Wu v Body Corporate 366611 - [2014] NZSC 178

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IN THE SUPREME COURT OF NEW ZEALAND

SC 20/2013 [2014] NZSC 178

BETWEEN
CHUAN WU

Appellant

AND

BODY CORPORATE 366611
First Respondent

THETA MANAGEMENT LIMITED Second Respondent

Court: Elias CJ, McGrath, William Young, Glazebrook and Tipping JJ

Counsel:

B P Rooney for Appellant
N R Davidson QC for Respondents

Judgment:

5 December 2014

JUDGMENT OF THE COURT

A The application for recall is dismissed.

B The respondents must pay costs of $2,500 to the appellant.

REASONS

Introduction

[1] The main issue in this appeal was whether the respondents had wrongfully interfered with Mr Wu’s ability to rent a unit he owns in the Empire Apartments building in Auckland and, if so, whether Mr Wu had taken adequate steps to mitigate
his loss. Mr Wu was successful in the High Court where Asher J found the

CHUAN WU v BODY CORPORATE 366611 [2014] NZSC 178 [5 December 2014]

respondents liable to Mr Wu in nuisance.1 The Court of Appeal found in his favour on a more limited basis.2

[2] This Court, on 9 October 2014, allowed Mr Wu’s appeal against the Court of Appeal judgment and dismissed the respondents’ cross appeal.3 The judgment of Asher J on the first cause of action was reinstated (but in trespass rather than nuisance), as were the costs and interest awards made in the High Court.4 This meant that damages for loss of rental income ran from 1 September 2007.5

[3] On 14 October 2014, the respondents applied for a direction from this Court, under r 5(1) of the Supreme Court Rules 2004, that the reinstated damages be adjusted to run from 29 November 2007. This was on the basis that the Court’s judgment held that Mr Wu had possession of his unit and joint possession of the common property once the liquidator disclaimed the Academic Accommodation Management (3) Ltd (Academic) lease on 28 November 2007.6 Therefore, the respondents submit that damages should have run from 29 November 2007 and not from 1 September 2007.

[4] As pointed out by counsel for Mr Wu, Mr Rooney, the respondents’ application is not properly made under r 5(1) of the Supreme Court Rules, which confers a power to give directions that seem necessary for the just and expeditious resolution of any matter that arises in a case. The appeal has been heard and judgment given. What is being asserted is that the Court made an error in reinstating
the High Court judgment from 1 September 2007.7 That can only be dealt with by

1      Wu v Body Corporate 366611 [2011] 2 NZLR 837 (HC) [Wu (HC)].
2      Body Corporate 366611 v Wu [2012] NZCA 614, [2013] 3 NZLR 522 (Hammond, Arnold and
Heath JJ) [Wu (CA)].
3      Wu v Body Corporate [2014] NZSC 137 [Wu (SC)].
4      The costs and interests awards were made in a supplementary judgment: see Wu v Body Corporate 366611 HC Auckland CIV-2009-404-5756, 4 October 2011 [Wu

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: [2014] NZSC 178
Decision Date: 5 December 2014

CaseChat Overview and Summary

The Supreme Court of New Zealand dealt with an appeal and subsequent application for recall in the case of Wu v Body Corporate 366611. The appellant, Mr Wu, was the owner of a unit in the Empire Apartments building in Auckland. He claimed that the respondents, the body corporate and Theta Management Limited, wrongfully interfered with his ability to rent his unit, resulting in a loss of rental income. The High Court originally found in Mr Wu's favour, and the Court of Appeal upheld the decision on a more limited basis. The Supreme Court allowed Mr Wu's appeal against the Court of Appeal judgment and dismissed the respondents' cross appeal, reinstating the original judgment.

Following the Supreme Court's decision, the respondents applied for a direction to adjust the reinstated damages to run from 29 November 2007, the date on which the liquidator disclaimed the lease held by Academic Accommodation Management Ltd. They argued that damages should have run from this date instead of 1 September 2007. The Court treated the respondents' application as one for recall of its judgment.

The Court held that the respondents' application for recall was not properly made under r 5(1) of the Supreme Court Rules 2004, as it sought to challenge the Court's judgment on the basis of an alleged error. The Court found that the point raised by the respondents was not squarely put before it and that a recall application was not the proper time to raise new points requiring resolution of new factual and legal questions. The Court dismissed the application for recall and awarded costs of $2,500 to the appellant.

This case highlights the importance of properly raising issues before the Court and the limited circumstances in which a recall application may be granted. The Court emphasised that a recall application is not the appropriate avenue for attempting to raise new points or resolve new factual and legal questions that were not adequately addressed during the original hearing.

Orders