May v Body Corporate 329331

[2018] NZHC 2396

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2009-404-7379

[2018] NZHC 2396

IN THE MATTER

of an interlocutory application for orders pursuant to a scheme settled under s 48 of the Unit Titles Act 1972

BETWEEN

JENNIFER ANN MAY AND ANDREW JOHN MAY

Applicants

AND

BODY CORPORATE 329331

First Respondent

REX BADDELEY
Second Respondent

Continued …

Hearing:	5 September 2018
Appearances:	A J Lloyd and I J Stephenson for Applicants T J Rainey for First Respondent
Judgment:	6 September 2018
Reasons:	12 September 2018

JUDGMENT OF CLARK J

(Reasons)

Pursuant to r 11.5 of the High Court Rules, I direct that this judgment be delivered on 12 September 2018 at 11.00 am

MAY AND MAY v BODY CORPORATE 329331 [2018] NZHC 2396 [6 September 2018]

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 Continued …

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 Continued …

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 Continued …

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]                  On 6 September 2018 I granted, with reasons to follow, the applicants’ application for the appointment of an administrator of Body Corporate 329331 (Body Corporate or BC 329331).1 The orders made are set out in the schedule to this judgment.

[2]In this judgment I provide my reasons for granting the application.

“Without Notice” hearing

[3]                  On 30 August 2018, the applicants filed a without notice interlocutory application for interim orders. The accompanying memorandum of counsel explained the application was without notice for two reasons. First, time was of the essence. Secondly, although urgent enquiries had been made in contemplation of full service, the applicants could not be certain that the addresses of all registered interests could be located. An affidavit was filed by Jacob Snedden, a law clerk with MinterEllisonRuddWatts. Mr Snedden deposed to the steps he had taken to identify the addresses of respondents for whom, or for which, there was no readily available address. Mr Snedden set out in annexures to his affidavit the results of various searches and the particulars of his findings.

[4]                  A further  memorandum  of  counsel  in  support  of  urgency  was  filed  on  4 September 2018. Counsel set out material events that had occurred since the application was filed and which underpinned the further memorandum of counsel requesting urgent consideration of the interlocutory application.

[5]                  The file came to me in the early evening of 4 September 2018. The next morning I arranged to proceed on a Pickwick basis.2 That afternoon counsel appeared and presented submissions for just under an hour and a half. In light of the fact the interlocutory application for interim orders was made without notice, counsel for the first respondent attended in a limited way. A notice of opposition had been provided to the applicants, and emailed to the Court at 12.58 pm on 5 September. As Mr Rainey for the first respondent emphasised, no evidence on behalf of the respondents was

1      May v Body Corporate 329331 [2018] NZHC 2337.

2      Pickwick Inc Ltd v Multiple Sound Ltd Distributors [1972] 1 WLR 1213 (CD).

before the Court and he was instructed to appear to address the without notice nature of the application.

[6]My results judgment was delivered at 9.30 am the following morning.

Material facts

[7]                  The applicants, Jennifer and Andrew May, are the owners of a unit at The Ridge Apartments, 23 Hargreaves Street, St Marys Bay, Auckland (The Ridge). The Ridge apartment complex consists of 33 residential apartments. In 2009 the complex was assessed as a leaky building.

[8]                  The Body Corporate applied in 2009 to have the High Court settle a scheme under s 48 of the Unit Titles Act 1972. The Court granted an order on 3 February 2010 pursuant to which a scheme of arrangement would govern repairs to the buildings comprising BC 329331.

[9] Following its inspection of the buildings for compliance with the Building Code, on 10 December 2010 the Auckland Council issued the Body Corporate, and individual proprietors, a notice to fix under ss 164 and 165 of the Building Act 2004.

