Singh v Body Corporate 207650 - [2018] NZHC 2872

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000099 [2018] NZHC 2872

BETWEEN
CHERYL SITARA SINGH

Applicant

AND

BODY CORPORATE 207650

Respondent

CIV-2018-404-000116

BETWEEN BODY CORPORATE 207650
Creditor

ANDCHERYL SITARA SINGH Debtor

Hearing: 10 October 2018

Appearances:

S Bryers for the Applicant/Debtor
K Wakelin for the Respondent/Creditor

Judgment:

6 November 2018

JUDGMENT OF HINTON J [LEAVE TO APPEAL]

This judgment was delivered by me on 6 November 2018 at 1.00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
Stephen Bryers, Barrister, Auckland
Grove Darlow & Partners, Auckland

CHERYL SITARA SINGH v BODY CORPORATE 207650 [2018] NZHC 2872 [6 November 2018]

Introduction

[1] On 31 July 2018, I delivered judgment against Ms Singh dismissing an appeal from the District Court relating to enforcement of body corporate levies.1 Ms Singh now seeks leave to appeal to the Court of Appeal. She also seeks a stay of my judgment pending hearing of that appeal, if leave is granted. Mr Bryers, for Ms Singh, accepts that if I decline leave to appeal, the stay application falls away.

[2] There is also a bankruptcy proceeding brought against Ms Singh by the Body Corporate.2 Ms Singh applies to set aside a bankruptcy notice issued against her on 19 March 2018. That application was withdrawn by Mr Bryers at the outset of this hearing, on the basis that alternative steps will be considered.

Adjournment application

[3] Mr Bryers’ appearance at the commencement of this hearing was his first involvement on the record. He advised at the outset that he had been instructed one week before, and that he was seeking an adjournment on the basis that there had been insufficient time for him to do the matter justice. He sought a short adjournment of two weeks and submitted that there was no particular prejudice to the respondent on that basis.

[4] Unsurprisingly, the adjournment application was opposed. Ms Singh has sought adjournments at many points throughout these proceedings, including two in respect of this application for leave to appeal. The first of these was declined by Muir J on 3 September 2018. That adjournment was sought on the basis that Ms Singh wished to adduce new evidence; have video media made available for the presentation of evidence, (which she contended was not clear from printed hard copies); and call the Body Corporate’s solicitor for cross-examination. The second request by Ms Singh for an adjournment of this hearing, was referred to Venning J. That request was based on her intended filing of an application for leave to appeal to the Court of Appeal, which was difficult to follow, as such an application can only follow an unsuccessful application for leave in this Court. Venning J declined the adjournment.

[5] I should note in fairness to Mr Bryers that he was unaware of the two previous requests by Ms Singh for an adjournment of this hearing.

[6] In addition, it would not be…

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: [2018] NZHC 2872
Decision Date: 6 November 2018

CaseChat Overview and Summary

The High Court was asked to consider Ms Cheryl Singh’s application for leave to appeal a decision of the Court relating to body corporate levies, and an associated stay application. The Court was also asked to consider Ms Singh’s application to set aside a bankruptcy notice issued by the Body Corporate. Ms Singh’s application for leave to appeal was based on three grounds: (a) that the Body Corporate was negligent in overseeing the repair project, (b) that the third levy was unlawful, and (c) that the levies had not been properly apportioned. The legal issues were whether the grounds of appeal raised a question of law or fact capable of serious argument, and whether the scarce resources of the Court of Appeal should be used to consider the appeal. The Court found that the first ground of appeal was not seriously arguable because it was not open to a unitholder to go beyond a finding that a levy was lawful, to argue that the costs were too high. The second ground was also not seriously arguable because, although there were questions about the quorum at the extraordinary general meeting, the Court found that the resolution was valid. The third ground was also not seriously arguable because it had not been raised in earlier proceedings and the evidence relied on was too vague to support the argument. The application for leave to appeal was dismissed. The application to set aside the bankruptcy notice was withdrawn. The Body Corporate was awarded costs on an indemnity basis.

Orders