Body Corporate 89766 v Brocorp Properties Limited

[2020] NZHC 3049

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2015-419-317

[2020] NZHC 3049

UNDER THE

Unit Titles Act 2010

IN THE MATTER OF

an application for the discharge of a scheme pursuant to section 74

BETWEEN

BODY CORPORATE 89766

Applicant

AND

BROCORP PROPERTIES LIMITED

First Respondent

AND

BOSWELL PROPERTIES LIMITED

Second Respondent

AND

KEY CITY PROPERTIES LIMITED

Third Respondent

AND

GREENER ACRES PROPERTIES LIMITED

Fourth Respondent

Cont:/

Hearing:	On the papers
Counsel:	L H H Hunt for Applicant
Judgment:	18 November 2020

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 18 November 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Braun Bond & Lomas, Hamilton

BODY CORPORATE 89766 v BROCORP PROPERTIES LTD [2020] NZHC 3049 [18 November 2020]

AND

LUCAS JOHN SIKKING AND AMELIA ROSE HILLS
Fifth Respondent

AND

HJK RENTALS LIMITED

Sixth Respondent

AND

JENNA ANN HEERDEGEN

Seventh Respondent

AND

PAMELA ANN SKITTRUP AND MICHAEL JOHN PAYNE AND MCCAW LEWIS CHAPMAN TRUSTEES (NO3) LIMITED

Eighth Respondent

AND

TANIA MARIE CAREY AND S R HAMILTON CORPORATE TRUSTEE LIMITED

Ninth Respondent

AND

JANET BEVERLEY WILLIAMS AND DTR TRUSTEE SERVICES LIMITED

Tenth Respondent

AND

ROSALIND TAYLOR AND HUGH RODERICK CATHERWOOD

Eleventh Respondent

AND

WENDY ANN RICHES AND BRYCE JOHN PRESTIDGE AND GRANT JAMES PRESTIDGE AND JOHN JOSEPH O’SHEA

Twelfth Respondent

AND

DEREK CHARLES THURSBY AND THOMAS TE HIRA THURSBY AND VHARI EMMA THURSBY

Thirteenth Respondent

AND

COREY DAVID BAINES

Fourteenth Respondent

AND

SURESH KRISHNAN AND LIPKA SEN

Fifteenth Respondent

AND

BLUE SPIRAL GROUP LIMITED

Sixteenth Respondent

AND

MICHAEL WILFRED CRABB

HAMMONDS AND DANA LESLIE BRIDGE

Seventeenth Respondent

AND

WAYNE ANDREW POOLEY AND LINDSAY JANE POOLEY

Eighteenth Respondent

AND

SEAHORSE BEACH INVESTMENTS LIMITED

Nineteenth Respondent

AND

MALCOLM JOHN SMITH

Twentieth Respondent

AND

RAYLENE ADELE MARSH AND WENDY LORRAINE HAYMAN

Twenty-first Respondent

AND

KATHERINE DAWN HUBERT

Twenty-second Respondent

AND

STEPHEN MAURICE JUDGE AND SUPATCHA JUDGE

Twenty-third Respondent

AND

AWON LIMITED AND OWEN MCLEOD AND CO TRUSTEES LIMITED

Twenty-fourth Respondent

AND

BETH LORRAINE GREENE AND LARRY WILLIAM GREENE AND THOMAS

BEATSON MCCLUNIE

Twenty-fifth Respondent

AND

PETER JOHN EDGE AND JENNIFER ANNE EDGE

Twenty-sixth Respondent

AND

BRUCE JAMES GRIBBLE AND LORNA ELIZABETH GRIBBLE AND JAMES COLIN GORDON COCHRANE

Twenty-seventy Respondent

AND

ALEXANDER JOHN DALY AND CHUNHUA YUAN

Twenty-eighth Respondent

AND

ASB BANK LIMITED

Twenty-ninth Respondent

AND

MORTGAGE HOLDING TRUST COMPANY LIMITED

Thirtieth Respondent

AND

ANZ BANK NEW ZEALAND LIMITED

Thirty-first Respondent

AND

PEPPER NEW ZEALAND (CUSTODIANS) LIMITED

Thirty-Second Respondent

AND

KIWIBANK LIMITED

Thirty-third Respondent

AND

WESTPAC NEW ZEALAND LIMITED

Thirty-fourth Respondent

AND

BANK OF NEW ZEALAND

Thirty-fifth Respondent

AND

AMP HOME LOANS LIMITED

Thirty-sixth Respondent

AND

THE CO-OPERATIVE BANK LIMITED

Thirty-seventh Respondent

[1]    Body Corporate 89766 (the applicant) applies for an order discharging the scheme of arrangement pursuant to which significant remedial works to the unit title development at 391 Victoria Street, Hamilton (the complex) have been undertaken.