[10]              In her judgment providing reasons for dismissing an application made by four apartment owners to stop the Body Corporate entering into a contract for repairs, Hinton J outlined the efforts of the Body Corporate since the scheme authorising the process of remediation was settled in February 2010 and the notice to fix, issued in December of that year.3

(a)The Body Corporate had spent a number of years investigating the extent of the defects and damage. It had obtained expert advice on the remedial work required to rectify the damage, prepared plans for that work, obtained building consents, tendered the work to qualified contractors and (as at 17 April 20184) had reached a point where it could

3      201 Ltd v Body Corporate 329331 [2018] NZHC 1933.

4      The date Hinton J heard the application for an injunction.

proceed with the remedial work authorised by the scheme and required by the notice to fix.5

(b)Throughout, all unit owners had been kept reasonably informed of developments.6

(c)At an extraordinary general meeting on 26 August 2015 owners unanimously resolved to have the Body Corporate approve a concept design presented to the meeting and to engage contractors to complete the detailed design sufficient to obtain a building consent and tendering of the works. It was also unanimously resolved that a special levy of

$200,000 for the building account be raised for payment in one lump sum on 20 September 2015.

(d)At an extraordinary general meeting on 21 March 2017 owners voted 15:13 in favour of a motion to direct the Body Corporate committee to make such further decisions necessary to secure a contract with the preferred tenderer and to raise sufficient building levies as deemed appropriate to complete the project. There were two abstentions. I note that the minutes of the meeting record opposition to the scope of the proposed remedial work by some owners.

(e)At an extraordinary general meeting on 16 February 2018 owners voted 16:14 to authorise the Body Corporate committee to enter into a building contract with the preferred contractor (subject to legal advice). The resolution included the observation that the “authorisation given to the Committee under [the] resolution is based on the Committee’s delegated powers granted … on 20 June 2017 and endorsed by the High Court under the Court approved section 48 scheme for the complex”.

[11]              Four plaintiffs attempted to stop the Body Corporate from entering into a contract  for the works. The affidavit evidence before Hinton J, who heard their

5      201 Ltd v Body Corporate 329331, above n 3, at [3].

6 At [4].

application for an injunction, revealed that Mr Hudson (an owner who opposed the scope of the remediation and the remedial contract) had set up a trust which owned all the shares in a company which in turn owned all the shares in the four plaintiffs.7 In Mr Hudson’s opinion the deck enclosure work conferred some benefit on the owners of the units whose decks were to be enclosed resulting in what he described as a significant improvement to those units. Hinton J considered no arguable case for betterment was raised before her. Mr Hudson was not independent, nor a valuer and not qualified to give opinion evidence and statements by committee members at meetings as to the value added by a curtain wall system did not amount to an arguable case for betterment.8

[12]              It appears the Body Corporate entered into a written construction contract with Brosnan Construction, dated 29 June 2018. Under the contract possession of the site was to occur on 3 September 2018 but was deferred to 2 October 2018. The Body Corporate was required to provide a bond in the sum of $2,125,415.

[13]              On 30 July 2018 Brosnan Construction received an email from the engineer appointed under the contract advising that, on the Body Corporate’s instruction, the project had been suspended. In fact, the minutes of an annual general meeting held on 26 July 2018 record the following resolution was carried:

To halt the planned development of the building and properly investigate all options using independent unbiased consultants.

[14]              On 22 August 2018 Brosnan Construction wrote to the Body Corporate accepting an invitation to meet to discuss the situation “but given the severity of the current situation” was also clear about where the company stood and “the risks to the Body Corporate”. The important points were that:

(a)By failing to pay a bond in the sum of $2,125,415 the Body Corporate was in default.

(b)The project had been suspended.

7      201 Ltd v Body Corporate 329331, above n 3, at [23].

8 At [23].

(c)A further breach arose because no interim engineer had been appointed on the resignation of the engineer to the contract.

(d)If the failure to pay the bond was not remedied within 10 working days Brosnan Construction would be at liberty to cancel the contract.

