Body Corporate 324525 v Stent - [2016] NZHC 2442

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2016-488-94 [2016] NZHC 2442

IN THE MATTER OF
the BRIDGEWATER BAY

APARTMENTS at Paihia

BETWEEN

BODY CORPORATE 324525
Plaintiff

AND

ROBYN CATHLEEN STENT First Defendant

LARRY LAWRENCE SMALL and

K M TRUSTEE SERVICES LIMITED Second Defendant

ANTHONY JOHN BUTCHER and

RUTH BARBARA ROGERS Third Defendants

IVOR ANTHONY MILLINGTON Fourth Defendant

NEVILLE EADE Fifth Defendant

Hearing: 10 October 2016

Appearances:

T J G Allan for Plaintiff
B E Brill for Defendants

Judgment:

14 October 2016

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 14 October 2016 at 2:00pm
pursuant to Rule 11.5 of the High Court Rules
…………………………………………………….
Registrar/Deputy Registrar

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

BODY CORPORATE 324525 v STENT [2016] NZHC 2442 [13 October 2016]

[1] The defendants have protested this court’s jurisdiction to hear this case. They say that most of the claims in this proceeding should be heard in the Tenancy Tribunal, established under the Residential Tenancies Act 1986, and the rest in the District Court.

[2] The plaintiff is the body corporate for the unit title development at Paihia known as Bridgewater Bay Apartments. There are 22 apartments. The defendants own five of them. The body corporate sues them for unpaid levies, interest at 10 per cent under s 128 of the Unit Titles Act 2010, and for reasonable costs of collection
under s 124. The body corporate claims levies totalling:

First defendant, owner of apartment 204 $188,375.73

Second defendants, owners of apartment 206 $107,910.85

Third defendants, owners of apartment 301 $213,854.53

Fourth defendant, owner of apartment 307 $207,851.14

Fifth defendant, owner of apartment 310 $208,724.25

[3] The levies were imposed at various times between July 2014 and June 2016. They consist of construction levies, litigation levies, mixed levies, other claims, loan fees and costs. Among the claims is a building levy imposed in October 2015. The amount payable by each defendant for that levy is over $50,000. All the other levies and claims are less than $50,000.

[4] The body corporate has applied for summary judgment. Instead of filing a notice of opposition, the defendants filed an appearance objecting to jurisdiction. They say that all the body corporate’s causes of action are unit title disputes under s 171 of the Unit Titles Act, the causes of action for less than $50,000 are within the exclusive jurisdiction of the Tenancy Tribunal and the remaining ones are within the jurisdiction of the District Court. They also complain that the body corporate is suing them for levies which it has also claimed against them in other proceedings. Here, I deal only with the question of jurisdiction. For that, it is not necessary to decide whether the matters in this proceeding overlap with claims made in other proceedings between the parties.

[5] The Bridgewater Bay Apartments suffered water ingress problems. The way to address the problem has divided the owners. The majority favours undertaking extensive repairs,…

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: [2016] NZHC 2442
Decision Date: 14 October 2016

CaseChat Overview and Summary

The case of Body Corporate 324525 v Stent involved a dispute between the Body Corporate and several defendants over unpaid levies for the Bridgewater Bay Apartments in Paihia. The Body Corporate sought summary judgment against the defendants for unpaid levies, interest, and costs of collection under the Unit Titles Act 2010. The defendants argued that the case should be heard by either the Tenancy Tribunal or the District Court, rather than the High Court. The court was required to decide whether it had jurisdiction to hear the case and if so, whether the claims were properly brought in the High Court.

The court found that its inherent jurisdiction under the Judicature Act 1908 allowed it to hear the case, and that the Unit Titles Act 2010 did not limit this jurisdiction. The court noted that the Act allocates jurisdiction among the Tenancy Tribunal, District Court, and High Court, but that this allocation did not exclude the court's inherent jurisdiction. The court also found that the claims should be assessed by their total value, rather than by breaking them down into individual causes of action.

The court rejected the defendants' argument that some claims should be heard in the Tenancy Tribunal and others in the District Court, as this would be inefficient and prolong the dispute. The court also found that the defendants' argument that the Body Corporate was suing them for the same matter in other proceedings did not affect jurisdiction.

In conclusion, the court found that it had jurisdiction to hear the case and that the Body Corporate's claims against all defendants were within that jurisdiction. The court directed the defendants to file and serve any notices of opposition and affidavits in opposition by 10 November 2016 and scheduled a telephone case management conference on 16 November 2016 to give directions on the Body Corporate's summary judgment application. Costs on the jurisdiction question were reserved and may be decided in the decision on the summary judgment application.

Orders