WU V BODY CORPORATE 366611 AND ANOR HC AK CIV-2009-404-5756

WU V BODY CORPORATE 366611 AND ANOR HC AK CIV-2009-404-5756

The 2008 and 2009 amendments to rule 3.10 were ultra vires because they purported to add or expand powers properly within the scope of Schedule 2 and therefore required unanimous resolution under s37(3); having been passed by majority they are invalid, and the body corporate and its agent cannot rely on them to deny proprietors access to their units.

Citation
openlaw-efde80e9_f751_4a71_94f2_e186d2b6c50a.pdf
Parties
Plaintiff: Chuan Wu; First Defendant: Body Corporate 366611; Second Defendant: Theta Management Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 November 2009
Procedural Posture
Declaratory Judgment Under Unit Titles Act 1972 / Determination of Preliminary Questions (r 10.15(a))
Outcome
Preliminary questions answered for the plaintiff; amendments to rule 3.10 passed 8 February 2008 and 17 April 2009 are ultra vires and invalid; the body corporate and its agent may not rely on those invalid rules to deny proprietors access.
Legal Topics
Rule Amendment Validity, Ultra Vires, Access to Property, Security Deposits, Rule Making Limits Under S37
Property Law Unit Titles Act Body Corporate Law Civil Procedure Rule Amendment Validity Ultra Vires Access to Property Security Deposits +1 more

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Parties

Chuan Wu

Plaintiff

Body Corporate 366611

First Defendant

Theta Management Limited

Second Defendant

Procedural Posture

Declaratory Judgment Under Unit Titles Act 1972 / Determination of Preliminary Questions (r 10.15(a))

Legal Issues

  1. 1 Whether amendments to Rule 3.10 made 8 February 2008 and 17 April 2009 were validly made by majority resolution or required unanimous resolution under s37(3)
  2. 2 Whether the body corporate acted ultra vires in purporting to confer powers to require deposits and protocol agreements by majority resolution
  3. 3 Whether reliance on the invalid rules justified denying proprietors access to their units

Ratio Decidendi

The 2008 and 2009 amendments to rule 3.10 were ultra vires because they purported to add or expand powers properly within the scope of Schedule 2 and therefore required unanimous resolution under s37(3); having been passed by majority they are invalid, and the body corporate and its agent cannot rely on them to deny proprietors access to their units.

Court Disposition

Preliminary questions answered for the plaintiff; amendments to rule 3.10 passed 8 February 2008 and 17 April 2009 are ultra vires and invalid; the body corporate and its agent may not rely on those invalid rules to deny proprietors access.

Orders

  • Amendments to rule 3.10 dated 8 February 2008 and 17 April 2009 declared invalid as passed by majority and ultra vires
  • Body Corporate 366611 and Theta Management Limited ordered to cease denying proprietors access to their units and to cooperate in providing keys to affected proprietors