LAKE HAYES PROPERTY HOLDINGS LIMITED v PETHERBRIDGE [2014] NZHC 1673

LAKE HAYES PROPERTY HOLDINGS LIMITED v PETHERBRIDGE [2014] NZHC 1673 [17 July 2014]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYCIV-2013-412-000451[2014] NZHC 1673BETWEEN LAKE HAYES PROPERTY HOLDINGSLIMITEDApplicantAND LOUISE DURANT PETHERBRIDGERespondentHearing: 3 April 2014 and 9 June 2014Appearances: J V Ormsby and J-L Day for the ApplicantP J Page and K J Logan for the RespondentJudgment: 17 July 2014JUDGMENT OF PANCKHURST JIntroduction ............................................................................................................ [1]The issues ............................................................................................................... [4]The factual background .......................................................................................... [6]Is it "just and equitable" to authorise cancellation of the unit plan? .................... [22]Jurisdiction [22]The scheme and purpose of the Act [23]The competing contentions [31]The "just and equitable" test [45]Evaluation – conclusions [53]Is an order for sale, purchase, or division of the land appropriate? ..................... [58]The jurisdiction to unlock a deadlock [58]The available options [65]The contentions relating to the relevant considerations [72]Evaluation – conclusions [86]An order for sale or purchase? ............................................................................. [91]The evidence [91]The submissions [94]Evaluation – conclusions [97]Result.................................................................................................................... [99]Introduction[1] Ms Petherbridge owns one unit of a former motel complex on Lake Hayes, near Arrowtown in Central Otago. The unit enjoys a commanding view of the lake. Ms Petherbridge regards Lake Hayes as a place of escape and ideal for her work as an artistic director, actor and scriptwriter. She uses her unit several times a year to work in peace and to enjoy the surrounds – the mountains, the lake, the simplicity and the peacefulness. To her it is the aesthetic value, not the monetary value, of the property that is important.[2] Lake Hayes Property Holdings Limited (Property Holdings) owns the other eight units on the site. The directors of the company, Messrs David Smallbone and Kenneth Cummings, consider that the site requires redevelopment. The units, constructed in the 1960s, are small, outdated, and no longer provide acceptable accommodation. A proposal to redevelop the site was initiated, but ultimately did not proceed. Property Holdings now considers that the property should be sold for redevelopment. The land and units comprise a unit title subdivision under the Unit Titles Act 2010. Each unit comprises a strata estate in freehold that may be sold individually. But, to sell the property for redevelopment it would be advantageous to sell the land and all nine units as a whole.[3] Accordingly, Property Holdings has applied to the Court to dissolve the body corporate and cancel the unit plan under which the units are presently owned and administered. It also seeks, in the alternative, an order dividing the land to accommodate Ms Petherbridge's ownership share, an order requiring it to purchase her unit at a fair and reasonable price or an order for sale of the whole property and division of the proceeds. Ms Petherbridge opposes Property Holdings' application,particularly the making of any order whereby her interest in the property is lost. Thereby the aesthetic values of the unit, which she values so much, would be lost to her.The issues[4] The proceeding raises two main issues:(a) whether it is just and equitable to order that the body corporate be dissolved and the unit plan cancelled, having regard to the rights and interests of all affected parties, and(b) if such an order is made, whether a further order requiring the purchase of Ms Petherbridge's share, or for the sale of the whole property or division of the land, is appropriate.[5] Jurisdiction to make such orders is provided under s 188(2) of the Unit Titles Act 2010 (the Act) and s 339(1)(c) of the Property Law Act 2007 (the PLA), respectively. The former power is exercisable if this Court is satisfied that it is just and equitable to cancel the unit plan, subject to such conditions and directions as the Court thinks fit.1 An order requiring purchase, directing a sale, or dividing the land may only be made after various relevant considerations have been considered, including the hardship that will be caused to the applicant by the refusal of the order, as compared to the hardship caused to Ms Petherbridge by making the order.2The factual background[6] The land is at 25 Arrowtown-Lake Hayes Road, which is part of the principal road between Queenstown and Arrowtown. The property is about a 10 minute drive from Arrowtown and a 20 minute drive from Queenstown. The site comprises 3055 m2, being generally rectangular and running from the roadside down towards Lake Hayes, with the western boundary closest to the lake but still some distancefrom the water's edge. From this boundary access may be gained to the lake andalso to a walking track which circles the lake.[7] The nine units are situated nearer to the eastern boundary, the frontage to Lake Hayes Road, and on about the front two-thirds of the site. This area is of easy contour, whereas the western one-third of the land area falls steeply away towards the lake edge. Units A and B are closest to the road on the southern boundary and have little or no view towards the lake. The other seven units are positioned across the width of the site, some elevated, with views to the west across Lake Hayes. The units are constructed of concrete block, with corrugated iron roofs, and are of modest1 Unit Titles Act 2010, s 188(3).2 Property Law Act 2007, ss 339 and 342.size. Ms Petherbridge's unit, unit D, comprises about 40 m2, being a studio (sitting and sleeping areas and a kitchen) and a separate bathroom/toilet. Some units have separate bedrooms, but these are also of modest proportions.[8] Generally speaking, the units are in need of repair and maintenance. The units each have accessory units, designated as garages, storage areas and outdoor forecourts. The balance of the land is common area owned by the body corporate, but with beneficial ownership vested in the unit owners as tenants in common in shares proportional to their ownership interest. For example, Ms Petherbridge holds a 9.15% ownership share in the property.[9] In 1983 the then owner converted the motel units to unit titles. Ms Petherbridge's parents purchased one of the units and over time more units were sold to individual owners.[10] In September 2006 Lake Hayes Equity Holdings Limited (Equity Holdings) purchased eight of the units, I infer from an American citizen who had acquired them over the intervening period. Equity Holdings planned to redevelop the site into acomplex described as "in the nature of a residence club". To finance the purchase and advance the redevelopment Equity Holdings borrowed from the Southland Building Society (SBS) and from a company now named Roy Project Company Limited, owned by Messrs Smallbone and Cummings. SBS became the priority lender upon the signing of a deed of priority.[11] On 16 June 2008 Equity Holdings entered into a development agreement with Ms Petherbridge. The agreement recorded that Equity Holdings wished to cancel the existing unit plan in favour of a new plan consistent with the intended residence club development. A concept plan contemplated the construction of a multilevel building comprising nine units, eight of which would comprise the residence club, while unit 9 would be owned by Ms Petherbridge. However, the agreement was conditional upon Equity Holdings obtaining the requisite resource consents and redevelopment finance, as well as achieving a number of presales before development began. A period of 17 months was allowed for satisfaction of the conditions.