FRASER V BODY CORPORATE S636621 HC AK CIV 2008-470-772

FRASER V BODY CORPORATE S636621 HC AK CIV 2008-470-772

Because the scheme could not be implemented within the contemplated timeframe due to the applicants' inability to proceed (costs award, recession and market slowdown), and there was no opposition to cancellation, the court exercised its unqualified discretion under s48(6) Unit Titles Act 1972 to cancel the order...

Source-derived case information.

Citation
openlaw-8130f38e_8318_4dfc_9a75_e9f50e61c10d.pdf
Parties
First Applicant: Wendy Janet Fraser; First Applicant: Peter Allen Lewis; Second Applicant: Ian Luke Dustin; First Respondent: Body Corporate S636621; Second Respondents: Bruce Sidney Ingram and Others
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 February 2011
Procedural Posture
Application Under Unit Titles Act 1972 to Cancel Approved Scheme / Judgment on Application to Cancel Approved Scheme (final)
Outcome
Order cancelling the order approving the unit titles scheme; no order as to costs; order sealed with effect from 1 July 2010.
Legal Topics
Scheme Cancellation, S48(6) Unit Titles Act 1972, Judicial Discretion, Implementation Delay
Property Law Unit Titles Act Civil Procedure Scheme Cancellation S48(6) Unit Titles Act 1972 Judicial Discretion Implementation Delay

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Summary, issues, holding and outcome

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Parties

Wendy Janet Fraser

First Applicant

Peter Allen Lewis

First Applicant

Ian Luke Dustin

Second Applicant

Body Corporate S636621

First Respondent

Bruce Sidney Ingram and Others

Second Respondents

Procedural Posture

Application Under Unit Titles Act 1972 to Cancel Approved Scheme / Judgment on Application to Cancel Approved Scheme (final)

Legal Issues

  1. 1 Whether the court should cancel an approved unit titles scheme under s48(6) Unit Titles Act 1972
  2. 2 Whether changed circumstances (costs award, recession, property market slowdown) that prevent demolition and rebuilding justify cancellation
  3. 3 Whether there is any point in the scheme remaining in place

Ratio Decidendi

Because the scheme could not be implemented within the contemplated timeframe due to the applicants' inability to proceed (costs award, recession and market slowdown), and there was no opposition to cancellation, the court exercised its unqualified discretion under s48(6) Unit Titles Act 1972 to cancel the order approving the scheme.

Court Disposition

Order cancelling the order approving the unit titles scheme; no order as to costs; order sealed with effect from 1 July 2010.

Orders

  • Order cancelling the order approving the scheme.
  • No order as to costs.