Singh v Body Corporate 207650 - [2017] NZHC 2031

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2950 [2017] NZHC 2031

BETWEEN
CHERYL SITARA SINGH

First Plaintiff

ESTHA SHAILESHNI SIMPSON and EDWARD CHRIS SYLVESTER CHAN STANLEY SIMPSON

Second Plaintiffs

AND

BODY CORPORATE 207650

Defendant

Hearing: On the papers

Appearances:

J McBride for Plaintiffs
T J G Allan and S F Powrie for Defendant

Judgment:

23 August 2017

JUDGMENT OF LANG J [on costs]

This judgment was delivered by me on 23 August 2017 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

SINGH v BODY CORPORATE 207650 [2017] NZHC 2031 [23 August 2017]

[1] This proceeding has now been resolved other than in relation to the issue of costs. It has been referred to me for determination of that issue on the basis of the submissions filed by counsel.

Background

[2] The proceeding was filed as a result of issues that arose when the defendant, the body corporate responsible for administering the affairs of the “Richmond Terraces” complex of apartments, was arranging for work to be carried out to the complex to rectify weathertightness issues. The cost of the work increased markedly from that originally anticipated, and it was necessary for the body corporate to meet the increased cost of repairs by imposing levies on unit owners.

[3] The first attempt to do this was by way of a resolution passed in June 2015 by the Committee appointed by the body corporate to oversee the repair work. That resolution was legally ineffective because the Committee did not have power to impose levies. That power rested in the body corporate by resolution passed at a general meeting.

[4] The body corporate held an Extraordinary General Meeting on 25 October

2016. Those present voted in favour of the proposed levies. The plaintiffs were excluded from voting at this meeting because they had not paid the levies imposed by the earlier resolution of the Committee. They filed this proceeding on 15
November 2016 in order to challenge the resolution passed by the Committee and also that passed by the body corporate at the Extraordinary General Meeting on
25 October 2016. They also sought a declaration that they were entitled to vote at any general meeting of the body corporate.

[5] The body corporate subsequently held another Extraordinary General Meeting on 5 December 2016 at which the plaintiffs were permitted to vote. The unit owners who attended this meeting again approved the imposition of the levies.

The arguments

[6] The plaintiffs contend that the present proceeding served its purpose because it forced the body corporate to act in accordance with proper procedure. It says the body corporate erred when it purported to impose levies via the Committee, and then erred again when it prevented them from voting at the first Extraordinary General Meeting. The plaintiffs say they should receive an award of costs on a Category 2B basis as a result.

[7] The body corporate disagrees. It points out that, even if there were irregularities in…

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: [2017] NZHC 2031
Decision Date: 23 August 2017

CaseChat Overview and Summary

The case of Singh v Body Corporate 207650 was heard by Lang J in the High Court of New Zealand. The plaintiffs, Cheryl Singh, Estha Simpson, and Edward Stanley Simpson, contested the defendant, Body Corporate 207650, over the imposition of levies intended to cover the cost of weathertightness repairs in the Richmond Terraces apartment complex. The plaintiffs argued that they were wrongfully excluded from voting on the levies and that the initial resolution to impose the levies was legally ineffective. The central issue before the court was whether the plaintiffs were entitled to an award of costs on a Category 2B basis, given that the proceeding had led to the body corporate adhering to proper procedures in subsequent meetings.

The court determined that the plaintiffs had a legitimate basis for seeking the Court's intervention to declare the initial Committee resolution invalid and to clarify their voting rights. However, the court also recognised that the outcome of the Extraordinary General Meeting held on 25 October 2016 would likely have remained unchanged, even if the plaintiffs had been allowed to vote. The court concluded that while the proceeding was necessary to address the procedural flaws, it may not have led to substantive relief regarding the levies resolution. Consequently, the court awarded the plaintiffs costs on a Category 2B basis, reduced by 50%, and also granted them costs as fixed by the Registrar.

The court's decision effectively resolved the matter of costs, allowing the plaintiffs to discontinue the proceeding. The judgment highlights the balance between enforcing procedural correctness and recognising the practical outcomes of the body corporate's actions.

Orders