[12] However, things did not go well. In early 2009 Equity Holdings defaulted in meeting its repayment obligations to Roy Project Company Limited. Messrs Smallbone and Cummings evaluated their options and decided that, giventheir company's second mortgagee status, a mortgagee sale would not secure repayment to it in full. Instead they considered that the best option was to purchase the assets of Equity Holdings. They did so through a purpose-company, the applicant Property Holdings, paying a purchase price of $1.3m in mid-April 2009. At the same time Equity Holdings completed a deed of assignment in favour of Property Holdings whereby its rights under the development agreement were transferred. Contemporaneously, another deed of assignment was concluded to transfer the redevelopment consents, architectural plans and associated intellectual property to Property Holdings. Finally, a deed of accession was signed by Ms Petherbridge and Property Holdings whereby they covenanted to be bound by the terms of the development agreement concluded in June 2009.[13] Property Holdings endeavoured to advance the redevelopment scheme. Resource consents were eventually obtained following a hearing process. Real estate agents were retained to effect presales, but without success. No presales were achieved, perhaps on account of the global financial crisis.[14] From mid-2011 Property Holdings looked to alternative ways to quit the investment. The directors considered that one way forward was to acquire Ms Petherbridge's unit so that Property Holdings owned and controlled the wholesite. This was seen as a means to make the property more saleable.[15] In May 2012 Property Holdings made an offer to purchase unit D from Ms Petherbridge for $245,000, being the market value according to a registeredvaluer's report. Alternatively, the company proposed that the whole site be sold on the understanding that Ms Petherbridge would receive 9.15% of the net sale proceeds. Neither alternative was acceptable to Ms Petherbridge.[16] Instead, Ms Petherbridge retained a resource management consultant, Mr Don Anderson, to devise an approach acceptable to her. In June 2012 Mr Anderson proposed a subdivision of the land to create a 176 m2 lot in thesouth-western corner of the site, upon which would be erected a bedsit for Ms Petherbridge at her expense. The concept, including development of a right of way along the southern boundary of the land from Lake Hayes Road, is shown in the provisional site diagram below.[17] The proposal entailed some element of compromise on Ms Petherbridge'spart. The new site is at a lower level and her view would be partially interrupted by treetops by comparison to the view from her unit D site.[18] Property Holdings considered the proposal unworkable. The subdivided lot was smaller than the minimum size permitted under the District Plan, while the likely cost of the proposal and the creation of the lengthy right of way were seen as problematic.[19] In January 2013 Property Holdings made a further offer to Ms Petherbridge. The first alternative was to purchase her existing unit for an increased price,$274,500, together with an agreement that if the site as a whole was sold within 12 months for a sum greater than $3m Ms Petherbridge would receive 9.15% of the excess. The alternative offer was for Property Holdings to build a one bedroom unit for Ms Petherbridge on the north-eastern corner of the land overlooking Arrowtown-Lake Hayes Road. The land required for the dwelling would comprise a separate freehold title. Neither proposal was of any interest to Ms Petherbridge.[20] In August 2013 Property Holdings filed an originating application seeking cancellation of the unit plan; and an order under the Property Law Act for the sale of the land or, alternatively, the purchase of Ms Petherbridge's interest by it at valuation.[21] The proceeding was part-heard in April 2014. Following a site visit, counsel made submissions directed to cancellation of the unit plan on the understanding that, if cancellation was authorised, there would be a resumed hearing in relation to the relief sought, sale or purchase of the land, or a division of the land. I was of the view that the better course was to complete the hearing and deliver one composite judgment. Hence, updating evidence was filed and further submissions were made on 9 June.Is it "just and equitable" to authorise cancellation of the unit plan?Jurisdiction[22] To recap, power to authorise the cancellation of a unit plan lies with this Court pursuant to s 188 of the Act. The section relevantly provides:188 Cancellation of unit plan by High Court(2) The High Court may authorise that the unit plan be cancelled if—(a) the High Court is satisfied that it is just and equitable that the body corporate be dissolved and the plan cancelled having regard to—(i) the rights and interests of any creditor of the body corporate; and(ii) the rights and interests of every person who has any interest in any unit or in the base land or in any part of the base land; and(3) If the High Court makes a declaration authorising the cancellation of a unit plan under subsection (2), the High Court may by order impose any conditions and give any directions as it thinks fit, for the purpose of giving effect to the declaration, including—(a) directions for the payment of money by or to the body corporate; or(b) the distribution of the assets of the body corporate; or(c) a direction to modify or extinguish, in whole or in part, any registered interest or caveat or notice of claim entered on the register in relation to any unit, the common property, or the base land.Subsection (4) enables the Court to vary or modify the terms of its decision at any time before cancellation of the unit plan is effected, while subs (5) empowers the Court to make such order for payment of costs as it thinks fit.The scheme and purpose of the Act[23] The preliminary provisions include a purpose section. Section 3 provides:PurposeThe purpose of this Act is to provide a legal framework for the ownership and management of land and associated buildings and facilities on a socially and economically sustainable basis by communities of individual owners and, in particular,—(a) to allow for the subdivision of land and buildings into unit title developments comprising units that are owned in stratum estate in freehold or stratum estate in leasehold or licence by unit owners, and common property that is owned by the body corporate on behalf of the unit owners; and(b) to create bodies corporate, which comprise all unit owners in a development, to operate and manage unit title developments; and(c) to establish a flexible and responsive regime for the governance of unit title developments; and(d) to protect the integrity of the development as a whole.[24] Cancellation of the unit plan can occur in one of two ways. The owners may resolve to cancel the plan, facilitating an application by the body corporate to the Registrar-General of Land to effect cancellation. Alternatively, cancellation may be authorised by the High Court pursuant to s 188. There is no need to detail theintricacies of the Act, but mention of some provisions of relevance is warranted and may provide a better sense of the scheme of the Act.[25] A unit title development is created by a subdivision of land, whether a fee simple, or lessee or licensee estate, provided such estate is registered under the Land Transfer Act 1952.3 Except to the extent that the Act provides, and subject to any necessary modification, the principles of the Land Transfer Act apply equally to strata estates in their various forms.4 The land may be subdivided into two or more principal units, plus accessory units and common property.5 The Lake Hayes unit title development comprises nine principal units, being strata estates in freehold, together with accessory units (storage, garage and forecourt areas) attaching to each unit, as well as a generous area of common property.[26] Before a unit plan may be deposited the ownership interest of each unit owner must be valued to establish the value of that unit as a percentage of the value of the development as a whole.6 The ownership interest determines each owner'sbeneficial interest in the common property, what share of expenses they must meet and their entitlements to capital, including in the event of a cancellation and sale of the assets.7 Ms Petherbridge has a 9.15% ownership interest in the Lake Hayes development. Accordingly, Property Holdings, as the owner of the other eight principal units, has a 90.85% interest.