Body Corporate 172108 v Meader & ors (Manchester Securities Limited)
[2025] NZHC 69
•5 February 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2009-404-6868
[2025] NZHC 69
BETWEEN BODY CORPORATE 172108
Applicant
AND
MEADER & ORS (MANCHESTER SECURITIES LIMITED)
37th Respondent
CIV-2019-404-1445 BETWEEN
BODY CORPORATE 172108
Applicant
AND
MANCHESTER SECURITIES LIMITED
Respondent
Hearing: On the papers at Auckland Appearances:
J B Orpin-Dowell and T J G Allan for Applicant R J Cummins in Person
Judgment:
5 February 2025
JUDGMENT (NO.7) OF POWELL J
[Application by R J Cummins for leave to appeal]
This judgment was delivered by me on 5 February 2025 at 3.00 pm.
Pursuant to R 11.5 of the High Court Rules.
…………………..
Registrar/Deputy Registrar
BODY CORPORATE 172108 v MEADER & ORS (MANCHESTER SECURITIES LIMITED) [2025] NZHC
69 [5 February 2025]
[1] On 23 May 2024 I issued my substantive judgment in these proceedings (“the judgment”). The relevant background is set out at the beginning of that judgment:1
[1] This judgment is the latest instalment in a protracted and complex dispute over remediation, carried out and underway, at Hobson Apartments, a 12-storey apartment block located on Hobson Street in Auckland (“the building”).
[2] The remediation has been undertaken pursuant to a court approved scheme of remediation (“the scheme”) under the Unit Titles Act 1972 (“the 1972 Act”). The scheme was first sanctioned by this Court on 31 August 2010 (“the initial scheme”) and subsequently varied on 3 March 2017 (“the variation”) after the building was discovered to have serious weather tightness issues requiring remediation.
[3] The principal protagonists are the applicant Body Corporate 172108 (“the Body Corporate”), which has been responsible for completing remediation to levels 1 – 11 of the building, and the 37th respondent Manchester Securities Ltd (in liquidation) (“Manchester”), the owner of level 12.
[4]This judgment ostensibly addresses two issues:
(a)cross applications by the Body Corporate and Manchester seeking declarations as to the effect of the cost allocation provisions in the scheme or, in the alternative, variations to the scheme to reflect their respective contentions as to the appropriate effect of the scheme (“the cross applications”); and
(b)an appeal by the Body Corporate against a preliminary determination by an arbitrator, Brian Keene KC, that he had jurisdiction to proceed with an arbitration to interpret the effect of cl 10.3 of the scheme (“the arbitration appeal”).
[5] The present issues are symptoms of a much broader dispute between the parties. They have arisen because, despite the fact the scheme has been in place for nearly 14 years, Manchester, as the trustee of the Manchester Securities Trading Trust (“MSTT”) between 1997–2019 and acting for the most part under the direction of its sole director and current trustee of MSST, Robert Cummins, has signally failed to complete remediation of level 12, and the evidence confirms level 12 is still not weathertight. Neither Manchester, which (having been placed in liquidation by the Body Corporate for failure to pay amounts owing) now claims it cannot complete the remediation of level 12, nor Mr Cummins have the resources to carry out further work on level 12. This is because the primary funder of the level 12 work to date, the 43rd respondent Sage Securities Ltd (“Sage”), is no longer prepared, or does not have the resources, to advance further monies to complete the remediation of level 12.
[6] As a result, Manchester, supported by Sage, and notwithstanding numerous judgments of the senior courts and the terms of the scheme, seeks
1 Body Corporate 172108 v Meader (No.4) [2024] NZHC 1280 (footnotes omitted).
financial contribution from the Body Corporate and the other owners of the building to complete the remediation of its unit property on level 12, and, ultimately, to recover significant amounts of the monies it has expended on level 12 to date.
[2] The judgment contained a number of declarations as to the effect of the scheme,2 varied clause 13 of the scheme,3 and allowed the Body Corporate’s appeal against the preliminary determination by Mr Keene.4 I found the Body Corporate was entitled to costs against both Manchester and Sage and left open “whether there are other individuals or entities against whom costs might be claimed”, and set a timetable for dealing with those costs.5
[3] Since the judgment was issued, applications by Sage to recall the judgment and to seek leave to appeal were both dismissed.6 In addition to seeking costs from Manchester and Sage, the Body Corporate has also sought costs from the receivers of Manchester and Mr Cummins, a decision that is currently reserved.
[4] In addition and the subject of this judgment, Mr Cummins, notwithstanding he is not a party to the proceedings, has sought leave to appeal.
