financial analyses of both rebuild and sale,[37] the Judge assessed “there is significantly more risk in the demolish and rebuild scenario”,[38] further time to clarify which only would exacerbate the present “stress, cost and uncertainty”.[39] Recognising unit owners’ competing human interests respectively in rebuilding or selling,[40] the Judge nonetheless considered:[41]
[The] social cohesion of the owners of the … development has been lost. Neither option presents as a realistic way of ameliorating the division between the factions. The development is required to be taken down to its bare land state. The financial difference between the two options is sufficiently marginal: having regard to the uncertainties at play that there is no clear superior “economic sustainability” achieved by a scheme.
[37]At [75].
[38]At [76].
[39]At [78].
[40]At [79].
[41]At [81].
Her Honour assessed—while either rebuild or sale carried significant impact, including on “amenity, personal and social issues”—there was “a greater risk of a worse outcome for all in the rebuild scenario”. The Judge ultimately was satisfied:[42]
[T]he just and equitable course is to cancel the unit plan when the buildings are no longer fit for purpose, require a full rebuild, and there is significant hostility between the owners. It is also in favour of cancellation that the numerical and ownership interest majority favour cancellation … .
A sale order accordingly would follow.[43]
Arguments on appeal
[42]At [82].
[43]At [83].
The appellants principally contend the Judge erred in not giving force to a contended statutory preference for protection of the integrity of the development as a whole,[44] by ordering the development’s reinstatement,[45] as mandated by the body corporate’s obligation to repair and maintain common property including by “renew[al] where necessary”.[46] They also argue her Honour could not have been satisfied on the evidence before her cancellation was just and equitable, pointing to the contended paucity of evidence as to the second to fifth respondents’ individual financial circumstances (and indicia of some of their recourse to larger resources than was reflected in the value of their units alone).
[44]Referring to UTA, s 3(d).
[45]Section 74(3)(a).
[46]Section 138.
Counsel distilled the appellants’ 13 express grounds of appeal to an agreed list of issues for determination:
1.Did the High Court err in accepting the evidence put forward by the majority (the second to fifth respondents), including evidence as to their finances, as being sufficient to discharge the burden upon them to demonstrate that cancellation of the unit plan was just and equitable?
2.What is the standard of proof for applications for cancellation? Is it the standard civil test – on the balance of probability or is the burden for cancellation higher?
3.Did the High Court fail to give due consideration to the interests of the minority appellants who lived in their units and wished to wholly reinstate the units?
4.Does section 138(5)(c) of the Unit Titles Act 2010 include a duty to rebuild and / or to reinstate in whole or in part, particularly in light of:
(a)The duty “to repair and maintain [including] (without limitation) ... to renew where necessary.” (Emphasis added).
(b)section 74(3)(a) which provides for the possibility of “reinstatement in whole or in part” in situations where “any building ... comprised in any unit ... is damaged or destroyed, but the unit plan is not cancelled” (section 74(1).)
5.Did the High Court err in failing to allow cross‑examination of Ms Johns and/or failing to take into account the titles owned by her put in evidence by the minority in lieu of cross‑examination?
6.Did the High Court err in finding that the analysis of the administrator was artificial? Could many of the alleged uncertainties have been resolved by obtaining detailed design and fixed costings and/or a fixed price contract?
7.Did the High Court fail to give due consideration to options other than cancellation including deferring cancellation to enable a detailed design and fixed costing to be obtained? Would that have enabled a more informed assessment of the available options?
8.Did the High Court err in its analysis of the purpose of the
Unit Titles Act 2010 in particular by concluding that there was no clear superior economic sustainability achieved by reinstatement in circumstances where the majority had to demonstrate affirmatively that it was just and equitable to cancel the unit plan?
Approach on appeal
Section 56 of the Senior Courts Act 2016 entitles this Court to hear and determine appeals “from a judgment, decree, or order of the High Court”.[47] As such, the appellants bear the onus of satisfying us the Judge was wrong; in other words, the Judge erred.[48]
[47]We comprehend the Judge’s final judgment effectively to implement her judgment under appeal in its terms—expressly with an eye to this Court’s jurisdiction on appeal, referring to Gao v Body Corporate 183930 [2016] NZCA 458, [2016] NZAR 1313 (Douglas v Body Corporate 102029 HC Auckland CIV‑2023-404-2182, 6 March 2025 (Minute of Anderson J) at [2])—meaning the judgment under appeal is an appealable judgment.
[48]Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4] and [13].
We are to come to our own assessment of the merits afresh, without deference to the Judge (save for some caution in differing on witness credibility, if we have not had her Honour’s advantage of observing any witnesses),[49] including on matters of fact and degree entailing a value judgment.[50] If we differ from the Judge, she will be “wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ”.[51] We may rely on the Judge’s reasons in reaching our own conclusions, but the weight we give those reasons is a matter for us.[52]
[49]At [13]. The Judge did not hear oral evidence, noting only “[n]one of the [second to fifth respondents] was called for cross‑examination” (judgment under appeal, above n 1, at [42(b)]) (although there is contention if she was wrong to refuse cross‑examination of one), but she considered the administrator’s “affidavits and submissions somewhat overly adversarial” (at [42(c)]). The administrator (even as the body corporate in administration) did not participate in the appeal, but the appellants relied on his affidavits. We have taken their content, as with all the evidence before the Judge, at face value and without regard for any weighting the Judge may have given it.
