BODY CORPORATE 203267 V LESLIE & ORS HC AK CIV 2009-404-006217 [2009] NZHC 1373 (5 October 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                          CIV
2009-404-006217


                IN THE MATTER OF                the Unit Titles Act 1972

                BETWEEN             
           BODY CORPORATE 203267
                                                Applicant

                AND                 
           THOMAS LESLIE
                                                First Respondent

                AND                  
          CHADWICK HOUSE LIMITED
                                                Second Respondent

                AND         
                   NICOLE PAMELA SMITH
                                                Third Respondent

                AND    
                        ELIZABETH PANLILIO POLINES AND
                                                MARK DADOR POLINES; LAURA
                                                DANGANAN PANLILIO AND JUANITO
                                                PANLILIO
                                                Fourth Respondents


Hearing:        on the papers

Counsel:        M A E Sullivan
for applicant

Judgment:       5 October 2009 at 4:00pm


                 JUDGMENT OF ASSOCIATE JUDGE ABBOTT



               
     This judgment was delivered by me 5 October 2009 at 4:00pm,
                             pursuant to Rule 11.5 of the High Court
Rules.



                                     Registrar/Deputy Registrar




Solicitors:
Jackson Russell, PO Box 3451, Auckland
for applicant



BODY CORPORATE 203267 V LESLIE & ORS HC AK CIV 2009-404-006217 5 October 2009

AND   GARY IAN HOGG and
      CHARLOTTE
HOGG
      Fifth Respondents

AND   XINRUI WANG
      Sixth Respondent

AND   BING WEI and XIAOLING HUANG
      Seventh Respondents

AND   KEVIN JAMES GREEN, CHRISTINE
      MARGARET GREEN and JACKSON
      RUSSELL TRUSTEE SERVICES
      LIMITED
      Eighth Respondents

AND   GRANT JAMES KILKOLLY
      Ninth Respondent

AND   JAMES ALEXANDER HYSLOP
      Tenth Respondent

AND   PENG DU
      Eleventh
Respondent

AND   J & J PROPERTY INVESTMENTS
      LIMITED
      Twelfth Respondent

AND   CHARLES BRUMPTON COOPER and
      SYLVIA
BUARQUE SCHILLE-COOPER
      Thirteenth Respondents

AND   CLINTON TREVOR WURM and
      VICKI ELIZABETH NIETHE-WURM
      Fourteenth
Respondents

AND   TIANG YANG and WEI LIU
      Fifteenth Respondents

AND   CAROLYN JOY BROWN
      Sixteenth Respondent

AND  
JOHN CHRISTOPHER HOOD and
      MICHELLE CLARE HOOD
      Seventeenth Respondents

AND   NAZEEMA BANU IBRAHIM and
      NAINA MOHAMED
JAHANGIR
      Eighteenth Respondents

AND   ANZ NATIONAL BANK LIMITED
      Nineteenth Respondent

AND   WESTPAC NEW ZEALAND LIMITED
      Twentieth Respondent

AND   KIWIBANK LIMITED
      Twenty-first Respondent

AND   ASB BANK LIMITED
      Twenty-second Respondent

AND   BANK OF NEW ZEALAND
      Twenty-third Respondent

AND   IAG NEW ZEALAND LIMITED
      Twenty-fourth Respondent

AND   DISTRICT
LAND REGISTRAR
      Twenty-fifth Respondent

[1]    The applicant is a Body Corporate established under the Unit Titles Act 1972
in respect of a unit title development at 30 John Jennings Drive, Albany.


[2]    The applicant has applied without notice for leave
to bring an originating
application under Part 19 of the High Court Rules. The applicant wishes to settle a
scheme under s 48 Unit
Titles Act 1972 for the repair of both common and private
property in the development.


Background


[3]    The development at 30
John Jennings Drive, Albany comprises 18 principal
residential units in three separate stand-alone blocks. Each block comprises a
two-
storey building containing between five and seven units. The units were constructed
with a combination of two types of fibre
cement sheet cladding systems. They have
been found to suffer from a number of serious building defects, allowing serious
water ingress
and resultant damage. The applicants' building experts advise that the
cladding will need to be removed. The proprietors of the units have agreed that the
Body Corporate
(the applicant) should undertake the repair work.


[4]    The Body Corporate is required to apply for approval of a scheme under
s 48
of the Unit Titles Act 1972 because the water ingress problems require repairs to
both common and private property. This has
raised a question over the Body
Corporate's authority to undertake repairs to private property and levy proprietors
for that cost.
The scheme is designed to address that issue.


[5]    The secretary of the Body Corporate has sworn an affidavit in support of the
application. She states that a substantial majority of existing proprietors (15 out of
the 18) attended an extraordinary general
meeting on 3 August 2009, and
unanimously approved other proposed scheme and resolved to bring this application.
She has also given
evidence that all 18 proprietors were given notice of that meeting.

Leave to bring by originating application


[6]    The High
Court Rules provide (rr 19.2 ­ 19.4) expressly for certain
proceedings to be brought by way of originating application, but also
allow for
others to be brought by leave of the Court (r 19.5). An application under s 48 Unit
Titles Act 1972 is not a proceeding
expressly authorised to be brought under Part 19.


[7]    The principal criterion for deciding whether to grant leave to bring a
proceeding under Part 19 is whether it is in the interests of justice to do so. The
procedure is intended to provide expediency where
a substantive application is
unlikely to be opposed: Jones v H W Broe Limited  (1989) 5 PRNZ 206, 207. It is
also now regarded as intended to have wide application where the interests of justice
so require: CIR v McIlraith (HC
HAM M 162/02, 19 February 2003, Randerson J).
there is precedent for using the procedure for applications under s 48 of the Unit
Titles Act 1972 Body Corporate 322588 v K Mitchell Investments Limited (HC AK
CIV 2008-404-001155, 10 March 2009, Robinson AJ); Body
Corporate 205963 v
Beca & Ors (HC CIV 2009-404-006017 17 September 2009, Faire AJ).


[8]    I am satisfied that the substantive
application is unlikely to be opposed.
Although 3 of the 18 unit owners did not attend the extraordinary general meeting,
they were
served and I infer, at the least, they were willing to abide the decision of
the meeting.


[9]    I am also satisfied that it is
in the interests of all owners to endeavour to
establish the scheme, and that the simplified originating application procedure is
appropriate.


[10]   I also accept, in light of the notice given and the decisions of the majority of
the unit owners that this
is an appropriate matter to determine on application made
without notice.

Directions as to service


[11]    The applicant also
seeks directions as to service.         It proposes that the
proceeding be served on the 18 unit owners, the registered mortgagees,
the insurer of
the buildings in the development and the District Land Registrar, together with any
subsequent proprietors, mortgagees
or caveators.


[12]    I accept that this will bring the application to the attention of all parties with
an existing or potential
interest in the property in the development or the proposed
scheme of arrangement.


Decision


[13]    I make the following orders
as sought in the application dated 18 September
2009:


        a)     That the applicant has leave to bring an application for orders
settling
               a scheme under section 48 of the Unit Titles Act 1972 as an
               origination application under
Part 19 of the High Court Rules.


        b)     That the applicant be deemed to have served all interested parties in
        
      this proceeding by serving the Court documents and pleading on the
               respondents named herein together with any
subsequent proprietors
               and their mortgagees and caveators.


        c)     Reserving the costs of this application.




                                                               ____________________
                                        
                      Associate Judge Abbott