Roe-Shaw v Body Corporate 81340 - [2021] NZHC 2114

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2016-485-220

[2021] NZHC 2114

BETWEEN
MAGGIE MARY ROE-SHAW

First Applicant

MAZGO LIMITED
Second Applicant

AND

BODY CORPORATE 81340

Respondent

Teleconference: 12 August 2021

Appearances:

J K Mahuta-Coyle for the Applicants A J Knowsley for the Respondent

Judgment:

13 August 2021

JUDGMENT OF COOKE J

(Leave to appeal, stay, adjournment and timetable orders)

[1] These proceedings originally involved an application under s 74 of the Unit Titles Act 2010 for a scheme. The scheme concerned a proposal for remedial works for an apartment complex at Paraparaumu Beach known as “the Lynx” which had suffered from weathertightness issues. By judgment dated 14 November 2018 Thomas J approved the scheme.1

[2] As part of the proceeding the current applicants were served as unit holders. They appeared at the hearing before Thomas J after filing a notice of appearance for ancillary purposes. They sought compensation for loss arising from the use of their unit whilst the repairs contemplated by the scheme were undertaken. Compensation can be awarded as part of a scheme under s 74(7). On that matter Thomas J held:

1 Body Corporate 81340 v Knight [2018] NZHC 2953.

ROE-SHAW v BODY CORPORATE 81340 [2021] NZHC 2114 [13 August 2021]

[7] A preliminary issue arose in respect of a notice of appearance for ancillary purpose by an interested party, being the owner of unit 1A. While the owner supported the Application, she sought to be heard in relation to claimed compensation for loss of use of her unit while it underwent repair. Although not conceding the dispute, the unit owner and the Body Corporate have agreed to attempt to settle it.

[3]An associated footnote recorded:

The scheme may require some amendment to reflect any settlement reached, which would require a further application to the Court pursuant to s 74(8) of the Unit Titles Act 2010.

[4] The attempted settlement was unsuccessful, and the current applicants now seek compensation as a variation of the approved scheme under s 74(8).

[5] The application for variation was filed in the existing proceeding in which the scheme was originally approved. It was filed on 24 May 2021 and served on the address for service of the respondent (the Body Corporate), being the address for service given by the current solicitors for the Body Corporate. The application is supported by two affidavits.

[6] When the application was called before Grice J there was no appearance by the Body Corporate. No notice of opposition was filed in accordance with the rules. Grice J accordingly set the application down for hearing on an unopposed basis. The hearing was to proceed before me on Monday 12 July. The applicants subsequently filed a synopsis of submission in support of its application dated 29 June 2021 in anticipation of the hearing.

[7] On Thursday 8 July, two working days before the hearing, the Body Corporate filed an application for an extension of time to…

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: [2021] NZHC 2114
Decision Date: 13 August 2021

CaseChat Overview and Summary

The High Court of New Zealand was presented with a case where the applicants, Maggie Mary Roe-Shaw and Mazgo Limited, sought compensation for loss of use of their unit while it underwent repair as part of a scheme approved for an apartment complex at Paraparaumu Beach known as "the Lynx." The legal issues revolved around the proper procedure for filing the application and the procedural steps required to determine the application. The applicants had filed their application as a further application in the existing proceeding rather than as a fresh originating application. The Body Corporate, represented by A J Knowsley, argued that the application should have been filed in a new proceeding.

The court examined the factors for granting leave to appeal, including the existence of an arguable error of law or fact, the importance of the alleged error, the potential delay incurred, and whether the interests of justice would be served by granting leave. The court concluded that the applicants' procedural approach was not necessarily wrong and that the substantive issues could be adequately addressed in the existing proceeding. The court also noted that the High Court Rules and the objective of fair procedure allowed for flexibility in handling procedural irregularities.

Regarding the procedural steps, the court considered the need for discovery, the appropriateness of issuing interrogatories, and the timing for filing affidavit evidence. The court allowed for some specific discovery of documents related to access and storage in the applicants' unit and communications between the Body Corporate and its contractors. The court declined to order interrogatories, finding that the issues could be explored in affidavits. The court also set specific deadlines for filing and serving evidence, denying the Body Corporate's request for an extended period.

The court granted an adjournment of the hearing and set a new timetable, allowing two days for the hearing. The applicants were awarded costs for the Body Corporate's applications for leave to appeal, a stay, and to alter the timetable. The court emphasized that no further indulgences would be granted to the Body Corporate.

Orders