[50]At [16].
[51]At [16], referring to Wright v Powell [1982] 1 NZLR 473 (CA).
[52]Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].
To the extent the decision involved exercise of the Judge’s discretion, we only may interfere with it if the appellants satisfy us the Judge erred in law or principle, did not address relevant matters or took into account irrelevant matters, or was “plainly wrong”.[53] “Plainly wrong” is not synonymous with “wrong” but adds the requirement of being “outside the available ambit of judicial discretion”.[54]
Discussion
[53]At [32] per Blanchard, Tipping and McGrath JJ; and M v R [2024] NZSC 29, [2024] 1 NZLR 83 at [46], citing May v May (1982) 1 NZFLR 165 (CA) at 170.
[54]Hines v R [2024] NZCA 384 at [17], referring to National Heart Foundation of New Zealand v Carroll (2009) 28 FRNZ 268 (HC) at [5] (referring to G v G [1985] 1 WLR 647 (HL) at 652).
As we have identified,[55] cancellation may be authorised on a Judge’s ‘satisfaction’ the body corporate’s dissolution and the plan’s cancellation is just and equitable, having regard to specified interests. By ‘satisfied’ is meant the Judge just makes up her mind that is the case.[56] The parties’ agreed issues 1, 2 and 8 concern the applicable burden and standard of proof. The term “satisfied” does not itself import a burden or standard of proof.[57]
[55]At [7] above.
[56]Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [26] and [96].
[57]SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at [20]; Hutton v R [2018] NZCA 419, [2019] 3 NZLR 157 at [34], referring to Iti v R [2011] NZCA 114 at [30]; A (CA255/09) v R [2009] NZCA 380 at [18]; Z v Dental Complaints Assessment Committee, above n 56, at [96]; and R v Leitch [1998] 1 NZLR 420 (CA) at 428.
As to the burden of proof, practically an onus lies on the party seeking cancellation. An assessment of what is “just and equitable” must involve consideration of all relevant matters and interests, but it is not a question of balancing those interests.[58]
[58]At [76].
As to the standard of proof, plainly a Judge must have adequate evidence on which to be so satisfied. In New Zealand, the common law recognises only two standards of proof.[59] The lower, civil standard of proof applies even if the facts in issue or consequences of a proceeding are serious.[60] Under s 188 of the UTA, Heath J in World Vision of New Zealand Trust Board v Seal concluded a plaintiff “must satisfy the Court, on a balance of probabilities, that cancellation of the unit plan and dissolution of the body corporate is ‘just and equitable’ having regard to all relevant rights and interests”.[61] However, the evidence required to meet the lower civil standard will naturally vary with the seriousness of the case.[62] As the Supreme Court has said:[63]
[105] The natural tendency to require stronger evidence is not a legal proposition and should not be elevated into one. It simply reflects the reality of what judges do when considering the nature and quality of the evidence and deciding whether an issue has been proved “to the reasonable satisfaction of the tribunal”. A factual assessment has to be made in each case. That assessment has regard to the consequences of the facts to be proved. …
[59]Z v Dental Complaints Assessment Committee, above n 56, at [97].
[60]At [98].
[61]World Vision of New Zealand Trust Board v Seal, above n 36, at [77].
[62]At [101]–[105].
[63]Footnotes omitted.
We have no hesitation in recognising the present case is serious, precisely because of the reasons identified by the Judge: the evidence cogently illustrates the diametric alternative of rebuild or sale is in either case to the significant detriment of those opposed to it, whether or not economically achievable in the result, and the uncertainty associated with the cost and benefit of the former means it is more just and equitable in the context of this particular unit title development to favour cancellation to achieve the latter. However, those alternative outcomes also demonstrate that the concept of a standard of proof is somewhat inapt here because the assessment is of competing hypothetical future states of affairs. This Court, in the context of clearance and authorisation proceedings under the Commerce Act 1986, has noted that the difficulty in applying a standard of proof to such an assessment:[64]
[87] … [The balance of probabilities] is inapt because it may suggest that clearance and authorisation proceedings are like normal civil proceedings in which a court must decide causation. For a court causation is usually a question of historical fact. It finds the facts on the balance of probabilities, then treats those facts as certain when gauging the consequences.