[5] The focus of Mr Cummins application appears to be the arbitration appeal (CIV-2019-404-1445). However, it is clear that Mr Cummins appeal specifically seeks to revisit a number of the conclusions I reached with regard to the cross-applications, and specifically those referred to at [83], [87], [127], and [145] of the judgment, as those findings underpinned the decision on the arbitration appeal as Mr Cummins accepts.
[6] Mr Cummins’ application is opposed by Body Corporate on the grounds there is no jurisdiction to entertain his application, and it is in any event, otherwise an abuse of process.
2 At [147].
3 At [148].
4 At [149].
5 At [150].
6 Body Corporate 172108 v Meader (No.5) [Application by Sage to recall] [2024] NZHC 1893; and Body Corporate 172108 v Meader (No.6) [Application by Sage for leave to appeal] [2024] NZHC 1894.
[7] Following the filing of the notice of opposition I issued directions for the filing of submissions and at the same time declined an application by Mr Cummins for me to recuse myself from dealing with both the issue of costs and the application for leave.7 The parties were also requested to confirm whether a hearing was sought or whether the application could be dealt with on the papers.
[8] Submissions were filed as directed. However, Mr Cummins has subsequently filed further submissions in evidence in which he has sought to rely upon a legally privileged letter from the Body Corporate’s solicitors to the Body Corporate Committee dated 23 October 2024, that is some five months after the judgment. The Body Corporate’s position is that this letter was mistakenly and involuntarily included in a notice and agenda pack provided to all owners on 31 October 2024 and it objected to my consideration of this additional material. Having received the Body Corporate’s objection I made an interim order on 8 November 2024 confirming that the disputed document would not be read in the meantime, and gave leave for the parties to file further submissions on the issue which were “not to refer to the contents of the advice at issue”.
[9] Further submissions were subsequently received from the Body Corporate and Mr Cummins noting that it was immediately apparent that Mr Cummins chose to refer to the contents of the letter. Having considered those submissions, and for the reasons set out in this judgment, I have concluded it is not necessary to determine the issue in order to determine Mr Cummins application for leave to appeal. Specifically, I am satisfied there is no jurisdiction for Mr Cummins to apply for leave to appeal the judgment, and even if there was in the circumstances of this case it would be an abuse of process to allow leave to be granted.
Mr Cummins’ submissions on jurisdiction
[10] In applying for leave to appeal, Mr Cummins relies upon s 56(3) of the Senior Courts Act 2016 or the inherent jurisdiction of the High Court to grant leave to appeal to non-parties in the Court of Appeal. Section 56 provides:
7 Minute (No.9) of Powell J, dated 10 September 2024.
56 Jurisdiction
(1)The Court of Appeal may hear and determine appeals—
(a)from a judgment, decree, or order of the High Court:
(b)under the Criminal Procedure Act 2011:
(c)from any court or tribunal under any other Act that confers on the Court of Appeal jurisdiction and power to hear and determine an appeal.
(2)Subsection (1) is subject to subsections (3) and (5) and to rules made under section 148.
(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.
(4)Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—
(a)striking out or dismissing the whole or part of a proceeding, claim, or defence; or
(b)granting summary judgment.
(5)If the High Court refuses leave to appeal under subsection (3), the Court of Appeal may grant that leave on application made to the Court of Appeal within 20 working days after the date of the refusal of leave by the High Court.
(6)If leave to appeal under subsection (3) or (5) is refused in respect of an order or a decision of the High Court made on an interlocutory application, nothing in this section prevents any point raised in the application for leave to appeal from being raised in an appeal against the substantive High Court decision.
[11] Mr Cummins notes that in contrast to s 56(4), s 56(3) does not specifically limit applications for leave to appeal to parties. In the event s 56 does not confer jurisdiction Mr Cummins relies in particular on Olliver v BBG Holdings (in Liquidation).8 He goes further to submit that even if the Court of Appeal does not itself have inherent power to grant leave, the High Court has such power under its inherent jurisdiction. As a result, Mr Cummins submits the High Court should follow the approach taken by
8 [2021] NZCA 669.
various overseas courts and by way of that inherent jurisdiction, grant leave to him to appeal the judgments in which he was not a party.
Discussion
[12] Having considered Mr Cummins submissions, I am satisfied there is no jurisdictional basis to grant leave for him to appeal the judgment. First, as stated in Olliver, s 56 is not itself wide enough to empower the Court of Appeal to consider an appeal brought by a non-party.9 The Court went on to say:10
[22] …On the contrary, [ s 56 and the Court of Appeal Court Rules] are premised on the basis that any appeal contest is between the original parties to the decision being challenged on appeal. It is correct that appeal courts in England and Canada, and indeed Australia have confirmed the existence of such a jurisdiction including in cases involving liquidation disputes. However, those authorities must be treated with caution, because at least in the case of the English and Canadian authorities, the jurisdiction appears to be derived from inherent jurisdiction. It is well established however that this Court, unlike its English counterpart lacks an inherent jurisdiction. The jurisdiction of this Court is derived entirely from statute.
