Wang v Body Corporate 406198 - [2025] NZCA 536

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA132/2025
[2025] NZCA 536

BETWEEN	HAILING WANG AND LINDA WU Applicants
AND	BODY CORPORATE 406198 First Respondent THE PARTIES LISTED IN SCHEDULE 1 Second Respondents ARGON CONSTRUCTION LIMITED Third Respondent AUCKLAND COUNCIL Fourth Respondent

Court:	Cooke and Whata JJ
Counsel:	Applicants in person H Chung for First Respondent No appearance for Second Respondents W A McCartney and D A Cowan for Third Respondent S C Price, M J Ferrier and C M Fairnie for Fourth Respondent
Judgment: (On the papers)	14 October 2025 at 11:00 am

JUDGMENT OF THE COURT

AThe application for an extension of time is declined.
BThe applicants must pay one set of costs to the first respondent for a standard application on a band A basis, together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Whata J)

Body Corporate 406198 (the Body Corporate) and Ms Linda Wu were plaintiffs in a leaky building claim against Argon Construction Limited (Argon) and Auckland Council (the Council).[1] They were partially successful, obtaining an award of damages of about $4.9 million.[2] The Court also made an award of costs in favour of the Body Corporate.[3] Curiously, Ms Wu and Ms Hailing Wang (now apparently also an owner of a unit) seek an extension of time to appeal the costs decision by 183 working days. Ms Wang also seeks to be substituted as a party to the proposed appeal.

Background

[1]Body Corporate 406198 v Argon Construction Ltd [2023] NZHC 3034 [liability judgment].

[2]Body Corporate 406198 v Argon Construction Ltd [2024] NZHC 237 [damages judgment] at [33].

[3]Body Corporate 406198 v Argon Construction Ltd [2024] NZHC 1037 [costs judgment] at [61].

The Bianco Off Queen is a two-tower apartment development with 157 units. It was built with defects. The Body Corporate sued Argon, the head contractor, and the Council in negligence. By the time of trial, only two types of defects were still claimed, namely:[4]
(a)The building was built with cantilevered balconies that have defective waterproofing (defect 1).
(b)Waterproofing at the ground level (including the podium common areas) has similar problems (defect 2).
[4]Liability judgment, above n 1, at [3].
A key issue at trial (among many) was the extent of the remedial works and associated costs required to repair these defects. The High Court preferred the expert evidence for Argon on this issue, from Mr Stephen Alexander.[5] In the result, the Court awarded the sum of $4,974,830.11 in remedial costs (including a sum for escalation),[6] as well as $779,500 in general damages.[7] This compares to the sum initially claimed by the Body Corporate of $40,739,870 (in total).[8]
[5]At [170]–[287].
[6]At [279]; and damages judgment, above n 2, at [33].
[7]Damages judgment, above n 2, at [34]–[35]. Ms Wu was not included in this award and received a separate damages award by agreement: at [36].
[8]Liability judgment, above n 1, at [4].
On the issue of costs, the Judge found, relevantly:
(a)The plaintiffs…

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: [2025] NZCA 536
Decision Date: 14 October 2025 at 11:00 am

CaseChat Overview and Summary

The applicants, Hailing Wang and Linda Wu, sought an extension of time to appeal against the decision of the High Court, which awarded costs to the Body Corporate 406198 in the sum of $583,254 plus disbursements of $579,514.73. Ms Wang also sought to be substituted as a party to the proposed appeal. The first respondent, Body Corporate 406198, opposed the application, but the other respondents did not file submissions. The central legal issues in this case involved the principles guiding the discretion of the Court of Appeal to grant or decline an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005. The relevant considerations included the length of the delay, the reason for the delay, the conduct of the parties, any prejudice or hardship to the respondent, and the significance of the issues raised by the proposed appeal.

The Court of Appeal declined the application for an extension of time. The delay of 183 working days was not adequately explained. Engagement with the Body Corporate in other litigation was not a good reason for this delay. The proposed appeal was misconceived. Appeals can only be from a judgment, decree or order actually made — here an award of costs to the plaintiffs (including Ms Wu) in the sum of $583,254 plus disbursements. Ordinarily, plaintiffs in Ms Wu’s position would only challenge such an award to increase it and to the extent that the objective of the appeal is to avoid costs against Ms Wu, the appeal is unnecessary. Second, an appeal against an award of costs is not the proper vehicle to achieve the other objectives identified by Ms Wu and Ms Wang for the appeal. Any award of costs is limited to the conduct of the parties in the proceedings. Plainly Ms Wu and Ms Wang’s grievances against the Body Corporate extend well beyond the conduct of the Body Corporate in the proceedings. Indeed, most of the actions complained about concern internal disputes that, on the evidence tabled by the applicants, have been addressed at least in part in proceedings before the Tenancy Tribunal.

The Court of Appeal also ordered that the applicants must pay one set of costs to the first respondent for a standard application on a band A basis, together with usual disbursements. This decision highlights the importance of providing adequate reasons for delays in filing appeals and the necessity of ensuring that appeals are based on the proper legal grounds. The Court’s ruling underscores the principle that appeals against awards of costs should be limited to the conduct of the parties in the proceedings and not used to address broader grievances that are more appropriately dealt with through other legal processes.

Orders