BODY CORPORATE 104278 v WHINERARY [2020] NZHC 212

BODY CORPORATE 104278 v WHINERARY [2020] NZHC 212

Because owners of all nine units unanimously approved the proposed s 74 scheme and supporting documentation demonstrated the defects, remediation steps and fair cost apportionment, the Court exercised its discretion to settle the scheme pursuant to s 74 and found the minor correction did not require formal service.

Citation
[2020] NZHC 212
Parties
First Applicant: BODY CORPORATE 104278; Second Applicants: MARTIN JEROME McGAHAN, ROBYN KRISTINA McGAHAN AND MAUREEN BERYL JOHN; First Respondents: HEATHER MARY WHINERARY AND MATTHEW LUDLOW WHINERARY; Second Respondent: ROBYN JEAN MARSHALL; Third Respondents: VERENA MARY MOXON HAY, JONATHAN JAMES CARLTON HAY, NICHOLA MARY HAY, TERENCE SHANE McDELL AND ALAN MARK POSTLES; Fourth Respondent: VALERIE HEY; Fifth Respondents: EDWIN CHARLES GRAY AND UNA ANTOINETTE GRAY; Sixth Respondents: APARNA PRASAD, SUBBARAO SESHAPRASAD AND KEVIN OGLES TRUST SERVICES LIMITED; Seventh Respondents: TERRY LEE WARD AND WENDY ANN WARD; Eighth Respondents: TONY CHRISTENSEN AND ROSALIND MARY CHRISTENSEN; Ninth Respondent: ANZ BANK NEW ZEALAND LIMITED; Tenth Respondent: ASB BANK LIMITED; Eleventh Respondent: BANK OF NEW ZEALAND; Twelfth Respondent: CHUBB INSURANCE NEW ZEALAND LIMITED
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 February 2020
Procedural Posture
Originating Application Under the Unit Titles Act 2010 / Application for Orders Settling a Scheme Under Section 74; Oral Judgment Following Hearing
Outcome
Order made settling the proposed scheme under section 74 of the Unit Titles Act 2010 as sought in paragraph 1.1 of the corrected originating application dated 3 February 2020; no formal service of the corrected application required; no issue as to costs.
Legal Topics
Scheme Under Section 74, Weathertightness Remediation, Cost Apportionment, Service of Corrected Application, Unanimous Owner Approval
Property Law Unit Titles Act Matters Construction and Weathertightness Remediation Civil Procedure Scheme Under Section 74 Weathertightness Remediation Cost Apportionment Service of Corrected Application +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 4 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

BODY CORPORATE 104278

First Applicant

MARTIN JEROME McGAHAN, ROBYN KRISTINA McGAHAN AND MAUREEN BERYL JOHN

Second Applicants

HEATHER MARY WHINERARY AND MATTHEW LUDLOW WHINERARY

First Respondents

ROBYN JEAN MARSHALL

Second Respondent

VERENA MARY MOXON HAY, JONATHAN JAMES CARLTON HAY, NICHOLA MARY HAY, TERENCE SHANE McDELL AND ALAN MARK POSTLES

Third Respondents

VALERIE HEY

Fourth Respondent

EDWIN CHARLES GRAY AND UNA ANTOINETTE GRAY

Fifth Respondents

APARNA PRASAD, SUBBARAO SESHAPRASAD AND KEVIN OGLES TRUST SERVICES LIMITED

Sixth Respondents

TERRY LEE WARD AND WENDY ANN WARD

Seventh Respondents

TONY CHRISTENSEN AND ROSALIND MARY CHRISTENSEN

Eighth Respondents

ANZ BANK NEW ZEALAND LIMITED

Ninth Respondent

ASB BANK LIMITED

Tenth Respondent

BANK OF NEW ZEALAND

Eleventh Respondent

CHUBB INSURANCE NEW ZEALAND LIMITED

Twelfth Respondent

Procedural Posture

Originating Application Under the Unit Titles Act 2010 / Application for Orders Settling a Scheme Under Section 74; Oral Judgment Following Hearing

Legal Issues

  1. 1 Whether the Court should exercise its discretion to settle a scheme under s 74 of the Unit Titles Act 2010
  2. 2 Whether the proposed scheme satisfies the criteria established in Tisch v Body Corporate No 318596
  3. 3 Whether the correction to the application required formal service on parties

Ratio Decidendi

Because owners of all nine units unanimously approved the proposed s 74 scheme and supporting documentation demonstrated the defects, remediation steps and fair cost apportionment, the Court exercised its discretion to settle the scheme pursuant to s 74 and found the minor correction did not require formal service.

Court Disposition

Order made settling the proposed scheme under section 74 of the Unit Titles Act 2010 as sought in paragraph 1.1 of the corrected originating application dated 3 February 2020; no formal service of the corrected application required; no issue as to costs.

Orders

  • Order settling the scheme under s 74 as set out in paragraph 1.1 of the corrected originating application dated 3 February 2020
  • Order that the Body Corporate is not required to effect formal service of the corrected application on the parties