[27] Management of the unit development lies with the body corporate, which is created upon deposit of the unit plan.8 The unit owners become members of the body corporate,9 and have the rights described in s 79 of the Act, including all the rights derived from being registered as the owner of the stratum estate in a unit under the Act, quiet enjoyment of the unit, and rights to participate in body corporate decision-making and management. Unit owners are subject to responsibilities defined in s 80, being in effect duties to comply with the body corporate operational3 Unit Titles Act 2010, s 16(1).4 Section 72.5 Section 16(2).6 Section 38(1) and (2).7 Section 38(3).8 Section 75.9 Section 76.rules pertaining to maintenance, repairs and the use, occupation and enjoyment of their units. The body corporate enjoys defined powers and is also subject to duties.10It too must comply with the body corporate operational rules and generally administer and manage the development as a whole to ensure its wellbeing.[28] One vote is available to each unit at a meeting of the body corporate.11 An ordinary resolution may be passed by a bare majority of the eligible voters who vote.12 However, a special resolution requires a 75% vote in favour.13 Cancellation of a unit plan requires a special resolution.14 Should the body corporate resolve to cancel the unit plan, the minority may invoke the objection process.15[29] The objection process is governed by ss 210 to 216, contained in Part 5, subpart 3 and entitled "Minority and majority relief". Section 210 provides that where a resolution is duly passed "any person who voted against the resolution may apply to the appropriate decision-maker for relief on the grounds that the effect ofthe resolution would be unjust or inequitable for the minority." Similarly, if a special resolution is not passed, but there was a 65% vote in favour, relief may be sought if"the effect of the failure of the resolution to be passed would be unjust or inequitableon the majority."16 Here the relief provisions need not be relied upon, because Property Holdings, appreciating that it held the whip hand, filed the presentapplication seeking the Court's authorisation to cancellation of the unit plan.Otherwise, it seems likely that Ms Petherbridge would have invoked the unjust or inequitable relief provision available to a minority owner.[30] Finally, I note observations made by a commentator with reference to the name of the Act. He said:17"Unit titles" is not a phrase that does justice to the topic. Unit titles areabout communities, about infrastructure, about democracy, about governance, about management, about property rights, and above all, about10 Section 84.11 Section 97(2).12 Section 97(4).13 Section 98(4).14 Section 177(3).15 Sections 177(4), 212-216.16 Section 211(1).17 Thomas Gibbons "In Your Neighbourhood" (2011) 172 NZLawyer 23.people. These issues go far beyond "title" matters. Fundamentally, theseissues are about neighbours – how people live and work together, howpeople's lives are controlled by others, and what rights they have. Much ofland law is really about contracting parties (buyer/seller, landlord/tenant et cetera), but unit titles are about neighbours.The competing contentions[31] Property Holdings' case is centred upon the present condition of the units andthe need for complete redevelopment of the site. It considers this an economicimperative, which should prevail given the company's majority position as a 90%owner of the unit development. By contrast, Ms Petherbridge disputes that the units are beyond their economic lifetime and that redevelopment of the site is the only available option. That said, she is not totally opposed to redevelopment, provided it is on terms which result in her having continued use and enjoyment of the property, whether in unit D or in purpose-built alternative accommodation.[32] Mr Ormsby advanced four main submissions in support of cancellation. First, he stressed that Property Holdings and Messrs Smallbone and Cummings are reluctant owners of the eight units in the development. They did not willingly acquire the units, rather they were faced with default on the part of the previous owner and as the second mortgagee purchased a 90% interest in the development to protect their investment. Counsel went a step further, and argued that Ms Petherbridge was not so concerned about dissolution of the body corporate and cancellation of the unit plan. Rather, her essential concern is to retain her ownership interest in the property so that she may enjoy the aesthetic values of the lakeside area. Hence, her opposition to the cancellation application was characterised as a means to an end.[33] The second argument concerned the majority interest owned by Property Holdings. Mr Ormsby stressed that the company is a 90.85% owner and is in a dominant position. It could have passed a resolution in favour of cancellation at will. More importantly, counsel argued that the scheme of the Act affords primacy to the views of the majority, and this rendered it inappropriate for the Court to embark on a merits-based review. Put another way, the Court should not fashion an approachby simply balancing the competing rights and interests of the unit holders, as this may result in an outcome at odds with the legitimate interests of the majority owner.[34] Thirdly, Mr Ormsby characterised the Lake Hayes body corporate as dysfunctional. Mr Smallbone deposed that the body corporate was effectively defunct when Property Holdings purchased its units in 2009 and, given events of the last few years, nothing had been done to revive the body corporate. Ms Petherbridge confirmed that she was unaware of any body corporate meetings since her parents purchased her unit in 1983. She attributed this to the majority of the unit owners being investors, not private owners wishing to enjoy the attributes of the area. Shedeposed that the absentee owners "neither had an attachment to the place, nor were [they] interested in it for anything other than financial gain".[35] Ms Petherbridge explained, however, that a married couple were employed to manage the unit development on behalf of an absentee overseas majority owner and that this worked for a period. However, she recalled contacting the nominated insurer of the complex (arranging insurance being a duty of the body corporate), to find that there was no insurance cover, despite her having written a cheque to meet her share of the premium. Ms Petherbridge, therefore, arranged cover for her unit and she has maintained it to the present time.[36] A similar situation has obtained in relation to maintenance and repairs. Mr Smallbone deposed that Property Holdings has maintained the septic tanks and also met the costs of gardening and general maintenance of the grounds. Otherwise, it appears that little has been done. Ms Petherbridge confirmed that repairs and maintenance have been a problem for many years. She referred to sewerage issues. At various times she proposed that the unit development be linked to the mains sewerage line, which I infer runs along Arrowtown-Lake Hayes Road. She could make no progress. Ms Petherbridge remained willing to play an active part in the body corporate, but she: gained the impression that the diminishing state of the buildings and land was certainly not a priority and possibly actually seen as an advantage in plans to replace the existing buildings with a complex.[37] Finally, Mr Ormsby submitted that the motel complex is no longer fit for purpose. They were constructed almost 50 years ago in the mid to late 1960s. Seven of the units have a combined living/sleeping area and separate bathroom/toilet facilities. Two of the units are larger, with bedrooms separated from the living areas. The construction is predominantly concrete block walls with a painted finish. The interior linings comprise painted concrete block, or plasterboard walls, with Pinex tile and sheet ceilings. The joinery, both windows and doors, is aluminium, with single glazing.[38] The registered valuer's report describes the street appeal as average and thequality of the fittings and fixtures as fair to average. At another point in the report the fittings are described as dated by modern standards. The interior and exterior condition of the units is also described as average, but the interiors have been repainted in recent years. The units each have either a carport, or an uncovered carpark. The site has some sealed driveways and paths, and there are areas of lawn and established plantings.