[13] The Court of Appeal likewise doubted in the Olliver case that the inherent powers of that Court allowed a non-party to bring an appeal, although the Court was not required to finally determine that issue in that case. The Court observed:11
[23] It follows in our view that if this Court does have the power to grant Mr Olliver’s application, it can only be found in its inherent powers. As explained in the Supreme Court decision of Siemer v Solicitor-General, every court has inherent powers, that is to say powers that are incidental to or ancillary to its jurisdiction whether that jurisdiction is inherent or statutory. The inherent powers include all but only such powers as are necessary to enable a court to act effectively and uphold the administration of justice within its jurisdiction. Examples of such powers include powers to dismiss or stay proceedings, to control barristers and solicitors and to issue orders to preserve evidence.
[24] In our view, the power to hear to hear a civil appeal by a non-party is arguably in a different category to those sorts of powers. It is not an ancillary procedural power. Rather it is a power which if exercised would confer a substantive right – a right of appeal – on a non-party where none exists at statute.
9 At [22].
10 (Footnotes omitted).
11 (Footnotes omitted).
[14] Of course, Mr Cummins has not sought leave from the Court of Appeal, he has sought it from the High Court. It follows that regardless of whether the Court of Appeal ultimately has the inherent power that would enable it to grant leave to appeal to a non-party, it cannot provide a basis for the High Court to grant such leave. Section 56 of the Senior Courts Act sets out the statutory jurisdiction of the Court of Appeal to consider appeals. It cannot be the case that any inherent jurisdiction of the High Court can extend that jurisdiction beyond that which the statute permits. Put simply, as Mr Orpin-Dowell submits, the High Court has no ability to confer jurisdiction on the Court of Appeal through exercise of the inherent jurisdiction of the High Court.
[15] For completeness, I also observe that s 56(3), relied upon by Mr Cummins, when properly construed is clearly a subset of s 56(4) of the Senior Courts Act. Section 56(3) requires a party to seek leave in order to appeal an interlocutory decision, but does not provide for a general ability to seek leave to appeal on matters otherwise outside s 56(4), including for non-parties. As in these proceedings I have previously concluded that s 56(4) applies to any appeal of the judgment.12 In particular I found that as Sage had an automatic right to appeal the judgment pursuant to s 56(4) it was unable to seek leave to appeal pursuant to s 56(3). Given that position it must also preclude any reliance upon s 56(3) by Mr Cummins.
[16] I am therefore satisfied that as Mr Cummins was not a party to the proceedings, and in particular to the judgment, there is no jurisdiction for him to appeal the judgment and his application must be dismissed.
[17] Even if I am wrong in this assessment, I am satisfied that the application for leave to appeal is otherwise an abuse of process. This is because in 2020 Mr Cummins had sought to be joined as a party to both of the proceedings at issue. Indeed Mr Cummins’ application for joinder was granted on conditions (“the joinder judgment”).13 The conditions included Mr Cummins registering a transfer or transmission of the title to the unit on level 12 from Manchester to himself, and to pay
12 Body Corporate 172108 v Meader (No.6) [Application by Sage for leave to appeal] [2024] NZHC 1894 at [8].
13 Body Corporate 172108 v Manchester Securities Ltd [2021] NZHC 365.
the Body Corporate all of the amounts owed by Manchester to the Body Corporate at the time of Manchester’s liquidation without deduction or set off.14
[18] In the event, Mr Cummins took no steps to be joined to the proceedings on the basis set out in the joinder judgment. Instead he unsuccessfully appealed the joinder judgment to the Court of Appeal,15 and his application for leave to appeal to the Supreme Court was also dismissed.16 As Mr Orpin-Dowell has submitted, the present application is an attempt by Mr Cummins to gain the benefit of his previous application for joinder as a party to the proceedings without taking the steps the Court ruled necessary to justify his inclusion as a party. As the Court of Appeal noted in dismissing the appeal against the joinder judgment:17
The attempt by Mr Cummins to be joined to the proceeding, and be heard in opposition to the applications made by the Body Corporate, represents a continuing attempt on his part to exercise the rights of a proprietor of a unit while avoiding the obligations of a proprietor. He cannot have it both ways, his attempt to do so represents an abuse of the processes of the Court.
[19] There can be no doubt that seeking, once again, to be treated as a party, without being willing to accept the obligations that justified his joinder to these proceedings, is also an abuse of process. Thus, even if there was jurisdiction to consider an application for leave to appeal it would be inappropriate to grant leave.
