Singh v Body Corporate 207650 - [2024] NZCA 85

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA208/2023
[2024] NZCA 85

BETWEEN	CHERYL SITARA SINGH Appellant
AND	BODY CORPORATE 207650 Respondent

Hearing:	15 February 2024
Court:	Courtney, Wylie and Edwards JJ
Counsel:	S P Bryers for Appellant J B Orpin-Dowell and T J G Allan for Respondent
Judgment:	27 March 2024 at 2.30 pm

JUDGMENT OF THE COURT

A The application to adduce fresh evidence is declined.

B The appeal is allowed.

C The stay over Singh v Body Corporate 207650 CIV 2018-404-317 is lifted.

DLeave granted to file memoranda as to costs in accordance with [43] of this judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Edwards J)

Ms Singh appeals the judgment of the High Court declining to lift a stay of her proceeding.[1] The stay was imposed following Ms Singh’s bankruptcy.[2] That bankruptcy has since been annulled. Ms Singh sought to lift the stay to allow her to pursue her claim against the Body Corporate for failure to supply her with adequate reports pursuant to a scheme of arrangement approved under s 74 of the Unit Titles Act 2010.
[1]Singh v Body Corporate 207650 [2023] NZHC 609 [judgment under appeal].
[2]Singh v Body Corporate 207650 HC Auckland CIV-2018-404-317, 28 February 2020 [stay decision].
The High Court declined to lift the stay on the basis that to do so would not serve any practical purpose and it would only result in further costs being incurred by the Body Corporate.[3]
[3]Judgment under appeal, above n 1, at [40].
The appeal proceeds by way of leave from the High Court.[4] Ms Singh applies to adduce new evidence on appeal. The evidence relates to the calculation of levies and the production of the Official Assignee’s report. As we explain further in this judgment, we do not consider the evidence to be relevant to the issue of whether the stay should be lifted. Accordingly, we decline the application to adduce new evidence.

Key events

[4]Singh v Body Corporate 207650 [2023] NZHC 1269 [leave decision] at [15].

There is a long history of litigation between Ms Singh and the Body Corporate. The background to the current proceeding is summarised in the judgment of Courtney J from 2018.[5] We touch only on those events relevant to the current appeal.
[5]Singh v Boutique Body Corporates Ltd [2018] NZHC 3233 [judgment of Courtney J] at [9]–[25].
Ms Singh was the owner of unit 16 of the Richmond Terraces in Flatbush, South Auckland. That development was discovered to have significant weathertightness issues in 2009. The Body Corporate commenced proceedings against those involved in the construction of Richmond Terraces and subsequently settled its claim.
The settlement funds were not sufficient to cover the estimated cost of repairs, so in 2015 the Body Corporate levied the unit owners for the shortfall. Ms Singh paid her share of these costs in November 2015. However, it soon became obvious that the repairs were going to cost much more than originally…

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] NZCA 85
Decision Date: 27 March 2024 at 2.30 pm

CaseChat Overview and Summary

Ms Cheryl Sitara Singh appealed against the High Court's decision to decline to lift a stay of her proceeding against the Body Corporate 207650. The stay had been imposed following Ms Singh's bankruptcy and had since been annulled. Ms Singh sought to lift the stay to pursue her claim against the Body Corporate for failure to supply her with adequate reports as required by a scheme of arrangement approved under the Unit Titles Act 2010. The High Court had declined to lift the stay, finding that doing so would not serve any practical purpose and would only result in further costs being incurred by the Body Corporate. The appeal to the Court of Appeal was by way of leave and focused on whether the stay should be lifted. Ms Singh sought to adduce new evidence relating to the calculation of levies and the production of the Official Assignee's report, but the Court found this evidence to be irrelevant to the issue of whether the stay should be lifted.

The Court of Appeal considered that the only relevant considerations in deciding whether to lift the stay were the nature of the proceeding that was stayed, the circumstances in which the stay was entered, and the effect of the stay on Ms Singh's right to pursue her claim. The Court found that Ms Singh had a reasonably arguable claim against the Body Corporate for reports and information under the scheme, and her claim was stayed pending the outcome of her bankruptcy. That bankruptcy had now been annulled with her cause of action revesting in her. The Court of Appeal concluded that there was no reason why Ms Singh should not be able to pursue her claim against the Body Corporate and ordered that the stay be lifted. Ms Singh was the successful party and was entitled to an award of costs. The Court granted leave to file and serve memoranda relating to costs.

In summary, the Court of Appeal allowed the appeal, lifted the stay over the proceeding, and ordered that Ms Singh was the successful party and entitled to an award of costs. The Court declined the application to adduce fresh evidence and granted leave to file and serve memoranda relating to costs.

Orders