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High Court of New Zealand Decisions |
Last Updated: 22 September 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-002314 [2016] NZHC 2083
BETWEEN
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BODY CORPORATE 204299
First Applicant
IAN WALTER SAYER and
DORIS SAYER Second Applicants
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AND
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JEREMY KANE WHYTE AND OTHERS First and Subsequent Respondents
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On the papers
|
|
Judgment:
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2 September 2016
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JUDGMENT (NO. 2) OF HINTON J
This judgment was delivered by me on 2 September 2016 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules
..............................................................................
Registrar/Deputy Registrar
Counsel/Solicitors:
J Heatlie and J M Wood, Rainey Law, Auckland
D Bigio QC, Auckland
L Fry-Irvine, Pidgeon Law,
Auckland
BODY CORPORATE 204299 v WHYTE AND OTHERS [2016] NZHC 2083 [2 September 2016]
[1] The Greenwich Park Body Corporate is wishing to settle a scheme of
repair under s 74 of the Unit Titles Act 2010.
[2] In my judgment of 31 May 2016, I declined to approve the
scheme promulgated by the applicants (the applicants’
initial
scheme).
[3] The respondents had promoted an alternative scheme, which was
attached as schedule C to a joint memorandum of counsel filed
on 30 March
2016.
[4] By consent memorandum dated 16 August 2016, counsel advise that
the applicants and respondents have agreed to the respondents’
scheme
being adopted, but with the deletion of clause 10.2. The final agreed scheme,
which was attached to the 16 August 2016 consent
memorandum, is attached as
Schedule One to this judgment.
[5] I declined to approve the applicants’ initial scheme, as it
departed from the Act and rules more than was reasonably
necessary to achieve
what is fair between unit owners, and therefore did not comply with s 74. The
departure from the Act was the
treatment of 20 common property walls as unit
property.
[6] I noted that the applicants’ initial scheme otherwise
qualified for approval
under s 74.
[7] Counsel now jointly submit that the scheme attached as
Schedule One satisfies s 74, as it treats the 20 common
property walls as
common property, not unit property, and this is reflected in RCAP percentages in
schedule 2 of the agreed scheme.
In calculating the repair cost estimates for
all individual units, the total repair costs for the 20 common property walls
have
been allocated across all units in the complex, using utility interests.
This addresses the deficiency in the applicants’
initial
scheme.
[8] I agree that the scheme now submitted satisfies s 74 and therefore make an order settling a scheme for the reinstatement of the buildings comprising the unit property and common property in Body Corporate No. 204299, pursuant to s 74 of
the Unit Titles Act 2010, the terms of which scheme are set out in Schedule
One to this judgment.
[9] I note that the issue of costs has been resolved between the parties, so
no further order is required in that
regard.
------------------------------------------------------ Hinton J
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URL: http://www.nzlii.org/nz/cases/NZHC/2016/2083.html