BODY CORPORATE 199222 [2017] NZHC 1005
The Court was satisfied that the Body Corporate had properly identified the persons with interests under s74(5) and s74(6) and accordingly granted the orders directing service on those identified parties and requiring the Registrar notification as sought.
Source-derived case information.
- Citation
- [2017] NZHC 1005
- Parties
- Applicant: Body Corporate 199222
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 17 May 2017
- Procedural Posture
- Application Under S74 Unit Titles Act 2010 / Directions as to Service (application Stage)
- Outcome
- Application granted; directions for service granted as sought.
- Legal Topics
- Scheme for Remedial Work, Leaky Building Defects, Service of Process, Mortgagee Interests, Insurer Participation
Source-derived case record
Summary, issues, holding and outcome
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Parties
Body Corporate 199222
Applicant
Procedural Posture
Application Under S74 Unit Titles Act 2010 / Directions as to Service (application Stage)
Legal Issues
- 1 Whether persons identified under s74(5) and s74(6) have right to appear and be served
- 2 Which parties must be served to comply with s74 and High Court Rules
- 3 Whether the Body Corporate has properly identified interested parties for service
Ratio Decidendi
The Court was satisfied that the Body Corporate had properly identified the persons with interests under s74(5) and s74(6) and accordingly granted the orders directing service on those identified parties and requiring the Registrar notification as sought.
Court Disposition
Application granted; directions for service granted as sought.
Orders
- Service of the s74 application to be effected on the proprietors of the units at the Property, the registered mortgagees/charge holders listed in the application, the Registrar‑General of Land and the insurer Orion Insurance, as set out in the Body Corporate's application.
- Registrar to enter a notification on the supplementary record sheet in accordance with s74(5) of the Unit Titles Act 2010.
Full Case Text
Judgment text and source record
1 paragraphs
BODY CORPORATE 199222 [2017] NZHC 1005 [17 May 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2017-404-834[2017] NZHC 1005BETWEEN BODY CORPORATE 199222ApplicantANDHearing: On the papersCounsel: S E Mitchell for ApplicantJudgment: 17 May 2017JUDGMENT OF WHATA JThis judgment was delivered by me on 17 May 2017 at 4.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Background[1] This matter concerns the repair of a damaged building. Body Corporate 199222 (BC 199222) is the body corporate for the unit title development at 4 Dunbar Road, Balmoral, Auckland (the Property). The deposited plan of the units on the Property is attached.[2] BC 199222 has resolved to apply under the High Court Rules 2016, pursuant to s 74 of the Unit Titles Act 2010 (the Act), for an order establishing a scheme for carrying out the remedial work for leaky building defects in respect of units H to Q on the Property. It seeks for directions as to service on parties who may be interested in the establishment of the scheme. The application is supported by affidavits describing the nature and location of the damage and the persons likely to be interested in the scheme.1Application for directions as to service[3] Relevantly for present purposes, s 74 provides:74 Scheme following destruction or damage(5) A notice of any application made under subsection (2) must be lodged with the Registrar who must enter on the supplementary record sheet a notification that the application has been made.(6) On any application to the High Court under subsection (2), the following persons have the right to appear and be heard:(a) any person having or claiming to have any estate or interest in any unit or in the whole or part of the base land; or(b) any insurer who has effected insurance on the buildings or other improvements comprised in any unit or in the whole or part of the base land.[4] BC 199222 identifies as potentially interested:(a) The proprietors of the units at the Property;21 Affidavits of David James Klosser, dated 11 April 2017 and Janette Anne Enright, dated 20 April 2017.2 Being those listed in the Body Corporate's notice of application for directions as to service.(b) The registered mortgagees/charge holders of the principal units at the Property pursuant to s 74(6(a)) of the Act, being:(i) Westpac New Zealand Limited;(ii) Mortgage Holding Trust Company Limited;(iii) ASB Bank Limited;(iv) Bank of New Zealand;(v) ANZ Bank New Zealand Limited;(vi) ANZ National Bank Limited;(vii) Hong Kong and Shanghai Banking Corporation Limited; and(viii) Kiwibank Limited;(c) The Registrar-General of Land, pursuant to s 74(5) of the Act; and(d) The insurer of the Property, Orion Insurance, pursuant to s 74(6) of the Act.Assessment[5] I am satisfied that, in accordance with s 74, BC 199222 has properly identified the persons who may have an interest in the scheme and should be served.Orders[6] The orders sought are appropriate and granted in the terms set out in the application.