BODY CORPORATE 183930 v CHUA [2016] NZHC 3064

BODY CORPORATE 183930 v CHUA [2016] NZHC 3064

The redrafted s74 scheme is approved because, on the facts, it is a pragmatic and proportionate exercise of the Court's broad discretion to achieve justice between unit owners: it addresses common property by contributions in accordance with unit entitlements, implements agreed contributory negligence adjustments, includes mediation/arbitration, and avoids an inequitable shift of repair costs that would follow a strict unit‑plan common/unit apportionment which would unfairly burden smaller units despite larger units incurring greater repair costs.

Citation
[2016] NZHC 3064
Parties
First Applicant: Body Corporate 183930; Second Applicant: Synergistic Investments Limited; First Respondent: Mui Kee Chua; Fiftieth Respondent (unit 50): Zhanli (Ricky) Tang; Fifty Sixth Respondent (unit 56): Qing (Catherine) Gao; Sixty Sixth Respondent (unit 66): Hailong (Jason) Liu; Seventy Sixth Respondent (unit 76): Wei Min (Paul) Zhou; Eighty Third Respondents (unit 84): Hongyang (Henry) Cui and Li Chen
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 December 2016
Procedural Posture
Originating Application Under the Unit Titles Act 2010 for Approval of a S74 Scheme / Final Judgment Approving Scheme After Interim Judgment and Reconvened Hearing
Outcome
Redrafted scheme approved; further affidavits mostly admitted de bene esse except specific paragraphs of Mr Zhou and the withdrawn Bates affidavit; applicants entitled to costs to be assessed on the papers
Legal Topics
Scheme Approval Under S74 Unit Titles Act 2010, Apportionment of Repair Costs Between Unit and Common Property, Cross‑subsidisation Between Unit Owners, Admissibility of Fresh Evidence (s98 Evidence Act 2006), Contributory Negligence Apportionment, Costs and Procedural Directions
Property Law Unit Titles Law Construction and Building Law Evidence Law Civil Procedure Scheme Approval Under S74 Unit Titles Act 2010 Apportionment of Repair Costs Between Unit and Common Property Cross‑subsidisation Between Unit Owners +3 more

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Parties

Body Corporate 183930

First Applicant

Synergistic Investments Limited

Second Applicant

Mui Kee Chua

First Respondent

Zhanli (Ricky) Tang

Fiftieth Respondent (unit 50)

Qing (Catherine) Gao

Fifty Sixth Respondent (unit 56)

Hailong (Jason) Liu

Sixty Sixth Respondent (unit 66)

Wei Min (Paul) Zhou

Seventy Sixth Respondent (unit 76)

Hongyang (Henry) Cui and Li Chen

Eighty Third Respondents (unit 84)

Procedural Posture

Originating Application Under the Unit Titles Act 2010 for Approval of a S74 Scheme / Final Judgment Approving Scheme After Interim Judgment and Reconvened Hearing

Legal Issues

  1. 1 Whether the redrafted s74 scheme should be approved
  2. 2 Whether cost allocation based on unit categories and an average common/unit split is fair
  3. 3 Whether strict apportionment by actual unit/common property on the unit plan is required

Ratio Decidendi

The redrafted s74 scheme is approved because, on the facts, it is a pragmatic and proportionate exercise of the Court's broad discretion to achieve justice between unit owners: it addresses common property by contributions in accordance with unit entitlements, implements agreed contributory negligence adjustments, includes mediation/arbitration, and avoids an inequitable shift of repair costs that would follow a strict unit‑plan common/unit apportionment which would unfairly burden smaller units despite larger units incurring greater repair costs.

Court Disposition

Redrafted scheme approved; further affidavits mostly admitted de bene esse except specific paragraphs of Mr Zhou and the withdrawn Bates affidavit; applicants entitled to costs to be assessed on the papers

Orders

  • Redrafted s74 scheme annexed to judgment is approved
  • Paragraphs 1–14 of Mr Zhou's affidavit are declined admission; Mr Bates' affidavit withdrawn and not considered; other affidavits received de bene esse