Legal

UTA 2010 – searching the register, enduring proxies, chairperson and transition

The Auckland High Court recently considered an application from Lihua Limited, against Body Corporate 366611, Theta Management Limited and BCS Limited.

Published

11 years ago

November 7, 2012

PropertyBlogs

The Auckland High Court recently considered an application from Lihua Limited, against Body Corporate 366611, Theta Management Limited and BCS Limited. The procedural decisions may be of interest to those managing body corporates. The case concerned the Empire apartment building in Auckland. It seems to arise out of two management companies operating at the building. Theta manages 277 of the units in addition to being the building manager. Lihua manages several of the remaining 23 units.

First, it is clear that it is still possible to establish an enduring proxy, for example unit owners appointing a manager or lessee on an enduring basis, rather than having to do this at each annual meeting. The grant of a power of attorney and appointment of the manager, Theta, as the owner’s representative pursuant to section 96(2) of the Unit Titles Act was included in a variation of each unit’s lease. Theta then used the power of attorney to appoint a proxy at the AGM. The Judge held votes cast by that proxy counted. Lihua was endeavouring to ensure votes by the proxies did not count and wanted a prohibition on future voting using these proxies.

Secondly, an owner can require the body corporate to deliver to them the register of unit owners, containing the information set out in regulation 4(1). The list of information is extensive and includes the name, contact details and method of contact for the owners. That will include for the directors and trustees where a company or trust is the owner.

It is clear in the regulations that the register of unit owners can be searched by a person approved by the body corporate or the body corporate committee. A proper request needs to be made under Regulation 4. What this case seems to decide is that it will be difficult for the body corporate to refuse such a request from an owner. The Judge also states the power to search was not limited to the right to inspect the register. The right to search also includes the right to take copies of the register.

Lihua wanted the register to communicate with other owners. The body corporate was concerned as to the type of information that might be circulated to owners. The court suggested a practical approach – that the proposed communication Lihua wanted to send be made available to the body corporate 10 days before it is sent to unit owners, to enable the body corporate to explain to unit owners that it has provided the contact details as required, and to present its own views.

Caution will be needed by body corporates dealing with these requests given the Judge’s comments. It would seem that a body corporate should not unnecessarily withhold its approval of any request by an owner to search the register. The body corporate’s actions can be reviewed to check their reasonableness.

Thirdly, the notice of annual general meeting whilst requiring financial statements to be attached does not require audited financial statements. This is because the body corporate has a choice as to how the auditing requirements are approached. Lihua wanted to try and show that the AGM that had been held was invalid, which was why they challenged whether the notice of AGM included the proper financial statements.

Fourthly, the Act does not allow an independent chairperson to run the AGM. This is what we all expected. Lihua wanted the Court to order that there be a further AGM under independent chairperson.

Fifthly, there were some comments about what were the proper rules and procedures through the transitional period between the two Acts. Now that the transitional period has ended those comments are largely historical. They could become relevant if a dispute arose about decisions made during that transitional period e.g. as to the quorum required. Unfortunately there is not a clear decision on what the applicable rules are through the transition as this did not need to be decided. Lihua was arguing it was not a proper meeting as the quorum requirements were not met. Given it had been determined the proxies were valid, this argument failed whether under the new or old regime.

Legal

Unconditional Contract

You have been out to buy your first home. Yesterday, you fell in love with this seemingly fantastic house with an amazing view.

After hearing that it is likely to be snatched up any time soon, you hurriedly signed an agreement to buy it WITHOUT any conditions attached.

Published

10 years ago

October 14, 2014

PropertyBlogs

Sitatuion 1

You have been out to buy your first home.
Yesterday, you fell in love with this seemingly fantastic house with an amazing view.
After hearing that it is likely to be snatched up any time soon, you hurriedly signed an agreement to buy it WITHOUT any conditions attached.
Later, you realised that there are other aspects that are undesirable for you and you wish to pull out.. Can you do this?

Unconditional agreements are UNCONDITIONAL

Unconditional agreement has to be followed by the parties. If the deposit has been paid, the vendor can take it. If the deposit was not paid, the vendor can still sue you for payment of deposit or make you buy the house.

In particular, the successful bidder of an auction will be signing an unconditional agreement so it is crucial that the necessary homework is done before making any serious bid at an auction. Visit the house and have a thorough look at the LIM report, the builder’s report and the certificate of the title for the house. We strongly recommend you to seek legal advice as early as possible. Many law firms including us do not charge any extra fee for conveyancing clients who engage the service early on.

Despite the fact that you are bound by the terms of an unconditional agreement, there may be a way out depending on the circumstances.

Misrepresentation?

Was there any reason which makes you think that you were induced into signing the contract by any misrepresentation from the vendor or the agent? If the vendor intentionally lied or unintentionally distorted a crucial fact about the house, such as the absence of any leaky issues, you may be able to argue that the agreement is invalid (section 7, Contractual Remedies Act 1979). Think about whether there was any such misrepresentation. Have a look at the marketing brochure or any emails from the vendor or the agent. Since written communications can be useful evidence of a relevant statement, any questions you ask the vendor or agent better be put in writing such as in emails or txts.

Termination by mutual agreement?