[39] My impression following the site visit was that the motel complex was dated and that the whole development had a tired feel about it. This, I think, was consistent with the affidavit evidence concerning the defunct body corporate and the low level of attention to maintenance since at least 1983, a period of 30 years.[40] Mr Page and Ms Logan both made submissions in opposition. Counsel argued that Property Holdings' primary motivation in seeking cancellation of the unittitle is to achieve a better sale price for the 3055 m2 site. Dissolution of the body corporate, and cancellation of the unit plan, would render the land more attractive to prospective developers, particularly if Ms Petherbridge's interest was subsumed bythe Court making an order for the sale of the entire site, or an order requiring Property Holdings to purchase the 9.15% interest.[41] Counsel submitted that no weight should be accorded to the argument that Property Holdings was a reluctant purchaser. Messrs Smallbone and Cummings are commercial investors, who purchased eight units from the previous owner with their eyes open and to protect a mortgage advance. They were on notice in relation toMs Petherbridge's interest, and more importantly, concerning her sentimental attachment to her unit. The fact that her stratum estate in freehold was no longer convenient from Property Holdings' perspective was not a reason to dissolve the body corporate and cancel the unit plan.[42] With reference to the body corporate, counsel submitted that it was not dysfunctional, rather that successive majority owners had neglected their duties under the Act, resulting in a situation of non-engagement with Ms Petherbridge the only other unit owner in recent times. It was not a situation of deadlock, because there had been no endeavour to engage with the minority owner, despite her efforts to, for example, have the development connected to the sewerage mains.[43] Ms Logan also disputed that the units are past their economic lifetime. While maintenance has been deferred, the units remain structurally sound and could be renovated to become highly desirable – something confirmed in an affidavit from a registered valuer, Mr Timothy Higgins.[44] Finally, counsel argued that no weight should be given to the applicant's second argument that the scheme of the Act affords primacy to the views of the majority. Although decision-making by the body corporate is based on a democratic model, the viewpoint of a minority owner, or owners, can still be heard by virtue of the objection process. In the final analysis, and even regardless of a 75% vote in favour of an initiative, the view of the minority may prevail if a resolution is shown to be unjust or inequitable.The "just and equitable" test[45] The leading case on the interpretation of the just and equitable test isWorld Vision of New Zealand Trust Board v Seal.18 The unit title development consisted of six residential units and one commercial unit, the latter being structurally separate from the building comprising the residential units. World Vision, the owner of the office block stratum title, applied to the Court for a declaration dissolving the body corporate and cancelling the unit plan pursuant to the18 World Vision of New Zealand Trust Board v Seal [2004] 1 NZLR 673 (HC).Unit Titles Act 1972. Section 46 of that Act was in substance identical to s 188(2) of the new Act, although it was drafted in a different style.[46] Heath J, summarised the statutory test in this reasonably lengthy passage, which I shall quote in full:[62] The phrase "just and equitable" has a respectable legal pedigree. It isoften used as a test to determine whether a corporate entity should be placed in liquidation or a partnership dissolved: see s 241(4)(d) of the Companies Act 1993, s 25(1) of the Charitable Trusts Act 1957, s 15(e) of the Agricultural and Pastoral Societies Act 1908, ss 90 and 138 of the Friendly Societies and Credit Unions Act 1982 (in relation to a friendly society and a credit union respectively), s 282(1)(f) of Te Ture Whenua Maori Act 1993 (aMāori incorporation) and s 25(e) of the Incorporated Societies Act 1908. The phrase is also used as the test for dissolution of a partnership or the winding up of an unincorporated association of persons: s 38(f) of the Partnership Act 1908 and s 17A of the Judicature Act 1908.[63] When considering the "just and equitable" ground to liquidate acompany, Lord Clyde said, in Baird v Lees 1924 SC 83 at p 90:". . . a wider view now prevails regarding the ambit of the discretionwhich is entrusted to the Court. This discretion must, however, be judicially exercised. It is not enough for the Court in exercising it to have, in the familiar phrase of a decree-arbitral, 'God and a good conscience' before its eyes; grounds must be given which can be examined and justified."Other members of the Inner House concurred with that observation.[64] It is inherent in Mr Thwaite's submission that justice and equity are twocriteria to be considered in determining whether to exercise the power conferred by s 46(1) of the Act. Yet, the authorities analysed in Callaway,Winding Up On the Just and Equitable Ground (Sydney, Law Book Co Ltd, 1978) suggest to the contrary. In the context of the jurisdiction to orderliquidation of a company on the "just and equitable" ground, Callaway stated at p 5:"The Court must balance all the conflicting claims, giving properweight to each consideration of right, duty and fairness brought forward by the parties. The expression 'just and equitable' may be regarded asan example of statutory hendiadys, the reference to equity not being by way of an additional test but for the purpose of ensuring that the justice to be applied will be equitable justice, 'the justice of the individual case'. Accordingly justice and equity are referred to herein as onecriterion, not two criteria."(Citations omitted.)[47] The Judge then noted that the just and equitable touchstone was to be applied in relation to two distinct elements, dissolution and cancellation; one could not beauthorised without the other. Further to the analysis quoted above, Heath J also considered the approach to, and extent of, the s 46 jurisdiction. He concluded that in terms of approach it was not appropriate to balance the competing rights and interests of the relevant participants, rather that the applicant must show on the balance of probabilities that a dissolution and cancellation was just and equitable, having regard to all relevant rights and interests. With regard to the extent of thejurisdiction he concluded it "should not be unduly circumscribed",19 because after all the jurisdiction is to be exercised with equitable principles in mind. However, the jurisdiction was to be exercised under the Act, and therefore in circumstances significantly different to, for example, a business context as arises in a liquidation or partnership dissolution.[48] I think that the test is best understood by reference to the words of s 188(2). This Court may authorise the cancellation of a unit plan if it is satisfied it is just and equitable that the body corporate be dissolved and the plan cancelled, having regard to the rights and interests of the creditors of the body corporate and the rights and interests of every person having an interest in a unit or the base land. The phrase"just and equitable" means equitable justice, the justice of the individual case. All matters relevant to the rights and interests of creditors or interest holders must be considered. And, importantly, the evaluation must be conducted with proper regard to the scheme and purpose of the Act.