The scheme of arrangement was approved by Katz J on 19 November 2015.1

[2]    The application to discharge the scheme is made on the ground that the remedial works to be carried out to the complex pursuant to the scheme have now been completed, and the scheme is no longer appropriate or necessary. The application is founded on a resolution passed by the Body Corporate on 29 April 2020 in the following terms:

The Body Corporate resolves by ordinary resolution that:

a.The remedial works provided for under the scheme for the repairs of all units and common property under section 74 of the Unit Titles Act 2020 granted by the High Court on 19 November 2015 and sealed on 20 November 2015 have now been completed; and

b.That the Body Corporate take all steps necessary and engage any and all advisors considered necessary by the Body Corporate in order to obtain a discharge of the Scheme, including taking any steps to defend any opposition to the application for discharge, and to have the Scheme removed from the supplementary record sheet for the unit title development.

[3]    Service of the application has been effected on all unit owners and mortgagees. Details of service are contained in the affidavits of Ms Kerry Godfrey, dated 5 November 2020, and the affidavits of Vuniyani Leano and Gavin Herwaarde, dated 4 November 2020.

[4]    The interlocutory application for discharge of the scheme notified the respondents that the applicant would apply to the High Court at Hamilton on 11 November 2020 at 9 am for an order discharging the scheme pursuant to s 74(8) of the Unit Titles Act 2010. The first to twenty-eighth respondents are, or were at the time the proceedings were filed, the owners of the units contained in the complex. The twenty-ninth to thirty-seventh respondents have, or had at the time the proceedings were filed, interests in one or more of the units contained in the complex by way of mortgage securities.

1      Body Corporate S89766 v Brocorp Properties & Ors [2015] NZHC 2891.

[5]    In her affidavit of service, dated 3 November 2020, Ms Godfrey confirms effecting service (in accordance with agreements as to service entered into by each unit owner) by emails sent to their respective email addresses on 13 October 2020, apart from two new owners of units 10 and 23, who were served by emails to their email addresses on 27 and 28 October 2020. Ms Godfrey further states that on 20 October 2020 she effected service on the ASB Bank by email with that bank confirming on 28 October 2020 that it had accepted service of the documents.

[6]    The applicant has also proven that it effected service on the other mortgagees by the affidavits of Vuniyani Leano, who effected service by delivering the notice of interlocutory application and supporting affidavit and memorandum upon the registered offices of the ANZ Bank New Zealand Limited, Bank of New Zealand Limited, Westpac Banking Corporation, and Blue Spiral Group Limited on 30 October 2020. The applicant also relies on the affidavit of Gavin Herwaarde, who confirms that he effected service on the Cooperative Bank Limited and Kiwibank Limited by serving a copy of the notice of interlocutory application, affidavit in support and memorandum of counsel upon those two banks on 2 November 2020.

[7]    I am satisfied by the contents of those affidavits that all thirty-seven respondents named in the proceedings have been served with the notice of interlocutory application and supporting documents. I am also satisfied by the contents of the affidavits of service filed by the applicant that service has been effected on all respondents and that no notices of opposition have been filed by any of the respondents.2

[8]    Pursuant to r 7.24(1) of the High Court Rules 2016, any respondent intending to oppose the application was required to file a notice of opposition before the end of the tenth working day after being served with the application. The time for filing notices of opposition has expired and no notices of opposition have been filed in Court by any of the thirty-seven respondents.

[9]    In an updating memorandum of counsel, dated 10 November 2020, Mr Hunt for the applicant notes that the application was made on notice, and that no notices of

2      High Court Rules 2016, r 7.24.

opposition have been filed or signalled. I am satisfied by the contents of the affidavit of Graham Boswell filed in support of the application3 that the work to be undertaken pursuant to the scheme has been completed, and that it is now appropriate that the scheme be discharged.

[10]   I am accordingly satisfied that it is appropriate to grant the application and I make an order pursuant to s 74(8) of the Unit Titles Act 2010, discharging the scheme approved on 19 November 2015, and which was sealed on 20 November 2015.

Paul Davison J

3      Affidavit of Graham Boswell in support of interlocutory application for discharge of a scheme of arrangement, sworn 8 August 2020.