Fraser v Body Corporate S636621 HC Auckland CIV 2008-470-772 [2011] NZHC 93 (11 February 2011)

Last Updated: 24 May 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV 2008-470-772}

UNDER UNIT TITLES ACT 1972

BETWEEN WENDY JANET FRASER AND PETER ALLEN LEWIS

First Applicant

AND IAN LUKE DUSTIN Second Applicant

AND BODY CORPORATE S636621

First Respondent

AND BRUCE SIDNEY INGRAM AND OTHERS

Second Respondents

Hearing: (on the papers)

Counsel: G Brittain for First Respondent

J McTavish Butler for First Applicant

No appearance by, or on behalf of Second Applicant or Second

Respondents

Judgment: 11 February 2011

_{JUDGMENT (NO. 4) OF HEATH J}

This judgment was delivered by me on 10 February 2011 pursuant to Rule 11.5 of the High Court

Rules

Registrar/Deputy Registrar

Solicitors:

Grimshaw & Co, PO Box 6646, Auckland

Holland Beckett, Private Bag 12011, Tauranga

Counsel:

_{G Brittain, PO Box 13-473, Tauranga}

FRASER V BODY CORPORATE S636621 HC AK CIV 2008-470-772 11 February 2011

[1] As a result of a judgment I gave on 12 March 2010,[1] I finalised the form of a scheme under s 48 of the Unit Titles Act 1972, on the application of Ms Fraser and Mr Lewis, supported by Mr Dustin.

[2] I am advised that due to the quantum of the costs award made against the applicants, the impact of the financial recession and the slowing of the property market means that demolition of the house and commencement of rebuilding cannot occur within the times contemplated by the approved scheme.

[3] Body Corporate S62621 applies to cancel the scheme. No order as to costs is sought. There is no opposition to cancellation advanced by counsel for the first applicants.

[4] Mr Dustin, who supported the proposed scheme and was represented at the earlier hearings by the same counsel as Ms Fraser and Mr Lewis, has not sought to be heard on the application for cancellation. While Mr Brittain has filed the application on behalf of Body Corporate S62621, other unit owners making up the second respondents have supported the Body Corporate’s stance; indeed, the Body Corporate acted on their views, through its committee.

[5] In the circumstances, I consider that an order cancelling the scheme should be made. Jurisdiction to make such an order is conferred by s 48(6) of the Act. The discretion to cancel is expressed in unqualified terms. On the information available to me, there is no point in the scheme remaining in place and it ought to be

_cancelled.

[6] I make an order cancelling the order approving the scheme.2 No order as to

_costs.

_{P R Heath J}

_{Delivered at 4.00pm on 10 February 2011}

2 The order was sealed with effect from 1 July 2010.

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[1] Fraser v Body Corporate S63621 (No 3) HC Tauranga CIV 2008-470-772, 12 March 2010; see also

Fraser v Body Corporate S63621 HC Tauranga CIV 2008-470-772 2009, 10 September 2009.