Wang v Body Corporate 406198
[2025] NZCA 536
•14 October 2025 at 11:00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA132/2025 |
| BETWEEN | HAILING WANG AND LINDA WU |
| AND | BODY CORPORATE 406198 |
| Court: | Cooke and Whata JJ |
Counsel: | Applicants in person |
Judgment: | 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 (including the Body Corporate and individual unit owners) were the successful party.[9]
(b)Any award to the defendants would be unconscionable and unjust, notwithstanding that they had made a Calderbank offer estimated to be more than three times the award of damages, because:[10]
(i)The Calderbank offer was not made for the entirety of the claim as it related only to defects 7 and 8 (not defects 1 and 2).
(ii)The offer was based on the proposed expert witness for the Council’s remedial scope of approximately $20 million before GST and so the plaintiffs reasonably assumed that this might be a reasonably possible outcome.
(iii)The offer failed to address the issue of costs.
(iv)There was “a failure to make any relevant or material admissions or concessions — liability was, in fact, denied at all times”.[11]
(c)The defendants were to pay the costs of the plaintiffs on a category 3B basis in the sum of $583,254 and disbursements of $579,514.73.[12]
[9]Costs judgment, above n 3, at [15].
[10]At [19], [22] and [25]. See also: Calderbank v Calderbank [1975] 3 WLR 586 (CA); and High Court Rules 2016, rr 14.10–14.11.
[11]Costs judgment, above n 3, at [25(c)].
[12]At [61]–[62].
The Judge also recorded that Ms Wang and Ms Wu supported the Council’s positions expressed in the Council’s Calderbank offer and applied for a ruling that they not be required to pay the defendants’ costs. The Judge responded that in light of his finding that the defendants are liable for costs, it was not necessary for him to address this point.[13]
Grounds for extension
[13]At [58]–[59].
Ms Wu and Ms Wang submit that they should be granted an extension because:
(a)The delay is attributable to relentless legal harassment by the Body Corporate and “affiliates”, including by three applications to the Tenancy Tribunal and the District Court.
(b)The appeal raises serious issues of fraud, supported by evidence demonstrating the Body Corporate’s exploitation of minor building defects to levy $10 million in fraudulent costs; and the High Court erred in law by disregarding the Calderbank offer.
(c)The fraud extends beyond the present case and granting leave would ensure scrutiny of these practices.
In submissions Ms Wu and Ms Wang describe their objectives as follows (among others):
(a)to provide the court with evidence of fraud;
(b)to support Argon and the Council;
(c)to separate the fraud victims (the unit owners) from the Body Corporate’s fraud which includes:
(i)seizing control of the Body Corporate committee from the outset;
(ii)keeping unit owners uninformed;
(iii)depriving owners of representation;
(iv)seizing the legal right to represent owners from the beginning;
(v)obtaining variations through brainwashing and fear-mongering tactics, as well as targeted harassment and intimidation;
(vi)fraudulent obtaining of High Court approval of the “Section 74 scheme”;[14] and
(vii)turning the “Section 74 scheme” into a legal weapon against the owners by “planning to enforce outrageously inflated $95 million charges on defenceless [owners] as ‘remedial costs’”;
(d)to ensure that the average unit owner is not bundled in with the Body Corporate and held liable for negative consequences; and
(e)to provide the court with the grounds showing why the Body Corporate committee members should be held accountable for rejecting the defendants’ Calderbank offer.
[14]This appears to be in reference to s 74 of the Unit Titles Act 2010.
The Body Corporate and Argon oppose the application, but only the Body Corporate filed submissions. The Council abides.
Threshold
In Almond v Read, the Supreme Court summarised 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.[15] The ultimate question is what the interests of justice require, in the particular circumstances of the case.[16] Relevant considerations include:[17]
(a)the length of the delay;
(b)the reason(s) for the delay;
(c)the conduct of the parties, particularly the applicant;
(d)any prejudice or hardship to the respondent(s); and
(e)the significance of the issues raised by the proposed appeal, both to the parties and more generally.
[15]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40].
[16]At [38].
[17]At [38].
The merits of the proposed appeal may also be relevant, but any consideration of the merits must be relatively superficial.[18] There will be some instances in which the merits will be overwhelmed by other factors, such as the length of the delay and prejudice to the respondent, and so will not require consideration.[19]
Assessment
[18]At [39(c)].
[19]At [39(a)].
We decline the application. The delay of 183 working days is not adequately explained. Engagement with the Body Corporate in other litigation is not a good reason for this delay. The proposed appeal is misconceived. First, 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 (see [7] above). 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 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.[20]
[20]Body Corporate 406198 v Wang [2024] NZTT Auckland | Tāmaki Makaurau 9042484.
