Body Corporate Number 81365 v Halse [2015] NZHC 1388 (18 June 2015)

High Court of New Zealand

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Body Corporate Number 81365 v Halse [2015] NZHC 1388 (18 June 2015)

Last Updated: 10 July 2015

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2015-419-060 [2015] NZHC 1388

UNDER	the Unit Titles Act 2010
IN THE MATTER	of an application for approval of a scheme pursuant to section 74
BETWEEN	BODY CORPORATE NUMBER 81365 Applicant
AND	ALLAN GEOFFREY HALSE First Respondent Continued over.....

Hearing:	17 June 2015
Appearances:	N J Edwards for the Applicant No appearance for the Respondents
Judgment:	18 June 2015

_{JUDGMENT OF ELLIS J}

This judgment was delivered by me on Thursday 18 June 2015 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:...............................

Counsel/Solicitors:

N J Edwards, Whitfield Braun Limited, Hamilton

Copies to:

Second Respondent (S A Hollis)

Eighteenth Respondent (Westpac New Zealand Limited

BODY CORPORATE NUMBER 81365 v HALSE [2015] NZHC 1388 [18 June 2015]

TIMOTHY PAUL BLUNDELL AND SHARON ANN HOLLIS

^{Second Respondents}

EMANUELE AND RACHEL JANET PISCIARELLI

^{Third Respondents}

SASI REHKA GANGARAJU Fourth Respondent

BRUCE JOHN BUXTON Fifth Respondent

BRUCE NORMAL VERNALL Sixth Respondent

EMMA KATHLEEN CIARDELLI Seventh Respondent

JANINE FRANCES GILMORE Eighth Respondent

LESLEY ANNE AND RICHARD MARK SMITH

^{Ninth Respondent}

SUSAN DOUGLAS AND PAMELA WAHLERS

^{Tenth Respondent}

TONY TE TAHIWI MAGNER AND YING QUI

^{Eleventh Respondent}

CLINTON CLIFFORD ARMSTRONG AND BRIDGET ESLII KERR

^{Twelfth Respondent}

JOHN PETER NILSEN Thirteenth Respondent

GINGER CAT INVESTMENTS LIMITED

^{Fourteenth Respondent}

ANZ BANK NEW ZEALAND LIMITED

^{Fifteenth Respondent}

KIWIBANK LIMITED Sixteenth Respondent

BANK OF NEW ZEALAND Seventeenth Respondent

WESTPAC NEW ZEALAND LIMITED

^{Eighteenth Respondent}

ASB BANK LIMITED Nineteenth Respondent

ANNE SELWYN BROWN, JAMES PETER RYAN AND WILLIAM BROWN

^{Twentieth Respondent}

[1] The applicant has filed an originating application for orders pursuant to s 74 of the Unit Titles Act 2010 settling a scheme of arrangement following water ingress damage to a unit titled development at 65 Pembroke St, Hamilton.¹ The evidence of Mr Allan Halse filed in support of that application disclosed, however, that there had been some opposition to the proposed scheme by some of the respondents when the issues were raised and discussed at Body Corporate meetings.

[2] The application was first called before Associate Judge Sargisson on 20 April

2015. At that appearance the applicant noted that service had been effected on all respondents and that no opposition has been filed. A determination on the papers was sought. Judge Sargisson referred the file to a High Court Judge, accordingly.

[3] As it transpired, however, on the same day Ms Sharon Hollis (one of the second respondents and also the proxy for two other respondents) wrote an email to the Court raising concerns with aspects of Mr Halse’s affidavit and the draft scheme. On 20 May 2015 Woolford J directed that that email be forwarded to the applicant and that:

(a) The applicant was to file a response by 29 May 2015;

(b) The matter was to be placed again in the chambers list on 3 June

2015.²

[4] Woolford J said:

If Ms Hollis wishes to formally oppose the application, she should attend the chambers hearing in person or by counsel.

[5] Following receipt of Ms Hollis’ memorandum, Mr Halse contacted Ms Hollis to discuss her concerns. He has deposed that Ms Hollis made it clear that her

_{concern was not with the draft scheme itself but with comments made in a particular}

¹ _{As contained in deposited plan DPS 81365.}

2. The 3 June date later changed to 17 June. It was on that basis that the s 74 application came before me yesterday.

paragraph of Mr Halse’s 17 February 2015 affidavit, in which he expressed views about aspects of the historical opposition to the proposed remediation and scheme.

[6] Ms Hollis subsequently emailed Mr Halse saying that she intended to advise the Court that:

(a) if paragraph 23 were to be removed from Mr Halse’s affidavit, that would address her concerns about the (in)accuracy of the court record; and

(b) she did not wish to appear on 17 June 2015 or to formally oppose the draft scheme.

[7] Ms Hollis emailed the Court confirming her position on 1 June. Notably, she said:

I do not oppose the section 74 scheme and believe that it will be of benefit to all owners of Pembroke St to have the scheme approved.

[8] Mr Halse has since re-sworn his earlier affidavit with the offending paragraph removed.

[9] There is, accordingly, no relevant opposition to the scheme. On 17 June 2015 the applicant sought the orders contained in the originating application dated 10

March 2015.

[10] Mr Halse has deposed that the complex continues to deteriorate and that the applicant needs to be in a position to remediate the units as soon as the weather is favourable. He says that this is not possible (and, indeed, the necessary building consent cannot even be obtained) unless and until a scheme is settled, due essentially to the difficulties posed by the present demarcation between common and private property. The proposed scheme would enable the Body Corporate to effect (or to cause to have effected) repairs to private property and to recover the costs of so doing on a rational and defensible basis.

[11] In my view there is no doubt that the complex is damaged, remediation is urgently required and that the Scheme is necessary for that to proceed in an orderly and effective way. It is relevant that the proposed scheme is materially the same as other schemes that have, on previous occasions, been approved by this Court.

[12] In terms of s 74, therefore, I am satisfied that a Scheme which, in draft form, is annexed as exhibit “R” to Mr Halse’s affidavit dated 12 June 2015 should be settled. I order accordingly.

[13] Mr Halse’s earlier affidavit dated 17 February 2015 is to be removed from the

_{Court record.}

Rebecca Ellis J