Tao v Strata Title Administration Limited - [2020] NZCA 496

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA357/2020
[2020] NZCA 496

BETWEEN	AN LI TAO Appellant
AND	STRATA TITLE ADMINISTRATION LIMITED First Respondent JIGAR PANDYA Second Respondent BODY CORPORATE 198693 Third Respondent

Counsel:	Appellant in person C Baker for Third Respondent
Judgment: (On the papers)	15 October 2020 at 10.30 am

JUDGMENT OF CLIFFORD J
(Review of Deputy Registrar’s Decision)

The application for review of the Deputy Registrar’s decision is declined. Security for costs of $7,060 is payable within 10 working days of the date of this judgment.

____________________________________________________________________

REASONS

Introduction

Ms Tao, the applicant, is appealing a decision of Associate Judge Andrew declining her application for an early discharge from bankruptcy.[1] Ms Tao applied for security for costs to be dispensed with. The Deputy Registrar declined that application on 28 August 2020.[2] Ms Tao now applies to a Judge of this Court to review that decision.[3]

Background

[1]Tao v Official Assignee [2020] NZHC 1260.

[2]Strata Title Administration Ltd v Tao [2018] NZHC 3381.

[3]See Court of Appeal (Civil) Rules 2005, r 5A(3).

Ms Tao has for some years now been involved, unsuccessfully, in litigation against the third respondent, and others. That litigation has related primarily to disputes over building maintenance at a unit title development in Auckland where Ms Tao owned, and now her parents own, a unit. The third respondent is the responsible body corporate.
Ms Tao was adjudicated bankrupt on 29 January 2019 on the application of, amongst others, the first and third respondents on the basis of a costs order made in their favour against Ms Tao in that litigation.[4] The judgment adjudicating Ms Tao bankrupt records in detail the background to the making of that costs order, and Ms Tao’s numerous, but unsuccessful, challenges to it.[5]
[4]Strava Title Administration Ltd v Tao [2018] NZHC 3381.
[5]At [6]–[12].
On 8 June 2020 Associate Judge Andrew declined Ms Tao’s application for early discharge.[6] Ms Tao sought early discharge on the basis that her status as a bankrupt created significant difficulties for her in looking after her parents, who are elderly and need her ongoing assistance as their attorney to deal with their financial affairs. In declining that application Associate Judge Andrew noted that those matters had been considered by Associate Judge Sargisson in her decision to adjudicate Ms Tao bankrupt.[7] The Associate Judge was also satisfied that there was no merit in Ms Tao’s challenge to the authority of the third respondent to oppose the application.
[6]Tao v Official Assignee, above n 1.
[7]At [17].
Ms Tao’s notice of appeal to this Court contains essentially one ground: based on her knowledge as variously a body corporate committee member, nominated body corporate chairperson and former owner of a unit in the body corporate, the third respondent never appointed the counsel appearing for it in the cases she brought to the High Court and this Court, meaning that the decision of Associate Judge Andrew…

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: [2020] NZCA 496
Decision Date: 15 October 2020 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by An Li Tao against a decision of the Associate Judge, which declined her application for an early discharge from bankruptcy. Tao was adjudicated bankrupt on the application of Strata Title Administration Limited and others, based on a costs order made in their favour against Tao in a related litigation over building maintenance at a unit title development. The Deputy Registrar declined Tao's application for security for costs to be dispensed with, which led to her appeal to the Court of Appeal. The primary issue in the appeal was whether the appeal had a realistic prospect of success and would be brought by a reasonable and solvent litigant. The Court considered the long history of the litigation, which had been determined against Tao at every material step, and found that even if Tao's allegation regarding the third respondent's representation was true, it would not provide a satisfactory reason to halt the adjudication. The Court concluded that the appeal did not have a realistic prospect of success and would not be brought by a reasonable and solvent litigant.

The Court of Appeal declined Tao's application for review of the Deputy Registrar's decision declining dispensation from security for costs. The Court considered that the Deputy Registrar's decision was supported by the long history of the litigation, which had been determined against Tao at every material step, and that even if Tao's allegation regarding the third respondent's representation was true, it would not provide a satisfactory reason to halt the adjudication. The Court concluded that the appeal did not have a realistic prospect of success and would not be brought by a reasonable and solvent litigant. The Court ordered that security for costs of $7,060 be payable within 10 working days of the date of the judgment.

Orders