Body Corporate 207650 v Singh - [2024] NZSC 100

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 38/2024
[2024] NZSC 100

BETWEEN	BODY CORPORATE 207650 Applicant
AND	CHERYL SITARA SINGH Respondent

Court:	Ellen France, Kós and Miller JJ
Counsel:	J B Orpin‑Dowell and T J G Allan for Applicant S P Bryers for Respondent
Judgment:	15 August 2024

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B The applicant must pay the respondent costs of $2,500.

____________________________________________________________________

REASONS

Introduction

The applicant, who is the Body Corporate in relation to Richmond Terraces, a unit title development in South Auckland, has filed an application for leave to appeal from a decision of the Court of Appeal.[1] The Court in that decision lifted a stay of a proceeding brought by the respondent, Ms Singh, challenging the failure of the Body Corporate to supply her with adequate reports about a scheme of arrangement approved under s 74 of the Unit Titles Act 2010 (the stayed proceeding).

Background

[1]Singh v Body Corporate 207650 [2024] NZCA 85 (Courtney, Wylie and Edwards JJ) [CA judgment].

Ms Singh had been an owner of a unit in Richmond Terraces. She was bankrupted on application by the Body Corporate following non‑payment of levies to cover additional costs relating to repairs for weathertightness issues discovered in the development in 2009. The stay was imposed following Ms Singh’s bankruptcy, which has since been annulled. To put these events in context, we note the following.
Ms Singh had paid the initial levy in November 2015, but refused to pay other levies which were raised after the Body Corporate subsequently became aware that repairs were going to cost more than initially estimated.
The Body Corporate’s scheme of repair was approved by the High Court in August 2016[2] under s 74 of the Unit Titles Act, and a subsequent challenge to the validity of the levies under s 74 was dismissed by the High Court.[3] Further levies continued to be imposed, which Ms Singh refused to pay. The Body Corporate sought summary judgment in the District Court against Ms Singh (and others) for unpaid levies.[4] Summary judgment was granted, and an appeal against that decision was subsequently dismissed.[5]
[2]Body Corporate 207650 v Speck [2016] NZHC 1826.
[3]Body Corporate 207650 v Speck [2017] NZHC 966, (2017) 18 NZCPR 742.
[4]Body Corporate 207650 v Singh [2017] NZDC 29041.
[5]Singh v Body Corporate 207650 [2018] NZHC 1932.
Ms Singh commenced the stayed proceeding in February 2018, filing an amended statement of claim on 1 February 2019 which contained three causes of action: an alleged failure by the Body Corporate to supply adequate information and reports regarding the remedial work as required under s 74 of the Unit Titles Act (the reports), and two causes of action in negligence in respect of the Body Corporate’s management of the remedial work. The two causes of action in negligence were struck out.[6] At this time, Ms Singh was bankrupt. Her…

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: [2024] NZSC 100
Decision Date: 15 August 2024

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the Body Corporate 207650 has applied for leave to appeal against a decision of the Court of Appeal that lifted a stay of proceedings brought by Ms Cheryl Singh. The stay had been imposed due to Ms Singh’s bankruptcy, which was subsequently annulled. Ms Singh's proceeding sought reports from the Body Corporate relating to a scheme of arrangement for repairs to the unit title development in South Auckland. The Body Corporate argued that the Court of Appeal erred in lifting the stay, claiming that Ms Singh had no right to challenge the quantum of the levies, and the lifting of the stay was for an abusive purpose. The court had to decide whether the appeal raised issues of general or public importance, and whether the Court of Appeal's decision gave rise to the appearance of a miscarriage of justice.

The Supreme Court held that the appeal did not raise questions of general or public importance, nor did it give rise to the appearance of a miscarriage of justice. The appeal was based on the particular facts of the case and would require the Supreme Court to make findings on factual matters as a court of first instance. The Supreme Court considered that Ms Singh’s proceeding was not set in stone and that the High Court could address any challenge to the quantum of the levies if and when it was raised. The appeal was dismissed, and the applicant was ordered to pay the respondent’s costs of $2,500.

The Supreme Court concluded that the appeal did not meet the criteria for leave to appeal under the Senior Courts Act 2016. The applicant was not permitted to appeal, and the decision of the Court of Appeal to lift the stay was upheld. The matter will proceed to the High Court if Ms Singh seeks to challenge the quantum of the levies, at which point the ordinary appeal rights will apply.

Orders