Lihua Ltd v Body Corporate 366611
| Jurisdiction | New Zealand |
| Judge | WOOLFORD J |
| Judgment Date | 31 March 2015 |
| Neutral Citation | [2015] NZHC 618 |
| Docket Number | CIV-2012-404-000937 |
| Court | High Court |
| Date | 31 March 2015 |
In The Matter Of Body Corporate 366611
Under the Unit Titles Act 2010 and The Unit Titles Regulations 2011
Woolford J
CIV-2012-404-000937
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
Application under r17.12 High Court Rules (HCR) (order for examination) for an order to enforce a Court of Appeal (CA) order requiring the defendant body corporate to allow inspection of its register — purpose of inspection was to obtain the addresses of the owners of units in the development to enlist their support in litigation against the company which managed the complex — copy of register which had been sent to applicant's solicitors listed the owners' addresses as being care of the management company — applicant sought examination of a member of the body corporate committee (who was also the manager's sole director and shareholder) — applicant said that under r17.2 HCR (Method of enforcing orders) a court order could be enforced in the same way as a judgment in the proceeding — applicant argued it was entitled to a possession order under r17.3 (HCR) (Method of enforcing judgments) — whether there was jurisdiction to order examination to enforce the CA's judgment.
B Rooney for the Applicant
P Sills for First Respondent
S Price and N Fong for John Chen
This judgment was delivered by me on Tuesday, 31 March 2015 at 11.00 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
The Empire apartment building in Whitaker Place, Auckland, is a large unit title complex which was built as student accommodation. It comprises 313 units, of which 300 are residential. Many of the unit owners are thought to live overseas. The applicant, Lihua Limited (Lihua) owns one unit and manages several. The first respondent is the Body Corporate, which was created to operate and manage the building. It comprises all unit owners in the apartment building. The second respondent, Theta Management Limited (Theta) manages the building under a contract with the Body Corporate. Theta is also the lessee and manager of 276 of the units, the large majority of which have been sub-let to tenants. The third respondent BCS Limited (BCS) is the Body Corporate's secretary.
There is a history of conflict between the applicant and the respondents. Lihua wants access to the Body Corporate register so that it can write to fellow owners to enlist support for a challenge to Theta, as it believes the Body Corporate is insolvent and poorly managed.
On 10 December 2013, the Court of Appeal ordered that the Body Corporate committee permit James Keat, a firm of solicitors, or Lihua, at Lihua's option, to search the Body Corporate register. 1
A copy of the Body Corporate register, as maintained by the Body Corporate committee, was sent to James Keat on 18 December 2013. Lihua, however, believes that the Body Corporate committee has not complied with the Court of Appeal order because the register sent to James Keat set out the address and contact details for the owners of 244 units who have leased their units to Theta as follows:
C/- Theta Management Limited PO Box 105417, Auckland 1143 New Zealand
09 973 9020
info@thetamanagement.co.nz
Lihua has therefore been unable to contact the majority of unit owners directly to enlist support for a challenge to Theta.
Lihua now makes application to the High Court for an order directing the examination of John Chung Ching Chen, of Auckland, in relation to enforcement of the order made by the Court of Appeal. Mr Chen is one of three members of the Body Corporate committee. He is also the sole director and shareholder of Theta.
During the course of the hearing, a number of issues were raised, including whether the Body Corporate register complied with the requirements of Regulation 4 of the Unit Titles Regulations 2011, whether the Body Corporate committee had failed to comply with the Court of Appeal's judgment and whether Mr Chen could be required, in his capacity as a member of the Body Corporate committee, to access information in Theta's records.
It is, however, unnecessary for the Court to address these issues as I am of the view that the Court has no jurisdiction to make the order sought by Lihua, for examination of Mr Chen, under r 17.12 of the High Court Rules.
Rule 17.12 provides:
17.12 Order for examination
(1) Whether or not a notice has been served under rule 17.10, an examining party may apply for an order—
(a) at any time after the proceeding has commenced, if that party seeks a charging order under subpart 5 of this Part; and
(b) in all other cases, at any time after judgment is sealed.
(2) An examining party may apply to the court for an order requiring the examinee to attend the court or a person whom the court appoints, and to be orally examined on oath about—
(a) the standard issues in subclause (3); and
(b) any additional issues suggested by the examining party that the court considers are necessary.
(3) The standard issues are—
(a) if judgment has been given, about the examinee's—
(i) receipts and payments for the preceding 52 weeks; and
(ii) assets and liabilities; and
(iii) income and expenditure; and
(iv) means of satisfying the judgment:
(b) if judgment has not been given, about any matters that are relevant to the issue of a charging order.
(4) When granting the application, the court may order the production of documents at the examination and may impose terms and conditions it thinks just in respect of the conduct of the examination or otherwise.
(5) An application under this rule may be made without notice, and may be granted by a Judge without a hearing.
(6) An order under this rule must contain a notice...
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