BODY CORPORATE NO 366611 V YIN MAI & ORS HC AK CIV-2008-404-809

BODY CORPORATE NO 366611 V YIN MAI & ORS HC AK CIV-2008-404-809 6 March 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2008-404-809UNDER the District Courts Act 1947 BETWEEN BODY CORPORATE NO 366611 Appellant AND YIN MAI & ORS RespondentsCIV-2008-404-0712AND IN THE MATTER OF Body Corporate No 366611 constituted pursuant to the provisions of the Unit Titles Act 1972 BETWEEN BODY CORPORATE NO 366611 Appellant AND YIN MAI & ORS Respondents Hearing: 6 March 2008 Appearances: Mr C Patterson for Appellant Mr P McKendrick for Respondents Judgment: 6 March 2008(ORAL) JUDGMENT OF LANG J [on appeals against orders granting interim injunctive relief]Solicitors: Hoffmann Law, Auckland Glaister Ennor Auckland Counsel: Mr C Patterson, Auckland[1] This appeal relates to an apartment building situated at 21 Whitaker Place, Auckland and known as the Empire Apartments. It is a large apartment complex, comprising some 315 units. [2] In common with most, if not all, similar complexes in this country, the affairs of the building are conducted through the appellant, a body corporate constituted pursuant to the provisions of the Unit Titles Act 1972. The Body Corporate comprises the individual owners of all of the units within the complex. [3] The present appeal stems from the fact that the respondents, who own 44 units in the complex, have to date been unable to obtain keys to enable them to gain access to their individual units. This situation has arisen because the Body Corporate has entered into a contract with a company called Theta Management Limited under which it has vested the responsibility for the day to day management of the complex in Theta. Theta is now responsible for the security of the complex, and it controls the distribution of the electronic swipe card keys that provide access to both the common areas of the complex and the individual units. [4] Theta has encountered incidents in the past in which the occupants of units have triggered the fire alarm. The Fire Brigade charges approximately $3,000 for its attendance at each such incident. As a result, Theta has adopted a practice of requiring the payment of a refundable deposit of approximately the same amount before it will issue swipe cards in respect of individual units. Although some unit owners have paid that deposit, the respondents refuse to do so. Theta has responded by refusing to issue them with keys to enable them to gain access to their units and to the common areas of the complex. [5] Like most of the owners in the complex, the respondents live overseas and do not propose to live in the units themselves. Instead, they wish to be able to rent their units out to students studying at tertiary institutions within the inner city. The need for the present impasse to be resolved urgently arises out of the fact that students are now returning to re-commence their studies. The respondents fear that that they will lose rental income for the forthcoming year unless they are able to obtain access to their units within the very near future.[6] In order to advance matters the respondents have instituted proceedings in the District Court seeking orders requiring the Body Corporate to provide them with keys to their units. They also seek damages against the Body Corporate in respect of the financial losses that they have already, and will in the future, suffer as a result of being unable to obtain access to their units. [7] The respondents have also sought interim injunctive relief in the District Court. Those applications have now been the subject of two separate hearings before His Honour Judge Hole. At the conclusion of the second hearing, held on 16 January 2008, the Judge made the following order:Pending determination of this proceeding or earlier order of the Court, the [Body Corporate] shall take all practicable steps necessary to provide the plaintiffs with electronic key cards giving access to their respective units and the common property in Empire Apartment Building, 21 Whitaker Place, Auckland. In the event that the plaintiffs consider that satisfactory progress has not yet been made by the defendant in carrying out his obligations and terms of this order by 4 pm 30/01/08 the plaintiffs have leave to make further application to the Court for such order/s as might be necessary to enable this order to be implemented.[8] The Body Corporate has lodged an appeal to this Court against that order under CIV-2008-404-0712. [9] The respondents were not satisfied with the manner in which the Body Corporate implemented the orders that they obtained on 16 January 2008. On or about 4 February 2008 they filed an interlocutory application for further orders by way of interim injunctive relief. Judge Hole considered this application at a hearing on 14 February 2008. At the conclusion of that hearing the Judge delivered an oral judgment in which he ordered that the Body Corporate was to:Deliver the keys and provide the [respondents] with access to their respective units and common property no later than midday on 25 February 2008.