[49] The facts in World Vision bear some relationship to the facts of this case. World Vision considered that the office block it owned was outdated and should be redeveloped. This prompted the cancellation application. In his evaluation of the facts Heath J said this: 20 circumstances might arise where it becomes necessary for the Court to intervene under s 46. If a building has deteriorated through inadequate maintenance or cannot through the unavailability of funds be maintained properly, an order might be sought because the building is no longer fit for its original purpose. Similarly, if a disparate group of proprietors, together comprising a body corporate, interact so dysfunctionally as to require intervention from the Court, the jurisdiction may well be exercised on similar principles to those applied in company or partnership law where deadlock ensues.19 World Vision, above n 18, at [84].20 At [86].[50] A second and more recent case is Dominion Finance Group Ltd (in Rec and Liq) v Body Corporate 382902.21 The case concerned two blocks of apartments, 11 units in one block and seven units in the other, which were damaged in the Christchurch earthquakes and subsequently demolished. A $16m insurance settlement followed. As required under the Act, the ownership interests in the units were re-valued for the purposes of a division of the insurance proceeds. The valuer engaged by the body corporate concluded that significant adjustments were required to the ownership interest percentages. A cancellation application pursuant to s 188(2) was filed, in the context of which a minority (five owners) challenged the reassessment, while the majority (13 owners) supported it. Fogarty J held that the reassessment percentages were not just and equitable and he restored the previous percentage figures. Cancellation was authorised, but on terms fashioned by the Court, as opposed to the terms of the body corporate resolution.[51] Fogarty J said this with regard to the just and equitable jurisdiction:[42] The Unit Titles Act is a remedial statute. It was not intended to undermine basic principles of property law. On the contrary, it was intended to facilitate the applications of principles of property law to multiple dwelling and/or commercial units in one building or on one title. The architecture of the statute is plain, and relevant parts of it have been briefly described. The property rights protected by the statute are intended to be robust. It is not possible for a developer to unilaterally decide upon the relative percentage of the ownership interests of the whole per individual unit. It has to be a decision by a registered valuer. Likewise, upon the cancellation of the plan, Parliament intends that the value of the unit at the time of cancellation be allocated on rational grounds, and fairly, without oppression of a minority, amongst all the owners of the property.[43] Equitable remedies were developed because it is not possible to anticipate all events. In this statute, Parliament has recognised that room should be left for the Court to exercise its equitable jurisdiction, having otherwise followed the law, to ensure that all the outcomes of the statute are just and equitable. The analysis moves on then to examine the legal consequences of both the resolutions, before judging whether equitable principles should apply.[52] The emphasis upon the sanctity of the basic principles of property law is noteworthy. Fogarty J preferred an approach which reflected the principles of property law, but left scope for equitable principles to be applied to meet the justice21 Dominion Finance Group Ltd (in Rec and Liq) v Body Corporate 382902 [2012] NZHC 3325, (2012) 7 NZ ConvC 96-003; (2012) 14 NZCPR 252.of the individual case. I agree with, and adopt, these sentiments – although, as will become evident, I do not think that the principles of property law are a major consideration in the circumstances of this case, at least with regard to the s 188 inquiry.Evaluation – conclusions[53] I can deal with these aspects succinctly. I am satisfied it is just and equitable to authorise cancellation of the unit plan, and with it dissolution of the body corporate. In my view the body corporate has been effectively defunct for 30 years and the motel units are past their economic lifetime. The site requires redevelopment. I do not think that renovation of the units is a viable option. Themore difficult issue in this case is how Ms Petherbridge's interest is to beaccommodated, but that is a separate issue to be determined under the Property Law Act.[54] In large measure the reasons which prompt these conclusions are evident from the competing contentions set out above. The facts of the case largely speak for themselves. The body corporate is defunct. Ms Petherbridge's evidenceconfirmed as much, rather than refuting the contention.[55] Equally, it is apparent to me that the units are not only tired as a result of a low-level maintenance regime, but outdated as well. Again, Ms Petherbridge'sactions tended to confirm this. She agreed to the redevelopment proposal in 2008, signed the conditional development agreement, but unfortunately that proposal failed. I suspect that the global financial crisis was a significant contributing factor.[56] I do not overlook the opinion expressed in Mr Higgins' May 2014 valuationreport that the units could be renovated. He gave three reasons for this"assumption". These were that the property is in high density development in a low density residential zone and that it is "unlikely that further intensive development of the nature of this existing property [will] be permitted". If "renovated", Mr Higgins considers that the existing units would be "highly desirable". Secondly, he considersthat the site is "unique" in terms of location, the westerly aspect, the views and thehigh sunshine hours. Thirdly, Mr Higgins pointed to a proposed moderndevelopment facing the Frankton Arm of Lake Wakatipu in which several small apartments have recently been pre-sold as providing evidence of a market for smaller apartment units, including units as small as 40m2.[57] I consider the assumption that the units can be renovated to become highly desirable to be just that, an assumption. No indication is provided concerning the scope of work required to renovate the units, nor is the cost of doing so estimated. I accept that the site is unique, but reliance upon the Lake Wakatipu proposal, a proposed development, is I think bold. It may never proceed, but even if it does it will be a modern development, no doubt a building reflecting modern methods and amenities. Such a development cannot be compared to a 1960s renovated motel complex.Is an order for sale, purchase, or division of the land appropriate?The jurisdiction to unlock a deadlock[58] Although at this point the parties continue to hold strata estates in freehold, upon cancellation of the unit plan they will become co-owners in shares proportional to their former ownership interests.22 At that point, s 339 of the PLA applies.[59] Section 339 relevantly provides:339 Court may order division of property(1) A court may make, in respect of property owned by co-owners, an order—(a) for the sale of the property and the division of the proceeds among the co-owners; or(b) for the division of the property in kind among the co- owners; or(c) requiring 1 or more co-owners to purchase the share in the property of 1 or more other co-owners at a fair and reasonable price.(2) An order under subsection (1) (and any related order under subsection (4)) may be made—22 Unit Titles Act 2010, s 180(2).(a) despite anything to the contrary in the Land Transfer Act 1952; but(b) only if it does not contravene section 340(1); and(c) only on an application made and served in the manner required by or under section 341; and(d) only after having regard to the matters specified in section 342.(emphasis added)The balance of the section prescribes powers relating to valuing the property and for the imposition of further orders concerning its division.[60] Whether an order should be made, and the type of order, is to be assessed by reference to defined considerations:342 Relevant considerationsA court considering whether to make an order under section 339(1) (and any related order under section 339(4)) must have regard to the following:(a) the extent of the share in the property of any co-owner by whom, or in respect of whose estate or interest, the application for the order is made:(b) the nature and location of the property:(c) the number of other co-owners and the extent of their shares:(d) the hardship that would be caused to the applicant by the refusal of the order, in comparison with the hardship that would be caused to any other person by the making of the order:(e) the value of any contribution made by any co-owner to the cost of improvements to, or the maintenance of, the property:(f) any other matters the court considers relevant.Section 343 defines further powers of the Court to make ancillary orders and directions that may be required to effect a sale or division of the property.