Body Corporate 073471 v Dynasty Hotel Investments Limited [2014] NZHC 1209 (30 May 2014)

Last Updated: 3 July 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2012-409-2724 [2014] NZHC 1209

UNDER	Unit Titles Act 2010
BETWEEN	BODY CORPORATE 073471 Applicant
AND	DYNASTY HOTEL INVESTMENTS LIMITED AND ORS Respondents

Hearing:	30 May 2014 (On the papers)
Appearances:	D Nicholson for Applicant
Judgment:	30 May 2014

_{JUDGMENT OF MANDER J}

[1] On 17 May 2013, Miller J made orders giving effect to a scheme under s 74 of the Unit Titles Act 2010. The scheme which concerns the Heritage Hotel Tower and car park building at 24 Cathedral Square, Christchurch, had been unanimously approved at an extraordinary general meeting of the applicant body corporate. The background to the scheme and the originating application are set out in Miller J’s judgment.

[2] By memorandum of counsel for the applicant, a request is made for further orders to assist in the implementation of the final stages of the scheme which will take place upon settlement of the sale and purchase agreement. Those steps are as follows:

(a) The Tower units and the AU car park units will be transferred to the common property of the body corporate;

_{(b) The AU car park units will become principal units;}

BODY CORPORATE 073471 v DYNASTY HOTEL INVESTMENTS LIMITED AND ORS [2014] NZHC

1209 [30 May 2014]

(c) The underlying land described in the unit plan will be subdivided to create a fee simple title over the Tower land.

(d) The Tower land and the AU car park units (which will have become principal units) will be transferred from the body corporate to the purchaser.

[3] One of the orders made by Miller J on 17 May 2013 was that, “Directions be given to the Registrar-General of Land enabling it to take such steps as are necessary to give effect to the Scheme”.

[4] Since the orders of Miller J, the applicants’ solicitors have had extensive correspondence with LINZ to determine what, if any, further orders the Registrar- General of Land would require to enable it to implement the steps described in the scheme. LINZ has now agreed on a set of orders that provides the level of detail and comfort required to undertake the final steps in the scheme. The Registrar-General is satisfied that these orders are appropriate. They are set out in Appendix A to counsel’s memorandum and for convenience are annexed to this judgment.

[5] The proposed orders give the Registrar-General guidance and authority in respect of steps described in the scheme. Counsel informs that they relate to matters of detail and are of a technical nature relating to process and procedures as opposed to substantive outcomes. While there are provisions in the Unit Titles Act which set out the processes that usually apply there is a concern that such processes may not have application where the transfer/redevelopment has been ordered under s 74. Subsection (7) however provides the Court with the ability to provide appropriate guidance to the Registrar-General by making orders that it considers expedient or necessary for giving effect to the scheme.

[6] The additional orders are intended to provide clarity and a clear basis for the Registrar-General’s authority to undertake the steps necessary to finalise this scheme. The additional orders do not alter the content or effect of the scheme. As with the originating application, there is no opposition to what is being sought.

[7] Having read counsel’s memorandum detailing the purpose and rationale for the orders sought, I am satisfied that it is expedient or necessary in order to give effect to this scheme that such orders as proposed be made. Accordingly, there will be orders in terms of Appendix A to counsel for the applicant’s memorandum and as annexed to this judgment.

[8] Counsel has also requested that the Court confirm that the original orders made by Miller J and these additional orders be sealed in the form attached as Appendix C to counsel’s memorandum. Having viewed the draft order for settlement of scheme, I confirm that the orders of the Court may be sealed in the form of that draft document.

Solicitors:

Duncan Cotterill, Auckland