[10] The respondents also now appeal to this Court under CIV-2008-404-809 against that order.Grounds of appeal[11] The Body Corporate advances its appeal on two separate but interrelated grounds. The first of these is that it was materially disadvantaged by the manner in which the Judge came to hear the second application on 14 February 2008. It considers that that hearing was conducted in a manner that was procedurally unfair to it and that there was a risk that, as a result, a miscarriage of justice would occur. [12] The second ground of appeal is that the Judge failed to have regard to material considerations when making the order that he did on 14 February 2008. This ground of appeal is closely related to the first ground, because the Body Corporate argues that it was not in a position to advance proper submissions to the Judge on 14 February 2008. Had it been able to do so, it says that it would have brought several significant factors to the attention of the Judge. When it was denied that opportunity, however, the Judge had no option but to decide the case essentially on the basis of the submissions that he had heard from the respondents alone.1. Did the circumstances in which the hearing on 14 February 2008 was conducted create a risk that a miscarriage of justice might occur?[13] In order to understand this aspect of the appeal it is necessary to have regard to the circumstances that occurred prior to the hearing on 14 February 2008.The circumstances leading up to the hearing on 14 February 2008.[14] The respondents filed the proceeding in the District Court on or about 8 January 2008. It served the secretary of the Body Corporate with the proceeding on the following day. [15] The secretary did not have authority to arrange for the Body Corporate to be legally represented in relation to the proceedings. He immediately, however, instructed Mr Steven Price of Minter Ellison to act on behalf of the Body Corporate on an interim basis. The secretary asked Mr Price to provide an opinion as towhether or not the Body Corporate was able to instruct him to act on its behalf and to appear at the first call of the proceeding. [16] The proceeding was called for the first time before His Honour Judge Hole on 14 January 2008. Mr Price appeared on a limited basis on behalf of the Body Corporate on that occasion. He advised the Judge that he was appearing on instructions from the secretary of the Body Corporate. He also told the Judge that the Body Corporate would not be able to appoint counsel to represent it until such time as it had convened an extraordinary general meeting to vote on its response to the proceedings and, in particular, to decide whether or not to appoint counsel. [17] The Body Corporate was not, however, able to hold the extraordinary general meeting immediately because it was required to give its members seven days notice of the meeting. On that basis Mr Price applied for the proceeding to be adjourned. The Judge granted the application, but he was only prepared to adjourn the proceeding until 16 January 2008. [18] When the proceeding was called again on 16 January, Mr Price appeared as a matter of courtesy to withdraw as counsel. By that stage he had given his opinion to the secretary of the Body Corporate that the Body Corporate did not have authority to obtain legal representation until such time as the members had voted in an extraordinary general meeting to do so. It was in that context, and in the absence of any substantive submissions by counsel for the Body Corporate, that Judge Hole came to grant the first application for injunctive relief. In essence, those orders required the Body Corporate to "take all practicable steps necessary" to provide the respondents with electronic key cards giving them access to their respective units. [19] The Body Corporate held an extraordinary general meeting on the afternoon of 8 February 2008. By that stage the respondents had already filed their application for further injunctive relief. At the extraordinary general meeting the Body Corporate's members voted to appoint Mr Patterson as counsel to represent the Body Corporate in the proceeding.[20] Mr Patterson received formal instructions from the Body Corporate on Monday 11 February 2008. On the afternoon of the same day Mr Patterson asked his personal assistant to telephone the civil registry of the District Court in order to enquire as to the status of the application for further injunctive relief. She did so, and was told by a member of the Registry staff that the application for further injunctive relief had a "first call" in the Duty Judge list at 10 am on 14 February 2008. Mr Patterson's assistant was also advised that the purpose of that listing was "to discuss where matters were at". In addition, she received advice that a half-day substantive hearing had been allocated for 19 March 2008. [21] Having obtained instructions from the Body Corporate, Mr Patterson then filed several documents on its behalf. These included documents in opposition to the application for further injunctive relief. He filed and served these documents on 13 February 2008. [22] Mr Patterson was scheduled to attend a three-day fixture in Gisborne commencing on 13 February 2008. Thinking that the listing on 14 February 2008 was to be of the nature and for the purpose advised by the Registry, he