[61] Counsel were at odds as to the interpretation of s 339(1)(c). Property Holdings seeks one of three alternative orders, but its preference is an orderrequiring it to purchase Ms Petherbridge's share at a fair and reasonable price. Ms Petherbridge contended that it was not competent to make an order requiring Property Holdings to purchase the 9.15% share because Ms Petherbridge "is not a willing seller". Counsel relied on Holster v Grafton.23 In considering an application pursuant to s 339 Fogarty J said this:[42] Section 339(1)(c) Property Law Act 2007 does not expressly enable the Court to impose a sale by valuation upon a co-owner who does not want to sell her or his share. I do not think such a power should be implied.[43] However, even if such a power is now present in s 339(1)(c), it does not follow that the increased power in the Court will lead to a ready imposition of an order imposing on a person with a proprietary interest a requirement to sell that interest to a co-owner. Sections 339-342 of the Property Law Act 2007 should be understood to be remedial. There remains a basic value orrespect for property rights. Despite his opening observation, Fogarty J fully considered the merits and concluded that an order requiring the applicant to purchase the co-owner's share at a fair pricewas inappropriate in all the circumstances.[62] Mr Ormsby, however, doubted the Judge's observation that s 339(1)(c) doesnot expressly enable the Court to impose a sale by valuation upon a reluctant co- owner. Counsel submitted that the ordinary meaning of the section was that the Court may require one co-owner to purchase the share of another, if this was the best solution to a deadlock following assessment of the discretionary considerations identified in s 342. Indeed, counsel submitted it would be illogical if the Court could order a sale of the whole property against the wishes of a co-owner, but could not require one owner to purchase the share of another unwilling co-owner.[63] With respect, I agree with this submission. I regard the Court of Appeal decision in Bayly v Hicks24 as in point. This case concerned a substantial property co-owned by sisters who were deadlocked as to its division into two parts. Cross-applications seeking different subdivisions were filed in the High Court, but the trial Judge concluded that a three-lot subdivision was the most appropriate way forward. The central question before the Court of Appeal was whether the23 Holster v Grafton (2008) 9 NZCPR 314 (HC).24 Bayly v Hicks [2013] 2 NZLR 401 (CA).High Court could order a division other than one sought by the parties. The Court concluded:[27] We see nothing in the words of these sections to indicate that the powers of the court are only to make an order for division along the lines of that sought by a party to the proceedings. The narrow jurisdiction of the past, split as it was between the Partition Acts and the 1952 [Property Law] Act is replaced by a broad discretion, limited by s 339(1), but beyond that turning on whatever factor appears to the court to be relevant when the broad range of factors in s 342 and the broad powers in s 343 are considered. There must be an application under s 339, and the boundaries of the discretion are set out in s 339(1). However, there is no requirement that the orders made can only be those that were specifically sought by a party. Such a restriction would unduly cramp the scope and efficient operation of what is clearly remedial legislation.[64] Asher J, in delivering the judgment of the Court, added this:[32] Under this new broad discretionary regime it is appropriate for a judge to stand back from the submissions and proposals of the parties, and consider what, on an overview, taking into account the relevant considerations, is the most just and practical way through the impasse before the court, even if the answer may not reflect the orders sought by the parties. By definition the cases that come before the court arise where parties are locked into an ownership position which they cannot resolve because of the positions they have taken, and where a way out may be by a path neither has to that point contemplated.[33] Therefore, we conclude that subject to the parameters of ss 339 and 343 the court is given a broad discretion and has jurisdiction to make orders and give directions different from those sought by the partiesWhile these passages do not directly concern the interpretation of subs (1)(c), they illustrate the remedial purpose and breadth of the discretion conferred under the new PLA. In my view, there is no basis upon which to read down, or unduly cramp, the ordinary meaning of the words used by Parliament, namely that this Court may require a co-owner to purchase the share of another for a fair price. That said, I accept, as did Fogarty J, that an order requiring the purchase of the share of an unwilling co-owner will not be lightly imposed, given that a proprietary interest in land is at stake.The available options[65] Before turning to the considerations identified in s 342, I note the position reached in relation to the three options posed in the amended originating applicationfiled recently. Property Holdings sought an order requiring purchase, an order for sale or an order for division. The latter was the least favoured, and in the course of argument it seemed to me apparent that neither proposal for subdivision of the land were feasible.[66] Both proposals are described earlier. Ms Petherbridge's proposal is outlined at [16] and depicted in the site diagram. Property Holdings subsequently made a counterproposal to build a one bedroom unit in the north-eastern corner of the property overlooking the Arrowtown-Lake Hayes roadway. Ms Petherbridge is adamantly opposed to the counterproposal, while Property Holdings is equallyopposed to Ms Petherbridge's proposal for a subdivision in the south-western corner.[67] Ms Petherbridge has no interest in owning a one bedroom unit overlooking the roadway. There would be no lakeside view and traffic noise could also be a problem. Her present unit appeals to her because of the view it commands of Lake Hayes and its surrounds, which she can enjoy from inside and from the forecourt of her unit. It would be unreasonable to foist a roadside subdivision upon Ms Petherbridge, given these understandable objections.[68] On the other hand, Ms Petherbridge's proposal contemplates the creation of a lot comprising 176m2, whereas the area of Ms Petherbridge's stratum title is 83m2. In addition, the concept requires the creation of right of way and parking/turning easements, having a total area of 278m2. From Property Holdings' perspective, thesite area remaining available for redevelopment would be 2600m2, as opposed to the present total area of 3055m2. This incursion would devalue the site and lessen its appeal to prospective purchasers.[69] Further, a land use and a non-complying subdivisional consent will be required. The minimum lot size for the zone is 600m2, so that the proposed lot is less than a third of the prescribed minimum. The site standard maximum gradient for vehicle access is one in six, whereas the right of way to the proposed lot will require a maximum gradient of one in 4.5. Construction of the right of way will require significant excavation at the top end and fill at the lower end, together with a retaining wall along the southern boundary, all of which Mr Anderson (a resourcemanagement consultant) considers are achievable, "but at a cost". He is alsoconfident that the consents are obtainable, but he cannot guarantee this.