(e)In that “entirely unfortunate” event, compensation of $1.395 million would be payable for Brosnan Construction’s costs to that point, loss of declared profit and loss of off-site overheads from the project and legal costs.

[15]              By notice on 3 September 2018 the Body Corporate called an “emergency extraordinary general meeting” to be held on 6 September 2018 at which a motion to accept a settlement offer by Brosnan Construction for agreed termination of the contract would be put to owners.

Interlocutory application for interim orders

[16]              The applicants applied for orders bearing on the scheme of arrangement and also for appointment of an administrator. Specifically, the applicants sought orders varying or modifying the scheme to include express directions that the Body Corporate take all reasonable steps to meet its obligations under the contract with Brosnan Construction including, and in particular:

(a)procuring and providing the principal’s bond;

(b)raising levies necessary to meet the payment obligations under the contract;

(c)providing vacant possession pursuant to the contract; and

(d)consulting with the engineer for the appointment of an engineer pursuant to the contract.

[17]              The application sought an order that Anthony McCullagh be appointed as administrator on terms set out in a schedule to the application.

[18]              The grounds upon which the orders were sought included that the Body Corporate had acted ultra vires the Unit Titles Act 2010 and outside the authority of the scheme by failing to meet its contractual and statutory obligations. The Body Corporate had passed a motion halting the planned redevelopment of the building and rescinding the 90 day notice to vacate notwithstanding the date for possession of the site under the contract of 2 October 2018. Further breaches were said to be the failure to provide the bond to the contractor and failure to raise levies sufficient to meet the payment obligations under the contract.

[19]              The applicants say the Body Corporate is in a state of dysfunction and cannot meet its obligations under the contract, the scheme and s 138 of the Unit Titles Act. Consequently, the Body Corporate is incurring or will incur damages under the contract.

Submissions

Applicants

[20]              Mr Lloyd clarified at the hearing that if an administrator is appointed then the other orders sought in the application fall away. Mr Lloyd emphasised the fact the Body Corporate is now controlled by Mr Hudson’s interests. Since filing the application on 30 August  2018 those interests had negotiated a lower breach fee.  Mr Lloyd characterised the proposed breach of contract by the Body Corporate, the misleading statements contained in the notice of an emergency general meeting and the change of direction by the Body Corporate as a cynical attempt to circumvent the failure before Hinton J to obtain an injunction. Mr Hudson’s interests had taken control and were attempting to achieve the same ends by different means.

Body Corporate

[21]              Although not formally filed the Body Corporate had provided to the applicants, and emailed to the registry, a notice of opposition. Accompanying the notice of

opposition was a memorandum of counsel. Mr Rainey, counsel for the Body Corporate, submitted the Body Corporate was happy for the application to be resolved with urgency but that the application should be made on notice and with an opportunity for all the relevant evidence to be put before the Court.

[22]              That is particularly so, Mr Rainey submitted in written argument, when the effect of the orders—

will be to cut across decisions which have been validly made by the Body Corporate at a properly constituted general meeting with the support of a substantial number of the members of the Body Corporate. In essence, the applicants seek to thwart the democratic will of the majority of the members [of] the Body Corporate when there are good reasons for the Body Corporate to have made the decision that it has now made in relation to the proposed remedial work.

[23]              Mr Rainey anticipated being in a position to file and serve evidence in support of the notice of opposition the following week. It was primarily regarding the without notice basis of the application that Mr Rainey sought to be heard so that the Body Corporate and the unit owners could be afforded a proper opportunity to be heard on notice.

Assessment

[24]              Having considered the extensive affidavit material filed in support of the application, the memoranda of counsel and counsels’ helpful submissions, I concluded, for the reasons that follow, that it was necessary to appoint an administrator.

[25]              First, I make some observations about the prominence of the scheme in my considerations.

The scheme

[26]              The preamble to the scheme states that it governs repairs to the buildings comprised in the Body Corporate where repairs to both common and private property “are inseparable and will need to be carried out contemporaneously”. The scheme is

intended to authorise the repair to the common and private property by way of one contract managed by the Body Corporate.

