BODY CORPORATE 073471 v DYNASTY HOTEL INVESTMENTS LIMITED AND ORS [2014] NZHC 1209
Under s 74(7) the Court has power to make further orders necessary or expedient to give effect to an approved s 74 scheme; the proposed detailed orders are procedural, do not alter the scheme, have LINZ support, and therefore should be made.
Source-derived case information.
- Citation
- [2014] NZHC 1209
- Parties
- Applicant: BODY CORPORATE 073471; Respondent: DYNASTY HOTEL INVESTMENTS LIMITED AND ORS
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 30 May 2014
- Procedural Posture
- Unit Titles Act 2010 Scheme Under S 74 / Post Judgment Application for Supplementary Orders to Implement Scheme (on the Papers)
- Outcome
- Application for further orders granted; orders made in terms of Appendix A to counsel's memorandum and annexed to judgment; court confirms orders may be sealed in the form attached as Appendix C.
- Legal Topics
- Scheme Under Section 74, Orders to Registrar General of Land, Transfer of Units to Common Property, Subdivision to Create Fee Simple Title, Sealing of Court Orders
Source-derived case record
Summary, issues, holding and outcome
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Parties
BODY CORPORATE 073471
Applicant
DYNASTY HOTEL INVESTMENTS LIMITED AND ORS
Respondent
Procedural Posture
Unit Titles Act 2010 Scheme Under S 74 / Post Judgment Application for Supplementary Orders to Implement Scheme (on the Papers)
Legal Issues
- 1 Whether the Court may make further orders under s 74(7) to guide the Registrar-General of Land to implement the scheme
- 2 Whether the proposed additional orders alter the substance of the approved scheme
- 3 Whether the Registrar-General requires detailed orders to enable registration and subdivision steps
Ratio Decidendi
Under s 74(7) the Court has power to make further orders necessary or expedient to give effect to an approved s 74 scheme; the proposed detailed orders are procedural, do not alter the scheme, have LINZ support, and therefore should be made.
Court Disposition
Application for further orders granted; orders made in terms of Appendix A to counsel's memorandum and annexed to judgment; court confirms orders may be sealed in the form attached as Appendix C.
Orders
- Orders granted in terms of Appendix A to counsel for the applicant's memorandum and annexed to the judgment
- Court confirms the original orders of 17 May 2013 and the additional orders may be sealed in the form attached as Appendix C to counsel's memorandum
Full Case Text
Judgment text and source record
1 paragraphs
BODY CORPORATE 073471 v DYNASTY HOTEL INVESTMENTS LIMITED AND ORS [2014] NZHC 1209 [30 May 2014]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV 2012-409-2724[2014] NZHC 1209UNDER Unit Titles Act 2010BETWEEN BODY CORPORATE 073471ApplicantAND DYNASTY HOTEL INVESTMENTSLIMITED AND ORSRespondentsHearing: 30 May 2014 (On the papers)Appearances: D Nicholson for ApplicantJudgment: 30 May 2014JUDGMENT OF MANDER J[1] On 17 May 2013, Miller J made orders giving effect to a scheme under s 74 of the Unit Titles Act 2010. The scheme which concerns the Heritage Hotel Tower and car park building at 24 Cathedral Square, Christchurch, had been unanimously approved at an extraordinary general meeting of the applicant body corporate. The background to the scheme and the originating application are set out in Miller J'sjudgment.[2] By memorandum of counsel for the applicant, a request is made for further orders to assist in the implementation of the final stages of the scheme which will take place upon settlement of the sale and purchase agreement. Those steps are as follows:(a) The Tower units and the AU car park units will be transferred to the common property of the body corporate;(b) The AU car park units will become principal units;(c) The underlying land described in the unit plan will be subdivided to create a fee simple title over the Tower land.(d) The Tower land and the AU car park units (which will have become principal units) will be transferred from the body corporate to the purchaser.[3] One of the orders made by Miller J on 17 May 2013 was that, "Directions begiven to the Registrar-General of Land enabling it to take such steps as are necessary to give effect to the Scheme".[4] Since the orders of Miller J, the applicants' solicitors have had extensivecorrespondence with LINZ to determine what, if any, further orders the Registrar- General of Land would require to enable it to implement the steps described in the scheme. LINZ has now agreed on a set of orders that provides the level of detail and comfort required to undertake the final steps in the scheme. The Registrar-General is satisfied that these orders are appropriate. They are set out in Appendix A tocounsel's memorandum and for convenience are annexed to this judgment.[5] The proposed orders give the Registrar-General guidance and authority in respect of steps described in the scheme. Counsel informs that they relate to matters of detail and are of a technical nature relating to process and procedures as opposed to substantive outcomes. While there are provisions in the Unit Titles Act which set out the processes that usually apply there is a concern that such processes may not have application where the transfer/redevelopment has been ordered under s 74. Subsection (7) however provides the Court with the ability to provide appropriate guidance to the Registrar-General by making orders that it considers expedient or necessary for giving effect to the scheme.[6] The additional orders are intended to provide clarity and a clear basis for the Registrar-General's authority to undertake the steps necessary to finalise thisscheme. The additional orders do not alter the content or effect of the scheme. As with the originating application, there is no opposition to what is being sought.[7] Having read counsel's memorandum detailing the purpose and rationale forthe orders sought, I am satisfied that it is expedient or necessary in order to give effect to this scheme that such orders as proposed be made. Accordingly, there will be orders in terms of Appendix A to counsel for the applicant's memorandum and asannexed to this judgment.[8] Counsel has also requested that the Court confirm that the original orders made by Miller J and these additional orders be sealed in the form attached asAppendix C to counsel's memorandum. Having viewed the draft order for settlement of scheme, I confirm that the orders of the Court may be sealed in the form of that draft document.Solicitors:Duncan Cotterill, Auckland