[70] Despite the fact that Ms Petherbridge would meet the cost of the single storey flat grass roof unit to be built on the proposed lot, Property Holdings considers that the land value, the diminution in the value of the site and the cost of forming the right of way, the building site and its surrounds will considerably exceed the present value of unit D. Moreover, the consenting process will be time consuming, costly and whether consents will be granted is uncertain. Were the Court to grant an order for subdivision, such order would have to be conditional. Section 340 of the PLA provides that an order for the division of land is subject to the subdivisional restrictions imposed under the Resource Management Act 1991.25[71] I am satisfied that the costs and risks associated with Ms Petherbridge'ssubdivision proposal are such as to exclude it as a realistic option. It follows that the s 342 evaluation should be conducted with the options of sale or purchase in mind.The contentions relating to the relevant considerations[72] It is convenient to review the contentions by reference to four aspects: the number of co-owners and the extent of their shares, the nature and location of the property, the value of contributions to improvements and/or maintenance, and comparative hardship. This will cover the relevant discretionary considerations,unless "other matters" of relevance emerge.26[73] As previously noted, there are only two co-owners, Property Holdings and Ms Petherbridge. The company owns eight of the units and Ms Petherbridge one unit. Expressed in percentage terms Property Holdings has a 90.85% share in the property, and Ms Petherbridge a 9.15% share. Upon cancellation of the unit plan, identical co-ownership shares will exist.25 Property Law Act 2007, s 339(2)(b) provides that an order under subs (1) may not contravene s 340(1).26 Section 342(f).[74] The nature and location of the property have already been mentioned. The 3055m2 site is in a prime location with panoramic views across Lake Hayes and beyond. There is also convenient access to the lakeside recreational reserve, including the walking track that surrounds the lake. Access to the site off Arrowtown-Lake Hayes Road is good. Two-thirds of the site is of easy contour before the land falls away towards the lakeside. Ms Petherbridge's unit, unit D, islocated at about the midpoint across the width of the site, and nearing the point at which the land falls away towards the lake. Unit D has a commanding view, whereas at least two units situated closer to the roadway have no, or little, lakeside view. In my view it would not be feasible to redevelop the site, with Ms Petherbridge's unit in situ.[75] The next consideration is the value of the contributions made by the co-owners to improvement and/or maintenance of the property. This, I consider, is a neutral factor. Both co-owners have contributed to the maintenance of the property. It seems that their contributions reflect the extent of their shares in the property but, on the other hand, there is nothing to suggest particular contributions made by either co-owner and warranting recognition in the present context.[76] I turn, then, to the consideration which commanded most attention in thecourse of counsel's submissions. What hardship will be caused to Property Holdings by the refusal of an order? And, what hardship will be caused to Ms Petherbridge by making an order for sale or purchase? This comparative exercise lies at the heart of this proceeding.[77] "Hardship" connotes an adverse effect which will be of significant impact upon the particular co-owner.27 Property Holdings submitted that in assessing hardship the starting point is its 90.85% interest in the property. Indeed, counsel submitted that in assessing relative hardship the Court could not ignore a dominant ownership share and Property Holdings' reasonable wish to realise the value of its asset, as compared to Ms Petherbridge's assertion that her amenity interests somehow outweigh Property Holdings' interest. The whole property was valued at$2.7 m in July 2013, if sold for redevelopment. At the same time the valuer,27 Holster v Grafton, above n 23, at [52].Mr Reid, reported that unit D sold on a standalone basis and "without considerationof any redevelopment potential" was worth $220,000.[78] In March 2012, after the failure to achieve the pre-sales required to enable the redevelopment to proceed, Property Holdings offered its eight units for sale through a Queenstown real estate agent. The listing noted that "of the existing nine titles,eight are being offered for sale with a redevelopment agreement in place with theone additional owner". The property was said to represent a unique opportunity to develop a world class multi-unit development at a prime location, with resource consent and plans already approved. Mr Smallbone deposed that over the next 12 months there were a reasonable number of enquiries and site visits, but no offers resulted.[79] In the meantime, in May 2012, Property Holdings made an offer to purchase unit D from Ms Petherbridge for $245,000 or, alternatively, to pay her 9.15% of the net sale proceeds if the whole property was sold. In January 2013 an increased offer of $274,500 was made, coupled with an agreement to pay Ms Petherbridge 9.15% of any excess over $3m received from a sale of the property within the following 12 months. None of the proposals found favour.[80] In the result, by the time Property Holdings filed this proceeding in August 2013 it faced a situation of deadlock. It could not negotiate a settlement with Ms Petherbridge, including by subdividing a lot and building a unit on a roadside corner of the site. Nor could Property Holdings sell its interest in the other eight units. The directors consider that Ms Petherbridge's unit, situated near the centre of the site, is a major impediment to both the sale of the land and its redevelopment. Despite its dominant ownership share, the Company can neither realise its equity, nor redevelop and put the land to its highest and best use.[81] The case for Ms Petherbridge involved a rather different emphasis. Both parties purchased unit titles in a unit plan development. This ownership model was not thrust upon them, rather something they knowingly entered into. The parties became neighbours in a property development, under a legal framework designed to make for a socially and economically sustainable community of owners. Although ademocratic model, Ms Petherbridge enjoyed the protections afforded to minority owners under the Act. Redevelopment of the property, if required, should have proceeded in terms of the Act.[82] Lake Hayes has been an important place for the Petherbridge family for many decades. For over 30 years Ms Petherbridge has owned unit D. She deposed thatshe "currently visits Lake Hayes about four times a year. The unit is also used by friends and family at least a further four times during the year". She regards thesurroundings as inspirational and the amenities of unit D as well suited to her needs. The unit is compact, but she has the use of extensive common property. She enjoys commanding views of, and easy access to, Lake Hayes. The location is convenient,being a few minutes' drive to Arrowtown and a short drive to Queenstown.[83] Even were she to receive the true market value for her unit, this sum would not enable Ms Petherbridge to purchase a comparable property elsewhere within the general area. The only acceptable compromise from Ms Petherbridge's perspectiveis that she is relocated to a lot on the south-western lakeside corner of the site in a new accommodation unit. She is prepared to meet the cost of the construction of the unit, if Property Holdings provides the lot, the necessary easements and forms the right of way and building platform.[84] Ms Petherbridge does not accept that Property Holdings has tested the market in relation to selling its interest share, or at least that there is evidence to establish this. The evidence does not show whether the eight units were offered for sale individually or as a whole, at what price and on what terms and conditions. The property was marketed for 12 months from March 2012, but the market has not been tested over the past 15 months. This is significant, given that the local valuers are in agreement that the market has shown gradual improvement from month to month over this period. Hence, Property Holdings should have properly tested the market in the present environment before seeking orders to purchase, or for the sale of, the property.