29 June 2016

Blue Chip: BEMA Property v. Body Corporate 366611

Backwash from the Blue Chip collapse continues with owners of an Auckland investment managed by Blue Chip unable to recover $89,000 in lost rentals because no steps were taken to resume possession.
Through a company called BEMA Property Investments Ltd, Berkie Kapa and Aneta Heke bought into a student apartment block in Whitaker Place, Auckland, with management of the apartment leased to a Blue Chip company: Auckland Residential Tenancies Ltd.  Another Blue Chip company arranged student lets, paid costs and sent the net balance monthly to BEMA.  Blue Chip managed about 200 units in the 300 unit apartment.
The High Court was told BEMA received no further rentals from late 2007 after companies in the Blue Chip group came tumbling down.  With Auckland Residential in liquidation, the building’s manager Theta Management offered BEMA a replacement management lease; a lease which gave Theta the right to vote on BEMA’s behalf at Body Corporate meetings.  BEMA did not sign.  Several years of intermittent contact followed between Theta Management and Mr Kapa with Mr Kapa seeking to get electronic card access to BEMA’s apartment so he could arrange replacement tenants.  Theta Management stalled, demanding that its new lease be signed.  Over five years passed without Mr Kapa having access.  He then learnt that other apartment owners in the building, who were not part of the Blue Chip controlled scheme, had fought all the way to the Supreme Court successfully suing Theta Management for trespass in denying them access to their apartments.
Mr Kapa decided to follow the same route and sue both the Body Corporate and Theta Management for 68 months of rentals, agreed to be $89,026, for the period BEMA was unable to access its apartment.
Justice Wylie ruled against BEMA’s claim for past rentals.  It was not in the same position as the earlier successful apartment owners.  They had a proved right of possession to their apartments.  BEMA had leased management of its apartment to a Blue Chip company: Auckland Residential, now in liquidation.  The liquidator had never disclaimed the lease.  It was still a Blue Chip asset.  BEMA had taken no steps to go into possession or otherwise end the management lease after Auckland Residential’s liquidation.  With no proved right to possession BEMA had no claim in trespass for the value of unpaid rentals.
The Court was told BEMA has eventually gained access to its apartment, receiving rentals from January 2015. 
BEMA Property v. Body Corporate 366611 – High Court (29.06.16)

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