Singh v Body Corporate 207650

[2023] NZHC 1269

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-317

[2023] NZHC 1269

BETWEEN

CHERYL SITARA SINGH

Plaintiff

AND

BODY CORPORTE 207650

Defendant

Hearing:

10 May 2023

(By way of Telephone Conference)

Appearances:

S P Bryers for Plaintiff

T G Allan for Defendant – not able to be joined to telephone conference

Judgment:

26 May 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

[1]                 Ms Singh seeks leave to appeal my judgment of 24 March 2023,1 declining to lift the stay of Ms Singh’s proceedings ordered by this Court on 28 February 2020.

[2]                 While counsel have filed a consent memorandum recording the proposed respondent’s consent to the application for leave, such applications are not determined by the agreement of counsel instead, they require the Court to determine whether leave is appropriate.

1      Singh v Body Corporate 207650 [2023] NZHC 609.

SINGH v BODY CORPORTE 207650 [2023] NZHC 1269 [26 May 2023]

[3]                 That said, Mr Bryers (counsel for Ms Singh) advised at the telephone conference held on 10 May 2023 in respect of his application, that he had filed an appeal with the Court of Appeal given he considered leave was not required.

[4]                 Mr Bryers takes the view that leave is not required as the effect of declining Ms Singh’s application to lift the stay was to finally determine her proceeding.   In   a practical sense, that is almost certainly correct, albeit my judgment would not bar   a further application if there was a change of circumstances warranting a fresh application.

[5]                 Ms Singh’s proceeding concerns the time she owned a  unit  in  the Richmond Terraces building at 28 Chapel Road, Flatbush, South Auckland. The apartment complex required major weathertightness repairs resulting in substantial levies being raised by Body Corporate 207650 (the Body Corporate) against each of the owners of the units.

[6]                 A tranche of levies not paid by Ms Singh were subject to a summary judgment application in the District Court which resulted in judgment being granted against Ms Singh. Ms Singh unsuccessfully appealed that judgment and was eventually bankrupted when she did not satisfy the judgment.

[7]                 The Official Assignee sold Ms Singh’s unit and having secured those funds, took steps to have Ms Singh’s bankruptcy annulled. The Official Assignee assessed the Body Corporate’s claim to be a creditor in Ms Singh’s bankruptcy in respect of its claim over and above the judgment referred to above. The Body Corporates further claim was made up of further levies and legal costs. The Official Assignee accepted the claim in a large part, paid out the Body Corporate and obtained an annulment of Ms Singh’s bankruptcy.

[8]                 Ms Singh sought to have the stay of her proceedings lifted in order to assess the accuracy of the Body Corporate’s claims against her. I declined the application to lift the stay. To do so would have served no practical purpose as Ms Singh was no longer able to challenge the quantum of the levies; such having been determined by the Court in the summary judgment proceeding and through the Official Assignee

accepting the Body Corporate’s claim as creditor, being a decision Ms Singh did not challenge.

[9]                 Mr Bryers filed an affidavit in support of the application for leave to appeal.  I do not have regard to that affidavit. Whether the Court of Appeal will grant leave for further evidence to be filed, is a matter for that Court.

[10]              Following hearing from Mr Bryers, I have concluded that it is appropriate to grant leave for the following reasons.

[11]              Was it correct to determine that Ms Singh had to demonstrate a practical purpose for the lifting of the stay or whether (as I determined) the fact that she had   a right to the information was sufficient of itself to warrant the stay being lifted?

[12]              Is Ms Singh, post annulment, able to challenge the decision of the Official Assignee to accept that the Body Corporate was a creditor for levies over the amount recorded in the summary judgment, notwithstanding that Ms Singh did not challenge the Official Assignee’s decision at the time?

[13]              In granting leave, I am mindful that, as I have said, my decision was practically a final determination of Ms Singh’s ability to pursue her proceeding. That a decision may prevent a person having access to the Court was recognised as a relevant factor by Venning J in Simons v ANZ Bank New Zealand Ltd, where his Honour was prepared to take into account the different types of interlocutory orders that may be subject to appeal.2

[14]              In Mathias v The Earthquake Commission,3 I agreed with Venning J’s comments and considered that the nature of the interlocutory order and its effect on the applicant for leave to appeal, were relevant in determining whether the interests of justice are served by granting leave.4

2      Simons v ANZ Bank New Zealand Ltd [2022] NZHC 2842.

3      Mathias v The Earthquake Commission [2023] NZHC 705 at [17]-[22].

4      The interests of justice being the final criteria for considering applications for leave to appeal set out in Greendrake v The District Court of New Zealand [2020] NZCA 122.

[15]Accordingly, there is leave to appeal the decision in [2023] NZHC 609.

Costs

[16]The costs of this application are reserved.

Addendum

[17]              This  application  was  determined  at   a   telephone   conference   held   on 10 May 2023 where Mr Allan, counsel for the Body Corporate, was unable to be joined to the conference.

Associate Judge Lester

Solicitors:

Richard Wood, Auckland (for Plaintiff)

Grove Darlow & Partners, Auckland (for Defendant)

Copy to counsel:
S P Bryers, Barrister, Auckland (for Plaintiff)