Gao v Body Corporate 183930 - [2016] NZCA 458

IN THE COURT OF APPEAL OF NEW ZEALAND

CA573/2015
[2016] NZCA 458

BETWEEN	QING (CATHERINE) GAO, HONGYANG (HENRY) CUI, LI CHEN, WEI MIN (PAUL) ZHOU, YUANXI LUI AND HAILONG (JASON) LIU Appellants
AND	BODY CORPORATE 183930 AND 106 OTHER RESPONDENTS Respondents

Hearing:	16 June 2016 (supplementary submissions received on 27 July 2016, 3 and 4 August 2016)
Court:	Harrison, Mallon and Toogood JJ
Counsel:	J Heatlie and J P Wood for the Appellants D R Bigio for the Respondents
Judgment:	23 September 2016 at 2.15 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed for want of jurisdiction.
BCosts for a standard appeal on a band A basis in the respondents’ favour.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

The appellants appeal against an interim judgment of the High Court.[1] Following the hearing, we raised whether there was jurisdiction to determine the appeal. We provided an opportunity for the parties to obtain consent orders from the High Court which could then provide a jurisdictional basis for the appeal we had heard.
[1]Body Corporate 183930 v Chua [2015] NZHC 2122 [Interim judgment].
The parties were not able to reach agreement on the terms of any such consent order. Accordingly, the parties were advised that we would proceed to determine the issue of jurisdiction following any submissions they wished to make on that issue. The appellants took advantage of that opportunity, maintaining there is jurisdiction to determine the appeal. The respondents abide the Court’s decision while noting that from a practical perspective it would be preferable to have a substantive determination from this Court on the appeal.
While we understand that practical preference, we have concluded we have no jurisdiction and that the appeal must be dismissed for want of jurisdiction. We set our reasons below.

Background

The appellants are a small number of the owners in a 97 unit title development in New Lynn, Auckland. The development was subject to weather‑tightness issues. Repairs to the development were funded from settlement proceeds obtained following proceedings commenced in the Weathertight Homes Tribunal. These proceeds were exhausted before the repairs were completed.
The Body Corporate and one of the unit holders applied to the High Court for an order under s 74 of the Unit Titles Act 2010 to settle a scheme to manage the balance of the repair project. They filed a draft scheme with the High Court. Most of the unit holders consented to the scheme. Several unit holders did not, including the six named appellants. Following a hearing in the High Court, and before delivery of a judgment, an amended draft scheme was filed for the Court’s approval. The unit holders who initially opposed the original draft scheme remained opposed to the amended draft scheme. However, the issues in dispute had narrowed to three issues.
The issues in dispute were:
(a)how the costs to complete the repair works were to be allocated between the unit holders, in particular that:
(i)the costs of repair were to be allocated…

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] NZCA 458
Decision Date: 23 September 2016 at 2.15 pm

CaseChat Overview and Summary

The case of Gao v Body Corporate 183930 concerned an appeal brought against findings made by the High Court in a proceeding involving a dispute between a body corporate and its owner over the enforcement of certain building compliance orders. The Court of Appeal was asked to determine whether it had jurisdiction to hear the appeal under s 66 of the Judicature Act 1908. This provision grants the Court of Appeal jurisdiction to hear appeals from judgments, decrees, or orders of the High Court, subject to certain rules and conditions. The appeal in this case was brought against some of the findings made by the High Court, but no decree or order had yet been granted.

The legal issue before the Court was whether the appeal was valid under s 66, as the appeal was not against any decree or order but rather against certain findings made by the High Court. The Court examined the definition of “judgment” under the Judicature Act 1908, which includes a decree. However, the Court found that the High Court Rules and the Court of Appeal (Civil) Rules provided more clarity on the distinction between a judgment and the reasons for a judgment. These rules defined a “judgment” as including a decree or order of the court, while the “reasons for judgment” referred to the written reasons given by a judge for their decision. The Court of Appeal (Civil) Rules also made a similar distinction by referring to a “decision” rather than a “judgment”. The Court held that an appeal must be against the result of a decision, not the reasons for the judgment, and that there is no right of appeal against the reasons for a judgment.

The Court of Appeal held that the appeal was not valid under s 66 as it was not brought against any decree or order, but rather against certain findings made by the High Court. The Court relied on the Supreme Court’s decision in Arbuthnot v Chief Executive of the Department of Work and Income, which held that a litigant cannot bring an appeal when they have been entirely successful and do not wish to alter the result. The Court of Appeal concluded that the appeal was not valid and dismissed it. As a result, the findings made by the High Court remained undisturbed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Court of Appeal’s jurisdiction must be conferred by an enactment. Section 66 of the Judicature Act 1908 sets out the Court’s jurisdiction to hear appeals in it civil jurisdiction. It is in these terms:66Court may hear appeals from judgments and orders of the High CourtThe Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the High Court, subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act. The jurisdiction therefore arises for any judgment, decree, or order and subject to such rules for regulating the terms and conditions on which such appeal shall be allowed. The High Court Rules and the Court of Appeal (Civil) Rules 2005 provide such rules. The jurisdiction conferred by s 66 operates alongside those rules. As set out above, the appeal is brought against some of the findings which the High Court made about issues raised by those opposing the application.[5] It is not brought against any decree or order. The question is, therefore, whether it is appealable under s 66 as a “judgment” even though no order or relief has yet been granted. The definition of “judgment” does not particularly assist for present purposes. It simply provides that a judgment includes a decree.[6] The High Court and the Court of Appeal (Civil) Rules do, however, assist. [5]See [9] and [11] of this judgment.[6]Judicature Act 1908, s 2. The High Court Rules distinguish between a judgment and the reasons for a judgment by defining them separately.[7] A “judgment” is defined as “includ[ing] a decree or order of the court”. The “reasons for judgment” is defined as meaning “the written reasons given by a Judge for his or her decision”. This distinction is reinforced by the rule that a “judgment is given orally when the Judge pronounces it, with or without reasons”.[8] [7]High Court Rules, r 11.1.[8]Rule 11.4. The Court of Appeal (Civil) Rules make a similar distinction, although they refer to a “decision” rather than a “judgment”. Appeals and cross-appeals are brought against a “decision” or “part of a decision”.[9] A decision can be supported “on a ground other than the one upon which it was based” in which case a memorandum is to be filed “setting out the ground upon which the respondent intends to support the decision appealed against”.[10] [9]See, for example, rr 29(1)(a) and 32(4) of the Court of Appeal (Civil) Rules 2005.[10]Rule 33(1). That an appeal is brought against a judgment (or decision), and not the reasons for the judgment (or the grounds for the decision), is made plain by the Supreme Court in Arbuthnot v Chief Executive of the Department of Work and Income, in the following passage:[11] [25] It is fundamental that an appeal must be against the result to which a decision-maker has come, namely the order or declaration made or other relief given, not directly against the conclusions reached by the decision‑maker which led to that result, although of course any flaws in those conclusions may provide the means of impeaching the result. A litigant cannot therefore, save perhaps in very exceptional circumstances, bring an appeal when they have been entirely successful and do not wish to alter the result. The successful litigant cannot seek to have the appeal body overturn unfavourable factual or legal conclusions made on the journey to that result which have had no significant impact on where the decision‑maker ultimately arrived. In short, there is no right of appeal against the reasons for a judgment, only against the judgment itself. (Emphasis added.)[11]Arbuthnot v Chief Executive of Department of Work and Income [2007] NZSC 55, [2008] 1 NZLR 13.

Ratio Decidendi

Legal Principle Established

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