



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


The 
          Owners, Strata Plan LMS 1378 v. Chu,







2006 
          BCCA 10



Date: 20060111





Docket: CA033622

Between:

The Owners, Strata Plan LMS 1378

Respondent

(
Petitioner
)

And

Jenfeng Peter Chu

Applicant

(
Respondent
)












Before:


The 
          Honourable Mr. Justice Lowry




(In 
          Chambers)








Jenfeng 
          Peter Chu


Appearing in person




V. 
          P. Franco


Counsel for the Respondent




Place and Date of Hearing:


Vancouver, British Columbia




January 4, 2006




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 11, 2006





Reasons 
    for Judgment of the Honourable Mr. Justice Lowry:

[1]

The applicant, Jenfeng Peter Chu, seeks various forms of relief to 
    facilitate a proposed appeal of the order of Mr. Justice Drost made 19 August 
    2005 in favour of the Owners, Strata Plan LMS 1378 (the "Owners") 
    of which strata plan the applicant owns a unit.  On hearing the Owners' petition, 
    the judge ordered that the applicants unit be sold and that the petitioner 
    have conduct of the sale to enforce a statutory lien filed in respect of monthly 
    fees and special levies totalling $10,981.14 which the applicant refused to 
    pay from December 2004 onwards.  The judge granted a redemption period of 
    30 days.

[2]

The applicant now seeks an extension of time to appeal, directions 
    as to whether leave to appeal is required, and, if it is, an order granting 
    leave, a stay of the judges order, and an order granting him indigent status.  
    The applicant does not appear to have given notice with respect to making 
    application for leave to appeal or for a stay of proceedings.

[3]

The applicant describes himself as a 53 year old unemployed immigrant 
    having an income of only $300 a month from an undisclosed source.  The affidavit 
    he has filed in support of his claim to indigent status indicates monthly 
    expenses of $5,500 but gives no indication as to his source of funds to meet 
    them.  He speaks about savings but his assets are stated only as "$N/A".  
    The applicant purchased the strata lot in 2001 for $268,800 and there is presently 
    no mortgage registered against the property.  The applicant has never lived 
    in the suite.  He says that he lives in Taiwan most of the time where he cares 
    for his ailing parents.  Since purchasing the strata lot unit, he has travelled 
    to Vancouver perhaps twice a year at a cost of about $1,200 per round trip.  
    He says that he has been living with a friend in Vancouver for the past seven 
    months and that his sister has been caring for his parents.  His strata lot 
    unit is presently for sale.  The asking price is $569,000.

[4]

One consideration that is germane to all of the relief the applicant 
    now seeks is whether the proposed appeal has merit.  On the material before 
    me, and the submissions made, I have difficulty seeing any reason to expect 
    that any aspect of the appeal would succeed.

[5]

The applicant contends that the judge erred in determining that the 
    Owners were entitled to the relief they were granted on the basis that his 
    unit is a residential strata lot.  It is, however, defined as such by the 
    governing legislation which, it appears to me, the applicant does not properly 
    understand.  He contends that the Owners' failure to retain and produce voting 
    ballots defeats their ability to prove there were quorums at various meetings 
    where decisions were taken that bear on the fees and levies that he has been 
    held to owe.  But the Owners adduced evidence upon which the judge was entitled 
    to rely, particularly in the absence of any contradictory evidence, which 
    established the quorum at each of the meetings that are of consequence.  The 
    applicant insists that the lien the Owners seek to enforce is illegal because, 
    as filed, it wrongly included amounts for fines the Owners sought to impose, 
    but the Owners conceded they were not entitled to a lien for fines and the 
    judgment they obtained limits them to enforcing their lien only to the extent 
    of the fees and special levies that totalled $10,981.14.

