BODY CORPORATE 318566 V STRATA TITLE ADMINISTRATION LTD HC AK CIV-2008-404-006294

BODY CORPORATE 318566 V STRATA TITLE ADMINISTRATION LTD HC AK CIV-2008-404-006294 24 September 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2008-404-006294BETWEEN BODY CORPORATE 318566 Plaintiff AND STRATA TITLE ADMINISTRATION LIMITED Defendant Hearing: 24 September 2008 Appearances: Mr T Bowler for plaintiff Mr B Rooney for defendant Judgment: 24 September 2008(ORAL) JUDGMENT OF LANG J [on application for interim injunctive relief]Solicitors:Grove Darlow & Partners, AucklandCounsel:Mr B Rooney, Auckland[1] This proceeding relates to a commercial building situated at 508-510 Queen Street, Auckland. The building currently comprises 128 apartments, four commercial units and one other unit. [2] As the plaintiff's name suggests, it is a body corporate constituted pursuant to the Unit Titles Act 1972. The defendant is the secretary of the body corporate. [3] This proceeding involves a dispute between the parties at two levels. First, the plaintiff contends that certain rules within the body corporate rules are ultra vires under the Unit Titles Act 1972. On a more narrow level, the plaintiff is concerned at the fact that the defendant has called an extraordinary general meeting of proprietors for this Friday. It is proposed at this meeting to consider a number of issues that are currently the subject of dispute between a Committee elected at the last annual general meeting and the defendant. [4] The Committee, which has issued this proceeding in the name of the body corporate, is concerned that notice of the extraordinary general meeting may not have gone to all proprietors. It bases this concern on the fact that one of its own members deposes that he has not yet received a copy of the notice. [5] It is obviously important that all proprietors be given adequate notice of the meeting so that both the Committee and the secretary can provide to them such information in advance of the meeting as they may deem appropriate. I am satisfied that this cannot adequately be achieved before Friday. At the present time the Committee does not hold a list of names of all proprietors in the complex. Until such time as it has that list it cannot circularise the owners in order to ensure that they have received notice of the meeting and that they have received such material as the Committee might wish to provide them with. [6] In those circumstances I am satisfied that the balance of convenience requires interim injunctive relief to be granted. It is important, however, that such relief be granted on strict terms so that the interests of all proprietors are protected in the interim.[7] I therefore make an order postponing the extraordinary general meeting until 17 October 2008 at 8.30 am. The extraordinary general meeting will be held at that time in the Grey Room at the Mecure Hotel, Auckland, 8 Customs Street East, Auckland City or at such other venue as may be available in the event that that venue is unavailable. [8] I direct also that, no later than 5 pm on Thursday 25 September 2008, the defendant is to provide the solicitors acting for the plaintiff with a full list of all the names and current addresses of all registered proprietors. The solicitors for the plaintiff are entitled to disseminate that information to members of the Committee other than Mr Russ, whose membership of the Committee is currently the subject of the dispute. The material may not be provided to Mr Russ until such time as he satisfies the defendant, or the Court, that he was duly appointed under the rules. This issue arises because Mr Russ is not a proprietor in the complex. [9] I direct further that Mr Russ is not to participate in any further meetings of the Committee until such time as he has satisfied the defendant or the Court of the ability of his appointment as a member of the Committee. [10] I further direct that the defendant shall be entitled to be present at all future meetings of the Committee. The defendant may not, however, be present for discussion of items that relate directly to the performance of its own duties or that relate to this litigation. [11] The interim relief that I have granted is subject to the following conditions: a) The defendant shall forthwith take steps to engage First Security Limited to carry out security patrols of the complex. b) The body corporate's consulting engineer, Mr Allan Todd, shall remain as the consulting engineer until the extraordinary general meeting has been held.c) The building manager, Impression Real Estate Limited, shall remain in place until the extraordinary general meeting has been held. d) Two members of the Committee must approve all invoices save for essential services and utility invoices. e) The defendant shall remain in situ as the secretary of the body corporate until the extraordinary general meeting has been held. [12] I further direct that all members of the Committee other than Ms Lee, Ms Sun and Mr Zhang are to file and serve an undertaking as to damages in the form that has already been filed on behalf of the body corporate. That undertaking is to be filed and served no later than 5 pm on Friday 26 September 2008.Next event[13] The proceeding is to be listed for mention in the Duty Judge List on Thursday 23 October 2008 at 10 am for review. At that time directions may need to be given to advance the substantive issues towards hearing.Costs[14] I am conscious that this matter has been brought on as a matter of urgency. That has in part been caused by the failure of the defendant to reply to earlier correspondence. Having said that, the points that have been raised are important ones and the end result may well favour the defendant rather than the plaintiff. I also accept that the defendant was required to defend the application at very short notice and without having the opportunity to place any evidence before the Court. [15] The particular circumstances of the present application are such that, notwithstanding the usual policy that costs should follow the event, it is appropriate in this case to reserve costs. [16] Costs in relation to the present application will therefore be determined when the proceeding is finally determined.Leave reserved[17] I reserve leave to both parties to ask the Registrar to arrange a telephone conference before me or the Duty Judge on 12 hours notice should any issue arise regarding the implementation of the orders that I have made today or should any further issue arise requiring the assistance or intervention of the Court. Lang J