instructed an agent, Mr Grove, to appear on the Body Corporate's behalf at the call of the matter on 14 February 2008. [23] Prior to the hearing on that date Mr Patterson asked Mr Grove to prepare a memorandum addressing matters that he, Mr Patterson, believed would be the subject of discussion at the first call hearing. These included the background to the proceedings, the steps that the Body Corporate had taken to comply with the first order and the application for further injunctive relief. The memorandum also sought timetabling directions in relation to the second application. [24] Importantly, the memorandum did not contain any substantive submissions in relation to the application for further interim injunctive relief. These issues were not addressed because Mr Patterson did not consider that the substantive application would be dealt with at the hearing on 14 February 2008.[25] Mr Patterson instructed Mr Grove to complete the memorandum and file it prior to the hearing on 14 February 2008. Mr Grove deposes that he telephoned the Registry on the morning of 13 February and received confirmation that the proceeding was listed for call before the Duty Judge the following day. When Mr Grove arrived at the District Court on 14 February 2008, however, he discovered that the proceeding had been removed from the Duty Judge list. Instead, it had been allocated a hearing before His Honour Judge Hole in another courtroom. Mr Grove went immediately to that courtroom. [26] In an affidavit that he has filed in support of an application for a stay of the judgment, Mr Grove explains in detail what happened at the hearing on 14 February 2008 as follows:14. On arrival I presented myself to Judge Hole, apologised for my lateness and explained that I was appearing for the Body Corporate on instructions from Mr Patterson. I explained that I had understood from the Registrar that this matter was being called in the Duty Judge list and I had been at Courtroom Eleven. 15. His Honour explained that he had seen the matter in the list, considered that it was important to have the Respondent's application dealt with urgently, and as he was familiar with the proceedings had had the matter listed before him. He further made it clear that he intended then and there, to conduct the substantive hearing of the Respondent's application for further orders. 16. I did not expressly protest the substantive hearing proceeding. I appreciate that I should have done. This is perhaps a testament to my relative inexperience in District Court Procedure. While I have been in litigation practices in firms for several years, I have only been practising as a barrister-sole for nine months. I assumed that it was within the Court's discretion to bring a matter in the Duty Judge list on for immediate hearing, and I was unable to contact Mr Patterson to obtain further instructions as he was in an all-day hearing that day. 17. His Honour indicated that he had read the memorandum of 14 February 2008 and the other documents filed in relation to the stay and discharge applications and the transfer to the High Court. 18. I indicated to His Honour that there had been some suggestion by the Respondent's counsel that the respondents might consent to the transfer to the High Court. His Honour accepted the submissions of the Respondent's counsel that he had not had time to obtain instructions from the respondents in that regard. His Honour also indicated that his view was that the hearing of the Respondent's application should not be delayed so that the removal issue could be dealt with.19. I accordingly made my submissions in opposition to the Respondent's application as best I could. 20. In the affidavit evidence filed there was an email from Theta Management Limited in which it advised that it would release the key-cards if the Body Corporate agreed to indemnify it for all liabilities arising from the release of the key-cards. 21. His Honour was interested in why the Body Corporate's members had voted on 8 February 2008 not to provide such an indemnity to Theta Management Limited. 22. I explained that I had no instructions in relation to that issue. 23. His Honour also canvassed whether the Body Corporate might not now consent to providing such an indemnity to Theta Management Limited. His Honour expressed his view that the only claims likely to eventuate were in relation to false alarm activations and Fire Department call-outs, and hence only a modest amount would likely be required to be held by the Body Corporate to meet any such claims. His view was that the provision of such an undertaking would, if it resulted in the production of the key-cards, appear to be a sensible and pragmatic interim solution that would be in both parties interests. 