Singh v Body Corporate 207650 - [2018] NZHC 1932

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000099

[2018] NZHC 1932

BETWEEN
CHERYL SITARA SINGH

Appellant

AND

BODY CORPORATE 207650

Respondent

Hearing: 19 June 2018

Appearances:

The Appellant in Person

S Powrie for the Respondent

Judgment:

31 July 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 31 July 2018 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
Grove Darlow & Partners, Auckland

Party:
C Singh

CHERYL SITARA SINGH v BODY CORPORATE 207650 [2018] NZHC 1932 [31 July 2018]

[1] This is an appeal against a judgment of Judge G M Harrison in the District Court at Auckland on 20 December 2017.1

[2] Judge Harrison granted summary judgment against the present appellant and also against a Mr and Mrs Simpson for unpaid body corporate levies and for costs. The body corporate levies relate to construction work undertaken to repair and maintain a building known as “Richmond Terraces”.

[3] Ms Singh is the sole appellant. The Simpsons have not appealed the District Court judgment.

[4] The quantum of the judgment against Ms Singh is $181,561.03, plus a sum of costs of $22,633.83 for which orders were made jointly and severally against her and the Simpsons.2

Background

[5] For a fuller background, I refer to the earlier judgment of Lang J in this Court which is directly related to this proceeding,3 and the judgment of Judge Harrison.

[6] On 8 August 2016, this Court approved a scheme to carry out necessary repairs at Richmond Terraces.

[7] The body corporate had received settlement monies from litigation against those responsible for construction failures, but as is common, the actual cost of repairs was well in excess of the settlement monies.

[8]The body corporate made a first top-up levy, which was met by all unit owners.

[9] In December 2016, the body corporate resolved to issue a second levy in respect of all units. That levy was contested by the appellant and the Simpsons as being unlawful. Their primary argument was that much of the work resulting in

1      Body Corporate 207650 v Singh [2017] NZDC 29041.
2      Mr Powrie understands the Simpsons have either paid or are paying 50 per cent of the costs.
3      Body Corporate 207650 v Speck [2017] NZHC 966.

increased costs was not authorised by the scheme approved by the Court. They also raised many of the points, or similar points, to those raised in this summary judgment proceeding.

[10]On 12 May 2017, Lang J held with respect to the challenge to the second levy:

(a)All of the work the body corporate has carried out has been directed towards the objective of ensuring that the remediated complex is constructed to a standard that will result in code compliance. As a result, it falls within the rubric of the scheme approved by the Court, and the body corporate is entitled to levy unit owners to meet the cost…

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 1932
Decision Date: 31 July 2018

CaseChat Overview and Summary

This case involves an appeal against a judgment by the High Court of New Zealand in Auckland. The appellant, Cheryl Sitara Singh, appeals a decision by Judge G M Harrison in the Auckland District Court, which granted summary judgment to Body Corporate 207650 for unpaid body corporate levies and costs. The levies were issued to cover construction work undertaken to repair and maintain the Richmond Terraces building. The primary legal issues the court had to decide were whether the second and third levies were valid and whether the appellant had a valid defence against them. The court also had to consider whether the appellant's claims against third parties and the body corporate manager could justify a refusal to pay the levies.

The court found that the second levy was valid as the work carried out fell within the scope of the scheme approved by the Court, which aimed to ensure the building was constructed to a standard that would result in code compliance. The third levy, which was not challenged, must also be lawful by logical implication. The court ruled that any issues concerning the body corporate committee's management of the project, the body corporate manager's appointment, or the validity of the funding for the loan were not relevant to the validity of the levies. The court emphasised that the levies had to be paid as they were valid, and any other claims should be pursued through separate proceedings. The court dismissed the appeal and ordered the appellant to pay costs of $7,285.41 to the respondent.

Orders