Singh v Official Assignee - [2020] NZHC 2001

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000491

CIV-2018-404-000116 [2020] NZHC 2001

UNDER The Insolvency Act 2006

BETWEEN

CHERYL SITARA SINGH

Applicant

AND

OFFICIAL ASSIGNEE

Respondent

Hearing: 23 July 2020

Appearances:

Applicant in Person

Gareth Neil and Linda Hui for the Respondent

Judgment:

10 August 2020

Reissued:

11 August 2020

JUDGMENT OF MOORE J

RECALLED AND REISSUED ON 11 AUGUST 2020 AT 4:00 PM

This judgment was delivered by me on 10 August 2020 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

SINGH v OFFICIAL ASSIGNEE [2020] NZHC 2001 [10 August 2020]

Introduction

[1] The applicant, Cheryl Sitara Singh, applies for five orders which are the most recent in a lengthy procession of litigation which has its origins in a dispute she has had with Body Corporate 207650 (“the Body Corporate”). These relate to the non- payment of special levies. The levies are to cover the cost of remediation work undertaken to repair and maintain an apartment building.

[2] The owners of a 30-apartment complex known as Richmond Terraces situated on Chapel Road, East Tamaki, were levied substantial amounts to cover work to correct weathertightness problems. Ms Singh owned Unit 16 (“the Chapel Road property”).

[3] In about 2009 the defects connected to water ingress issues were discovered. The unit owners, through the Body Corporate, sued those they regarded as responsible. That litigation was settled in 2013. The owners resolved to make the repairs from the settlement funds.

[4] In previous proceedings, Ms Singh has challenged the validity of the levies and her liability for them. She has made allegations of wrongdoing against the Body Corporate and its committee. She has made allegations of wrongdoing against the Body Corporate’s manager, Boutique Body Corporates Ltd (“Boutique”).

[5] To date all Ms Singh’s attempts to challenge the levies and her liability to pay them have been unsuccessful. Judgments were obtained by the Body Corporate against her.

[6] On 4 July 2019 Ms Singh was adjudicated bankrupt on the application of the Body Corporate. As a consequence, her assets vested in the Official Assignee (“Assignee”). Attempts by the Assignee to market and sell the property have been complicated and frustrated by Ms Singh’s conduct.

[7] The five applications which are the subject of this judgment seek various orders designed to stay the adjudication and halt the sale of assets by the Assignee.

Background and procedural history

[8] In order to properly appreciate the context of Ms Singh’s applications, it is necessary to traverse the convoluted factual and procedural background. A convenient starting point is the Body Corporate’s application for an order settling the scheme for the repair of Richmond Terraces.

[9]Originally, the cost of the remedial works was estimated at approximately

$5 million. On 18 February 2015, at a general meeting of the Body Corporate, those present or voting by proxy, unanimously approved a proposal to apply to this Court to sanction a scheme…

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.

Continue reading Singh v Official Assignee

Details

AGLC: Singh v Official Assignee [2020] NZHC 2001
Case: [2020] NZHC 2001
Decision Date: 10 August 2020

CaseChat Overview and Summary

Cheryl Sitara Singh applied for five orders which are the most recent in a lengthy procession of litigation which has its origins in a dispute she has had with the Body Corporate. The dispute relates to the non-payment of special levies. The levies are to cover the cost of remediation work undertaken to repair and maintain an apartment building. Singh owned Unit 16, the Chapel Road property. In July 2019, Singh was adjudicated bankrupt on the application of the Body Corporate. The Official Assignee of the bankrupt estate applied to sell the Chapel Road property and another property owned by Singh. Singh sought various orders designed to stay the adjudication and halt the sale of assets by the Assignee. The court was required to determine four questions: (a) whether a stay of execution of the bankruptcy judgment should be granted; (b) whether the sale of assets should be halted pending determination of the appeal against the Assignee’s decision on costs; (c) whether Associate Judge Bell’s judgment of 19 July 2019 in respect of the Boutique proceedings should be stayed; and (d) whether an order should be made that the Assignee funds Singh’s legal costs out of her estate. The court found that Singh’s application for suspension of the adjudication was, in effect, an attempt to re-litigate Hinton J’s orders of 3 and 4 July 2019; since Singh’s adjudication on 3 July 2019 the Assignee had made significant progress in the administration of the estate; the Assignee had a statutory duty to continue with the administration of the bankrupt estate and distribute the proceeds of the realisation of assets to creditors; the creditors had borne the use of money costs while the sums owing to them had remained unpaid; the sale of both properties was required to discharge the indebtedness of the estate and delays to this process would further prejudice Singh’s creditors and have an impact on third parties; the present persistent and repetitive attempts by Singh to frustrate the Assignee’s statutory duties continued to erode the value of the bankrupt estate to the point that there was a real risk of it becoming insolvent to the detriment of creditors, particularly the other owners of units in Richmond Terraces. The court found that the only way the assets could re-vest in Singh would be a successful appeal of the adjudication order and an annulment of her bankruptcy. Singh had not filed a valid appeal against the adjudication order and thus s 46 of the Act did not apply. Singh had not applied for annulment and neither could she satisfy the test for obtaining one. The court found that Singh’s application to stay Associate Judge Bell’s 19 July 2019 judgment in respect of the Boutique proceedings was not appropriate as any rights Singh formerly enjoyed in respect of those proceedings, including the right to appeal it, to stay or otherwise apply to set it aside, had vested in the Assignee when Singh was adjudicated bankrupt. The court found that the Act provided for the bankrupt to retain certain limited assets and permitted the Assignee to make an allowance out of the property of the bankrupt to the bankrupt for support. There was no provision in the Act for the Assignee to fund the bankrupt’s legal costs in respect of a challenge to aspects of the bankrupt’s adjudication. The court found that there was no inherent jurisdiction pursuant to which the High Court may make the order Singh sought. The court dismissed the amended application and ordered the Assignee to pay the costs.

Orders