[20] Finally, and again for completeness, I observe that Mr Cummins’ submission that leave should be granted because he was not given the opportunity to participate as a party, is not correct. On the contrary, through a litigation agency agreement dated
28 March 2024 between Mr Cummins and the liquidator of Manchester, Ryan Eathorne, it is clear that Mr Cummins had a substantial input into the substantive hearing of the proceedings, with the operative part of the agency agreement providing:
1.In consideration of the sum of $1.00 paid to it by the Agent and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Principal, the Principal irrevocably appoints the Agent for so long as he remains a trustee of the Trust as its exclusive agent for and on its behalf for the purpose of
14 At [17].
15 Cummins v Body Corporate 172108 [2022] NZCA 68.
16 Cummins v Body Corporate 172108 [2022] NZSC 95.
17 At [7].
preserving and/or continuing the pursuit of the cross-claims in the name of the Principal at the expense in all respects of the Agent.
2.The authority granted herein extends to all steps to be taken at the sole discretion of the Agent:
(a)to preserve the cross-claims, including without limitation in proceeding CIV-2009-404- 6868 in the High Court at Auckland (the Variation Proceedings) and in proceeding CIV- 2019-404-1445 in the High Court at Auckland (the Arbitration Appeal Proceedings); and
(b)to pursue such further proceedings as the Agent may deem necessary or expedient to finally determine the cross-claims, including without limitation the arbitration proceedings before Mr Brian Keene QC pursuant to which a partial award was issued on 25th October 2018 (the Arbitration Proceeding).
3.The parties expressly acknowledge that any funds available from the realisation of the cross- claims are to be distributed in this order:
(a)To set off against any sums owed by the Principal to the Body Corporate.
(b)To repay or meet any costs of conducting the litigation relating to the cross claims.
(c)To pay or reimburse any sums due to, or paid by, the Liquidator.
(d)To the Agent or his successor(s) as trustee of the Trust to distribute in accordance with the terms of the Priority Agreement.
(e)To the extent realisations exceed amounts due to secured creditors, to the Liquidator for distribution or payment in accordance with the trust deed of the Trust or Schedule 7 of the Companies Act 1993 as appropriate.
4.The Agent hereby indemnifies the Liquidator against any liability arising from the preservation and/or pursuit of the cross-claims as contemplated herein, including in respect of the Variation Proceedings, the Arbitration Appeal Proceedings and the Arbitration Proceeding.
5.Subject to continued availability and performance, the Agent agrees to instruct the solicitor currently appointed by the Liquidator in the litigation relating to the cross claims, on the basis that the Agent can nominate counsel of his choice.
6.The Agent agrees to provide to the Principal from time to time and at no more than quarterly intervals, or on request, reports on the progress of the litigation. The Agent will consult with the Principal in respect
of any issues arising from the litigation that could affect the conduct of the liquidation by the Principal.
[21] Although Mr Cummins now claims that “in practice…I was consulted on the conduct of the proceedings (as opposed to instructing counsel on behalf of the trust)” it is clear that he cannot claim that he was not able to participate in the proceedings in the High Court. Indeed, his submissions on the jurisdiction point in the present application note that the issues that he wishes to raise on appeal were “squarely before the Court”, “clearly pleaded by Manchester”, and “specifically addressed in submissions for Manchester”. As Mr Orpin-Dowell pointed out, given this position, it is obvious that Mr Cummins’ interests were represented in the High Court but that the Court simply did not agree with the position that was taken. The net effect of the approach taken by Mr Cummins, both in relation to the joinder judgment and the agency agreement, is that any right to appeal lay with Manchester and not with Mr Cummins.
[22] As for the reasons I have set out, I have concluded that there is neither jurisdiction for Mr Cummins application for leave to appeal and in the alternative, in the event there was jurisdiction, his application would be an abuse of process, it is not necessary to consider in any further detail the merits of the issues he seeks to raise, nor to determine whether the Court should consider the legal advice to the Body Corporate Committee referred to at [8] and [9] above. As any advice to the Body Corporate post the judgment cannot on any conceivable basis be relevant to the jurisdiction of the Court of Appeal in this case, nor to whether Mr Cummins application would be an abuse of process, the disputed advice is simply not admissible in relation to this application. I leave open whether it is relevant in other contexts. If it is alleged to be so at some other point in these proceedings, it is not to be considered until after the issues relating to privilege have been determined.
Decision
[23]Mr Cummins application for leave to appeal is dismissed.
[24] The Body Corporate is entitled to costs against Mr Cummins on the application. It seeks costs on an indemnity basis. A memorandum setting out the
amount of costs sought and the basis for indemnity costs is to be filed within four weeks of the date of this judgment. Mr Cummins will have a further four weeks to respond, failing which I will determine costs on the papers.
Powell J
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