IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-000140

BETWEEN	BODY CORPORATE NO 183059
Applicant

AND	SOKOL LIMITED AND ORS First Respondents

ASB BANK LIMITED Second Respondent

ANZ NATIONAL BANK LIMITED Third Respondent

THE HONG KONG AND SHANGHAI BANKING CORPORATION LIMITED Fourth Respondent

BANK OF NEW ZEALAND Fifth Respondent

GE CUSTODIANS Sixth Respondent

WESTPAC NEW ZEALAND LIMITED Seventh Respondent

KIWIBANK LIMITED Eighth Respondent

TEA CUSTODIANS (PACIFIC) LIMITED
Ninth Respondent

MORTGAGE HOLDING TRUST COMPANY LIMITED
Tenth Respondent

THE NATIONAL BANK OF NEW ZEALAND LIMITED Eleventh Respondent

BODY CORPORATE NO 183059 V SOKOL LTD AND ORS AND ORS HC AK CIV-2010-404-000140  12
July 2010

DONAL BARRY KENNEDY, MAUREEN MARY KENNEDY AND JEREMY GILBERT OAKLEY STUBBS Twelfth Respondents

PUBLIC TRUST Thirteenth Respondent

NEW ZEALAND HOME BONDS LIMITED
Fourteenth Respondent

VERO INSURANCE NEW ZEALAND LIMITED
Fifteenth Respondent

DISTRICT LAND REGISTRAR Sixteenth Respondent

Hearing:	12 July 2010

Appearances: C Baker for the Applicant
H K Williams (Director of Sokol Limited) for Sokol Limited

Judgment:	12 July 2010

(ORAL) JUDGMENT OF DUFFY J

Solicitors:	Price  Baker  Berridge  P  O  Box  21463  Henderson  Waitakere  0650  or  the
Applicant

Copy To:	H K Williams (Director of Sokol Limited) 74 Wade River Road Arkles Bay
Whangaparaoa 0932 for Sokol Limited

[1]       This  is  an  application  for  orders  settling  a  scheme  under  s  48  of  the Unit Titles Act 1972.  The application is being opposed by Sokol Limited (Sokol), which is the proprietor of units that are part of the subject of the application.

[2]       On 9 July 2010, Sokol filed a memorandum requesting an adjournment of the application.   The basis of the adjournment application as set out in Sokol’s memorandum is that it wants to challenge a decision of Ellis J issued on 20 May
2010 (Body Corporate 183059 v Sokol Limited HC Auckland CIV 2010-404-00140,

20 May 2010).   In that judgment, Ellis J rejected Sokol’s argument that counsel engaged by the applicant has a conflict of interest.

[3]       Sokol now advises me that it wants to challenge the decision of Ellis J.  The time for appealing the decision has expired.   If there were to be any attempt at challenging the decision, Sokol would first need leave to appeal out of time.

[4]       I have looked at the reasoning of Ellis J, and the basis set out in Sokol’s memorandum for seeking to challenge the decision.  I do not consider that there is sufficient grounds set out in the memorandum to warrant abandoning the hearing today.  Sokol has had opportunity to file an appeal within the requisite timelines.  It has failed to do so.  I do not consider that its chances of success on appeal would be high, in any event.  There is nothing about the case which strikes me as being likely to be granted leave to appeal out of time.  On the other hand, the other unit holders in this body corporate are keen for the application to be dealt with.   They, understandably, want the repair work to proceed as soon as possible.  I consider their reasons for proceeding with the hearing far outweigh the arguments which Sokol advanced in its memorandum.

[5]       This morning, Mr Williams, who is a director of Sokol, and who has been granted leave to appear on Sokol’s behalf, outlined further grounds to support an adjournment, namely that the Body Corporate secretary may not have been properly appointed, and there may be other ultra vires aspects to the rules, or other conduct of the Body Corporate.   I do not propose to elaborate on those arguments now.   It seems to me, however, that if the Body Corporate can in some way be shown to lack authority to bring the current application, that is an issue that goes to the heart of the

substantive matter before me today, and it is one that can be determined in this application.   It would not be appropriate to adjourn the application for the new reasons now being advanced.

[6]       Accordingly, the application to adjourn the hearing is refused.

Duffy J