Tao v Strata Title Administration Limited [2020] NZCA 496 (15 October 2020)

Last Updated: 19 October 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA357/2020 [2020] NZCA 496

	BETWEEN	AN LI TAO Appellant
	AND	STRATA TITLE ADMINISTRATION LIMITED First Respondent JIGAR PANDYA Second Respondent BODY CORPORATE 198693 Third Respondent

Counsel:	Appellant in person C Baker for Third Respondent
Judgment: (On the papers)	15 October 2020 at 10.30 am

JUDGMENT OF CLIFFORD J
(Review of Deputy Registrar’s Decision)

The application for review of the Deputy Registrar’s decision is declined. Security for costs of $7,060 is payable within 10 working days of the date of this judgment.
____________________________________________________________________

REASONS

Introduction

• [1] Ms Tao, the applicant, is appealing a decision of Associate Judge Andrew declining her application for an early discharge from bankruptcy.^[1] Ms Tao applied for security for costs to be dispensed with. The Deputy Registrar declined that application on 28 August 2020.^[2] Ms Tao now applies to a Judge of this Court to review that decision.^[3]

Background

• [2] Ms Tao has for some years now been involved, unsuccessfully, in litigation against the third respondent, and others. That litigation has related primarily to disputes over building maintenance at a unit title development in Auckland where Ms Tao owned, and now her parents own, a unit. The third respondent is the responsible body corporate.
• [3] Ms Tao was adjudicated bankrupt on 29 January 2019 on the application of, amongst others, the first and third respondents on the basis of a costs order made in their favour against Ms Tao in that litigation.^[4] The judgment adjudicating Ms Tao bankrupt records in detail the background to the making of that costs order, and Ms Tao’s numerous, but unsuccessful, challenges to it.^[5]
• [4] On 8 June 2020 Associate Judge Andrew declined Ms Tao’s application for early discharge.^[6] Ms Tao sought early discharge on the basis that her status as a bankrupt created significant difficulties for her in looking after her parents, who are elderly and need her ongoing assistance as their attorney to deal with their financial affairs. In declining that application Associate Judge Andrew noted that those matters had been considered by Associate Judge Sargisson in her decision to adjudicate Ms Tao bankrupt.^[7] The Associate Judge was also satisfied that there was no merit in Ms Tao’s challenge to the authority of the third respondent to oppose the application.
• [5] Ms Tao’s notice of appeal to this Court contains essentially one ground: based on her knowledge as variously a body corporate committee member, nominated body corporate chairperson and former owner of a unit in the body corporate, the third respondent never appointed the counsel appearing for it in the cases she brought to the High Court and this Court, meaning that the decision of Associate Judge Andrew was flawed.
• [6] In declining Ms Tao’s application for dispensation the Deputy Registrar set to one side the question of her impecuniosity, noting that her bankruptcy indicated, but did not make certain, that she would have difficulty paying security.^[8] The Deputy Registrar accepted the benefit to Ms Tao of success in the appeal outweighed it potential costs. However, she saw no realistic prospect in the appeal succeeding and considered that a reasonable and solvent litigant would not proceed with it. For that reason, she declined Ms Tao’s application for dispensation

Review

• [7] The long history of this litigation, determined against Ms Tao at every material step of the way, in general terms supports the Deputy Registrar’s decision. Even where an appellant is impecunious, security for costs will not be dispensed where a solvent litigant acting reasonably would not pursue the appeal.
• [8] Ms Tao’s appeal is primarily based on what Associate Judge Andrew described as her “quite ... serious” allegation — which the Judge noted was made without the appropriate evidence — regarding the third respondent’s representation.^[9]
• [9] Ms Tao’s response, that Associate Judge Sargisson had confirmed the body corporate’s counsel had not been authorised, is misguided. What Associate Judge Sargisson did say, in response to Ms Tao’s assertion there was no evidence the Body Corporate committee had actually resolved to issue the bankruptcy notice, was as follows:^[10]

[32] The remaining factors [not to halt the adjudication] relate to the substantive weakness of Ms Tao’s appeal:

(a) third, the objection based on the absence of evidence the committee actually resolved to issue the bankruptcy notice, which appears to have some force to it, is ultimately academic. Even if successful, it would oust only one creditor, leaving two others who would still have a proper basis for seeking Ms Tao’s adjudication;

(b)  fourth, that objection ought to have been pursued before Matthews [AJ], and it is arguable Ms Tao is estopped from making the argument now. Certainly, this point only compounds the prejudice to the creditors in halting what has already been, for them, a painfully drawn-out affair.

[33] In short, I am not prepared to allow Ms Tao the indulgence of halting a valid adjudication application so she can pursue further, likely fruitless litigation, even while multiple costs orders remain unpaid.

• [10] The Judge did not endorse Ms Tao’s claim. Rather, she considered that, even if it were true that the committee failed to properly resolve to issue the bankruptcy notice,^[11] that would not provide a satisfactory reason to halt the adjudication because it would impeach only one of the three judgment creditors in her bankruptcy.
• [11] Given Associate Judge Sargisson’s judgment does not assist Ms Tao, her appeal appears to reduce to the same bald assertion that was rejected by Associate Judge Andrew.^[12] For the same reasons he gave, and for which the Deputy Registrar declined Ms Tao’s application for dispensation for security of costs, I am satisfied that the appeal does not have a realistic prospect of success and would not be brought by a reasonable and solvent litigant.^[13]

Result

• [12] Ms Tao’s application for review of the Deputy Registrar’s decision declining dispensation from security for costs is declined. Security for costs of $7,060 is payable within 10 working days of the date of this judgment.

Solicitors:
Price Baker Berridge, Henderson for Third Respondent

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^[1] Tao v Official Assignee [2020] NZHC 1260.

^[2] Strata Title Administration Ltd v Tao [2018] NZHC 3381.

^[3] See Court of Appeal (Civil) Rules 2005, r 5A(3).

^[4] Strava Title Administration Ltd v Tao [2018] NZHC 3381.

^[5] At [6]–[12].

^[6] Tao v Official Assignee, above n 1.

^[7] At [17].

^[8] Musuku v Commissioner of Inland Revenue [2017] NZCA 144 at [6].

^[9] Tao v Official Assignee, above n 1, at [23].

^[10] Strata Title Administration Ltd v Tao, above n 2.

^[11] A complaint which in any event differs somewhat from Ms Tao’s suggestion before Associate Judge Andrew and in this Court that counsel were never properly appointed.

^[12] See above at [8].

^[13] Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [35].