[27]              The scheme authorises the repair of the damage caused by water ingress into the buildings comprising the Body Corporate and—

is intended to cover the whole process of the anticipated repair including the initial investigation into the extent of the damage, the carrying out of the repairs, ensuring the future integrity of the [buildings] and compliance with building regulations.

[28]              Under the scheme the term “repair” is to be given its widest possible interpretation. The preamble acknowledges the repairs required will not be fully known until the work begins and cladding is removed to reveal the damage to the interior of the buildings.

[29]              Under the scheme the Body Corporate is obliged to have the repairs made diligently and completed as expeditiously as practical.

[30]              Pursuant to the powers given to the Body Corporate under the scheme suitably qualified persons had been identified to quantify the damage and the form of the repairs necessary to ensure proper and professional remediation and issuance of a code of compliance on completion. Plans and specifications had been developed. A tender process had been managed and a contract entered into “to give full efficacy to proceeding with the [r]epairs”.

[31]              The Body Corporate’s resolution to halt the remediation process was a proposed breach of contractual arrangements. The Body Corporate, in proposing to so breach the contract, offered no alternative towards repair of the buildings. That is significant because all of the work undertaken to get to the point of entering the contract is essentially discarded in the face of a Court-sanctioned scheme authorising repairs and requiring the Body Corporate to have repairs completed as expeditiously as practical. The plaintiffs’ primary argument before Hinton J was that the work covered by the proposed contract was work which the Body Corporate was not authorised to carry out.9

9 At [11].

[32]Hinton J concluded:10

The work is being carried out in the context of a scheme of arrangement. That scheme, which was sanctioned by the Court in 2010, remains in effect. [Counsel for the plaintiffs] initially suggested the work was not being carried out pursuant to the scheme, and that the scheme had effectively lapsed. He sensibly did not press that point. I cannot see any good factual basis for it.

[33]              Of further concern to me was the apparent miscommunication in the notice of “emergency extraordinary general meeting” to be held on Thursday, 6 September 2018 at 1:00 pm, sent from Mr Hudson to owners on Monday, 3 September 2018 at 2:13 am. The notice stated the meeting was to be held to address the offer received from Brosnan Construction to terminate the current contract. The notice stated:

Phil Brosnan himself believes cancellation of the contract is in the best interests of the Body Corporate until a more adequate solution can be found. He also agreed that the contract price was likely to increase. We have spoken to Tim Rainey who says these types of contracts are ‘never fixed price’, and is merely a base line. It is highly likely the current contract could increase to (or even exceed) $30,000,000, which would simply be even more unaffordable.

[34]              Counsel for the applicants sought to verify with Brosnan Construction’s solicitors the statements attributed to Mr Brosnan. Mr Lloyd provided to the Court, by way of an attachment to his memorandum, an email from the KensingtonSwan partner acting for Brosnan Construction advising that Mr Brosnan confirmed the statements attributed to him did not reflect accurately what was discussed in his meeting with the Body Corporate committee. Specifically:

(a)Mr Brosnan agreed cancellation of the contract was in the best interests of the Body Corporate “on the basis of its advice it did not have the funds to complete the project”.

(b)Mr Brosnan did not agree with the comment attributed to him in the notice, namely, that it was “highly likely the current contract could increase to (or even exceed) $30,000,000”.

10 At [12].

(c)Mr Brosnan did not agree with the comment attributed to him in the notice that the contract would be likely to go substantially higher once invasive investigations were underway and that the increase in costs would be subject to variation fees.

(d)As to the statement in the notice that it was agreed by all, including Mr Brosnan, at the meeting that it was probably in the best interests of the Body Corporate to terminate the contract and rethink the proposal, Mr Brosnan confirmed he had agreed, again, on the basis of the advice they did not have the funds to complete the project.

