Body Corporate 203344 v Shue - [2023] NZHC 3567

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1406

[2023] NZHC 3567

BETWEEN
BODY CORPORATE 203344

Plaintiff

AND

LILY SHUE

Defendant

Hearing: On the papers

Counsel:

C P Browne/N Skara for the Plaintiff

Date of Judgment:

7 December 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 7 December 2023 at 4 pm.
Pursuant to Rule 11.5 of the High Court Rules.

…………………..
Registrar/Deputy Registrar

Solicitors:
Wilson Harle, Auckland

BODY CORPORATE 203344 v SHUE [2023] NZHC 3567 [7 December 2023]

Introduction

[1] The plaintiff is the Body Corporate responsible for a unit title development in Glen Eden, known as Westwood Park Apartments. Unit 10C in the development is in serious default in payment of levies. The current registered owner of that unit is Jar Meng Shue. Mr Shue has been deceased for more than three years. The unit is presently occupied by his daughter, Lily Shue, the defendant.

[2] The Body Corporate seeks summary judgment for the unit’s unpaid levies, and associated interest and costs. However, suit against a deceased can only proceed against a legally appointed representative of the deceased’s estate, and in Mr Shue’s case, there is none.1

[3] Accordingly, the Body Corporate applies for the appointment of Ms Shue as personal representative of the deceased, under r 18.7 of the High Court Rules 2016 (HCR).

[4] The proceeding was called before me in the summary judgment list on 24 October 2023. In a subsequent minute, I indicated my preliminary view that the Court lacked jurisdiction to make the representative order as sought. On 3 November 2023, the Body Corporate filed submissions in opposition to that view.

[5] Ms Shue has been served with the relevant applications and documents. She has taken no steps in the proceeding.

Background

[6] Westwood Park Apartments suffers from weathertightness issues. Efforts to resolve the issues span back to February 2009, when the Body Corporate obtained orders settling a remediation scheme under the Unit Titles Act 1972. The scheme authorises the Body Corporate to levy and collect the funds necessary to undertake remedial work. That work, and in particular the recovery of costs, is ongoing.

1 Counsel for the Body Corporate informs me that, as of March 2023, no application for probate has been made in respect of Mr Shue’s estate.

[7] Over the years, the Body Corporate has attempted to recover various unpaid levies in relation to Unit 10C. Payments have been made but the debt has never been cleared.

[8] In 2018, the Body Corporate commenced a proceeding against Mr Shue in the District Court (the District Court proceeding). On 19 July 2019, the Body Corporate sealed judgment in the District Court against Mr Shue for $26,708.53, the value of the unit debt at the time (the judgment). Attempts to enforce the judgment were unsuccessful and Mr Shue died on 6 July 2020, with the judgment debt unpaid.

[9] Sometime after, when Ms Shue was living in…

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.

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Details

Case: [2023] NZHC 3567
Decision Date: 7 December 2023

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, was presented with a case involving a Body Corporate seeking to recover unpaid levies from a deceased owner of a unit in Westwood Park Apartments. The current occupant of the unit, Lily Shue, is the deceased's daughter, and the Body Corporate sought her appointment as the personal representative of the deceased's estate to proceed with the claim. However, no legal representative had been appointed for the deceased's estate, leading to the Body Corporate's application under Rule 18.7 of the High Court Rules 2016. The primary legal issue was whether the court had the jurisdiction to appoint Lily Shue as the personal representative of the deceased's estate to enable the proceeding against the estate.

The court examined the procedural rules and found that while comparable jurisdictions had specific provisions for such situations, the High Court Rules did not. The Body Corporate argued that Rule 18.7, which deals with applications for directions as to service, could be applied to make the necessary representation order. However, the court ruled that this rule was not intended to grant representation of a deceased's estate and that doing so would interfere with the probate jurisdiction and its safeguards. Additionally, there was no evidence that Ms. Shue consented to representing the estate, and such an appointment would not resolve the ongoing issue of future levies potentially going unpaid.

The court declined the application for representation but noted that several options were available to the Body Corporate, including applying for a grant of administration if a will existed or seeking a limited grant of administration ad litem to an independent person. The court stayed the proceeding pending the Body Corporate's next steps and made no order as to costs.

Orders