IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2013-404-003833 [2014] NZHC 567
BETWEEN BODY CORPORATE 162791
Plaintiff
AND
JOHN GILBERT First Defendant
QSM TRUSTEE LIMITED (IN RECEIVERSHIP AND LIQUIDATION) Second Defendant
Hearing: 25 November 2013 Appearances:
T J G Allan for plaintiff
D G Chisholm QC for first defendant (reciever)Judgment:
25 March 2014
JUDGMENT OF ASSOCIATE JUDGE ABBOTT
This judgment was delivered by me 25 March 2014 at 4pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors:
Grove Darlow & Partners, Auckland
Tompkins Wake, Hamilton
Counsel:
D Chisholm QC, Auckland
BODY CORPORATE 162791 v GILBERT [2014] NZHC 567 [25 March 2014]
[1] The plaintiff (the body corporate) is the body corporate established under statute1 for a unit title development at 239 Queen Street, Auckland, known as “Mid City”. The second defendant (QSMTL) is the registered proprietor of five units in
that development (the units) as trustee of the QSM Trust.
[2] The first defendant, Mr Gilbert (the receiver), was appointed receiver of
QSMTL on 25 July 2013, the day before it was placed into liquidation.
[3] Body corporate levies for the units have not been paid for a considerable time. There has been a long-running dispute between the body corporate and the owner of the units (from time to time) over a proposed redevelopment of the units (which originally comprised a cinema complex). The disputes currently before the Court in this proceeding include a claim by the body corporate for payment by the receiver of body corporate levies in respect of the units since QSMTL went into receivership.
[4] The body corporate has applied for summary judgment for a declaration that the receiver is liable for levies since his appointment, pursuant to s 32(5) of the Receiverships Act 1993 (the Act), and for judgment for so much of the levies as are outstanding as at the date of judgment, together with interest on the overdue amounts and costs.
[5] The receiver disputes that he has any obligation to pay the levies. He says that s 32(5) does not apply, but if it does the Court should exercise its power under s
32(7) of the Act to relieve him of personal liability in the circumstances of this case.
[6] The parties are agreed that the critical issue is whether on its proper construction s 32(5) imposes an obligation on the receiver to pay levies during the term of the receivership. If so, the Court must also determine whether summary judgment is appropriate given that the receiver seeks relief, in that event, under s
32(7) of the Act.
Background
[7] The strata title development known as Mid City comprises three distinct areas: a basement, a mid-level comprising two floors of a number of individually owned units used as retail or food premises, and a third level, originally developed as a movie theatre complex extending over three floors but now comprising the five principal units (3A – 3E) registered in the name of QSMTL.
[8]…
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- [2014] NZHC 567
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