[35]              Mr Lloyd submitted that any statement made to Mr Brosnan that the Body Corporate could not afford to undertake the contract works was misleading because levies had not been raised to pay for the contract works.

[36]              I note that under cl 6.1 of the  scheme  the  High  Court,  authorised  the  Body Corporate to levy and collect from each owner the necessary funds for undertaking, progressing or completing the repairs. While cl 6.1 provides for proportionate collection of levies, cl 6.2 authorised the Body Corporate to demand payment of such levies from each owner in amounts as the Body Corporate might from time to time determine and to sue to recover such levies.

[37]              Jennifer May deposed in her affidavit to not having been asked to pay levies for the remediation of The Ridge and to having the funds that she would be required to contribute under the scheme. Ms May exhibited to her affidavit interim reports of the Body Corporate for the financial year to 31 August 2018. The statement of financial position and income and expenditure statement reveal that special levies for the contract works have not been raised.

[38]              Mr Rainey accepted there was force in the submission on behalf of the applicants that the Body Corporate intended to breach, and was in breach of, the contract. But Mr Rainey emphasised that this is the way Body Corporates behave. They are “democratic beasts”. Unit owners buy into the possibility neighbours may

do something they do not like. This fact does not mean the Court should be invited to swoop in and appoint an administrator.

[39]              Mr Rainey’s position is sound and reflects an observation by the Court of Appeal that unit owners purchase—11

knowing they are subject to the Body Corporate Rules. Those rules are a contract between the unit holders. The starting point must be that unit holders should adhere to the statutory scheme they bought into, and to the Body Corporate Rules they agreed to abide by.

[40]              I observe that an equally divided Supreme Court in Gilbert v Body Corporate 162791 noted a number Court of Appeal judgments which included observations by the Court that the rules of a body corporate are a contract.12

We consider these observations were incorrect for the reasons we have given. They are not supported by authority and no reasons are given. They are obiter and even if they were not, they are not binding on this Court.

[41]              Section 48 of the Unit Titles Act 1972 and s 74, its successor in the Unit Titles Act 2010, create an exception to the general rule that a body corporate may only undertake tasks associated with common property. Under a scheme settled by the Court under s 48, as in the case of Body Corporate 329331 or for other body corporates operating under schemes settled under s 74, the scheme may enable a body corporate to force owners to vacate their units while remedial work is carried out.

[42]              The answer to Mr Rainey’s democracy point is that the scope of the statutory provisions pursuant to which a scheme may be settled by the High Court, is limited to situations “where the best interests of unit owners as a whole dictate a departure from the scheme of the Act and from the Body Corporate Rules”.13

[43]              The Court has an interest in ensuring effect is given to a scheme which the Court has effectively sanctioned and the provisions of which are binding on the body corporate. In the circumstances of this case, the appointment of an administrator for an interim period is a measure by which, at least, the possibility of giving effect to the

11     Tisch v Body Corporate No 318596 [2011] NZCA 420, [2011] 3 NZLR 679 at [31].

12     Gilbert v Body Corporate 162791 [2016] NZSC 61, [2018] 1 NZLR 1 at [84].

13     Tisch v Body Corporate No 318596, above n 11, at [31].

scheme is not presumptively foreclosed. There has been no application to cancel or vary the scheme and there had been no such application as at April 2018 when Hinton J heard the application for an injunction. Furthermore, Hinton J regarded the evidence before the Court at that stage as providing insufficient grounds for any such application. An application to vary or cancel the scheme would need to show the circumstances leading to the establishment of the scheme no longer existed. Not only was that “far from the case” but the scheme had been relied on by the Body Corporate and the work was actually being carried out pursuant to the scheme.14

[44]              The scheme is central. Mr Rainey highlights the resolution to halt the planned development of the building and properly investigate all options using independent unbiased consultants. But the resolution appears to fly in the face of the Body Corporate’s obligations under the scheme and in particular the obligation to complete as expeditiously as practical the repairs to the buildings. These concerning aspects of the Body Corporate’s latest resolve and new direction, can be confronted by the administrator who has been appointed for an interim period, to take all reasonable steps to meet the Body Corporate’s contractual obligations to Brosnan Construction and to report to the Court.

