Legal Research
Cases
Wu v Body Corporate 366611

Wu v Body Corporate 366611

Link copied

Case Copied 9 October 2014 81 min read

Contents

On this page

IN THE SUPREME COURT OF NEW ZEALAND

SC 20/2013
[2014] NZSC 137

BETWEEN

CHUAN WU
Appellant

AND

BODY CORPORATE 366611
First Respondent

THETA MANAGEMENT LIMITED
Second Respondent

Hearing:	7 November 2013
Court:	Elias CJ, McGrath, William Young, Glazebrook and Tipping JJ
Counsel:	B P Rooney for Appellant N R Davidson QC and G Burgess for First Respondent S C Price and D M Cross for Second Respondent
Judgment:	9 October 2014

JUDGMENT OF THE COURT

A      The appeal is allowed and the judgment of Asher J on    the first cause of action is reinstated.
B      The cross appeal is dismissed.
C      The respondents are to pay to the appellant costs of       $25,000 plus reasonable disbursements (to be set by    the Registrar if necessary).
D      The costs orders made in the Court of Appeal are set      aside and the costs and interest awards in the High          Court reinstated. If costs cannot be agreed for the          Court of Appeal, costs should be set by that         Court in light of this judgment.

____________________________________________________________________

REASONS

Para No
Elias CJ, McGrath, Glazebrook and Tipping JJ	[1]
William Young J	[152]

ELIAS CJ, McGRATH, GLAZEBROOK and TIPPING JJ
(Delivered by Glazebrook J)

Table of Contents

Para No
Introduction	[1]
Background	[11]
Restructuring of the building’s management	[16]
Problems in the building	[20]
The access issue	[24]
The dispute moves to the District Court	[39]
Settlement offer	[46]
Events culminating in the current proceedings	[52]
Judgment on preliminary question	[55]
The High Court judgment	[58]
The Court of Appeal judgment	[62]
Relevant legislative provisions	[69]
Issues	[75]
Interpretation of r 3.10	[76]
The parties’ submissions	[78]
Our assessment	[81]
Power to impose the security deposit and Protocol?	[83]
The parties’ submissions	[85]
The issues	[90]
Power to impose security deposit?	[91]
Power to impose conditions on access?	[97]
Section 37	[102]
Section 16	[110]
Conclusion	[113]
Trespass	[114]
Conclusion on trespass	[118]
Nuisance	[119]
Use or enjoyment of land	[122]
Rights over and in connection with a plaintiff’s land	[126]
Conclusion on nuisance	[132]
The cross appeal	[133]
Mitigation of loss	[134]
Damages	[144]
Results and costs	[147]

Introduction

Mr Wu, an Australian resident, owns a unit in the Empire Apartments building in Auckland. Body Corporate 366611 is the building’s body corporate. Theta Management Ltd (Theta) is the building manager. The building is run as a student hostel. Most of the owners lease their units to Theta, which in turn licences them to students.
Mr Wu and a small number of other owners wished to manage their units and lease them to students themselves. The respondents required such owners to sign the building Security and Access Protocol (the Protocol) and pay a security deposit as a condition of access to the building. Mr Wu issued proceedings,[1] claiming that this wrongfully interfered with his ability to rent his unit. In his first cause of action, he claimed in both private nuisance and trespass.
[1]Mr Wu brought the action in the High Court as a representative action under r…

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.

Keep reading for free

Create a free CaseChat account to read Wu v Body Corporate 366611 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZSC 137
Decision Date: 9 October 2014

CaseChat Overview and Summary

- Parties: The case involves Mr Chuan Wu, an Australian resident and owner of a unit in the Empire Apartments in Auckland, and the Body Corporate 366611, the building’s body corporate, and Theta Management Ltd, the building manager.
- Nature of Dispute: The dispute centers around the Body Corporate and Theta Management Ltd's requirement that Mr Wu and other owners of owner-managed units sign a Security and Access Protocol and pay a security deposit as a condition of access to the building. Mr Wu challenged this requirement, claiming it wrongfully interfered with his ability to rent his unit.
- Court: The Supreme Court of New Zealand.

- Legal Issues: The primary issues were whether the Body Corporate and Theta had the legal authority to require the signing of the Security and Access Protocol and payment of the security deposit, and if their actions constituted trespass or nuisance. Secondary issues included the respondents' power to impose the security deposit and conditions on access, the interpretation of relevant legislative provisions, and whether Mr Wu took reasonable steps to mitigate his loss.
- Court's Reasoning and Outcome: The Supreme Court ruled that neither the Body Corporate Rules nor the Unit Titles Act 1972 authorized the requirement for owners of owner-managed units to sign the Protocol and pay the security deposit. The Court found that the respondents' actions constituted trespass by ousting Mr Wu from the common property, which he part owns. The Court also agreed with the lower courts that Mr Wu took reasonable steps to mitigate his loss and upheld the quantification of damages as awarded in the High Court.
- Final Orders: The appeal was allowed, and the judgment of Asher J on the first cause of action was reinstated. The cross appeal was dismissed, and the respondents were ordered to pay Mr Wu costs of $25,000 plus reasonable disbursements. The costs orders made in the Court of Appeal were set aside, and the costs and interest awards made in the High Court were reinstated.

Orders