What was the outcome of Tenancy Tribunal case 9041364?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9041364?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9041364?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9041364?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9453119-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9041364?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9041364?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9041364?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9041364?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9453119-Tribunal_Order.pdf.

Auckland Central, Auckland Tenancy Tribunal Case 9041364 — Unit Titles

Order

The application is dismissed.

Reasons

David Church attended the hearing. 1
Sarah Woodhams, Manager, attended the hearing as the authorised person for First Street Body Corp Management Limited.
Mr Church claims against the Body Corporate Manager for a notice it sent out of intention to hold a body corporate annual general meeting remotely by Zoom, and not in person.
Ms Woodhams accepts First Street sent the notice out but submits among other things that the decision to hold the AGM by Zoom was the Body Corporate Committee’s not First Street’s; the AGM did not proceed as a Zoom-only meeting, so the claim is pointless; and the Body Committee’s decision to hold the AGM was justified in the circumstances of a national emergency being declared at that time. 1 The hearing was held on 22 August 2023. The Tribunal’s original decision was issued on 19 September 2023. The decision was re-issued on 25 September 2023 to correct the name of a committee member – see n 3. This version of the decision replaces the earlier version. Background
Mr Church is a unit owner in the Guardian Building, a handsome character building that was redeveloped into apartments a couple of decades ago. The development is governed by the Unit Titles Act 2010 (UTA) and is now known as Guardian Apartments.
The body corporate for Guardian Apartments is Body Corporate 323599. At the relevant time, the chairperson of the Body Corporate was Ven Plummer. The respondent, First Street, was the body corporate manager.
On 17 February 2023, First Street sent the Guardian Apartments’ unit owners a notice of intention to hold an AGM on 21 March 2023 “by virtual meeting via Zoom”.
On receiving the notice by email, Mr Church emailed First Street later that day stating: I am concerned to see that the meeting is entirely virtual. My clear view is that owners must have an option to attend in person.
First Street responded on 20 February 2023 that a physical meeting was not required under the Unit Titles Act and that the Body Corporate Committee elected not to have a physical meeting for several reasons including that New Zealand was subject to a national state of emergency due to flood events.
Notwithstanding the state of emergency, the AGM’s venue was amended to include a physical venue. The Body Corporate’s counsel submitted a memorandum to the Tribunal stating: 2
As soon as [Mr Church] requested that an in person meeting be held the Body Corporate Committee advised an in person AGM would be held also at the offices of First Street... The amended claim
Mr Church originally applied to the Tribunal on 21 February 2023 for orders against the Body Corporate, the Body Corporate Chairperson, and First Street, including that the Body Corporate be directed to reset the AGM “as one where owners can attend by s88 of he the Unit Titles Act 2010”. Section 88(3) of the UTA provides: (3) Members of a body corporate may attend and vote at a general meeting (and members of a body corporate committee may attend and vote at a committee meeting) in person or by audio link, audiovisual link, or other remote access facility despite any limitation or condition on the use of an audio link, audiovisual link, or remote access facility that is contained in the body corporate operational rules. 2 Memorandum of Respondents dated 20 March 2023 at para 8.
Mr Church amended his claim by memorandum dated 4 April 2023 as follows: I wish to see that this action is solely against First Street and not Ven Plummer nor the body corporate. I wish to amend the claim so that there is a ruling on one item only, viz:- THAT First Street were incorrect in law when they issued a “Notice of Intention...” on 17 February. It did not meet the requirements of •s88 of the UTA 2010, nor •regulation 5 (4) of the UT Regs 2011. Threshold issues arising
Mr Church’s claim as amended raises two fundamental hurdles prior to reaching the main issue he wishes to argue, namely, that the AGM notice was defective. Firstly, body corporate managers’ role is administrative in nature. It is not their intended role to decide when, where, and how AGMs are to be held. It is primarily the Body Corporate Chairperson’s role to do that. Therefore, First Street seem to be incorrectly named as respondent to the proceedings. Second, the AGM did not proceed solely by Zoom. Therefore, a decision on the claim would not have any utility to the parties. I discuss each of these problems in turn.

Did First Street decide to hold the AGM by Zoom?

