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Wheeldon v Body Corporate 342525

Wheeldon v Body Corporate 342525

Case [2016] NZSC 125 14 September 2016

Statutory Interpretation

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IN THE SUPREME COURT OF NEW ZEALAND

SC 70/2016
[2016] NZSC 125

BETWEEN	DEREK PETER WHEELDON AND CAROL ANN WHEELDON, ANTHONY JOHN BUTCHER AND RUTH BARBARA ROGERS, LARRY LAWRENCE SMALL AND KM TRUSTEE SERVICES LIMITED, IVOR ANTHONY MILLINGTON AND NEVILLE EADE Applicants
AND	BODY CORPORATE 342525 Respondent

Court:	William Young, OʼRegan and Ellen France JJ
Counsel:	B E Brill for Applicants T J G Allan for Respondent
Judgment:	14 September 2016

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B The applicants are to pay the respondent costs of $2,500.
____________________________________________________________________

REASONS

This application for leave to appeal arises from a dispute between the Body Corporate for an apartment complex that has weathertightness issues and the owners of five (out of 22) units in the complex. The Body Corporate proposes a comprehensive repair; the applicants say this is outside the powers of the Body Corporate under the Unit Titles Act 2010 (the Act) and that only targeted repairs to some units are necessary.
The applicants sought declarations and injunctive relief to prevent the comprehensive repair work proceeding. They were unsuccessful in the High Court[1] and the Court of Appeal.[2] They seek leave to appeal against the Court of Appeal decision.
[1]Wheeldon v Body Corporate 342525 [2015] NZHC 884 (Muir J) [Wheeldon (HC)].
[2]Wheeldon v Body Corporate 342525 [2016] NZCA 247 (Winkelmann, Courtney and Clifford JJ) [Wheeldon (CA)].
The Court of Appeal dealt with six grounds of appeal from the High Court decision. It found against the applicants on all of them. The applicants now seek to contest five out of those six grounds of appeal. We will deal with the application by reference to each of those five grounds.
The first concerns the relationship between s 138(1)(d) and s 80(1)(g) of the Act. Section 138(1)(d) requires a body corporate to repair and maintain “any building elements and infrastructure that relate to or serve more than 1 unit”. Section 80(1)(g) requires an owner of a unit to repair and maintain the unit to ensure that no damage or harm is or has the potential to be caused to the common property, any building element, any infrastructure, or any other unit in the building. The applicants wish to argue that the latter takes priority over the former and that, on the facts of the present case, that means that they as owners should determine what repairs to make to their respective units, rather than having a comprehensive repair undertaken by the Body Corporate.
We accept that this issue of statutory interpretation could potentially be a matter of public importance, but we do not consider there is sufficient prospect of disturbing the findings of the Court of Appeal and the High Court on this point to warrant the grant of leave.
We do not see the applicants’ argument based on common law rights of fee simple owners as assisting the determination of the issue, which we see as one of statutory interpretation, reading the…

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 Wheeldon v Body Corporate 342525

Details

AGLC: Wheeldon v Body Corporate 342525 [2016] NZSC 125
Case: [2016] NZSC 125
Decision Date: 14 September 2016

CaseChat Overview and Summary

The applicants in this case were the owners of five units in an apartment complex, and the respondent was the Body Corporate of the complex. The applicants sought declarations and injunctive relief to prevent the Body Corporate from undertaking comprehensive repair work in response to weathertightness issues in the complex. The applicants argued that the repairs were outside the powers of the Body Corporate under the Unit Titles Act 2010, and that only targeted repairs to some units were necessary. The High Court and the Court of Appeal had both found against the applicants, and they now sought leave to appeal against the Court of Appeal decision. The Court of Appeal had considered six grounds of appeal from the High Court decision and had found against the applicants on all of them. The applicants now sought to contest five of those grounds of appeal.

The court considered each of the five grounds of appeal in turn. The first concerned the relationship between sections 138(1)(d) and 80(1)(g) of the Act, and the applicants' argument that the latter took priority over the former. The court rejected this argument, finding that it was a matter of statutory interpretation and that there was no sufficient prospect of disturbing the findings of the Court of Appeal and the High Court on this point to warrant the grant of leave. The second point was a subset of the first, and concerned the interpretation of section 138(1)(d) in relation to building elements and infrastructure that related to the common property. The court found that this was a specific issue related to the layout of the building concerned, and therefore not a matter that raised any point of public importance. The third ground concerned whether section 138(1)(d) was engaged in relation to exterior panels and decks. The court found that this was essentially a factual question, and did not raise any generic point that would warrant leave to appeal to this Court. The fourth ground related to the onus of proof, and the court found that it was for the applicants to establish their case. The fifth point arose from the fact that one of the applicants had obtained a building consent from the relevant local authority to re-tile the deck of his apartment after the High Court decision, but before the hearing in the Court of Appeal. The court found that this was entirely facts-specific and did not see any point of public importance arising from this aspect of the case.

Having considered each of these grounds individually and all of them collectively, the court did not consider that there was any point of sufficient importance to justify the giving of leave, nor did it see any likelihood of a miscarriage of justice if leave was not granted. The court therefore dismissed the application for leave to appeal and awarded costs of $2,500 to the respondent.

Orders