Body Corporate 309667 v Robson

[2018] NZHC 650

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-107

[2018] NZHC 650

UNDER

the Unit Titles Act 2010

IN THE MATTER

of an Application for Orders Establishing a Scheme under Section 74 of the Unit Titles Act 2010

BETWEEN

BODY CORPORATE 309667

First Applicant

DONNA JANE KILLIAN
Second Applicant

AND

EZEKIEL PENTON ROBSON AND SUSAN FRANSON

First Respondent

cont … /2

Hearing:	11 April 2018
Appearances:	D R Bigio QC and T L Utama for the Applicants No Appearance for the Respondents
Judgment:	11 April 2018

ORAL JUDGMENT OF PALMER J

Counsel/Solicitors:

D R Bigio QC, Auckland Anthony Harper, Auckland

BODY CORPORATE 309667 v ROBSON & ORS [2018] NZHC 650 [11 April 2018]

EDITHA ESPINOSAS SALONOA

Second Respondent

DIANE JOY HAUWAI
Third Respondent

DONNA JANE KILLIAN
Fourth Respondent

FDR INVESTMENTS LIMITED
Fifth Respondent

SHEIKA SHRISTI DEO AND SURAGNI SHRISTI DEO
Sixth Respondent

JOYTIKA DEVI SINGH

Seventh Respondent

SURINDER SINGH AND SARBJIT KAUR

Eighth Respondent

CATHERINE FRANCES GLEN
Ninth Respondent

CRAIG DUDLEY WILDON
Tenth Respondent

PUSHP LATA GARG AND OM PARKASH GARG

Eleventh Respondent

KAZUTOSHI ASAMI AND AYAKO ASAMI

Twelfth Respondent

CRISSINA ANNE TOIA
Thirteenth Respondent

MOYLAN VENTURES LIMITED
Fourteenth Respondent

NAIDU INVESTMENT TRUST LIMITED
Fifteenth Respondent

SURENDRA RAJAK
Sixteenth Respondent

ANZ BANK NEW ZEALAND LIMITED

Seventeenth Respondent

WESTPAC NEW ZEALAND
Eighteenth Respondent

BANK OF NEW ZEALAND
Nineteenth Respondent

MORTGAGE HOLDING TRUST COMPANY LIMITED

Twentieth Respondent

THE CO-OPERATIVE BANK LIMITED
Twenty-First Respondent

ASB BANK LIMITED

Twenty-Second Respondent

CHUBB INSURANCE NEW ZEALAND LIMITED (ORION INSURANCE)

Twenty-Third Respondent

[1]    Body Corporate 309667 and Ms Donna Killian apply under s 74 of the Unit Titles Act 2010 to settle a reinstatement scheme of repairs of the Body Corporate’s buildings called Beaumont Terraces, at 277 Great South Road, Manurewa. The buildings have suffered water damage compromising their structural integrity and the health and safety of the occupants. The scheme is attached to the application as Schedule 2. The application is supported by an extensive affidavit of Ms Killian. At an extraordinary general meeting of 29 March 2017, all owners present voted in favour of it. The application and affidavit have been served on all respondents, including directly on the solicitors of one owner who reserved the right to oppose the application. No opposition has been filed and no one appeared in opposition today or at any previous call.

[2]    The Court of Appeal has set out a three-step process for considering an application to settle such a scheme.1 In accordance with those steps, and on the basis of the application and affidavit:

(a)I am satisfied the buildings have been damaged.

(b)I consider the proposed reinstatement scheme is appropriate in the circumstances. It has broad support, is sufficiently detailed and has appropriate effect.

(c)I approve the terms of the scheme as proposed by the applicants, including the allocation of cost which I consider fair. The terms depart from the Act and from the body corporate rules no more than is reasonably necessary.

[3]I order the settling of the scheme of reinstatement sought by the applicants.

………………………….

Palmer J

1      Tisch v Body Corporate 318596 [2011] NZCA 420, [2011] 3 NZLR 679 at [35].