[6]

The applicant contends that the judge erred in fixing a redemption 
    period of only 30 days, but he said nothing about that when he was before 
    the judge and, because of the events that have now intervened, the point is 
    academic.  More than four months have elapsed since the order was made and 
    the unit has not yet been sold.  The applicant maintains that the judge erred 
    in awarding costs against him.  He advances two reasons.  He first says that, 
    on a preliminary application, the judge presiding foreclosed an award of costs 
    because he said there would be no order for costs.  But that judge can only 
    have meant that there would be no order in respect of that application.  The 
    applicant then says that, because the amount involved was well below the small 
    claims limit of the Provincial Court, no award of costs on the Supreme Court 
    tariff should have been made.  But the Provincial Court appears to be without 
    jurisdiction to entertain a petition and grant the relief sought by the Owners.

[7]

Further grounds of appeal are raised in the material the applicant 
    has filed, but the applicant has not referenced nor sought to develop them 
    on these applications and, as I understand them, none appears to hold any 
    prospect of supporting a successful appeal.

[8]

There can be no doubt that the applicant made it quite clear from the 
    time the order was made that he intended to take steps to have it set aside.  
    He asked the judge if he could appeal and was told that he could.  However, 
    instead of following that course, he made application in the Supreme Court 
    to have the order set aside.  Difficulties in obtaining a transcript of the 
    judges reasons resulted in the hearing of the application being adjourned 
    on each of several occasions until it was finally dismissed on 28 November 
    2005.  In the interim, the applicant was told by no less than four judges 
    that the Supreme Court did not have jurisdiction to set aside the order and 
    that his remedy lay in an appeal to this Court.  But the applicant waited 
    until 21 December 2005 to file a Notice of Appeal and a Notice of Application 
    for Leave to Appeal.

[9]

On 16 September, the applicant appeared before Wong J. who warned him 
    that he should be appealing the order.  The application was adjourned to 30 September 
    and the order for sale was stayed until the application was heard.  On 30 September, 
    the applicant appeared before Hood J. who further adjourned the matter and 
    warned the applicant again that his application was ill-founded and that the 
    proper process was to appeal the order.  On 7 October, the applicant appeared 
    before Stromberg-Stein J. who adjourned the application generally and told 
    him that the court did not have jurisdiction to hear it.  She told him he 
    should be launching an appeal.  Finally, on 28 November, the applicant appeared 
    before Gerow J. who dismissed the application and informed the applicant that 
    the proper course was to appeal the order.

[10]

The applicant did not misunderstand the procedure that was available 
    to him.  He does not appear to dispute what he was told by the several judges 
    in the Supreme Court and he acknowledges that he pursued an application in 
    that court to have the order set aside, rather than appealing, because he 
    determined that the court fees involved in doing so were about one-third of 
    the fees payable to initiate an appeal.  I do not consider it can be said 
    that the applicant has established that he had an intention to appeal to this 
    Court until 21 December, some three weeks after his ill-founded application 
    was dismissed.  Between the time the order was made in August and dismissed 
    in November, he put the Owners to considerable expense in having to repeatedly 
    appear at the various hearings of the application during which time they were 
    precluded from proceeding to have the strata lot unit sold to enforce their 
    lien.

[11]

The absence of an intention to appeal to this Court within the time 
    prescribed, coupled with the absence of any apparent merit in the proposed 
    appeal, substantially defeats the application for an extension of time.  The 
    Owners were made aware of the applicants intention to launch the proposed 
    appeal in the latter part of December and, apart from the not inconsequential 
    intervening three-month delay in the proceedings and the expense associated 
    with the hearing of the Supreme Court application, they have not been prejudiced.  
    Nonetheless, it is my view that it would not be in the interests of justice 
    to grant the extension sought in this case.  The applicants resistance to 
    the fees and levies he has been held to owe appears to me to be based on little 
    more than his unwillingness to accept that they are expenses which as an owner 
    he must pay regardless of the fact that he does not live in the suite.

[12]

The application to extend the time in which to appeal the order is 
    accordingly dismissed.  It is, in the result, unnecessary to give directions 
    as to whether leave to appeal is required or to determine whether the applicant 
    is entitled to an order granting him indigent status.  It is also unnecessary 
    to consider whether leave to appeal should be granted or a stay of the order 
    imposed.

The Honourable Mr. Justice Lowry




