May v Body Corporate 329331

[2018] NZHC 2337

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2009-404-7379

[2018] NZHC 2337

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:

T Rainey for the First Respondent

A Lloyd and I Stephenson for the Applicants

Judgment:

6 September 2018

JUDGMENT OF CLARK J

(Results)

This judgment was delivered by me on 6 September 2018 at 9:30 a.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr T Rainey, Barrister, Auckland

Mr A Lloyd and Mr I Stephenson, MinterEllisonRuddWatts, Solicitors, Auckland

MAY v BODY CORPORATE 329331 [2018] NZHC 2337 [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

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]    The applicants’ application for the appointment of an administrator pursuant to s 141 of the Unit Titles Act 2010 (the Act), is granted.

[2]    Although my reasons are to follow, having considered the extensive affidavit evidence filed in support of the application, and having heard from counsel on a Pickwick basis, I am satisfied it is necessary that an administrator of Body Corporate 329331 be appointed on an interim basis. Accordingly, I make the following orders:

(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 Scheme1 (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

1      That is, the Scheme governing repairs to the buildings comprised in Body Corporate 329331, sanctioned by order of the High Court on 11 February 2010.

(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.

[3]    Leave is reserved for the administrator, and/or any person having a registered interest in a unit in Deposited Plan 329331, to apply to the Court to vary these orders.

Karen Clark J