FRASER AND ANOR V BODY CORPORATE S63621 AND ANOR HC TAU CIV 2008-470-772

FRASER AND ANOR V BODY CORPORATE S63621 AND ANOR HC TAU CIV 2008-470-772

The amended s48 scheme was approved because it was sufficiently specific, confined to the building envelope, addressed the common good and the particular proprietor's remediation need; the Court imposed specific amendments (planning/building consent timetable, exterior colour approval process, repair of common property at proprietor's cost, personal non-assignability until completion) as necessary to give effect to the scheme; costs up to 2 July 2009 were awarded to the Body Corporate on a 2C basis, with no order for subsequent costs.

Citation
openlaw-14620c83_7550_41cb_b4d4_dd61f4433d40.pdf
Parties
First Applicant: Wendy Janet Fraser; First Applicant: Peter Allen Lewis; Second Applicant: Ian Luke Dustin; First Respondent: Body Corporate S63621; Second Respondent: Bruce Sidney Ingram and Others
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 March 2010
Procedural Posture
Application Under Unit Titles Act 1972 S48 / Oral Judgment Approving Amended Scheme and Determining Costs
Outcome
Amended s48 scheme approved with specified amendments; costs to Body Corporate against applicants for period up to 2 July 2009 on a 2C basis; no order as to costs for the remainder; applicants to file draft order by specified date.
Legal Topics
S48 Scheme Approval Under Unit Titles Act, Demolition and Partial Reconstruction of Unit, Allocation of Costs
Property Law Building Law Civil Procedure S48 Scheme Approval Under Unit Titles Act Demolition and Partial Reconstruction of Unit Allocation of Costs

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Parties

Wendy Janet Fraser

First Applicant

Peter Allen Lewis

First Applicant

Ian Luke Dustin

Second Applicant

Body Corporate S63621

First Respondent

Bruce Sidney Ingram and Others

Second Respondent

Procedural Posture

Application Under Unit Titles Act 1972 S48 / Oral Judgment Approving Amended Scheme and Determining Costs

Legal Issues

  1. 1 Whether the Court should approve an amended s48 scheme for partial demolition and reconstruction of Unit 10
  2. 2 Which terms and conditions are necessary or expedient to give effect to the approved scheme
  3. 3 Allocation of costs between parties for distinct phases of the proceeding

Ratio Decidendi

The amended s48 scheme was approved because it was sufficiently specific, confined to the building envelope, addressed the common good and the particular proprietor's remediation need; the Court imposed specific amendments (planning/building consent timetable, exterior colour approval process, repair of common property at proprietor's cost, personal non-assignability until completion) as necessary to give effect to the scheme; costs up to 2 July 2009 were awarded to the Body Corporate on a 2C basis, with no order for subsequent costs.

Court Disposition

Amended s48 scheme approved with specified amendments; costs to Body Corporate against applicants for period up to 2 July 2009 on a 2C basis; no order as to costs for the remainder; applicants to file draft order by specified date.

Orders

  • Amended scheme approved with the alterations specified in the judgment and with plans annexed to the court order
  • Applicants to file a draft order finalising terms by 5pm on 19 March 2010; order to be expressed as pronounced on 12 March 2010