They tried to claim tort against body corporate’s committee members, legal advisers
The New Zealand Supreme Court has refused leave to appeal sought by two apartment unit owners, whose proposed appeal included accusations of fraud, oppression, and deceptive conduct against a body corporate, its committee members, and its legal advisers.
In the underlying proceeding leading to Wang v Body Corporate 406198 [2026] NZSC 64, a body corporate and individual unit owners commenced a claim for building defects in an apartment complex against Argon Construction and the Auckland Council.
On 30 October 2023, a High Court judge issued a substantive judgment awarding the body corporate remedial damages and the individual owners general damages upon finding both Argon and the council negligent.
However, the judge deemed the body corporate’s claim overambitious and its proposed scope of works disproportionate and unreasonable. The judge adopted the scope of works suggested by Argon’s expert building surveyor.
On 19 December 2024, the Court of Appeal primarily ruled in the body corporate’s favour, but returned the cost issue to the High Court.
On 6 March 2026, the Supreme Court declined leave for the two unit owners to appeal from the appeal court’s 14 October 2025 decision denying an extension of time to appeal against the High Court’s 1 May 2024 cost decision.
Separately, the two unit owners applied for leave to:
The two unit owners also sought their proportionate share of the remedial damages. While they applied for leave within 20 working days of the appeal court’s December 2024 judgment, they only paid the filing fee after the expiration of the period.
The two unit owners expressed concerns regarding the body corporate’s handling of its dispute with Argon and the council and its allegedly unreasonable rejection of a Calderbank offer substantially exceeding the High Court’s award of damages.
The Supreme Court of New Zealand denied an extension of time to apply for leave to appeal against the October 2023 judgment of the High Court of New Zealand, given the delay of several hundred working days.
The Supreme Court granted an extension of time to apply for leave to appeal against the December 2024 judgment of the Court of Appeal of New Zealand. However, the Supreme Court ultimately refused leave to appeal.
The Supreme Court also declined leave to offer further evidence and an oral leave hearing. The Supreme Court ordered the two unit owners to pay the body corporate costs of $2,500.
The Supreme Court pointed out that the two unit owners did not require its leave to initiate proceedings against the body corporate, its committee members, and its legal advisers.
Given that the existing proceeding was never between the body corporate and its members, the Supreme Court noted that the pleadings, the trial evidence, and the factual findings did not address the two unit owners’ allegations against the body corporate, its committee members, and its advisers.
The Supreme Court found that the two unit owners did not seek before the High Court or the appeal court the relief they were presently pursuing.
The Supreme Court accepted that the appeal court allowed one of the unit owners to become a party. However, the Supreme Court said the appeal court otherwise confined its judgment to issues between the body corporate and unit owners and those between Argon and the Auckland Council.
Regarding an issue about Argon’s and the council’s concurrent liability to the body corporate and the unit owners, the Supreme Court acknowledged the issue’s potential general or public importance.
However, the Supreme Court noted that the appeal court considered it unnecessary to decide that issue, primarily because the High Court judge had treated the council, which advanced the issue on appeal and which did not seek leave to appeal in this proceeding, fairly in assessing contributory negligence.
Lastly, the Supreme Court deemed it unnecessary to hear and determine the proposed appeal in the interests of justice and found it inappropriate to allow the applicants to adduce new evidence.
