Tao v Strata Title Administration Limited - [2018] NZCA 317

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA195/2018
[2018] NZCA 317

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

Hearing:	7 August 2018
Court:	Winkelmann, Brown and Clifford JJ
Counsel:	Applicant in person E St John for Respondents
Judgment:	23 August 2018 at 10 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is declined.
BThe applicant must pay the respondents one set of costs for a standard application on a band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Ms Tao applies for an extension of time to file an appeal against two decisions of Thomas J. On 27 April 2016, Thomas J entered summary judgment in favour of the respondents in relation to Ms Tao’s claims against the operators of the relevant unit title development, and declined an application for the appointment of an administrator for the body corporate.[1] On 8 August 2016, Thomas J awarded increased costs against Ms Tao.[2]

Background

[1]Tao v Strata Title Administration Ltd [2016] NZHC 814 [substantive judgment].

[2]Tao v Strata Title Administration Ltd [2016] NZHC 1821 [costs judgment].

There is an extensive procedural history to this application. It is unusual in that Ms Tao has previously appealed each of these decisions under CA226/2016 (the summary judgment appeal) and CA449/2016 (the costs appeal).
The summary judgment appeal was first in time.[3] Ms Tao applied unsuccessfully to have security for costs dispensed with or reduced in the summary judgment appeal. Her application to review that refusal was declined.[4] Ms Tao then sought leave to appeal to the Supreme Court. That application for leave was declined.[5] In the course of its decision, the Supreme Court noted:
[3] The judgment of Thomas J contains an extensive review of the applicant’s complaints. There is no obvious error in the Judge’s analysis … The applicant did not provide the Deputy-Registrar or Miller J with evidence of her impecuniousness and although she has now provided material as to her (limited) income, she has still not addressed her capital position (for instance as to whether she could use her unit as security). She has from time to time referred to her eligibility for legal aid but nothing tangible (in terms of a grant of legal aid) has emerged …
[3]The Notice of Appeal against the substantive judgment was filed in this Court on 19 May 2016.
[4]Tao v Strata Title Administration Ltd [2016] NZCA 437.
[5]Tao v Strata Title Administration Ltd [2016] NZSC 150.
Ms Tao did not pay the security costs and the summary judgment appeal was treated as abandoned as at 22 August 2016.
In the meantime, Ms Tao appealed against the costs judgment referred to earlier.[6] Ms Tao sought an extension of time to file the case on appeal under r 43 of the Court of Appeal (Civil) Rules 2005…

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] NZCA 317
Decision Date: 23 August 2018 at 10 am

CaseChat Overview and Summary

An Li Tao has applied for an extension of time to file an appeal against two decisions of Thomas J in the High Court at Auckland. The first decision was a summary judgment entered in favour of Strata Title Administration Limited and others on 27 April 2016, dismissing Tao's claims against the operators of a unit title development and declining an application for the appointment of an administrator for the body corporate. The second was an award of increased costs against Tao on 8 August 2016. Tao has previously appealed each of these decisions, but both appeals were deemed abandoned for failure to comply with security for costs requirements or to file a case on appeal. The Court of Appeal has been asked to grant an extension of time under rule 29A of the Court of Appeal (Civil) Rules 2005 to allow Tao to file a fresh appeal. The court was required to decide whether the interests of justice required the grant of an extension of time. The court noted that the application was filed two years after the entry of summary judgment and 20 months after the award of costs, and that the earlier appeals were abandoned due to Tao's failure to comply with security for costs requirements or to file a case on appeal. The court found that Tao had not provided an adequate explanation for the delay, and that granting the extension would cause significant prejudice to the respondents, who have already suffered the cost and uncertainty associated with the earlier appeals. The court also found that there was no apparent merit in the grounds Tao seeks to advance. The application for an extension of time to appeal is declined, and Tao must pay the respondents one set of costs for a standard application on a band A basis and usual disbursements.

Orders