24. I explained that I had no instructions in relation to the issue, but that my understanding was that the Body Corporate would need to obtain legal advice from Mr Patterson, and convene a meeting to vote on providing such an indemnity, none of which would be able to occur that day. 25. I submitted that given the key-cards controlled access and security for the common areas of the apartments and for privately owned apartments there was scope for wider mischief than mere fire alarm call outs. I admit that I was not in a position to identify specific potential claims other than the general possibility of damage occurring to common property and the privately owned apartments. I queried whether it was proper to require the Body Corporate to assume such an unquantifiable and potentially onerous obligation when the issue of who was responsible for such claims and the legality of Theta Management Limited's requirement for security deposits from the Respondent's, had not been determined. 26. I was also advised by His Honour and the Respondents' counsel that an undertaking as to damages had been provided by the Respondents, so that potentially the Body Corporate would have recourse against Respondents in respect of any monies paid pursuant to the indemnity. I advised that I had not seen that undertaking. I still have not seen that undertaking and do not know what evidence or security has been provided in support of same. 27. His Honour allowed me an adjournment so that I could contact the Body Corporate. I telephoned Mr Cheung (the secretary of the Body Corporate) who was able to shed some light on why the Body Corporate's members had voted against providing the indemnity.He confirmed that he had no such authority t commit the Body Corporate to providing such an indemnity particularly given that the Body Corporate's members had voted against providing such an undertaking on 8 February 2008. I attempted to telephone Mr Patterson, but was not able to make contact with him due to him being in a hearing at the time. 28. I put to His Honour that if the Respondents had already undertaken to indemnify the Body Corporate in respect of losses resulting from the release of the key-cards, the Respondents would be in little worse position (and would assume no substantially different potential liability) if they provided such an undertaking to Theta Management, and that that might be a pragmatic solution which would allow the interim release of the key-cards. 29. That submission did not find favour with His Honour. 30. I expressed my difficulty comprehending why, given that the substantive merits of the contractual arrangements in place and the validity of the Body Corporate Rules, had not been determined it was considered less onerous to require the Body Corporate to provide such an indemnity than to require the Respondents to provide such an indemnity. 31. His Honour expressed the view that substantive argument in relation to the effect of the contractual arrangements with Theta Management Limited, and the effect of the Body Corporate rules could only properly be dealt with in the appeal and/or substantive hearing. 32. His Honour did query what was likely to happen if the Body Corporate did not comply with a further order requiring the delivery up of the key-cards. The Respondents' counsel advised that in all likelihood contempt proceedings would be issued, which proceedings would likely name Theta Management Limited and possibly its director as defendants. The Respondents' counsel indicated that this would have the merit of allowing the Respondents direct recourse against Theta Management Limited and allowing some degree of compulsion being applied to Theta Management Limited. 33. The hearing in total lasted approximately 10.15 am to 12.30 am with a 40 minute adjournment. Judgment was delivered orally on the day with a written transcript delivered mid-morning on Friday 15 February 2008. A true copy of that judgment is annexed marked"D".[27] I have come to the conclusion that the circumstances that unfolded on 14 February 2008 did give rise to a risk of injustice to the Body Corporate. That risk arose because Mr Grove was clearly not prepared to deal with the issues that were ultimately discussed at the hearing. Having said that, I wish to emphasise that no blame can be attached to Judge Hole for the situation that arose on 14 February.He was entitled, in the absence of advice to the contrary, to proceed on the basis that Mr Grove had instructions from the Body Corporate and that he was properly prepared to make submissions in relation to the issues that were canvassed during the hearing. [28] As Mr Grove frankly acknowledges, the responsibility for the situation that arose is entirely his. He ought to have told the Judge that he did not have instructions, and was not prepared, to embark on a substantive hearing in relation to the application for further injunctive relief. He ought to have sought an adjournment of that application, and to have declined to participate any further in a hearing dealing with substantive issues in respect of which he had no instructions and was not prepared. Had the Judge insisted that the hearing proceed over his opposition, he ought to have sought leave to withdraw. [29] Mr Grove concedes that his relative inexperience in civil matters led him to become involved in the substantive hearing, and to make submissions to the Judge notwithstanding the fact that he had no instructions to do so and was not properly prepared for the hearing. [30] This is an important matter, because the respondents were asking the Court to make orders that were significantly different to those the Judge had made on 16 January 2008. The Body Corporate and its members were potentially at risk of a finding of contempt in the event that they failed to comply with the second set of orders that the respondents were seeking. For that reason it was essential that the Body Corporate should be properly represented at the hearing and that its counsel should have been in a position to present considered submissions relating to a large number of issues. [31] As a result, I am satisfied that there was a real risk that the hearing on 14 February 2008 could result in a miscarriage of justice. [32] I now need to consider whether that actually led to a miscarriage of justice so far as the Body Corporate is concerned.2. Has a miscarriage of justice occurred?[33] Prior to the hearing today, both counsel filed extensive written submissions in support of their respective positions. [34] Counsel for the Body Corporate outlined in considerable detail the matters that he would have canvassed before the Judge had he been able to do so. His ultimate submission, of course, was that a miscarriage of justice had occurred and that had the Judge's attention been drawn to a number of relevant matters, he would never have made the orders that he did on 14 February 2008. [35] A fundamental matter that needs to be borne in mind when considering the orders that the Judge made, however, is that the Body Corporate has at all times had the primary and, indeed, the sole responsibility for ensuring that all of the registered proprietors of the units are placed in possession of keys. [36] Subject to the terms of the Unit Titles Act 1972, the Body Corporate is obliged to control, manage and administer the common property and to do all things reasonably necessary for the enforcement of the rules. This means, in the context of the present case, that the Body Corporate alone was responsible for controlling, managing and administering the common property. It alone had the responsibility for ensuring the security of the common areas. It also had the obligation to provide the owners with the necessary means of access to those common areas. The Body Corporate is, of course, entitled to act in accordance with the rules that it promulgates. Those rules must, however, be consistent with the powers, duties and obligations of the Body Corporate under the Act. [37] In the present case the rules that apply to this Body Corporate contain express provisions relating to the issue of security and security keys. The rules provide as follows:Security3.9 A Proprietor or occupier must not leave the Unit inadequately secured when it is not occupied. In particular the Proprietor or occupier shall:(a) securely fasten all doors and windows to the Unit when it is left unoccupied, and allow the Body Corporate or its agent the Secretary or the Building Manager to enter and fasten the same if left insecurely fastened; (b) observe and perform all Rules and regulations relating to security of the Building and Common Property as the Body Corporate may from time to time prescribe; and (c) not install, or permit to be installed, any security system without the prior written consent of the Body Corporate.3.10 Security Keys(a) If for security purposes the Body Corporate or its agent the Secretary and/or the Building Manager restricts the access of any Proprietor or occupier to Common Property it may make available to that person a Security Key. (b) A Proprietor or occupier in possession of a Security Key must not duplicate it, or permit it to be duplicated, and must take all reasonable steps to ensure that the Security Key is not lost or handed to any other person. (c) A Proprietor or occupier must notify the Building Manager or the Body Corporate promptly if a Security Key is lost, or destroyed.[38] Rule 2.3(f) of the rules permits the Body Corporate to enter into an agreement of the type that it has apparently entered into with Theta. It provides:2.3 The Body Corporate may: (f) enter into any agreement with a management company or professional manager for the carrying out and management of all or any such duties of the Body Corporate at such remuneration and upon such terms and conditions as are therein stipulated provided that such agreement can be terminated by special resolution of the Proprietors.[39] Under rule 2.42 the Body Corporate is, however, required to employ a building manager in general conformity with the provisions of a form of contract that is annexed as a schedule to the rules. [40] The contract that is annexed to the rules contains the following provision relating to keys and security cards:4.1 The duties of The Building Manager shall be: (h) Keys, security tabs To keep in the Building Manager's possession the master key or keys for the switch room, sub-station, lift motor room, other rooms under the control of the Body Corporate and a master door key or tab for all the principal units provided however that possession of those keys shall be surrendered to no other person other than an authorised representative appointed by the Body Corporate or the individual Unit Proprietor concerned, and further provided that the Building Manager shall allow a lawfully authorised person in the course of its, his or her duties free access to any part of the Building at all reasonable times.