OM HARDWARE LIMITED AND ORS v BODY CORPORATE 303662 AND ORS [2015] NZHC 190 [17 February 2015]

OM HARDWARE LIMITED AND ORS v BODY CORPORATE 303662 AND ORS [2015] NZHC 190 [17 February 2015]

The Court exercised its broad discretion under s188(3) to order reassessment because the original unit entitlements were unlawfully and materially incorrect, the reassessment as at 21 February 2011 is practicable despite demolition, the valuers' evidence was consistent, and it is just and equitable that reassessed...

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Citation
[2015] NZHC 190
Parties
First Applicant: OM Hardware Limited; Second Applicant: N R Skjellerup; Third Applicant: Burgundy Fleur Investments Limited; Fourth Applicants: T R Brown and Cambridge Trustee Services Limited; Fifth Applicant: D C Nobes; Sixth Applicant: Pandora Parnassus Investments Limited; First Respondent: Body Corporate 303662; Second Respondent: BBS Group Enterprises Limited; Third Respondent: Ourway Tower Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 February 2015
Procedural Posture
Application for Cancellation of Unit Plan Under Unit Titles Act 2010 / High Court Judgment on Application Under S188 (final Hearing)
Outcome
Unit plan cancelled; ownership interests reassessed and reassessed interests to govern distribution of insurance proceeds and allocation of land; costs reserved
Legal Topics
Cancellation of Unit Plan, Reassessment of Ownership Interests, Distribution of Insurance Proceeds, Valuation Date for Destroyed Property, Estoppel Against Reassessment, Impact on Body Corporate Levies
Property Law Insurance Law Civil Procedure Valuation Law Equity (estoppel) Cancellation of Unit Plan Reassessment of Ownership Interests Distribution of Insurance Proceeds +3 more

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Parties

OM Hardware Limited

First Applicant

N R Skjellerup

Second Applicant

Burgundy Fleur Investments Limited

Third Applicant

T R Brown and Cambridge Trustee Services Limited

Fourth Applicants

D C Nobes

Fifth Applicant

Pandora Parnassus Investments Limited

Sixth Applicant

Body Corporate 303662

First Respondent

BBS Group Enterprises Limited

Second Respondent

Ourway Tower Limited

Third Respondent

Procedural Posture

Application for Cancellation of Unit Plan Under Unit Titles Act 2010 / High Court Judgment on Application Under S188 (final Hearing)

Legal Issues

  1. 1 Whether Court should order reassessment of ownership interests as a condition of cancelling the unit plan under s188(3) Unit Titles Act 2010
  2. 2 Whether reassessment is impracticable because the building was demolished
  3. 3 Whether applicants are estopped from seeking reassessment

Ratio Decidendi

The Court exercised its broad discretion under s188(3) to order reassessment because the original unit entitlements were unlawfully and materially incorrect, the reassessment as at 21 February 2011 is practicable despite demolition, the valuers' evidence was consistent, and it is just and equitable that reassessed proportions (adopting the Ford Baker 21 February 2011 valuation) govern distribution of the insurance proceeds and the allocation of land shares; past body corporate levies will not be adjusted and estoppel was not established.

Court Disposition

Unit plan cancelled; ownership interests reassessed and reassessed interests to govern distribution of insurance proceeds and allocation of land; costs reserved

Orders

  • Unit plan for Body Corporate 303662 cancelled under Unit Titles Act 2010 s188(2)
  • Ownership interests reassessed pursuant to Unit Titles Act 2010 s188(3) in the following proportions: unit A – 11.17 per cent; unit B – 27.35 per cent; unit C – 10.33 per cent; unit D – 10.33 per cent; unit E – 10.33 per cent; unit F – 11.60 per cent; unit G – 7.92 per cent; unit H – 10.97 per cent