Body Corporate 162791 v Gilbert - [2015] NZCA 185

For a Court ready (fee required) version please follow this link

IN THE COURT OF APPEAL OF NEW ZEALAND

CA213/2014
[2015] NZCA 185

BETWEEN	BODY CORPORATE 162791 Appellant
AND	JOHN GILBERT First Respondent
AND	QSM TRUSTEE LTD (IN RECEIVERSHIP AND IN LIQUIDATION) Second Respondent

Hearing:	29 April 2015
Court:	Harrison, Keane and Wylie JJ
Counsel:	J Anderson and T J G Allan for Appellant D Chisholm QC for First Respondent No apperance for Second Respondent
Judgment:	21 May 2015 at 10 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BJudgment is entered in favour of the appellant against the first respondent as receiver of the second respondent (in receivership and in liquidation). The first respondent is personally ordered to pay the body corporate levies outstanding in respect of units 3A to 3E (inclusive) in the Mid City complex, from 9 August 2013 to the date of this judgment.
CThe first respondent is personally ordered to pay interest on the outstanding levies, at the rate of 10 per cent per annum, calculated from the last day of each month to the date of judgment. Interest is not to be compounded.
DLeave is reserved to counsel to file memoranda in the High Court, in the event that they are unable to reach agreement as to the amount owing by the first respondent to the appellant.
EThe first respondent is ordered to pay to the appellant its reasonable solicitor/client costs, together with disbursements.
FLeave is reserved to counsel to file memoranda in the High Court in the event that there is any disagreement as to the costs or disbursements payable pursuant to this judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given byWylie J)

Introduction [1]
Factual background [8]

The Mid City Complex  [8]
239 Queen Street Trustees Ltd  [13]
QSM Trustee Ltd  [18]
The receivership  [24]

The High Court decision  [26]
Submissions  [29]
Analysis  [31]

A receiver’s powers and liabilities  [31]
The Receiverships Act 1993 – Section 32  [35]
Issues  [41]
(a)      Do the body corporate levies fall due under an agreement?              [41]
(b)      Do the levies due under the agreement relate to the use, possession
         or occupation by QSMTL of the units?  [50]
(c)      Is Mr Gilbert entitled to relief under s 32(7)?  [65]
Costs  [74]

Result [80]

Introduction

Body Corporate 162791 (the body corporate) appeals a decision given in the High Court by Associate Judge Abbott on 25 March 2014.[1]
[1]Body Corporate 162791 v Gilbert [2014] NZHC 567.
The Body Corporate initially filed a statement of claim seeking an interim injunction to restrain the first respondent, Mr Gilbert, as receiver of the second respondent, QSM Trustee Limited (QSMTL) from erecting a fence across an arcade comprising common property on level 1 of a strata title development known as the Mid City complex in central Auckland.
The application for an interim injunction was decided in the body corporate’s favour and an interim injunction was ordered on 15 April 2013.[2] The matter came back before the Court,[3] and ultimately…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Body Corporate 162791 v Gilbert and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NZCA 185
Decision Date: 21 May 2015 at 10 am

CaseChat Overview and Summary

Body Corporate 162791, the body corporate for the Mid City complex, appeals against a decision of Associate Judge Abbott that Mr Gilbert, as receiver for QSM Trustee Limited (QSMTL), is not personally liable for body corporate levies owed by QSMTL for units 3A to 3E since 9 August 2013. The Court of Appeal found in favour of the body corporate. Mr Gilbert was appointed as receiver for QSMTL on 25 July 2013. The body corporate levies for units 3A to 3E were not paid by QSMTL, and Mr Gilbert has not paid them either. The Court found that the obligation to pay body corporate levies arises under an agreement, and that the obligation is captured by s 32(5) of the Receiverships Act 1993. It also found that the levies due under the agreement relate to the use, possession or occupation by QSMTL of the units. The Court held that Mr Gilbert was personally liable to pay the body corporate levies that have fallen due since his appointment as receiver, and that he is also personally liable to pay interest on the outstanding levies. The Court further found that Mr Gilbert is not entitled to relief under s 32(7) of the Act. Finally, the Court found that the body corporate is entitled to recover its reasonable solicitor/client costs from Mr Gilbert.

Orders