[41] It will be evident from the passages cited above that under Rule 3.9(a) the owners of individual units have an obligation under the rules to keep their units secure by fastening all doors and windows when the unit is left unoccupied. Quite apart from the fact that the individual owners are entitled as of right to the keys to their individual units, they cannot comply with their obligations under rule 3.9(a) until such time as they are provided with keys that will enable them to fasten their units when they are left unoccupied. It is therefore essential that they be provided with keys so that they can comply with their obligations under the rules. [42] The relationship between the Body Corporate and Theta must be one of principal and agent. The Body Corporate has no ability to divest itself of its statutory duties under the Act. It may only enter into contracts (such as the contract with Theta) that do not trammel its rights, powers and obligations under the Act. To the extent that any contract may purport to do so, is likely to be ultra vires the powers of the Body Corporate and to be of no effect. [43] In those circumstances it seems logical that Theta has an absolute obligation to act in accordance with the directions of its principal, the Body Corporate. The Body Corporate must, therefore, have the power and ability to direct Theta, as its agent, to release the keys to individual unit owners. [44] The dispute in the present case has arisen because of Theta's requirement that the owners pay the deposit before it will hand the keys over. I would be surprised,however, if that requirement could fetter the Body Corporate's absolute right to require Theta to hand the keys over in accordance with its instructions. [45] It seems to me that, to date, the Body Corporate may not have properly appreciated the fact that it has an obligation to provide the owners of individual units with keys to their units. That obligation exists regardless of the fact that the Body Corporate has entered into the management contract with Theta. The Body Corporate must continue to honour its obligations to the individual unit owners, notwithstanding the existence of that contract. [46] The overall impression that I gain from the documents is that the Body Corporate may have believed that it is sufficient for it to make a simple request to Theta that the keys be handed over. Once Theta responded with the requirement that the deposit be paid, it seems that the Body Corporate accepted the situation and did not challenge Theta further. [47] The extent of the parameters of the contractual obligations between Theta and the Body Corporate play no part in the present proceeding. Theta is not a party to the proceeding and the contract between Theta and the Body Corporate has not been placed in evidence. Nevertheless, it remains incumbent on the Body Corporate to take such steps as are within its powers to compel Theta to hand over the keys to individual owners. [48] This particular issue formed, I have no doubt, the basis of the Judge's decision when he made the second order for injunctive relief on 14 February 2008. He clearly took the view that the Body Corporate had not taken sufficient action to amount to "practicable steps" in terms of the orders that he had made on 16 January 2008. It was for that reason that he directed, in mandatory terms, that the Body Corporate was to hand over the keys no later than 25 February 2008. [49] One of the concerns of the Body Corporate has been that it and its members are at risk of being held in contempt in Court in circumstances where matters have effectively been beyond their control. They seem to have taken the view that they have no practical power to force Theta to hand over the keys.[50] I consider that the Judge expressed the order in the terms that he used on 14 February 2008 because he was of the view that it would be a relatively straightforward matter for the Body Corporate to procure the release of the keys by Theta. He was clearly under the impression that the Body Corporate could bring about a resolution of the matter simply by providing Theta with an indemnity in respect of any liability that Theta might have arising as a result of the release of the keys. The Judge obviously took the view that the Body Corporate's potential liability under the indemnity was minimal, and that it had no real excuse for failing to give the indemnity. [51] The situation may not, however, be as clear-cut as the Judge believed. It seems that, subsequent to the hearing on 14 February, Theta has made another demand of the Body Corporate. In addition to the indemnity, it is now requiring the Body Corporate to pay a deposit in the sum of approximately $95,000 in order to provide some form of backup for its indemnity. That figure is evidently reached by taking the total sum of the refundable deposits that Theta requires from the respondents in this proceeding. [52] It is a matter for the Body Corporate as to how it deals with Theta and its requirements. Theta remains its agent, however, and is unlikely to be entitled to make unreasonable requests. If the Body Corporate considers that Theta is acting in an unreasonable