Mr Church’s claim against the body corporate manager “issuing” a notice of intention to have an AGM. However, under s 90(1) of the UTA, it is the chairperson who must call the AGM, not the body corporate manager.
The body corporate manager’s role is intended to be administrative in nature. Under s 114G of the UTA, “body corporate manager” means: (1) [A] person who is employed or engaged by a body corporate (whether itself or through its body corporate committee) to provide (or manage the provision of) 1 or more of the services specified in subsection (2). (2) The services are as follows: (a) record-keeping and other administrative services: (b) financial services, including the handling of money belonging to the body corporate or members of the body corporate: (c) regulatory compliance services, including— (i) the making or preparing of statutory disclosures; and (ii) regulatory compliance services performed on behalf of the body corporate (including the body corporate committee and the body corporate chairperson).
Mr Church asserts First Street made the decision to hold the AGM by Zoom. However, Ms Woodhams submitted in evidence an email dated 21 August 2023 from the former Chairperson of the Body Corporate Committee, Ven Plummer, saying: This is to reiterate why the Committee of the Guardian elected to have the AGM via Zoom, and at the chosen time. We were just at the beginning of Cyclone Gabriel and travel throughout the country was very much inhibited, with many of the owners living out of town. We wanted to make sure as many as possible could attend the meeting.
Mr Church submitted emails from two Body Corporate Committee members. He had invited the members to support him by saying to them: I understand that Rob, Ish and Jessie at the committee meeting, voted in favour of an in person meeting. That was a majority of the meeting so that should have happened. The decision to do other is First Street, not the committees. If you could confirm as above by email would be much appreciated. That gets the committee of the hook (who they are blaming) and I get my $3200 fee back.
Ismail Salman emailed Mr Church: I wanted a in person meeting ut they refused
Robert MacFarlane 3 emailed Mr Church: Yes, I seem to remember asking for an in-person meeting near or in the city centre but it was decided otherwise.
The evidence does not show that a majority of the Body Corporate Committee wanted an in-person hearing. Mr Jones’ email that “it was decided otherwise” suggests the majority the Committee agreed to an AGM by Zoom.
In any event, it is only the chairperson who has the authority to call an AGM, and the chairperson’s email confirms that First Street did not hijack that decision in some way.
First Street cannot be found liable for a decision it had no authority to make and did not make.
Mr Church’s claim is not tenable for this reason.

Is the claim moot?

At Mr Church’s request, the AGM was not held entirely by Zoom. 3 The Tribunal erroneously referred to a different person to Mr McFarlane in its decision. Mr Church advised the Tribunal of its error on 21 September 2023 and the decision was re-issued on 25 September 2023 with Mr McFarlane’s name substituted.
The disputed notice that the AGM would be solely by Zoom was superseded early in the piece.
There is no practical utility in considering the claim because the AGM did not proceed solely by Zoom because the Chairperson amended his earlier notice of intention to allow for in person attendance. 4
Mr Church did pay a considerable application fee to bring the claim and could ask for the fee to be reimbursed if he succeeded in the claim, but that does not change the substance of the utility of the claim.
The claim calls for resolution of an issue that is moot.
Under s 85(1) of the Residential Tenancies Act 1986, the Tribunal is required to exercise its jurisdiction in a manner “that is most likely to is most likely to ensure the fair and expeditious resolution of disputes” between the parties. I do not see this matter as involving a genuine dispute because the subject of the dispute (if ever there really was a justiciable dispute) was cured long ago.
Even if the claim against First Street were tenable, I would have declined to have heard the claim because it is moot.

Could the Tribunal entertain a claim for negligent advice?

During the hearing, when discussing whether there was some principled basis for a claim by Mr Church against First Street, the Tribunal raised the possibility that Mr Church might claim that First Street gave the Body Corporate bad advice that it could call a meeting in the way it did.
Ms Woodhams denied First Street’s advice to the Body Corporate or to the Chairperson was deficient in any way.
First Street responded to Mr Church on 20 February 2023 that, “a physical meeting is not required under the Unit Titles Act”. That is not in itself sufficient evidence that First Street gave the Body Corporate defective advice.
Moreover, if a claim were to be brought against First Street, it would probably have to be brought by the Body Corporate because of the rule against derivative claims.
In Singh v Boutique Body Corporates Limited 5 the High Court found that service contractors such as body corporate managers are generally liable only to the body corporate not individual unit owners. Judge R M Bell commented in that case: 6 4 See Memelink v BC 68792 [2021] NZDC 11664; and Memelink et al v Body Corporate 68792 [2022] NZHC 151 5 [2019] NZHC 1707, 6 At [26] [26] These approaches apply where a professional provides services to a body corporate under the Unit Titles Act. In general, the professional assumes a duty of care only to the body corporate, not to individual owners. That means that the body corporate can hold the professional to account. Any decision to do so will be made by the body corporate in a general meeting or by those acting with delegated authority of the body corporate. The rule against derivative claims applies to bodies corporate under the Unit Titles Act as well other incorporated entities.
Moreover, as mentioned, this was not Mr Church’s claim. He would have to bring another claim alleging negligence if he wanted to pursue this. The prospects of success of such a claim would be a matter for Mr Church to evaluate. Conclusion
The claim is dismissed

Tenancy Tribunal case 9041364 — Unit Titles in Auckland Central, Auckland

At a glance

Tenancy Tribunal case 9041364 — Unit Titles in Auckland Central, Auckland

At a glance

Claims & awards

Order

Reasons

Did First Street decide to hold the AGM by Zoom?

Is the claim moot?

Could the Tribunal entertain a claim for negligent advice?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Did First Street decide to hold the AGM by Zoom?

Is the claim moot?

Could the Tribunal entertain a claim for negligent advice?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions