'The Shores' Body Corporate no.355492 v Carvell

[2022] NZHC 2310

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2022-425-35

[2022] NZHC 2310

BETWEEN

‘THE SHORES’ BODY CORPORATE No. 355492

Plaintiff

AND

JEFFREY CARVELL

Defendant

Hearing:	(On the papers)
Counsel:	G D Johnston and A D G Hitchcock for Plaintiff
Judgment:	9 September 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

‘THE SHORES’ BODY CORPORATE No. 355492 v CARVELL [2022] NZHC 2310 [9 September 2022]

[1]    The defendant, Mr Carvell, owns a unit in ‘The Shores” apartment complex in Queenstown. The apartment complex has had weathertightness issues requiring the plaintiff, Body Corporate No. 355492  (Body  Corporate),  to  address  repairs  to the building. Those repairs have created the need for the plaintiff to levy contributions for remedial work and litigation arising from what the Body Corporate says were substandard repairs and/or breaches of duty by the local authority. Those levies were in addition to the standard levies which any Body Corporate must impose from time to time.

[2]    The total of the standard levies, remediation and litigation levies, here is substantial. As at 21 June 2022, when the statement of claim was filed, the levels unpaid by Mr Carvell totalled $619,234.54. Demand had been made on the defendant for that amount but he had not paid.

Plaintiff seeks summary judgment

[3]    The Body Corporate has applied for summary judgment in relation to the outstanding levies, interest and costs.

[4]    Mr Carvell lives in Singapore where he was personally served with these proceedings. However, it was discovered a page from the notice of proceeding was not included in the documents personally served on Mr Carvell.

[5]    On 16 August 2022, I directed that, given Mr Carvell had been personally served with the proceedings and he had recently updated his email address with the Body Corporate, a full copy of the notice of proceeding was to be served on Mr Carvell along with a copy of the direction permitting service of the full notice of proceeding by email.

[6]    The application for summary judgment was called in the Invercargill High Court on 25 August 2022. Mr Carvell had taken no steps which remains the case as at the date of this Judgment. I entered judgment for liability on that date as it was clear on a review of the documents that the levies had been properly raised, notice of the levies had been sent to Mr Carvell and demand made upon him.

[7]    However, I had a concern about the claim for interest for which judgment was sought. I was told that interest had been claimed on a compounding basis. It was my view that under s 128 of the Unit Titles Act 2010, only simple interest could be claimed, not compounding interest. The proceeding was adjourned for the Body Corporate to address that point.

[8]It now seems interest was in fact calculated on a simple basis.

[9]The amount for which judgment was sought in the statement of claim was

$619,234.54 which included simple interest as at 21 June 2022.

[10]   The Body Corporate has revised its approach to interest from 21 June 2022, seeking judgment only in respect of the unpaid levies being $529,426.60. Interest is claimed on that amount from 21 June 2021 to 29 August 2022 (the date the Court was advised of the correct basis for the interest calculation). The further interest claimed to 29 August 2022 is $10,008.45; making a total judgment of $629,242.99 ($619,234.54 as at 21 June 2021 plus $10,008.45).

[11]   The Body Corporate is entitled to costs on a 2B basis being $9,560 together with disbursements, including the service fee, a further $4,011.65, making the total value of the judgment $642,814.64.

Associate Judge Lester

Solicitors:

AWS Legal, Invercargill (for Plaintiff)

Copy to counsel:

G D Johnston, Barrister, Christchurch Mr J Carvell