Given this it is unnecessary for us to determine the application for substitution. However, it will be addressed in the context of the substantive judgment on the appeals in CA717/2023, CA153/2024, CA342/2024 and CA345/2024.
Costs
The Body Corporate invites the Court to make an award of indemnity costs against the applicants for acting vexatiously.[21] In the circumstances of the application, we consider that one set of costs for a standard application on a band A basis is appropriate.
Outcome
[21]Court of Appeal (Civil) Rules 2005, r 53E(3)(a).
The application for an extension of time is declined.
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.
Solicitors:
Lane Neave, Auckland for First Respondent
Cowan Law, Auckland for Third Respondent
MinterEllisonRuddWatts, Auckland for Fourth Respondent
SCHEDULE 1 — List of Second Respondents
| 828 Investment Property Limited |
| Anna Wei Lern Yeo |
| Annie Attia and Bruno Coignard |
| Anthony John Stanton and Dean Maxwell Stanton |
| Atig Limited |
| Brenda Yap |
| Caledonian Investments Limited |
| Chan Keith Kei Shun and Cheng Sow Peng |
| Chee Leong Wong and Siew Eng Yeo |
| Chee Wah Low and Tzu Lin Chia |
| Chenyan Xiao |
| Chian Zhang |
| Chin-Chien Lin and Kun Lin |
| Ching-Jung Tsai |
| Chong Meng Teo and Siew Huang Tan |
| Chunlai Shen |
| Claire Dawn Siew Koon Yio and Joanne Yan Hua Seow |
| Clive Khoon Lip Tan and Jolene Weiling Tan |
| David Xi Xie and Wenli Qiu |
| Dimei Lu |
| Donald Giorgio |
| Fadak Investment Limited |
| Ge Shen |
| GPS Property Holdings Limited |
| GS Property Investments (NZ) Limited |
| Hairong Shi |
| Haixin Wang |
| HHTS Limited |
| High Property Limited |
| Ho Man Nah |
| Housing New Zealand Limited |
| Hui-Po Lin and Kuan-Ying Chen |
| J Bodle 101 Limited |
| Jessica Ngoh Mei Jang and Tse Ming Toh |
| Jeyasothy T Palakrishnar and Rajini Pararajasingam |
| Jiang Xun |
| Jingjing He |
| J'N A Investments Ltd |
| John McCreath, Anne Deborah McCreath and Macann Investment Trustee Limited |
| Joshua James Gooley and Vey Desita Hadinoto |
| Kim Eng Tan and Kah Fong Tai |
| Kim Pong Tan and Helen Kwa |
| Kiwi Holiday Insurance Limited (formerly Kiwitravelcover Ltd) |
| Kok Hong Tai and Man Lin Chew |
| Kok Seng Hui |
| Kuei Chue Chang |
| Kwan Ying Judy Chan and Malcolm Lindsay Grant |
| Kwok Shen Alvin Kiew |
| Lee Mee Then and Lian Soon Koh |
| Lui Lam and Chit Wah Wong |
| Mark Joseph Wilson, Dingxiang Liu and SH Trustee Services |
| MCK Enterprises Limited |
| Mian Qu and Suqin He |
| Michael Lye Hee Koh and Ai Choo Basilisa Wah |
| Milos Pejovic and Blair Norwood Knight |
| Mui Ling Lee |
| Naveen Kumar |
| NSJ Holdings Limited |
| Paul Kaye Wells and Gregory Ewen Morgan |
| Property Opportunities Limited |
| Qinchao Lin and Qing Wang |
| Qiusi Ji |
| Retirement 2050 Limited |
| Robert George Bryning and Samantha Elizabeth Harwood |
| Sai Ma and Nan Zhang |
| Sao Leng Wong |
| Sarin Enterprises Limited |
| Shahrzad Shahbazi |
| Shan He |
| Sin Min Benjamin Yeo and Mearn Hwa Lim |
| Siow Guan Tang and Soh Than Ong |
| Stefano Vio |
| Stephen Raymond Perkins, Jane Evelyn Perkins and S & J Perkins Trustees Limited |
| TG Link Investment Limited |
| Thi Thu Hang Le |
| Thiam Chye Chong |
| Thim Chiew Wong and Li Kian Chan |
| Ting Wei Leo |
| Wei Li |
| Wei Wu |
| Weijing Lu |
| Wenjie Ran |
| Yan Hei Tommy Yu |
| Yance Utama |
| Yao Tong |
| Yellow Banana Dog Limited |
| Yi Chia Lee |
| Yong Kiang Law |
| Yosua Timothy |
| Yu Liu |
| Yunnan Investment & Development Limited |
| Ziying Zhu |
0