Singh v Body Corporate 207650 - [2023] NZHC 1269

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-317

[2023] NZHC 1269

BETWEEN
CHERYL SITARA SINGH

Plaintiff

AND

BODY CORPORTE 207650

Defendant

Hearing:
10 May 2023

(By way of Telephone Conference)

Appearances:

S P Bryers for Plaintiff

T G Allan for Defendant – not able to be joined to telephone conference

Judgment:

26 May 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

[1] Ms Singh seeks leave to appeal my judgment of 24 March 2023,1 declining to lift the stay of Ms Singh’s proceedings ordered by this Court on 28 February 2020.

[2] While counsel have filed a consent memorandum recording the proposed respondent’s consent to the application for leave, such applications are not determined by the agreement of counsel instead, they require the Court to determine whether leave is appropriate.

1 Singh v Body Corporate 207650 [2023] NZHC 609.

SINGH v BODY CORPORTE 207650 [2023] NZHC 1269 [26 May 2023]

[3] That said, Mr Bryers (counsel for Ms Singh) advised at the telephone conference held on 10 May 2023 in respect of his application, that he had filed an appeal with the Court of Appeal given he considered leave was not required.

[4] Mr Bryers takes the view that leave is not required as the effect of declining Ms Singh’s application to lift the stay was to finally determine her proceeding. In a practical sense, that is almost certainly correct, albeit my judgment would not bar a further application if there was a change of circumstances warranting a fresh application.

[5] Ms Singh’s proceeding concerns the time she owned a unit in the Richmond Terraces building at 28 Chapel Road, Flatbush, South Auckland. The apartment complex required major weathertightness repairs resulting in substantial levies being raised by Body Corporate 207650 (the Body Corporate) against each of the owners of the units.

[6] A tranche of levies not paid by Ms Singh were subject to a summary judgment application in the District Court which resulted in judgment being granted against Ms Singh. Ms Singh unsuccessfully appealed that judgment and was eventually bankrupted when she did not satisfy the judgment.

[7] The Official Assignee sold Ms Singh’s unit and having secured those funds, took steps to have Ms Singh’s bankruptcy annulled. The Official Assignee assessed the Body Corporate’s claim to be a creditor in Ms Singh’s bankruptcy in respect of its claim over and above the judgment referred to above. The Body Corporates further claim was made up of further levies and legal costs. The Official Assignee accepted the claim in a large part, paid out the Body Corporate and obtained an annulment of Ms Singh’s bankruptcy.

[8] Ms Singh sought to have the stay of her proceedings lifted in order to assess the accuracy of the Body Corporate’s claims against her. I declined the application to lift the stay. To do so would have served no practical purpose as Ms Singh was no longer able to challenge the quantum…

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: [2023] NZHC 1269
Decision Date: 26 May 2023

CaseChat Overview and Summary

Cheryl Sitara Singh initiated proceedings against Body Corporate 207650, seeking to lift a stay on her case, which had been imposed by the High Court of New Zealand. The stay was ordered in relation to Ms Singh's ownership of a unit in the Richmond Terraces building, which required significant weathertightness repairs leading to substantial levies imposed on the unit owners by the Body Corporate. Ms Singh, having failed to pay the levies, faced a summary judgment in the District Court which resulted in a judgment against her. She appealed this judgment unsuccessfully and subsequently became bankrupt. The Official Assignee sold Ms Singh's unit and paid the Body Corporate's claim, leading to the annulment of Ms Singh's bankruptcy. The case before the High Court focused on the appropriateness of lifting the stay of Ms Singh's proceedings to review the Body Corporate's claims against her.

The legal issues that the court needed to decide included whether Ms Singh needed to demonstrate a practical purpose for lifting the stay or if her right to information was sufficient, and whether Ms Singh could challenge the Official Assignee's decision post-annulment to accept that the Body Corporate was a creditor for levies over the amount recorded in the summary judgment. The court also considered the practical effect of the interlocutory order on Ms Singh's ability to pursue her proceedings and whether granting leave to appeal served the interests of justice.

Associate Judge Lester granted leave to appeal the decision, recognizing that the interlocutory order was practically a final determination of Ms Singh's ability to pursue her proceeding. The judge considered the nature of the interlocutory order and its effect on Ms Singh, aligning with the criteria for considering applications for leave to appeal, as outlined in Greendrake v The District Court of New Zealand. The decision acknowledged that the interests of justice might be served by allowing an appeal, especially when considering the potential denial of access to the court.

The final orders included granting leave to appeal the decision in Singh v Body Corporate 207650 [2023] NZHC 609, with the costs of this application reserved. The decision was made during a telephone conference on 10 May 2023, where counsel for the Body Corporate, Mr Allan, was unable to join.

Orders