The Supreme Court has rejected an appeal by 5 of the 22 owners of the Bridgewater Bay block of apartments in Paihia who opposed a comprehensive repair that the majority wanted.
The 5 applicants contended that the comprehensive $3 million repair estimated by the body corporate was outside the powers of the body corporate under the Unit Titles Act 2010 and that only targeted repairs to some units were necessary.
The 5 owners lost their case in the High Court and on all 6 grounds in the Court of Appeal. They wanted to contest the decisions on 5 of the 6 grounds.
The first of those 6 grounds concerned the relationship between 2 sections of the Unit Titles Act, sections 138(1)(d) & 80(1)(g). Section 138(1)(d) requires a body corporate to repair & maintain “any building elements & infrastructure that relate to or serve more than one unit”. Section 80(1)(g) requires an owner of a unit to repair & maintain the unit to ensure that no damage or harm is or has the potential to be caused to the common property, any building element, any infrastructure, or any other unit in the building.
The Supreme Court said: “The applicants wish to argue that the latter takes priority over the former and that, on the facts of the present case, that means that they as owners should determine what repairs to make to their respective units, rather than having a comprehensive repair undertaken by the body corporate.”
However, the Supreme Court bench of Justices Sir Willie Young, Sir Mark O’Regan & Dame Ellen France saw little prospect of the applicants overturning the ruling of the Court of Appeal, which found that section 138 provided the authority for the body corporate to carry out work required to address water ingress into the common property.
The case was brought by Derek & Carol Wheeldon & 4 other owners against body corporate 342525.
Attribution: Court judgments.