Cummins v Body Corporate 172108 [2024] NZCA 492 (27 September 2024)

Last Updated: 30 September 2024

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

CA680/2023 [2024] NZCA 492

	BETWEEN	ROBERT JAMES CUMMINS Applicant
	AND	BODY CORPORATE 172108 Respondent

Court:	French and Ellis JJ
Counsel:	Applicant in person J B Orpin-Dowell and T J G Allan for Respondent
Judgment: (On the papers)	27 September 2024 at 11.00 am

JUDGMENT OF THE COURT

1. The applicant to is to pay the respondent’s costs in relation to his unsuccessful application for leave to appeal in the sum of $3,386.00.
2. The applicant to is to pay the respondent indemnity costs in relation to his unsuccessful application for recall of our leave decision in the sum of $2,200.00 (plus GST).

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REASONS OF THE COURT

(Given by Ellis J)

• [1] On 8 July 2024, this Court declined Mr Cummins’ application for leave to appeal a decision in the High Court, refusing to halt the bankruptcy proceedings taken by Body Corporate 172108 (the Body Corporate) against him.^[1] A recent decision of Powell J in the High Court relating to the wider dispute between Mr Cummins and the Body Corporate was referred to in the course of our judgment.^[2]
• [2] On the same day (8 July), Mr Cummins applied for recall of this Court’s judgment on the ground that, on two occasions, the Court had misinterpreted the decision of Powell J. That application was declined on 22 July 2024.^[3]
• [3] There are outstanding matters of costs, in relation to both the application for leave to appeal and the recall application.
• [4] As to the former, Mr Cummins now agrees that costs in the claimed sum of $3,386.00 (as claimed by the respondents) are appropriate and we make an order that he pay costs to the Body Corporate in that amount accordingly.
• [5] As to the latter (costs on recall), there is no agreement. The Body Corporate is seeking indemnity costs totalling $2,200 (plus GST) in that regard. The Body Corporate says indemnity costs are warranted because Mr Cummins has “adopted a vexatious pattern of seeking to recall a judgment without a proper basis”. More particularly, the Body Corporate refers to four previous occasions on which Mr Cummins has sought recall of a judgment of either the High Court or this Court, none of which have been successful.^[4] Moreover, in one of these, this Court ordered him to pay indemnity costs on the recall application because:^[5]

(a) the recall application was a further step taken in an appeal which was itself an abuse of process; and

(b) unmeritorious applications to recall judgments are an abuse of process in and of themselves.

• [6] For his part, Mr Cummins says that:

(a) most of the Body Corporate’s submissions opposing recall addressed the indemnity costs issue, rather than the application for recall itself; and

(b) the basis for his recall application — namely that this Court had wrongly interpreted a decision of Powell J in the High Court — was made bona fide and on reasonable grounds, and that his point about that was borne out by the terms of the sealed order in the High Court.

• [7] In our view, there is nothing in the first of Mr Cummins’ points. The Body Corporate did oppose the application for recall and did file a memorandum of submissions addressing its substance (as well as the question of costs).
• [8] Nor is the second point persuasive. Mr Cummins (like many others who come before the courts) continues to demonstrate a misunderstanding of the ambit of the recall jurisdiction. It is not to contest aspects of a judgment with which the applicant disagrees or considers to be wrong. Today, there can be no question that unmeritorious applications for recall occupy far too much of the courts’ valuable time.
• [9] In our view, both the specific context of a further unmeritorious application for recall, and the wider context of the ongoing litigation involving Mr Cummins, favour a grant of indemnity costs and we make an order accordingly.

Result

• [10] The applicant to is to pay the respondent’s costs in relation to his unsuccessful application for leave to appeal in the sum of $3,386.00.
• [11] The applicant to is to pay the respondent indemnity costs in relation to his unsuccessful application for recall of our leave decision in the sum of $2,200.00 (plus GST).

Solicitors:
Grove Darlow & Partners, Auckland for Respondent

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^[1] Cummins v Body Corporate 172108 [2024] NZCA 303.

^[2] Body Corporate 172,108 v Meader [2024] NZHC 1280.

^[3] Cummins v Body Corporate 172108 [2024] NZCA 333.

^[4] Body Corporate 172108 v Manchester Securities Ltd, HC Wellington CIV-2018-485-225, 28 February 2020 (minute of Johnston AJ) at [3]–[8]; Body Corporate 172108 v Manchester Securities Ltd (in liq) [2022] NZHC 492 at [4]; Body Corporate 172,108 v Cummins [2022] NZHC 1031; and Cummins v Body Corporate 172108 [2022] NZCA 153 [CA indemnity costs decision] at [1].

^[5] CA indemnity costs decision, above n 4, at [25].