Tao v Strata Title Administration Ltd - [2016] NZHC 814

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-00817

CIV-2015-404-02754 [2016] NZHC 814

BETWEEN
AN LI TAO

Plaintiff

AND

STRATA TITLE ADMINISTRATION LTD

First Defendant

AND

JIGAR PANDYA Second Defendant

AND

UNDER Section 141 Unit Titles Act 2010

BETWEEN AN LI TAO Applicant

AND BODY CORPORATE 198693
Respondent

Hearing: 15 April 2016

Appearances:

Ms Tao in person
E St John and C Baker for the Defendants/Respondent

Judgment:

27 April 2016

JUDGMENT OF THOMAS J

This judgment was delivered by me on 27 April 2016 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Date:………………………….

TAO v STRATA TITLE ADMINISTRATION LTD [2016] NZHC 814 [27 April 2016]

Introduction

[1] The plaintiff, Ms An Li Tao, is the registered proprietor of one of 36 units in a unit title development at 8 Margan Avenue, New Lynn, Auckland. She has filed a statement of claim making various claims against the defendants, Strata Titles Administration Ltd (Strata), the body corporate secretary, and Jigar Pandya, the body corporate chairperson. The defendants now apply for summary judgment against the plaintiff, on the basis that none of the claims can succeed.

[2] Ms Tao has also made an application for the appointment of an administrator under s 141 of the Unit Titles Act 2010, (the Act). This is opposed by the body corporate.

[3] Ms Tao’s amended statement of claim alleges as follows:1

(a) That the service contract signed on behalf of the body corporate with Strata (the service contract) is invalid, as it was signed by Mr Pandya who did not have the authority to enter into such a contract, and his signature was not witnessed, in breach s 108 of the Act, and Regulation 17 of the Unit Titles Regulations 2011 (the Regulations). She also alleges that the service contract is invalid because there have been changes to it without informing the body corporate members, and that the cancellation clause is unfair.

(b)That Strata, acting as body corporate manager from 2012 – 2014, failed to keep financial statements, and has failed to provide bank statements, invoices and other documentation as proscribed by the Act and Regulations.

(c) That Strata has not properly convened the body corporate annual general meetings (AGMs) between 2013 and 2015 because notices
of the AGMs were not received by all members.

1 Excluded are some points which are simply statements and do not allege any conduct.

(d) That Strata misled Ms Tao, and other owners, with respect to

creating an owner’s committee.

(e) That Strata has failed to maintain the common areas, under s 138 of the Act.

(f) That Strata has raised body corporate levies unjustly.

(g)That Strata has not provided details of the bank accounts into which levies are paid, in breach of s 120 of the Act.

(h)That Mr Pandya has never been elected chairperson of the body corporate, and therefore has no authority to act as chairperson. He has breached the requirements for calling meetings, and has failed to keep financial…

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] NZHC 814
Decision Date: 27 April 2016

CaseChat Overview and Summary

An Li Tao, the registered proprietor of a unit in a unit title development in New Lynn, Auckland, brought claims against Strata Titles Administration Ltd, the body corporate secretary, and Jigar Pandya, the body corporate chairperson. Ms Tao sought to establish that a service contract between the body corporate and Strata was invalid, that Strata and Mr Pandya had not complied with the Unit Titles Act 2010 and Unit Titles Regulations 2011, and sought a range of remedies. The defendants applied for summary judgment against Ms Tao. They also opposed her application for the appointment of an administrator under s 141 of the Unit Titles Act. The defendants submitted that none of the claims could succeed, that Ms Tao had no standing to seek most of the remedies, and that her application for the appointment of an administrator was not justified. Ms Tao opposed the application for summary judgment and sought to establish that the service contract was invalid, that the AGMs between 2013 and 2015 had not been properly convened, that there had been breaches of the Fair Trading Act 1986 and Consumer Guarantees Act 1993, and that Mr Pandya had not been properly elected. She also opposed the defendants’ application to dismiss her application for the appointment of an administrator. The court held that none of Ms Tao’s claims could succeed. The service contract was valid, and there were no defects in the AGMs. Ms Tao had no standing to bring most of the claims. The court held that the body corporate, as an entity, was the proper party to proceedings, not the individual owners. The court held that it did not have jurisdiction to remove Mr Pandya as the chairperson of the body corporate. The court also held that there was no evidence to justify appointing an administrator. There was no evidence of undemocratic or ultra vires decisions; any dysfunctionality or deadlock; or majority decisions which had resulted from improper influence of a third party or which unnecessarily harmed the interests of the minority. Simply because Ms Tao did not agree with the decisions made at the 2015 AGM and EGM was not a basis on which to appoint an administrator. Summary judgment was given for the defendants. Ms Tao’s application for appointment of an administrator was dismissed.

Orders