Body Corporate 360683 v KFM Holdings Limited

[2017] NZHC 3075

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2750 [2017] NZHC 3075

UNDER

the Unit Titles Act 2010

IN THE MA

TTER             of an application to settle a Scheme under

Section 74 of the Unit Titlews Act 2010

BETWEEN

BODY CORPORATE 360683
Applicant

AND

KFM HOLDINGS LIMITED & ORS First Respondent

AND

IAN JAMES WALLACE Second Respondent

AND

MICHAEL JOHN DE LA CROIX AND MERVYN PAUL HUXFORD

Third Respondents

AND

PACIFIC TRUST HOLDINGS NZ LIMITED

Fourth Respondent

Hearing:

11 De

Continued overleaf…

cember 2017

Appearances:           JP Wo

No ap

od for Applicants

pearances on behalf of the Respondents

Judgment:               11 De

cember 2017

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 11 December 2017 at 5.00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

BODY CORPORATE 360683 v KFM HOLDINGS LIMITED & ORS [2017] NZHC 3075 [11 December 2017]

AND

PROSPERARE INVESTMENTS

LIMITED
Fifth Respondent

AND

RONALD BRUCE ARCHER AND CYNTHIA ANNE ARCHER

Sixth Respondents

AND

ALISON BAKER Seventh Respondent

AND

BRIAN FREDERICK EDWARDS Eighth Respondent

AND

RESULTS PROPERTIES LIMITED Ninth Respondent

AND

SHANE MICHAEL GOSS, KELLY MAREE FOWLER, NATALIE FRANCES BROOME AND KIRSTEN THERESE GOSS

Tenth Respondents

AND

ROGER JOHN WATSON AND JUNE WINIFRED WATSON

Eleventh Respondents

AND

DAVID ALAN LEGGOE Twelfth Respondent

AND

ALISON MARGARET HOLST AND PETER EUGENE HOLST

Thirteenth Respondents

AND

FEDERICK JAMES FELTON AND DIANE RHYS FELTON

Fourteenth Respondents

AND

BRETT WALLACE ARCHER AND PRISCILLA ANN MACINDOE Fifteenth Respondents

AND

STANDARD 320 LIMITED Sixteenth Respondent

AND

LARA NICOLE WEAVER (NEE PENNEY) AND RODD DEAKEN PENNEY

Seventeenth Respondents

AND

CAROLYN MARGARET NICHOLS

AND ALFRED GORDON NICHOLS Eighteenth Respondents

AND

CLARENCE HUGH NICHOLSON Ninteenth Respondent

AND

KAREN MAY ARCUS Twentieth Respondent

AND

THOMSON TRUSTEE AUCKLAND LIMITED

Twenty-first Respondent

AND

MARY KATHLEEN SCHOLLUM Twenty-second Respondent

AND

JESSIE MIDDLEMESS GRAHAM Twenty-third Respondent

AND

JOHN GRAHAM FORSTER AND JULIE MICHELLE FERGUSON

Twenty-fourth Respondents

AND

CHERRY PATRICIA HICK, CECIL WAYNE HICK AND CAROL ANNE CAMPBELL

Twenty-fifth Respondents

AND

BRIAN JOHN CARRAN Twenty-sixth Respondent

AND

MATTHEW JOHN MCEWAN Twenty-seventh Respondent

AND

CAMPBELL JOHN TAYLOR Twenty-eighth Respondent

AND

WAIORA INVESTMENTS LIMITED Twenty-ninth Respondent

AND

ROSS & FELI INVESTMENTS LIMITED

Thirtieth Respondent

AND

BANK OF NEW ZEALAND Thirty-first Respondent

AND

ANZ BANK NEW ZEALAND LIMITED

Thirty-second Respondent

AND

KIWIBANK LIMITED Thirty-third Respondent

AND

WESTPAC NEW ZEALAND LIMITED Thirty-fourth Respondent

AND

FM CUSTODIANS LIMITED Thirty-fifth Respondent

AND

DOMINION FINANCE GROUP LIMITED

Thirty-sixth Respondent

AND

B.C. MC NIECE SOLICITORS NOMINEE COMPANY LIMITED Thirty-seventh Respondent

AND

PEPPER NEW ZEALAND (CUSTODIANS) LIMITEDU Thirty-eighth Respondent

AND

CITYWIDE CAPITAL LIMITED Thirty-ninth Respondent

AND

KIM MAREE FRANCIS Fortieth Respondent

AND

CHUBB INSURANCE NEW ZEALAND LIMITED

Forty-first Respondent

[1]      Body Corporate 360683 has applied for an Order under s 74 of the Unit Titles Act 2010 approving a Scheme under the Act for the carrying out of repairs to a complex known as ‘The Orewa Grand Apartments’.

[2]      All of the respondents have been served and none opposes the application. [3]         I accept Mr Wood’s submissions that:

(a)       approval for the Scheme may be granted without a hearing;1

(b)      there is no reason to delay;

(c)      granting the orders will avoid the need for scheduling further Court time on a matter that is not controversial; and

(d)the Court has sufficient information to decide whether or not to grant the Scheme.

[4]      Having read the comprehensive affidavit and Mr Wood’s helpful submissions

I am satisfied:

(a)       The building has been destroyed or damaged.

(b)A Scheme is appropriate in the circumstances and the Court should approve the Scheme in the exercise of its discretion.   The cost of remedial work is estimated to be in excess of $10 million and the Body Corporate does not have sufficient funds to meet these costs. That requires a Scheme to enable the Body Corporate to raise funds, by way of levies, in advance of the repair and to carry out the repair work on all units in unison.

(c)      The terms of the proposed Scheme provide an appropriate balance for the interests of all owners.

1      Body  Corporate  073471  v  Dynasty  Hotel  Investments  Limited  [2013]  NZHC  1127;  Body

Corporate 205373 v Baltazaar [2015] NZHC 2827.

[5]      Accordingly, the Court orders under s 74 of the Unit Titles Act 2010 that it approves the Scheme described in Schedule 1 attached to the Originating Application of the applicant dated 16 November 2017.

………………………………….

Toogood J