BODY CORPORATE 204299 v WHYTE AND OTHERS [2016] NZHC 1164

BODY CORPORATE 204299 v WHYTE AND OTHERS [2016] NZHC 1164

The court declined to approve the proposed s 74 scheme because its reallocation of cost for 20 common property walls departs from the Unit Titles Act and body corporate rules more than is reasonably necessary to achieve fairness between unit owners; the asserted reasons (block-by-block approach and FAP access) were insufficient to justify the departure, and the weight of owner support did not overcome the requirement of minimal necessary departure under Tisch.

Citation
[2016] NZHC 1164
Parties
First Applicant: Body Corporate 204299; Second Applicants: Ian Walter Sayer and Doris Sayer; First and Subsequent Respondents: Jeremy Kane Whyte and Others
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 May 2016
Procedural Posture
Application Under S 74 Unit Titles Act 2010 (scheme of Repair for Weathertightness Defects) / High Court Hearing and Judgment on Approval of Proposed Scheme
Outcome
Proposed s 74 scheme declined approval
Legal Topics
Scheme Approval, Weathertightness Remediation, Cost Allocation, Section 74 Unit Titles Act 2010, Precedent (tisch)
Property Unit Titles Construction Civil Procedure Scheme Approval Weathertightness Remediation Cost Allocation Section 74 Unit Titles Act 2010 +1 more

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Parties

Body Corporate 204299

First Applicant

Ian Walter Sayer and Doris Sayer

Second Applicants

Jeremy Kane Whyte and Others

First and Subsequent Respondents

Procedural Posture

Application Under S 74 Unit Titles Act 2010 (scheme of Repair for Weathertightness Defects) / High Court Hearing and Judgment on Approval of Proposed Scheme

Legal Issues

  1. 1 Whether the proposed s 74 scheme should be approved
  2. 2 Weight to be given to level of owner support for the scheme
  3. 3 Whether the scheme departs from the Act and body corporate rules no more than is reasonably necessary

Ratio Decidendi

The court declined to approve the proposed s 74 scheme because its reallocation of cost for 20 common property walls departs from the Unit Titles Act and body corporate rules more than is reasonably necessary to achieve fairness between unit owners; the asserted reasons (block-by-block approach and FAP access) were insufficient to justify the departure, and the weight of owner support did not overcome the requirement of minimal necessary departure under Tisch.

Court Disposition

Proposed s 74 scheme declined approval

Orders

  • Declined to approve the proposed s 74 scheme as promulgated by the Body Corporate
  • Costs reserved