Newhaven Waldorf Management Ltd v Allen - [2015] NZCA 204

IN THE COURT OF APPEAL OF NEW ZEALAND

CA158/2015
[2015] NZCA 204

UNDER

BETWEEN

the Declaratory Judgments Act 1908

NEWHAVEN WALDORF MANAGEMENT LIMITED
Appellant

AND

GEOFFREY ROBERT ALLEN
First Respondent

AND

BODY CORPORATE 355923 (KAURI), BODY CORPORATE 342656 (PARKSIDE), BODY CORPORATE 346225 (RIMU), AND BODY CORPORATE 352635 (WATERVIEW)
Second Respondents

Hearing:	18 May 2015
Court:	Ellen France P, Courtney and Kós JJ
Counsel:	N R Campbell QC and M J O'Brien for Appellant T J Rainey and J P Wood for Respondents
Judgment:	5 June 2015 at 3.30 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe appellant must pay the respondents costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós J)

This appeal concerns a decision by a High Court Judge to join bodies corporate as defendants in a proceeding brought by the manager of the 176-unit Newhaven Estate against a single titleholder.[1]
[1]Newhaven Waldorf Management Ltd v Allen [2015] NZHC 383.
The proceeding is brought under the Declaratory Judgments Act 1908. It concerns the meaning and effect of an encumbrance registered against each title within Newhaven Estate.
The manager and the titleholders are parties to the encumbrance. Newhaven Estate’s unit titles are organised across five bodies corporate. The bodies corporate are not parties to the encumbrance.
The manager consented to other titleholders joining as defendants. Although many have signalled their intention to do so, none yet has. Instead, four of the five bodies corporate within Newhaven Estate applied to be joined in the proceeding as defendants.
In a judgment delivered in March 2015 Andrews J concluded that the presence of those bodies corporate was necessary in order to adjudicate on and settle all the issues in the proceeding.
From that decision the manager, Waldorf, appeals.[2]

Facts

An estate

[2]Newhaven Waldorf Management Ltd (Waldorf).

Newhaven Estate is located in East Tamaki, Auckland. It comprises 164 unit titles, arranged across five bodies corporate[3] and a further 12 units held in fee simple.[4]
[3]These are called “Parkside”, “Rimu”, “Kauri”, “Waterview” and “Jarrah”. The latter has not applied to join these proceedings.
[4]These fee simple units are in a single complex known as “Courtside”. It does not have a body corporate.
Adjacent to the land comprising the 176 titles, and common property associated with those units, is a separate title on which “Common Facilities” have been developed. A recreation area with tennis court, swimming pool, gymnasium, barbecue facilities and children’s playground will be found there. That separate title is held by the appellant, Waldorf.

An encumbrance

Prior to subdivision of Newhaven Estate into distinct titles, an encumbrance was registered against the base land. The same encumbrance now is registered against each of the 176 individual titles. The encumbrance is given in favour of Waldorf.
It contains, first, a series of express covenants. The titleholders covenant not to change the colour scheme or materials used in the exterior of the building (without Waldorf’s consent), not to change…

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: [2015] NZCA 204
Decision Date: 5 June 2015

CaseChat Overview and Summary

Newhaven Waldorf Management Ltd sought a declaration from the High Court regarding the meaning and effect of an encumbrance registered against each title within Newhaven Estate. The proceeding concerned the rights and obligations of the manager and the titleholders, who were parties to the encumbrance, as well as the five bodies corporate within Newhaven Estate, which were not parties to the encumbrance. The bodies corporate applied to be joined in the proceeding as defendants. In a judgment delivered in March 2015, Andrews J concluded that the presence of those bodies corporate was necessary in order to adjudicate on and settle all the issues in the proceeding. Waldorf appealed from that decision. The Court of Appeal held that the appeal must be dismissed. The Court found that the bodies corporate were properly joined in this case and that the appeal must be dismissed. The Court found that the bodies corporate do have rights or liabilities which will be directly affected by orders that may be made in this proceeding. The Court held that the bodies corporate should be heard as their rights and liabilities will be directly affected by determination of the issues arising in the proceeding against Mr Allen.

Orders