Body Corporate 201036 v Murphy

[2017] NZHC 2974

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002150 [2017] NZHC 2974

BETWEEN

BODY CORPORATE 201036

Plaintiff

AND

CARMEL MOERANGI MURPHY Defendant

Hearing:

21 November 2017

[Further Submissions Filed 27 November 2017]

Appearances:

J P M Wood and M Ibram for the Plaintiff
No Appearance of, or for the Defendant

Judgment:

1 December 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 1 December 2017 at 3.30 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicit ors  : Rainey Law, Auckland

BODY CORPORATE 201036 v MURPHY [2017] NZHC 2974 [1 December 2017]

[1]      The Body Corporate seeks judgment in the sum of $14,537.83 plus costs and disbursements totalling $7,609.25.  It has filed an application for summary judgment which was first called before me on 21 November 2017. The principal sum relates to outstanding levies owed to the Body Corporate.   Ms Murphy has not filed any documents in the proceeding and has not appeared to oppose summary judgment.

[2]      When the matter was called in the summary judgment list, Mr Wood explained that the proceeding had been filed in the High Court because of difficulties Mr Wood had experienced in the past in seeking a sale order to enforce a Residential Tenancies Tribunal (Tribunal) order.   He submits that such difficulties may result in a six or seven-month delay for his client, which he seeks to avoid by commencing proceedings in the High Court.

[3]      Under s 171 of the Unit Titles Act 2010, the Tribunal has jurisdiction to order a party to pay unpaid levies up to a sum of $50,000.  If the jurisdiction is exclusive, then this proceeding must be dismissed and the matter pursued in the Tribunal.

[4]      In  Bridgewater, Associate  Judge  Bell  held  that  s  82  of  the  Residential Tenancies Act 1986, which confers exclusive jurisdiction on the Tribunal, did not apply to its Unit Titles Act jurisdiction.1    That case concerned claims against five defendants for sums which totalled between $108,000 and $208,000. The correctness of that decision is not before this Court.  I have therefore proceeded on the basis that the Tribunal’s jurisdiction under the Unit Titles Act is not exclusive.

[5]      The High Court has inherent jurisdiction to deal with matters falling within the jurisdiction of another court or tribunal. That jurisdiction has been exercised in cases where the sum sought falls within the jurisdiction of the District Court.  In addition, some of the individual levies which made up the totals claimed in Bridgewater fell within the jurisdiction of the Tribunal.

[6]      However, the quantum sought in this case is far lower than the sums claimed in those other cases.  The commencement of proceedings in this Court circumvents

the statutory jurisdiction of the Tribunal and undermines the very purpose of reposing

1      Body Corporate 324525 v Stent [2016] NZHC 2442, (2016) 18 NZCPR 176 [Bridgewater].

that jurisdiction in the Tribunal.  The procedures in the Tribunal are intended to be user-friendly for all parties and represent an alternative to the formality and cost of High Court litigation.   They provide an expeditious route for a body corporate to recover levies.

[7]      Furthermore, if this proceeding was allowed to continue in this Court, then similar claims may well follow. That would clog up the High Court’s time with claims which Parliament has deemed should be dealt with in the Tribunal.

[8]      The reasons put forward by Mr Wood for commencing proceedings in this jurisdiction concern matters which have not yet occurred, or which are not before the Court.   I do not consider they justify circumventing the Tribunal’s jurisdiction to pursue a $14,500 claim.

[9]      For the above reasons, I consider the commencement of proceedings in this Court to recover unpaid levies in the sum of $14,500 to be frivolous and an abuse of Court processes.  When this matter was first called, I indicated that I would transfer the proceeding to the Tribunal. However, on review, it appears that there is no specific legislative provision (like s 37 of the Disputes Tribunal Act 1988) which would allow the transfer of a High Court proceeding to the Residential Tenancies Tribunal.  In the absence of such a provision, I considered the proceeding had to be dismissed.

[10]     As dismissal of the proceeding was different to the order I indicated I would make, I afforded an opportunity to Mr Wood to make further submissions on the narrow question of transfer or dismissal.  Mr Wood filed a further memorandum, an affidavit and a District Court case.  The memorandum raises new matters directed at my decision not to enter summary judgment.  I had not sought submissions on those issues, and did not ask for further evidence and case law to be provided.  I have not had regard to that material in issuing my judgment.

[11]     In the absence of a specific provision allowing for transfer, I consider the proceeding should be struck out as being frivolous, and otherwise an abuse of process. This does not prejudice the Body Corporate as it is free to commence and pursue its claim in the Tribunal.  Any delay in recovering unpaid levies is occasioned by the

decision to commence in the wrong forum, and is not so extreme that the decision to dismiss should be revisited.

[12]     Accordingly, I dismiss the proceeding with no order as to costs.

Edwards J