What was Tenancy Tribunal case 9042844 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9042844?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9042844?

The primary dispute was Leaks. Related themes: Property damage, Unit Titles, Costs.

Where can I read the official tribunal order for case 9042844?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9934767-Tribunal_Order.pdf.

What was Tenancy Tribunal case 9042844 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9042844?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9042844?

The primary dispute was Leaks. Related themes: Property damage, Unit Titles, Costs.

Where can I read the official tribunal order for case 9042844?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9934767-Tribunal_Order.pdf.

Mount Wellington, Auckland Tenancy Tribunal Case 9042844 — Leaks

Tenantcheck Insights

Reasons

Both parties attended the hearing. Ms Mackay represented the Body Corporate and its manager Property 101 Group Ltd (Property 101). Ms Beckett, the Body Corporate chair also attended.

Mr Williams, another unit owner, appeared as a witness for Mr Cooper and gave brief evidence. Background

Mr Cooper is concerned about the way in which the Body Corporate has approved repairs to the complex to address the issue of water ingress. That has involved the replacement of the doors of some units, and repairs to the guttering in 2015 which he says (and the Body Corporate accepts) were inadequate.

More recently, the Body Corporate approved the installation of an awning/canopy. Mr Cooper alleges that the awing was unnecessary and would not solve the problem of water ingress and if it went ahead would have led to substantial increases in levies.

Mr Cooper is concerned that the Body Corporate has made these decisions without a proper building survey audit and therefore its decisions are unreasonable, unfair, and ineffective.

Mr Cooper also referred to other issues - a financial audit and the dissolution of the committee.

The application first came before the Tribunal on 14 November 2023. Mr Cooper had named Property 101 as the respondent. However, the adjudicator who heard the application decided that the application should be made against the Body Corporate citing the decision of the High Court in Singh v Boutique Body Corporates Limited [2019] NZHC 1707 as authority.

The adjudicator agreed to keep Property 101 as a named respondent but only in respect of the order for costs it had sought. The issues

Today, both parties gave evidence and made submissions. Ms Mackey, also representing Property 101, made submissions on costs for the Body Corporate manager.

Mr Cooper’s application sets out 4 heads of claim, but the thrust of his argument is this. The Body Corporate approved the installation of an awning/canopy at the AGM on 4 October 2022 without any professional assessment or building report. It previously approved guttering repair work in 2015, accepting the cheapest quote. The work was substandard and between 2015 and recently there had been no inspection of the roof, even though leaking continued to be an issue. The approval of that work resulted in increased levies and the continued leaking resulted in higher insurance costs.

Mr Cooper said he called an EGM, and the awning work was paused following a vote, but he was concerned that the Body Corporate would still proceed with it as it had just been paused and not removed and he was concerned about the cost of the work.

Mr Cooper’s main concern is that the Body Corporate had never obtained professional assessments to determine the most appropriate work. He said that the long-term maintenance fund had been drained. He sought a direction that the Body Corporate obtain a professional building audit survey.

Although he did not specifically address these issues today (but the last adjudicator mentioned them in his order) it seems that Mr Cooper might have sought a financial audit, the dissolution of the committee and removal of the Body Corporate manager, and the disclosure of information to all unit owners.

Those matters aside, it seems that the principal issues are whether the Body Corporate should be directed to obtain a professional building audit report and whether the Tribunal should order the Body Corporate not to proceed with the installation of a canopy/awning, that work only having been paused.

For the Body Corporate Ms Mackay submitted that all decisions by the Body Corporate complied with due process and the legislative requirements. There were properly convened meetings that enabled all unit owners to participate and vote on resolutions. The resolutions passed reflected the collective decisions of the unit owners.

If Mr Cooper wanted the Body Corporate to engage a building audit assessor, or have the accounts audited, the proper process was to request that at an AGM or EGM for the unit owners to consider and vote on the proposal. To date, the unit owners had voted not to have a financial audit undertaken.

