BODY CORPORATE 183930 v CHUA & ORS [2015] NZHC 2122

BODY CORPORATE 183930 v CHUA & ORS [2015] NZHC 2122

The Court will not settle the draft scheme as filed; approval requires that (a) common property repair costs be accounted for and funded by all owners in proportion to unit entitlement, (b) contributory negligence percentages used must be those in schedule 3 to the Remedial Works Agreement, and (c) the scheme must include mediation and arbitration dispute-resolution provisions; other machinery/delegation provisions are acceptable to enable efficient implementation.

Citation
[2015] NZHC 2122
Parties
First Applicant: Body Corporate 183930; Second Applicant: Synergistic Investments Limited; First Respondent: Mui Kee Chua; Other Respondents: Other respondents (as per Schedule One)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 September 2015
Procedural Posture
Scheme Application Under Unit Titles Act 2010 S 74 / Interim Judgment Following Hearing; Scheme Not Finally Settled
Outcome
Interim judgment refusing to settle the proposed scheme as filed and directing amendments; final approval deferred pending revised scheme or further hearing
Legal Topics
Scheme Settlement Under S 74, Allocation of Repair Costs and Levies, Contributory Negligence Apportionment, Retrospectivity of Court Orders, Delegation of Powers of Body Corporate, GST Allocation, Mediation and Arbitration Provisions
Property Law Unit Titles Law Construction/weathertightness Disputes Civil Procedure Scheme Settlement Under S 74 Allocation of Repair Costs and Levies Contributory Negligence Apportionment Retrospectivity of Court Orders +3 more

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Parties

Body Corporate 183930

First Applicant

Synergistic Investments Limited

Second Applicant

Mui Kee Chua

First Respondent

Other respondents (as per Schedule One)

Other Respondents

Procedural Posture

Scheme Application Under Unit Titles Act 2010 S 74 / Interim Judgment Following Hearing; Scheme Not Finally Settled

Legal Issues

  1. 1 Whether the High Court should settle the proposed s 74 scheme
  2. 2 How to allocate costs to complete remedial works between unit owners
  3. 3 Whether scheme may be retrospective given works already partly completed

Ratio Decidendi

The Court will not settle the draft scheme as filed; approval requires that (a) common property repair costs be accounted for and funded by all owners in proportion to unit entitlement, (b) contributory negligence percentages used must be those in schedule 3 to the Remedial Works Agreement, and (c) the scheme must include mediation and arbitration dispute-resolution provisions; other machinery/delegation provisions are acceptable to enable efficient implementation.

Court Disposition

Interim judgment refusing to settle the proposed scheme as filed and directing amendments; final approval deferred pending revised scheme or further hearing

Orders

  • Proposed scheme not approved in current form
  • Scheme to be amended to (i) treat and fund common property repairs by all owners in proportion to unit entitlements, (ii) adopt contributory negligence percentages in schedule 3 to the Remedial Works Agreement, and (iii) reinstate mediation and arbitration dispute-resolution provisions