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Singh v Boutique Body Corporates Ltd

Singh v Boutique Body Corporates Ltd

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Case Copied 19 July 2019 45 min read

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-317

[2019] NZHC 1707

BETWEEN
SHERYL SITARA SINGH

Plaintiff

AND

BOUTIQUE BODY CORPORATES LIMITED

First Defendant

Continued over page

Hearing: 23 May 2019

Appearances:

S P Bryers for the Plaintiff

V Wethey and S McDonald for the First Defendant
TJG Allan and K Windmeyer for the Second to Seventh Defendants

Judgment:

19 July 2019

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 19 July 2019 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.

………………………………………….
Deputy Registrar

Solicitors:
Richard S Wood, Auckland, for the Plaintiff
Fee Langstone (Virginia Wethey), Auckland, for the First Defendant
Grove Darlow (Tim Allan), Auckland, for the Second to Seventh Defendants

Copy for:
Stephen P Bryers, Barrister, Auckland Official Assignee

SINGH v BOUTIQUE BODY CORPORATES LIMITED [2019] NZHC 1707 [19 July 2019]

KATHERINE SPECK
Second Defendant

RYAN ANTONY SPECK
Third Defendant

JENNIFER GRACE RADONICH
Fourth Defendant

FAQIANG LIANG
Fifth Defendant

SAMIR CHAWLA
Sixth Defendant

GURABACHAN SINGH and MARK IJESSELDJIK
Seventh Defendants

[1] This case concerns a dispute within a body corporate under the Unit Titles Act 2010. Ms Singh, the plaintiff, is one of the owners. Boutique Body Corporates Ltd, the first defendant, provided secretarial, administrative and management services to the body corporate. The second to seventh defendants were members of the body corporate committee. The origins of the dispute are weathertightness defects in a residential unit complex in Flat Bush, South Auckland. The body corporate sued those it alleged were responsible for the defects and settled, but the amount received on settlement was not enough to cover all the repair costs. Under a scheme under s 74 of the Unit Titles Act, the body corporate levied the owners to meet the shortfall. Ms Singh unsuccessfully contested the levies.1 In this proceeding she holds the defendants responsible for the extra levies she has been required to pay.

[2] In response the defendants have applied to strike out. Boutique Body Corporates Ltd applies to strike out all the allegations against it in Ms Singh’s amended statement of claim of 1 February 2019. The committee members apply for partial strike-out of the allegations against them: paragraphs [33](b), [33](c) and [34], which allege some breaches of duty by the committee members and damage suffered Ms Singh.

[3] I find for the defendants mainly because Ms Singh’s pleading does not show a tenable case that the defendants assumed responsibility to her personally for their work for the body corporate under the s 74 scheme. The second defendants also alleged abuse of process, but that argument did not take them all the way they needed.

Background

[4] The unit title development is “Richmond Terraces” in Flat Bush, South Auckland. The body corporate is BC 207650. In her judgment on an earlier hearing of the strike out application, Courtney J gave the background:2
[9] The weathertightness problems in Richmond Terraces were discovered in 2009. At…

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: [2019] NZHC 1707
Decision Date: 19 July 2019

CaseChat Overview and Summary

- **Parties and nature of dispute:**
This case involves a dispute under the Unit Titles Act 2010 between Sheryl Sitara Singh, the plaintiff, and Boutique Body Corporates Limited, the first defendant, along with several other defendants who were members of the body corporate committee. The dispute arises from weathertightness defects in a residential unit complex in Flat Bush, South Auckland, and the subsequent levy imposed on unit owners to cover the cost of repairs exceeding initial estimates.

- **Legal issues:**
The court was required to decide whether Boutique Body Corporates Ltd and the committee members assumed a personal duty of care to Ms Singh, beyond their obligations to the body corporate, in relation to the administration of a scheme under section 74 of the Unit Titles Act. The court also had to determine if Ms Singh's claims against the defendants constituted an abuse of process, given the outcomes of previous proceedings.

- **Court's reasoning and outcome:**
The court found that Ms Singh's pleading did not show a tenable case that the defendants assumed a personal responsibility to her that would impose a duty of care beyond their obligations to the body corporate. The court reasoned that under the Unit Titles Act, professionals such as body corporate secretaries and committee members typically owe a duty of care only to the body corporate, not to individual owners. Ms Singh's claims against Boutique Body Corporates Ltd for negligence were struck out because she did not plead a case of personal assumption of responsibility. Similarly, the committee members' application to strike out certain allegations was allowed as an abuse of process because it sought to relitigate issues already decided in previous proceedings. The court emphasized the importance of finality and the need to avoid undermining the rule against derivative proceedings.

- **Final orders:**
All claims against Boutique Body Corporates Ltd were struck out. Paragraphs [33](b) and (c) and [34] of the amended statement of claim against the committee members were also struck out. Ms Singh's claims against the committee members in her first cause of action and in paragraph [33](a) remain on foot. The court directed further directions to be considered, taking into account Ms Singh's recent adjudication as bankrupt.

Orders