Summary

[45]              I considered the grounds for an urgent hearing were established by the imminent, proposed termination of a construction contract. The principal’s bond was to be paid within a matter of days, and Brosnan Construction had already advised the sum for which the Body Corporate would be liable in compensation and damages in the event of termination.

[46]              Further,  an  emergency  extraordinary  general   meeting   to   be   held   on  6 September 2018 appeared to be at risk of proceeding on the basis of representations sourced to Mr Brosnan which he had confirmed were either inaccurate or required to be understood in light of the understandings he had been given by Body Corporate representatives.

14     201 Ltd v Body Corporate 329331, above n 3, at [40].

[47]              The construction contract was at risk of being irrevocably lost. In that situation the prospects for repair which were imminent, become distant. In all of the circumstances which I have outlined the appointment of an administrator who would consider the relative merits of adhering to or abandoning contractual obligations in light of a Court sanctioned scheme of arrangement for expeditious remediation of the Body Corporate’s buildings seemed to be mandated.

Addendum

[48]              When my results judgment had been finalised although not delivered, a further memorandum from Mr Rainey was brought to my attention. It had been emailed to the Court the previous evening. In light of the fact the Body Corporate was due to meet on 6 September 2018 it was suggested the Court “might choose to defer making a decision until after the Body Corporate had voted so that the Court might make its decision informed by the exercise of the democratic voice of the owners”. I considered the memorandum but was not dissuaded from my decision to appoint the administrator. The administrator would be in a position to consider the outcome of the meeting. As well, owners could apply to vary the appointment of the administrator. Further, the proposal to defer my decision until the outcome of the meeting was known could not safeguard against my concern that votes might be cast on the basis of misrepresented facts.

Karen Clark J

Solicitors:

Mr T Rainey, Auckland for Applicant

MinterEllisonRuddWatts, Auckland for Respondent

SCHEDULE

Orders made on 6 September 2018

(a)I appoint Anthony McCullagh, consultant, PKR Corporate Recovery and Insolvency, Auckland, as the administrator of Body Corporate 329331 for 30 working days from the date of this order.

(b)The administrator is to have and may exercise the powers of the Body Corporate and Body Corporate Committee pursuant to the Scheme (as varied or modified from time to time by order of the Court), to the exclusion of the Body Corporate and Body Corporate Committee.

(c)Without limiting the ambit of his powers and duties under (1)(b), the administrator will take all reasonable steps necessary to meet the obligations of the Body Corporate under the contract between the Body Corporate and Brosnan Construction Limited (Contractor) dated 29 June 2018 (Contract), which for the avoidance of doubt includes the following steps:

(i)procuring the principal’s bond and providing the principal’s bond to the contractor, pursuant to the special conditions and clause 3 of the general conditions of the Contract; and

(ii)raising levies necessary to meet Payment obligations under clause 12 of the Contract;

(iii)providing vacant possession pursuant to clause 5.4 of the Contract; and

(iv)consulting with the engineer for the appointment of an engineer to the Contract, pursuant to clause 6.1.3 of the Contract.

(d)Within five working days of the date of this order, and at intervals of 10 working days thereafter, the administrator will report to the Court, addressing:

(i)steps taken pursuant to these orders; and

(ii)charges rendered pursuant to these orders.

(e)A copy of the report shall be served on all members of the Body Corporate by sending the report to an address for service in the register of owners.

(f)The administrator’s remuneration by the Body Corporate is fixed in terms of the consent which Mr McCullagh filed in this Court.

(g)A copy of these orders is to be served on all those having a registered interest in any unit in Deposited Plan 329331.

(h)A copy of these orders is to be lodged with the Registrar General of Land.