way, then it should challenge Theta. It must ensure that it does not shrink from enforcing its rights against its agent if that is what is required to ensure that its members receive the keys to their units. [53] As I remarked to counsel during the hearing, it is highly unlikely that any Court would find a party to be in contempt when that party has taken all practicable steps, or used its best endeavours, to ensure that the orders of the Court are being implemented. [54] In the present case the Judge clearly felt that the Body Corporate had not taken sufficient steps to ensure that the keys were returned to the respondents. It remains open, however, to the Body Corporate to rectify that situation. By way of example, it may wish to immediately challenge Theta's right to withhold the keysand to require it, in its capacity as the Body Corporate's agent, to hand the keys over to the respondents. If Theta responds by imposing conditions on the release of the keys, the Body Corporate will need to decide whether those conditions are reasonable and within its powers to meet. If it takes the view that the conditions are unreasonable, it may seek to join Theta as a third party to the District Court proceeding and to seek urgent injunctive relief against it. [55] Provided the Body Corporate takes such steps, I would be surprised if the respondents would claim that the Body Corporate has failed to take all practicable steps to ensure that it meets its obligations under the Court orders. During the hearing today Mr McKendrick responsibly told me that he would advise his clients not to take any further action so long as they are satisfied that the Body Corporate is taking such steps as are within its powers to ensure that the keys are returned to the respondents as quickly as possible.Result[56] I do not consider that this Court would ordinarily be justified in interfering in any way with the order that Judge Hole made on 14 February 2008. There was no miscarriage of justice because the Body Corporate's obligations to its members remained intact regardless of the matters that its counsel wished to raise at the substantive hearing of the second application. On the material then available, the Judge was entitled to conclude that the order that he made was appropriately tailored to place pressure on the Body Corporate to ensure that it complied with those obligations. [57] I consider, however, that the Body Corporate should have further opportunity to ensure that it takes the necessary steps to advance the situation in a timely and effective way. [58] I therefore propose to allow the appeal to the extent that I will vary the order made by Judge Hole to read as follows:The Body Corporate is to take all practicable steps necessary to provide the plaintiffs with electronic key cards giving access to their respective units andthe common property in Empire Apartment Building, 21 Whitaker Place, Auckland. In the event that the plaintiffs consider that satisfactory progress has not yet been made by the Body Corporate in carrying out its obligations in terms of this order by 4 pm on 12 March 2008 the plaintiffs shall have leave to make further application to the Court for such orders as might be necessary to enable this order to be implemented.[59] In other words, I propose to return the position to that which pertained as at 16 January 2008. I would expect that by 12 March 2008 the Body Corporate will have required Theta to hand the keys over to the respondents. If it refuses to do so or make demands that are unreasonable, I would expect the Body Corporate to have applied for leave to issue third party proceedings, including an application for interim injunctive relief, against Theta by the time the matter is next called before the District Court. [60] The appeal is disposed of accordingly.Costs[61] Both parties apply for costs. Each says that it has been successful. [62] There are two aspects to this matter. The first is that the Body Corporate has succeeded in showing that it was at risk of a miscarriage of justice by virtue of the manner in which the hearing on 14 February 2008 came to be conducted. Although I found in its favour on that point, the fact remains that responsibility for the situation that arose on 14 February lies entirely with the Body Corporate. Its counsel elected to participate in a hearing when he ought not to have done so. [63] On that basis I do not consider that it would be appropriate to award costs in relation to that aspect of the appeal notwithstanding that the Body Corporate has succeeded in relation to it. [64] The second aspect of the matter is that, in effect, I have not interfered with Judge Hole's decision in any way. As I hope I have made clear, I take the view that he made the right decision based on the material before him. The only alteration tothe orders that were made in the District Court reflects my desire to give the Body Corporate a further opportunity to place its house in order. [65] I am satisfied that, effectively, the respondents have succeeded on the appeals and ought to be entitled to an award of costs in their favour. They are entitled to costs on a category 2B basis together with disbursements as fixed by the Registrar. Lang J