FRASER AND ANOR V BODY CORPORATE S63621 AND ANOR HC TAU CIV 2008-470-772

FRASER AND ANOR V BODY CORPORATE S63621 AND ANOR HC TAU CIV 2008-470-772

The Court will treat proposals and submissions made by the Body Corporate and by Mr Stewart as information to be taken into account when exercising its discretion under s 48(5) of the Unit Titles Act 1972; such submissions are not regarded as material to the initial grant/refusal decision but, if any material issues arise on which applicants need instructions, the Court will consider sympathetically an application to adjourn.

Citation
openlaw-8687a589_b185_4a92_b7cf_1414d261043f.pdf
Parties
First Applicant: Wendy Janet Fraser; First Applicant: Peter Allen Lewis; Second Applicant: Ian Luke Dustin; First Respondent: Body Corporate S63621; Second Respondents: Bruce Sidney Ingram and others
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 March 2010
Procedural Posture
Application Under S 48 Unit Titles Act 1972 / Adjourned Hearing; Oral Judgment on Amended Application
Outcome
Proceed to determine the amended scheme application while treating Body Corporate and owner proposals as information for the Court's discretion under s 48(5); adjournment may be granted if material matters require applicants' instructions.
Legal Topics
Scheme Approval, Section 48, Body Corporate Submissions, Adjournment, Procedural Fairness
Property Law Unit Titles Act Matters Civil Procedure Scheme Approval Section 48 Body Corporate Submissions Adjournment Procedural Fairness

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Parties

Wendy Janet Fraser

First Applicant

Peter Allen Lewis

First Applicant

Ian Luke Dustin

Second Applicant

Body Corporate S63621

First Respondent

Bruce Sidney Ingram and others

Second Respondents

Procedural Posture

Application Under S 48 Unit Titles Act 1972 / Adjourned Hearing; Oral Judgment on Amended Application

Legal Issues

  1. 1 Whether the Court should approve an amended scheme for Unit 10 under s 48 of the Unit Titles Act 1972
  2. 2 Whether the Court may consider documents and proposals filed by the Body Corporate and an owner for ancillary purposes
  3. 3 Whether applicants have had adequate opportunity to respond to submissions and whether an adjournment is required

Ratio Decidendi

The Court will treat proposals and submissions made by the Body Corporate and by Mr Stewart as information to be taken into account when exercising its discretion under s 48(5) of the Unit Titles Act 1972; such submissions are not regarded as material to the initial grant/refusal decision but, if any material issues arise on which applicants need instructions, the Court will consider sympathetically an application to adjourn.

Court Disposition

Proceed to determine the amended scheme application while treating Body Corporate and owner proposals as information for the Court's discretion under s 48(5); adjournment may be granted if material matters require applicants' instructions.

Orders

  • Treat proposals filed by the Body Corporate and Mr Stewart as information to be taken into account when deciding whether to exercise the Court's discretion to approve the scheme under s 48(5) Unit Titles Act 1972.
  • Proceed with consideration of the amended application; if material issues arise on which the applicants require instructions, an application to adjourn will be considered sympathetically.