BODY CORPORATE NO. 318596 AND ANOR V BARTLETT HC TAU CIV 2009-470-000952

BODY CORPORATE NO. 318596 AND ANOR V BARTLETT HC TAU CIV 2009-470-000952

Court exercised its s48 discretion to sanction a scheme but held the draft scheme was inconsistent with the Act and Body Corporate rules to the extent it made the Body Corporate responsible for repair of balconies and other unit property. Balconies and interior faces of balustrades are unit property per the unit plan and rules; therefore the sanctioned scheme must apportion costs so that all owners contribute to common property repairs according to unit entitlement and individual owners remain responsible for repairs to their unit property. The draft clause providing Body Corporate responsibility for unit property must be amended; an amended draft scheme and a clarified quantity-surveyor...

Citation
openlaw-b5184b01_aacc_428e_8dce_79ba9a266a9e.pdf
Parties
First Applicant: Body Corporate No 318596; Second Applicants: Typhoon Investments Limited & ORS; Respondents: R E & R M Bartlett
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 May 2010
Procedural Posture
Application Under Unit Titles Act 1972 S48 (scheme for Remedial Work) / Hearing and Reserved Judgment (judgment Delivered 13 May 2010)
Outcome
Application granted in part: scheme under s48 sanctioned subject to amendments to reflect Act, Body Corporate rules and unit plan
Legal Topics
Scheme Under S48, Apportionment of Repair Costs, Body Corporate Rules, Common Property V Unit Property, Weathertightness Remediation
Property Law Unit Titles Act 1972 Construction/building Law Civil Procedure Equity Scheme Under S48 Apportionment of Repair Costs Body Corporate Rules +2 more

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Parties

Body Corporate No 318596

First Applicant

Typhoon Investments Limited & ORS

Second Applicants

R E & R M Bartlett

Respondents

Procedural Posture

Application Under Unit Titles Act 1972 S48 (scheme for Remedial Work) / Hearing and Reserved Judgment (judgment Delivered 13 May 2010)

Legal Issues

  1. 1 Whether the Court should sanction a s48 scheme
  2. 2 Whether draft scheme clauses 4 and 6 are consistent with the Unit Titles Act
  3. 3 Whether clauses 4 and 6 are permitted by the Body Corporate rules

Ratio Decidendi

Court exercised its s48 discretion to sanction a scheme but held the draft scheme was inconsistent with the Act and Body Corporate rules to the extent it made the Body Corporate responsible for repair of balconies and other unit property. Balconies and interior faces of balustrades are unit property per the unit plan and rules; therefore the sanctioned scheme must apportion costs so that all owners contribute to common property repairs according to unit entitlement and individual owners remain responsible for repairs to their unit property. The draft clause providing Body Corporate responsibility for unit property must be amended; an amended draft scheme and a clarified quantity-surveyor...

Court Disposition

Application granted in part: scheme under s48 sanctioned subject to amendments to reflect Act, Body Corporate rules and unit plan

Orders

  • Application for a scheme under s48 of the Unit Titles Act 1972 is granted, but the draft scheme is not sanctioned in its present form and must be amended as set out in the judgment
  • Clause 4 of the draft scheme is to be amended so that Body Corporate is responsible only for repairs to common property as defined by the unit plan and Yeomans report and individual owners remain responsible for repairs to their unit property