Ruling says serial litigation subjected unit owners to cost, delay
New Zealand’s Court of Appeal found it inappropriate and unjust to suspend the appellant’s bankruptcy proceedings in serial, protracted litigation that significantly prejudiced the respondent and apartment unit owners and subjected them to cost and delay.
In Cummins v Body Corporate 172108 [2026] NZCA 10, the parties were embroiled in litigation for over a decade. Manchester Securities Ltd occupied level 12 of an apartment building, while the appellant owned a unit via Manchester.
In 2010, the High Court approved a remediation scheme for the apartment. Manchester became responsible for remediating level 12. A dispute arose when it failed to carry out remediation, leading to cost blowouts.
The respondent attempted to recover amounts owed, while the appellant pursued cross-claims against the respondent.
The High Court decided to vary the remediation scheme. When reviewing the variation decision in 2017, the appeal court determined that Manchester engaged in “dilatory and prevaricating” conduct and should “take the lion’s share of the blame” for the cost blowouts.
In May 2025, the High Court issued an order adjudicating the appellant bankrupt, given his failure to comply with prior orders. He tried to halt his bankruptcy, but the High Court refused to pause the bankruptcy proceedings.
The appeal court denied the appellant’s request for leave to appeal. The appeal court made the following findings:
The appellant applied for orders to suspend the High Court’s adjudication order pending appeal, prohibit the official assignee from advertising the adjudication, and grant permission to adduce further evidence on appeal.
The appellant alleged that the respondent took no steps to prevent him from commencing or continuing legal proceedings under s 166 of the Senior Courts Act 2016 or s 32 of the Harassment Act 1997. The respondent opposed the appellant’s application.
The Court of Appeal of New Zealand declined the appellant’s applications to suspend the High Court’s adjudication order and the associated orders.
Specifically, the appeal court refused to issue orders to prevent the official assignee from advertising the adjudication, grant a stay or interim relief, or allow the appellant to provide additional evidence on appeal, as the proposed evidence was not fresh.
The appeal court pointed out that it previously rejected a request for leave to appeal the High Court’s refusal to halt the bankruptcy proceedings, as well as an appeal of a refusal to pause Manchester’s liquidation proceedings, described as an abuse of process.
The appeal court said the appellant’s present application fell within the same category as the filings it had earlier rejected.
The appeal court noted that the appellant and Manchester failed to meet earlier orders or awards.
The appeal court added that the respondent successfully opposed various steps in the appellant’s and Manchester’s serial litigation strategy. The appeal court deemed the respondent entitled to oppose the present application for continuing abusive litigation.
The appeal court ordered the appellant to pay the respondent’s costs for a standard application on a band A basis, with the typical disbursements.
