May v Body Corporate 329331 - [2020] NZHC 1554

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2009-404-7379

[2020] NZHC 1554

BETWEEN
JENNIFER ANN MAY and ANDREW JOHN MAY

Applicants

AND

BODY CORPORATE 329331

First Respondent

…./cont’d

Hearing: On the papers

Appearances:

A J Lloyd / P H Bremer for Applicants

T Rainey for 201 Limited, Meakins Trustee Co Ltd and Christy Lynn Maxwell-Steele as administrator of the estate of William John Maxwell-Steele.

T J G Allan / K M Wakelin for Administrator

Judgment:

3 July 2020

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 3 July 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Counsel: T J Rainey, Auckland
Solicitors: Minter Ellison Rudd Watts, Auckland Rainey Law, Auckland
Grove Darlow and Partners, Auckland

MAY v BODY CORPORATE 329331 [2020] NZHC 1554 [3 July 2020]

PATRICIA ELIZABETH HALLT
Third Respondent

RICHARD GRAHAM MOGRIDGE
Fourth Respondent

CAROL ANNE MOGRIDGE
Fifth Respondent

JACQUELINE MCDERMOTT
Sixth Respondent

ROSS WILLIAM SHENNAN
Seventh Respondent

STEPHANIE MARGARET SHENNAN
Eighth Respondent

MPH08 LIMITED
Ninth Respondent

JAMES RONALD ASHTON
Tenth Respondent

ANNETTE JEAN ASHTON
Eleventh Respondent

JUST LAW NO.65 LIMITED
Twelfth Respondent

RODNEY CHARLES SWIFT
Thirteenth Respondent

FRANCES SWIFT
Fourteenth Respondent

MEAKINS TRUSTEE CO LIMITED
Fifteenth Respondent

207 LIMITED
Sixteenth Respondent

206 LIMITED
Seventeenth Respondent

JOHN CHARLES DEACON
Eighteenth Respondent

MARGARET MARY DEACON
Nineteenth Respondent

RAM TRUSTEE COMPANY LIMITED
Twentieth Respondent

203 LIMITED
Twenty First Respondent

202 LIMITED
Twenty Second Respondent

201 LIMITED
Twenty Third Respondent

GEORGE CHARLES HALLIDAY
Twenty Fourth Respondent

BRENDA MARY HALLIDAY
Twenty Fifth Respondent

307 LIMITED
Twenty Sixth Respondent

306 LIMITED
Twenty Seventh Respondent

JCBEEZ LIMITED
Twenty Eighth Respondent

H&P PROPERTIES LIMITED
Twenty Ninth Respondent

302 LIMITED
Thirtieth Respondent

OLEG ALEXANDROVICH ZAITSEV
Thirty First Respondent

OLGA NIKOLAYEVNA ZAITCEVA
Thirty Second Respondent

DENIS OLEGOVICH ZAITSEV
Thirty Third Respondent

PETER FRANCIS ANDREWS
Thirty Fourth Respondent

LINDA ANNE ANDREWS
Thirty Fifth Respondent

ANGUS STUART OGILVIE
Thirty Sixth Respondent

FIONA JANE MATHIESON
Thirty Seventh Respondent

BIG PICTURE INVESTMENTS LIMITED
Thirty Eighth Respondent

405 LIMITED
Thirty Ninth Respondent

404 LIMITED
Fortieth Respondent

403 LIMITED
Forty First Respondent

NOMACK GROUP LIMITED
Forty Second Respondent

WESTPAC NEW ZEALAND LIMITED
Forty Third Respondent

ASB BANK LIMITED
Forty Fourth Respondent

BANK OF NEW ZEALAND LIMITED
Forty Fifth Respondent

GEOFFREY PETER ROBERTON DE LATOUR
Forty Sixth Respondent

JUDITH MARGARET DE LATOUR
Forty Seventh Respondent

TIMOTHY JOHN BURCHER
Forty Eighth Respondent

ANZ BANK NEW ZEALAND LIMITED
Forty Ninth Respondent

DAVID JOHN MCFARLANE
Fiftieth Respondent

STEPHANIE ELIZABETH DOUGLAS BANKS
Fifty First Respondent

[1] This proceeding concerns an apartment complex known as the Ridge Apartments (the complex). The affairs of the complex are conducted by the first respondent, a body corporate originally constituted under the Unit Titles Act 1972 (the 1972 Act).1

[2] The complex has had weathertightness issues for more than 10 years. The body corporate obtained an order from this Court sanctioning a scheme of arrangement under s 48 of the 1972 Act on 3 February 2010, but remedial…

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.

Continue reading May v Body Corporate 329331

Details

AGLC: May v Body Corporate 329331 [2020] NZHC 1554
Case: [2020] NZHC 1554
Decision Date: 3 July 2020

CaseChat Overview and Summary

The applicants, Mr and Mrs May, sought an order appointing an administrator to undertake remedial works in relation to an apartment complex known as the Ridge Apartments. The complex was governed by a body corporate, the first respondent. The body corporate had obtained an order from the Court sanctioning a scheme of arrangement for the remedial works under s 48 of the Unit Titles Act 1972 but remedial work had not begun by September 2018. The applicants therefore sought an order appointing an administrator to undertake the remedial works. That application was granted on 6 September 2018. The opposing respondents, unit owners who were part of a faction opposed to the applicants' application, opposed that application and cross-applied for an order rescinding the order appointing an administrator. The applicants' application was granted and the opposing respondents' cross-application was dismissed. The applicants and opposing respondents have been unable to resolve the issue of costs in relation to those applications. The applicants sought a joint and several award of costs on a category 2B basis against the opposing respondents together with disbursements as fixed by the Registrar. They also sought an award of costs against the estate of the late William Maxwell-Steele. The opposing respondents submitted costs should lie where they fell because all parties had succeeded in their arguments to some degree. They argued there was no jurisdiction for the Court to make a direction that the administrator levy unit owners to meet the costs incurred by the applicants in pursuing the application and opposing the cross-application. The administrator was neutral on the issue of costs but suggested the Court should proceed in a manner analogous to that taken in contested liquidation proceedings where there are opposing groups of shareholders. The administrator said he would not be prepared to levy unit owners to reimburse the applicants and the parties who have provided funding without a direction from the Court authorising him to take that step. The body corporate committee advised that the costs incurred by the applicants should be recovered from the opposing respondents. It further advised that any contribution from other owners should be on a purely voluntary basis. The estate of Mr Maxwell-Steele submitted there was no justification for any award of costs to be made against the estate. It was submitted there was no evidential basis to support the allegation that Mr Maxwell-Steele acquired units in the complex for the purpose of thwarting the existing contract for remedial works. In addition, it was submitted there was no evidence Mr Maxwell-Steele funded the costs of the opposing respondents. The Court declined the application for costs against Mr Maxwell-Steele’s estate. The Court found that the applicants were the successful parties in the proceeding. It found there was no basis on which it could order increased costs against the opposing respondents. The Court found the present proceeding was properly categorised as a Category 2 proceeding for costs purposes and Band B was appropriate for all steps taken in the proceeding. The Court found that it was appropriate that the applicants should receive a joint and several award of costs on a category 2B basis against the opposing respondents together with disbursements as fixed by the Registrar. The Court found that it was appropriate that any shortfall between the actual and reasonable costs incurred by the applicants and those recovered from the opposing unit owners should be met by all unit owners as if it were part of the cost of remedial work. The Court declined to make an award of costs against Mr Maxwell-Steele’s estate.

Orders