[88] By contrast, the Commission assesses benefits and detriments that may be caused in a future state of affairs. Those effects need not be proved on the balance of probabilities, and the weight assigned to a given effect may reflect not only its extent or impact but also its likelihood. To decide where the balance lies, then, is to compare one future state of affairs — or an hypothesis, to use French J’s term in Australian Gas Light Co v Australian Competition and Consumer Commission — in which benefits outweigh detriments with another in which they do not. …
[64]NZME Ltd v Commerce Commission [2018] NZCA 389, [2018] 3 NZLR 715. The Court also went on to say: “The Commission may not authorise the transaction unless satisfied that the one state of affairs is more likely than the other.” That is not necessarily applicable in this context given the relevant provision in NZME Ltd v Commerce Commission required the Commission to be satisfied “the acquisition will not have, or would not be likely to have, the effect of substantially lessening competition in a market …”: Commerce Act 1986, s 67 (emphasis added). Section 188 of the Unit Titles Act does not include “likely”.
Such is not an assessment capable of minute quantification, as might be essayed on further evidence of either the administrator’s calculations or unit owners’ resources. It is very much an assessment dependent on Judges stepping back to view the evidence in the round as better supporting one or other option. In doing so, the Judge here had clear and appropriate regard for the appellants’ particular interests in retaining the development for rebuild, but explicitly “in the context of further years of stress, cost and uncertainty and in light of the discord in the body corporate” such would engage for all owners.[65] That disposes of the parties’ agreed issue 3.
[65]Judgment under appeal, above n 1, at [78].
To that end, the UTA’s construct of regulated unit title ownership is material. It is not to establish unit title developments for their metaphysical continuation irrespective of their physical frailties. Still less is it to convert the body corporate’s s 138 duty to repair and maintain common property (including by “renew[al] where necessary”) into an overarching obligation therefore to reinstate an entire development’s damaged or destroyed buildings and facilities, whether units or common property. That addresses the parties’ agreed issue 4.
Instead, s 74 exactly recognises damage or destruction of “any building or other improvement comprised in any unit or on the base land” may be of such an extent to terminate a development’s legislatively desired utility, leading to dissolution of its body corporate and cancellation of its unit plan. The ‘integrity’ of such a development then cannot survive the effective destruction of its constituent property. We consider the Judge was right, in such prospective circumstances, s 74 prioritises consideration first under s 188. And it is a core consideration then each party’s individual property interest necessarily is subject to the UTA’s overall construct; none singly or in combination may claim their individual interests’ superiority.
On appeal from such a decision, we are not prepared to delve into the minutiae of evidence contested by the appellants: in particular, if the Judge erred in the particular respects outlined at paras 5–7 of the parties’ agreed issues. None is, or collectively are, determinative of preference for the rebuild scenario; at best, they may mitigate (but not exclude) that scenario’s inevitable uncertainties. Accordingly, our own assessment of the merits is not dependent on the answers to those issues. We deliberately disregard the numerical majority of unit owners favouring sale (and, therefore, the numerical minority favouring rebuild).
Rather, standing back, all parties are affected by the probability of further lengthy delays before the scope, viability and practicality of any comprehensive rebuild could be confirmed and, even at their most optimistic realisation, any rebuild’s presently indeterminate marginal benefit over sale. Those matters fundamentally have undermined the intended “socially and economically sustainable” foundation for ownership and management of the land and associated buildings and facilities in the present unit title development by the community of the parties.[66] In that context, the desired integrity of this development no longer can be protected. Thus the UTA’s express legislative purpose cannot be maintained in this development. It therefore is just and equitable the body corporate be dissolved and the unit title plan be cancelled. The Judge did not err.
[66]UTA, s 3.
Contest to the Judge’s consequent sale order under the PLA’s s 339, while claimed to err as the appellants’ 12th ground of appeal, seemingly deliberately was omitted from the appellants’ written submission (which skipped from the 11th to the 13th ground) and not identified in the parties’ agreed issues or contested on oral argument. We therefore do not address if her Honour’s considerations under the UTA necessarily translate for those purposes. We observe s 342’s mandatory considerations include relative hardship between co‑owners, which we disregarded for the purposes of our consideration of the UTA merits.[67]
[67]At [33] above.
Nonetheless, s 339 affords broad discretion to make sale or division orders to resolve differences “in respect of property owned by co‑owners”,[68] as the parties will be on cancellation,[69] and then on the basis of “what, on an overview, taking into account the relevant considerations, is the most just and practical way through the impasse before the court”.[70] Taking those considerations into account, we have no reason to differ from the Judge’s conclusion sale here is that way.
Result
[68]Lo v Lo [2021] NZCA 693, (2021) 22 NZCPR 721 at [21]–[27].
[69]UTA, s 180(2)(a).
[70]Lo v Lo, above n 68, at [26], quoting from Bayly v Hicks [2012] NZCA 589, [2013] 2 NZLR 401 at [32].
The appeal is dismissed.
Costs
The appellants must pay costs to the second to fifth respondents for a standard appeal on a band A basis, together with usual disbursements.
Solicitors:
Glaister Keegan, Auckland for Appellants
AlexanderDorrington Limited, Auckland for Second to Fifth Respondents
[2014] NZHC 1673, (2014) 15 NZCPR 590 at [47]–[48].