You may also be able to talk your way out of the mess by having an honest discussion with the vendor since unconditional agreements can be terminated without legal consequences if both parties agree. The real estate agent may assist in the process. If this is agreed to, instruct your lawyer to obtain a written confirmation from the other side to prevent any future disputes.

The above potential solutions may not be available in many situations so please take a special care before committing to a purchase of a house which is one of the biggest investments for most people.

Shana Lee
Senior Solicitor

Disclaimer:
No information on this article shall be construed as legal advice and information is offered for information purposes only. You should always seek advice from an appropriately qualified solicitor on any specific legal enquiry.

Legal

Unit titles – who pays?

he Court of Appeal looks at how costs for remedial works should be shared at Auckland’s Shangri-La apartments. Wikipedia notes Shangri-La is meant to be a “permanently happy land”, not so Auckland’s Shangri-La. The Court of Appeal was asked by the body corporate (i.e the owners) to look at:

Published

10 years ago

March 24, 2014

PropertyBlogs

The Court of Appeal looks at how costs for remedial works should be shared at Auckland’s Shangri-La apartments.

Wikipedia notes Shangri-La is meant to be a “permanently happy land”, not so Auckland’s Shangri-La. The Court of Appeal was asked by the body corporate (i.e the owners) to look at:

the cost allocation for remedial works; and
the penthouse owner’s claim for compensation for the 18 month period they had been denied use of their unit whilst remedial works were completed.

The scheme

The High Court had approved a scheme under the Unit Titles Act 2010 that allocated costs for the installation of the new curtain wall at Shangri-La 50% equally between the each of the 15 units and 50% based on utility interest. This meant the penthouse owner, relatively speaking, paid a smaller share than the other owners. The new glass curtain wall did not have to extend to level 16. It finished at the lower level of the penthouse on level 15.

The Court of Appeal upheld the scheme. The Court considered the scheme obtained the requisite fairness. The body corporate wanted all costs allocated based on utility interest. The Court considered that would be unfair to the penthouse owner whose unit had the same amount of work done as the other units in the tower.

Compensation

All owners were denied use of their units for 6 weeks, but the penthouse owner was out of their unit for 18 months. The curtain wall and support beam were installed on level 15 and other works needed to be done from the penthouse unit. The Court of Appeal agreed compensation was appropriate and should be calculatedbased on the lost market rent. The use of the penthouse during the 18 month period was for the common benefit of all unit owners. However “there will need to be a significant loss for a particular unit owner before a claim for compensation should be contemplated”. Remember also that this compensation payment was being ordered as part of the scheme, which can only be ordered by the Court following destruction or damage so this does not necessarily open the floodgates for compensation claims by unit owners.

Cost allocation

This decision does not change how costs are allocated day to day by bodies corporate. The body corporate does not have the same flexibility as the Court in this respect. We believe bodies corporate should have more flexibility to determine different utility interests for different budget items. Others are lobbying for this too as part of the review of the Unit Titles Act 2010. For the moment, the body corporate must use the tools it has:

charging individual owners for repairs or maintenance to building elements or infrastructure contained in their unit
using utility interest for allocation of levies rather than ownership interest
recovering money spent on any repair, work or act for the benefit of individual owner(s) or caused by those owner(s) from those owner(s)

Legal

Enforceability of non-competes or restraint of trade covenants

Published

10 years ago

December 19, 2013

PropertyBlogs

Recently a US client asked me whether New Zealand Courts enforce non-compete/restraint of trade covenants (Non-Competes) against the sellers of New Zealand businesses. If New Zealand law governs the agreement, the short answer is: yes, to the extent the Non-Compete is “reasonable”. However, even where a Court finds a Non-Compete to be unreasonable, it can modify the offending provision so that it becomes reasonable.

Which Non-Competes will be seen as “reasonable” on the sale of a business?

A full discussion on this topic is a cure for insomnia! However, in brief, an enforceable Non-Compete is one that is reasonably necessary to protect the buyer’s legitimate proprietary interest.

To expand slightly: a buyer must establish the following to successfully enforce a Non-Compete:

that it will actually gain a practical benefit if the Non-Compete is enforced – an example of such a benefit is that the enforcement will afford the buyer a reasonable opportunity to secure the goodwill of the business’ customers); and
the Non-Compete only restrains the seller from competing:
(a) in the specific market sector in which the acquired business operated;(b) in the particular geographical area in which the acquired business had trade connections – regardless of any plans for expansion the seller and/or buyer may have had in mind at the time of the sale; and

(c) for no longer than it should take the buyer to secure the goodwill of the business’ customers.

Which market sector, geographical area and/or time period will be reasonable/right/not too restrictive will depend on all the circumstances surrounding the business being sold and the nature of the overall deal agreed.

When will a Court modify an unreasonable Non-Compete?

If a Court finds that a Non-Compete is too wide/an unreasonable restraint of trade, then it must either:

decline to enforce any part of the Non-Compete; or
modify it so that it is reasonable. A Court is likely to modify the Non-Compete where it believes that the modification:
(a) is required when looking at the essential justice of the case requires it; and(b) can be performed without unreasonably modifying the parties’ bargain.

Please get in touch if you are a buyer or a seller and you’d like some assistance with drafting an appropriate Non-Compete or assessing the enforceability of an existing one.