WONG SUN EEN and Others v BODY CORPORATE 383911 [2022] NZHC 852

WONG SUN EEN and Others v BODY CORPORATE 383911 [2022] NZHC 852

r 5.45(1)(a) satisfied (majority of plaintiffs resident overseas) but r 5.45(1)(b) not established because plaintiffs hold significant NZ assets (recent sales and numerous unencumbered units) and there are credible prospects of earning income and a serious issue to be tried; balancing exercise favoured denial of...

Source-derived case information.

Citation
[2022] NZHC 852
Parties
Plaintiffs: WONG SUN EEN and Others; First Defendant: BODY CORPORATE 383911; Second Defendant: PANDEY VIADUCT QUAYS LIMITED; Third Defendant: PANDEY VIADUCT SUITES LIMITED; Fourth Defendant: PANDEY VIADUCT SUITES 2 LIMITED; Fifth Defendant: PANDEY VIADUCT SUITES 3 LIMITED; Sixth Defendant: CUSTOM STREET HOTEL LIMITED; Seventh Defendant: AAPC PROPERTIES PTY LIMITED
Court
High Court
Jurisdiction
New Zealand
Judgment Date
29 April 2022
Procedural Posture
Originating Application and Consolidated Proceeding Under the Unit Titles Act 2020 for Minority Relief and Ancillary Interlocutory Applications / Interlocutory Application for Security for Costs Heard 28 March 2022; Judgment Delivered 29 April 2022
Outcome
Application for security for costs dismissed; plaintiffs granted leave to file affidavit out of time; specific solicitor/counsel withdrawals permitted for certain plaintiffs; plaintiffs awarded costs on a 2B basis.
Legal Topics
Security for Costs, Body Corporate Rules and Ultra Vires Acts, Minority Relief, Stay of Proceedings, Costs Assessment
Unit Titles Law Property Law Civil Procedure Corporate/group Litigation Security for Costs Body Corporate Rules and Ultra Vires Acts Minority Relief Stay of Proceedings +1 more

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Parties

WONG SUN EEN and Others

Plaintiffs

BODY CORPORATE 383911

First Defendant

PANDEY VIADUCT QUAYS LIMITED

Second Defendant

PANDEY VIADUCT SUITES LIMITED

Third Defendant

PANDEY VIADUCT SUITES 2 LIMITED

Fourth Defendant

PANDEY VIADUCT SUITES 3 LIMITED

Fifth Defendant

CUSTOM STREET HOTEL LIMITED

Sixth Defendant

AAPC PROPERTIES PTY LIMITED

Seventh Defendant

Procedural Posture

Originating Application and Consolidated Proceeding Under the Unit Titles Act 2020 for Minority Relief and Ancillary Interlocutory Applications / Interlocutory Application for Security for Costs Heard 28 March 2022; Judgment Delivered 29 April 2022

Legal Issues

  1. 1 Whether threshold under r 5.45(1)(a) (plaintiffs resident outside New Zealand) is met
  2. 2 Whether threshold under r 5.45(1)(b) (reason to believe plaintiffs will be unable to pay defendants' costs) is met
  3. 3 Whether the Court should exercise its discretion to order security for costs under r 5.45(2)

Ratio Decidendi

r 5.45(1)(a) satisfied (majority of plaintiffs resident overseas) but r 5.45(1)(b) not established because plaintiffs hold significant NZ assets (recent sales and numerous unencumbered units) and there are credible prospects of earning income and a serious issue to be tried; balancing exercise favoured denial of security given plaintiffs' NZ assets, merit of claim and defendants' conduct and delay; therefore application for security for costs dismissed and proceeding not stayed.

Court Disposition

Application for security for costs dismissed; plaintiffs granted leave to file affidavit out of time; specific solicitor/counsel withdrawals permitted for certain plaintiffs; plaintiffs awarded costs on a 2B basis.

Orders

  • Leave granted to file affidavit of Aladdin Bin Mohamed Lip sworn 9 March 2022 out of time
  • Leave granted for Haigh Lyon to withdraw as solicitors and for Phillip Rice to withdraw as counsel for owners of units 318, 338 and 324