Body Corporate 201036 v Zeng

[2018] NZHC 2344

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000575

[2018] NZHC 2344

BETWEEN

BODY CORPORATE 201036

Plaintiff

AND

XIAN (aka JACKY) ZENG

First Defendant

FENGCHUN CHEN
Second Defendant

YANG LAWYERS TRUSTEE LIMITED

Third Defendant

Hearing:	4 September 2018
Appearances:	JPM Wood for the Plaintiff C Jiang for the Defendants
Judgment:	6 September 2018

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 6 September 2018 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Rainey Law, Auckland

Glaister Ennor, Auckland

BODY CORPORATE 201036 v XIAN ZENG [2018] NZHC 2344 [6 September 2018]

[1]    This is an application by the body corporate of a unit title development for summary judgment against three of the registered owners of units in the development. The first defendant owns units C12, R2 and R4. The second defendant owns unit P14 and co-owns units C4, N2, P7 and R3 with the third defendant. The third defendant co-owns units C4, N2, P7 and R3 with the second defendant. The units are collectively managed as family assets.

[2]    The defendants have been levied in respect of their units and have not paid all or part of the levies. The levies are past due and under the Unit Titles Act 2010 are now debts due and owing. Collectively the defendants owe the plaintiff $897,375.10. The majority of the outstanding levies are the defendants’ portion of a second round of repair levies that were raised at an Extraordinary General Meeting on 23 November 2017.

[3]    The proceedings were served on the defendants on various dates in April and May 2018. The defendants initially filed a notice of opposition at the first call of the application on 29 May 2018.

[4]    On 3 July 2018, the parties agreed to adjourn the application due to an agreement reached with the defendants regarding payment. The defendants agreed to pay:

(a)       $350,000 on 31 July 2018;

(b)       $350,000 on 31 August 2018; and

(c)The balance (being $197,375.10) and scale costs (agreed at $16,728.00) on 15 September 2018.

[5]    The defendants have however not made any payments to the plaintiff. The arrangement with the defendants also included a provision that the defendants would withdraw their defence and would not oppose summary judgment being entered against them if they failed to reach an agreement, as recorded in Minute (No 2) of Edwards J on 26 June 2018.

[6]    I am advised that in discussions between the parties, the plaintiff has been told by the defendants’ counsel that they have secured funding and payments may be made soon. However, when the application was called this morning, counsel for the defendants was without instructions and was not in the position to oppose the application for summary judgment.

[7]    The principles of summary judgment are well known. The plaintiff’s claim against the defendants is simple. They owe it a debt and in order to prove that debt, the plaintiff needs to establish:

(a)It raised the levy;

(b)It has set the due date for payments;

(c)That due date has passed; and

(d)Payment has not been made.

The affidavit of Michael Rehm filed in support of the application for summary judgment contains the required statement confirming the allegations and evidence in support.

[8]I am satisfied that the defendants have no defence to the application.

[9]I enter judgment:

(a)Against the first defendant in the sum of $316,263.50.

(b)Against the second defendant in the sum of $115,727.64.

(c)Against the second and third defendants on a joint and several basis in the sum of $465,383.96.

[10]   The plaintiff also seeks an order for costs against each defendant calculated as follows:

Step	Calculation	Amount
Commencement of proceeding by applicant (2A)	1.6 x $2,330	$3,728.00
Filing interlocutory application (2B)	0.6 x $2,330	$1,398.00
1/3 share of appearance at hearing of defended application	0.25 x $2,330 / 3	$185.80
1/3 share of the filing fee	$1,350.00 / 3	$450.00
Sealing order or judgment	0.2 x $2,330	$466.00
Total:	$6,227.80

[11]   However, I do not consider the plaintiff should be entitled to recover for commencement, filing the application and sealing order on judgment three times. There has been one notice of proceedings, one statement of claim and one interlocutory application. The daily recovery rate is also $2,230, not $2,330 as in the plaintiff’s table.

[12]   I award costs and disbursements against the defendants, on a joint and several basis, as follows:

Step	Calculation	Amount
Commencement of proceeding by applicant (2A)	1.6 x $2,230	$3,568.00
Filing interlocutory application (2B)	0.6 x $2,230	$1,338.00
Appearance at hearing	0.25 x $2,230	$557.50
Sealing order or judgment	0.2 x $2,230	$446.00
Filing fee	$1,350	$1,350.00
Total:	$7,259.50

Woolford J