Tao v Strata Title Administration Limited - [2016] NZCA 594

IN THE COURT OF APPEAL OF NEW ZEALAND

CA226/2016
[2016] NZCA 594

BETWEEN

AN LI TAO
Appellant

AND

STRATA TITLE ADMINISTRATION LIMITED
First Respondent

JIGAR PANDYA
Second Respondent

BODY CORPORATE 198693
Third Respondent

Hearing:	31 October 2016
Court:	Randerson, Cooper and Winkelmann JJ
Counsel:	Appellant in person E St John for Respondents
Judgment:	12 December 2016 at 10 am

JUDGMENT OF THE COURT

AThe application for an extension of time for the allocation of a hearing date and for filing the case on appeal is declined.
BThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

The appellant, An Li Tao, has appealed against a summary judgment given by Thomas J in the High Court for the respondents.[1] The Judge was satisfied none of Ms Tao’s claims against the operators of the relevant unit-titled development could succeed and dismissed her application for the appointment of an administrator for the body corporate. Ms Tao now applies for an extension of time for the allocation of a hearing date and for filing the case on appeal under r 43 of the Court of Appeal (Civil) Rules 2005. The procedural history is such that unless the extension is granted the appeal will be deemed abandoned.
[1]Tao v Strata Title Administration Ltd [2016] NZHC 814.
Ms Lao filed the notice of appeal on 19 May 2016. Filing fees were waived on the basis of financial hardship but she did not pay security for costs. Rule 35(3) provides that security for costs must be paid within 20 working days after the notice of appeal has been filed. However, Ms Lao made an application to dispense with or reduce security for costs on the appeal. That application was declined by Deputy Registrar McGrath on 15 July 2016. There was a direction that security in the sum of $6,600 was to be paid by 12 August 2016. In effect, Ms Lao obtained an extension of the time limited by r 35(3).
On 25 July Ms Tao applied to review the Deputy Registrar’s decision under r 7(2). On 14 September 2016 Miller J declined the application to review.[2] Miller J directed that Ms Tao pay the sum of $6,600 by way of security for costs by Friday 30 September. This was a further extension of the time for payment of security.
[2]Tao v Strata Title Administration Ltd [2016] NZCA 437.
Ms Tao then sought leave to appeal to the Supreme Court. In the meantime, she had made the present application to extend the time for filing the case on appeal on 15 August 2016.
In a judgment delivered on 9 November 2016, the Supreme Court declined the application for leave to appeal.[3] In the course of its decision, the 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…

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: [2016] NZCA 594
Decision Date: 12 December 2016 at 10 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by An Li Tao against a summary judgment rendered by Thomas J in the High Court in favour of the respondents, Strata Title Administration Limited, Jigar Pandya, and Body Corporate 198693. Tao had sought the appointment of an administrator for the body corporate, but Thomas J dismissed her application. Tao now sought an extension of time to allocate a hearing date and file the case on appeal, as without it, the appeal would be deemed abandoned. The procedural history revealed that Tao had not paid the security for costs within the stipulated time, despite multiple extensions. The Supreme Court had declined Tao's application for leave to appeal, and the Court of Appeal considered these developments in assessing the application.

The legal issues before the Court of Appeal centred on whether to grant an extension of time for Tao to allocate a hearing date and file the case on appeal under rule 43 of the Court of Appeal (Civil) Rules 2005. The Court had to consider Tao's failure to pay the security for costs within the time allowed and the implications of this failure on her ability to proceed with the appeal. The Court also had to weigh the absence of obvious error in the High Court judgment and the lack of progress in advancing the appeal against the application for an extension of time.

The Court of Appeal concluded that the appropriate course of action was to decline the application for an extension of time for the allocation of a hearing date and for filing the case on appeal. This decision was based on Tao's failure to pay the security for costs within the time allowed, despite multiple extensions. The Court noted the absence of obvious error in the High Court judgment and the lack of progress in advancing the appeal. As a result, the appeal was treated as having been abandoned under rule 43(1).

The Court of Appeal declined to make an order as to costs in this matter. The appeal was deemed abandoned, and no further action could be taken by Tao regarding the appeal.

Orders