Body Corporate 234525 v Stent - [2017] NZHC 2948

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CIV-2016-488-94 [2017] NZHC 2948

BETWEEN
BODY CORPORATE 234525

Plaintiff

AND

ROBYN CATHLEEN STENT First Defendant

CLARRIE LAWENCE SMALL and KM TRUSTEE SERVICES LIMITED

Second Defendants

ANTHONY JOHN BUTCHER and

RUTH BARBARA ROGERS Third Defendants

IVOR ANTONY MILLIINGTON Fourth Defendant

NEVILLE EADE Fifth Defendant

Hearing: 29 November 2017 at 9:30am

Appearances:

TJG Allan and S Powrie for the Plaintiff
B E Brill for the Defendants

Judgment:

29 November 2017

[ORAL] JUDGMENT (No.3) OF ASSOCIATE JUDGE R M BELL

Solicitors:
Grove Darlow, Auckland, for the Plaintiff
Barry E Brill Limited, Paihia, for the Defendants

BODY CORPORATE 234525 v STENT [2017] NZHC 2948 [29 November 2017]

Recall application

[1] On 21 November 2017, I gave judgment on the body corporate’s summary judgment application in its claim for unpaid levies.1 I gave the body corporate judgment for levies SL4, SL6 and SL7. The first defendant was not required to pay levies SL4 and SL6 as she had already paid them. I struck out the body corporate’s claim for SL1. I dismissed the body corporate’s summary judgment application for SL8. I directed a hearing for today to fix the amounts of levies payable by each defendant, the interest payable by each defendant, costs payable by the defendants, to enter judgment, and give any related directions.

[2] The body corporate has applied for recall of that part of my judgment where I dismissed its application for summary judgment for levy SL8. It relies on two matters – the procedural history of the proceeding and a resolution passed at an annual general meeting of the body corporate on 29 January 2017, the Saturday before the hearing of the summary judgment application which started on Thursday 2 February 2017.

[3] In my judgment of 21 November 2017, I recorded that the other levies in issue had either been made at general meetings or had been ratified at general meetings. SL8 was made by the body corporate committee under delegated authority. It was not made in a general meeting and had not been ratified. The defendants challenged the decision of the committee, saying that it was required to have a physical meeting whereas the decision to impose the levy had been made by an exchange of emails between
Mr Leishman of Boutique Body Corporates Ltd and the members of the committee.

[4] I dealt with that in paragraphs [93]-[115] of my decision. I accepted that it was open to a body corporate committee with delegated authority to carry on its business other than by meeting at one place at the same time. But I was not satisfied, for summary judgment purposes, that a levy resolution was properly passed in accordance with ss 104 and 109 of the Unit Titles Act and with the Unit Titles Regulations – see paragraph [108]
of my decision.

1 Body Corporate 324525 v Stent (No 2) [2017] NZHC 2857.

[5] Those reasons extended…

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: [2017] NZHC 2948
Decision Date: 29 November 2017

CaseChat Overview and Summary

Body Corporate 234525 sought a recall of part of the Associate Judge's decision dismissing its application for summary judgment in respect of levy SL8. The defendants had raised an objection to the decision of the body corporate committee imposing the levy SL8, on the basis that the decision was made by an exchange of emails rather than at a meeting, and therefore was invalid. The body corporate had applied for summary judgment on the basis that the resolution was valid. The Associate Judge declined to give summary judgment because it was not clear that the committee had made a resolution at all. The body corporate then relied on a resolution passed at an annual general meeting on 28 January 2017, which ratified the decision of the committee, to argue that the summary judgment application should have succeeded. The court recalled the decision to dismiss the summary judgment application, granted judgment in favour of the body corporate in respect of SL8, but not for interest prior to 28 January 2017. The court also considered the amount of costs payable by the defendants and directed the body corporate to provide an invoice for costs incurred after 22 November 2017.

Orders