[85] Central to Ms Petherbridge's argument is the proposition that the purchase of unit D, or an order for sale, will defeat her property rights. Property Holdingsacquired the eight other units aware of the risks it took in doing so. It also knew of Ms Petherbridge's agreement, perhaps insistence, that she receive a unit in the proposed development. Now that the proposed development has failed, Property Holdings seeks to dispossess Ms Petherbridge of her property rights to maximise its commercial return.Evaluation – conclusions[86] I am satisfied that the parties are deadlocked. I do not accept the contention that it is premature to make orders under s 339 because the current market has not been tested. Realistically, Property Holdings can only market the property on the same basis as was employed in 2012-2013. It is essential to sell their entire holding, or nothing. To sell the units piecemeal, and run the risk of selling some units and not others, would make no commercial sense. Given their present condition, I consider it unlikely that the units would be saleable to individual purchasers. Moreover, I think the only commercially sensible course is to offer the whole property for sale as a redevelopment proposition. Otherwise, unit D presents as an impediment to selling the property at all, or at least selling it for a reasonable price.[87] To achieve this would require that Ms Petherbridge's property rights besacrificed, whichever form of order is made. I accept that imposing an order which defeats the property rights of a co-owner should not be done lightly. It is a step of last resort.[88] Here, however, the interest in terms of the whole property is small. It was acquired in 1983 as a unit title. Ms Petherbridge became a minority owner and must have been aware that at some point a majority of the unit owners might favour redevelopment and on a basis with which she disagreed. This was always a potential consequence of acquiring an interest in a unit title development. Thirty years on, she must face this unpalatable reality. In my view, a personal identification with the area and even a love of the property based on a 9.15% share cannot prevail at the expense of the interest of the majority owner. Also, preservation of the 9.15% share would perpetuate the deadlock.[89] I am also influenced by the nature of Ms Petherbridge's usage of her unit.Were it her permanent home and if she would be unable to adequately re-house herself as a consequence of an order for purchase or sale, the outcome could well have been different. But, despite the undoubted enjoyment which her time at Lake Hayes provides, the fact is that she makes about four visits per year, as do family and friends. Put bluntly, this level of usage is slight when viewed in the context of the present and likely future usage of the property as a whole[90] For these reasons, I am well satisfied that an order for sale, or purchase, must be made. I turn to which type of order is most appropriate.An order for sale or purchase?The evidence[91] Property Holdings favours an order requiring purchase. In that event, it wishes to honour the offer first made to Ms Petherbridge in January 2013. This was to pay $274,500, together with a side agreement that if the property is sold within 12 months for a sum greater than $3m Ms Petherbridge would receive 9.15% of the excess. An updated valuation report prepared by Mr Douglas Reid assessed the current market value of unit D to be $220,000. Mr Reid also provided a report, dated 6 May 2014, in which he valued the property, if held in single ownership and sold for redevelopment, at $2.7m. Ms Petherbridge's share would be $247,050, before deduction of sale costs.[92] Ms Petherbridge did not adduce evidence concerning the fair and reasonable market price of unit D. Instead, Mr Higgins provided a valuation report dated 19 May 2014 in which he expressed the opinion that the cost of an equivalent property to Unit D would be $365,000. This figure was not arrived at on a willing buyer/willing seller basis. Rather, Mr Higgins assessed the cost of a comparable replacement property, offering similar amenity values and situated in the same general locality.[93] Mr Higgins considered that the most comparative properties were apartments in a proposed development facing the Frankton Arm of Lake Wakatipu. Thedevelopment, Residence du Lac, included units ranging in size from 40m2 to 71m2. Five of the smallest units have been sold off the plans for prices ranging from $295,000 to $345,000. Mr Higgins extrapolated a comparable value figure of $365,000 for unit D. He considered that although the units in Residence du Lac will be of modern construction and have modern fittings, this "difference" was offset by the superior location, westerly aspect and winter sunshine hours enjoyed by unit D. The $365,000 comparable value figure also reflected some gradual improvement in the property market over recent months.The submissions[94] I sought and received further submissions from counsel concerning the valuation evidence. Both parties accepted that "a fair and reasonable price" ins 339(1)(c) connotes a conventional willing buyer/willing seller market value. Property Holdings submitted that its offer to pay $274,500 was considerably in excess of a fair and reasonable price, given the current valuation for unit D of $220,000.[95] Ms Petherbridge, however, submitted that a s 339(1)(c) value was not the end of the matter; "the Court should look to make an order to compensateMs Petherbridge for the windfall [to Property Holdings] and the hardship she willface". Section 343 was invoked by which the Court can make a further order in addition to an order under s 339(1). Such order may require payment of compensation to a co-owner, fix a reserve price, direct how sale expenses are to be borne, direct how sale proceeds are to be divided, require payment of fair occupationrent, or direct anything else that the "Court considers necessary or desirable as a consequence of the making of the order under s 339(1)".[96] Here, counsel contended that Property Holdings stand to receive a "windfall gain" as a result of being able to sell the whole property as a redevelopment site.That is, the site sold as a whole is considered to be worth $2.7m, whereas Mr Reidvalued unit D at $220,000, suggesting that the "mathematical" value of all nine unitswas approximately $2.4m. Hence, the "windfall gain" was $300,000. Secondly,counsel argued that s 343 enabled the Court to compensate Ms Petherbridge for thehardship she will face, given that the cost of a comparable replacement apartment will be $365,000.Evaluation – conclusions[97] I seriously doubt that s 343 is a vehicle to make a further order of the kind sought by Ms Petherbridge. Section 339(1)(c) contemplates a co-owner receiving a fair and reasonable price for their share in the property. This is the basic entitlement. In my view s 343 enables ancillary orders to be made where in justice some adjustment is required as between the co-owners, whether arising following a petition or a sale. Despite the broad terms of the section, I do not read it as contemplating payment of compensation over and above payment of the fair market price. But it is not necessary to define the bounds of the section in this case.[98] The market value of unit D is $220,000. Property Holdings remains prepared to pay $274,500, plus 9.15% of the excess should the property sell within 12 months for more than $3m. Given the intrinsic value of unit D, this is a good offer.Result[99] I make a declaration authorising the cancellation of the unit plan for the property of 3055m2 at 25 Arrowtown-Lake Hayes Road. Should any further conditions or directions be required to give effect to this declaration, leave is reserved for such to be sought pursuant to s 188(3) of the Unit Titles Act 2010.[100] I also make an order pursuant to s 339(1)(c) of the Property Law Act 2007 requiring Property Holdings to purchase the 9.15% share of Ms Petherbridge in the property for the sum of $274,500. Further, I order that Property Holdings is to pay Ms Petherbridge 9.15% of the excess if the property is sold within 12 months for a sum greater than $3m.[101] Costs are reserved. If the parties cannot reach an accommodation, memoranda may be filed.Solicitors:Wynn Williams, ChristchurchGallaway Cook Allan, Dunedin