The Body Corporate had always acted within the legal framework provided under the Unit Titles Act 2010 (UTA). That Mr Cooper did not always agree with, or accept, decisions of the Body Corporate based on resolutions passed at meetings did not justify the Tribunal intervening with orders for his benefit alone. Discussion

First, I will address the issues mentioned by the last adjudicator but not specifically addressed by Mr Cooper today.

The Tribunal might order that the Body Corporate undertake a financial audit in very limited situations, none of which apply here. I am satisfied that the unit owners have voted not to have a financial audit undertaken. That is their right. The Tribunal will not interfere with that. Mr Cooper must accept the decision of the majority.

Nor would the Tribunal order the dissolution of the committee or the removal of the Body Corporate manager, or the chair. The unit owners decide by majority vote who the committee members will be from time to time. The Tribunal must respect that democratic process. Its role does not include interfering with resolutions passed and decisions made unless a clear breach of legal process is proved (legally known as ultra vires decision making). It would certainly not make orders based on 1 dissatisfied unit owner when there are 30 other owners.

Mr Cooper has not established any grounds on which the Tribunal might find the resolutions passed or decisions made by the Body Corporate are ultra vires its powers.

There are 31 units in this complex. This is not an application for minority relief (such applications are time-framed and must relate to all the minority, not just the applicant – see 201 Limited v Body Corporate 329331 [2018] NZHC 1933). It is an application by one unit owner who is dissatisfied with the operation of the Body Corporate.

The issue of repair work to the roof in 2015 is well beyond the limitation period for a claim to be made. Though not raised as a defence, the Tribunal could not make any valid order regarding work that was voted on and undertaken almost 9 years ago.

Even if that work were defective (as Ms Beckett suggested it probably was) that does not give rise to a cause of action between Mr Cooper and the Body Corporate. The Body Corporate might have a cause of action against the contractor who did the defective work though.

The Body Corporate has arranged for the assessment and repair of the roof and guttering to try and remedy the problem with water ingress. That appears appropriate. Mr Cooper was critical of that work commencing so close to the Tribunal hearing. He saw that as somehow prejudicial to the Tribunal’s process. I do not agree.

The pause in the canopy work was a decision made by the unit owners. I have reviewed the minutes of the EGM held on 19 December 2022 apparently called at Mr Cooper’s request.

With regard to the canopy this resolution was carried by the majority: The meeting discussed the recent roof/guttering reports disseminated to some owners, along with the proposed canopy/walkway, with the committee to delay the canopy/walkway works until such time as a full review of the roof and guttering in undertaken to ascertain the scope of necessary maintenance works. Resolved that all work related to the canopy/walkway covering cease immediately. Carried by majority.

Should the roof and guttering repairs solve the water ingress problem, that issue will have been resolved. If not, the Body Corporate will need to consider what action to take next.

Ms Mackey explained that was why the installation of an awning had been paused. Mr Cooper is strongly against the installation of an awning. It goes without saying that the Body Corporate could only proceed with the installation of an awning (which assumes that the current repair work is ineffective) based on proper assessments.

The Tribunal will not interfere with decisions made by previous committee members, no longer members, when decisions such as the replacement of doors were made following resolutions voted on and passed by the unit owners.

As for the provision of information, it is for individual unit owners to raise issues such as non-disclosure and, if necessary, to make applications to the Tribunal. Mr Cooper cannot apply on their behalf.

I have reviewed the minutes of the AGM held on 11 October 2023. There were 15 resolutions passed all without dissent. They included the appointment of the committee and the chair (Mr Cooper was a candidate but was not elected); delegations; maintenance (which included approval for the work on the roof and gutters to be undertaken on a staged basis); and for the proposed canopy to be paused pending the completion of that work.

There is nothing unusual let alone contrary to the UTA or expected procedure that emerges from the EGM or the AGM minutes.

This is a case where Mr Cooper is unhappy with decisions made by the Body Corporate following resolutions by the majority passed at meetings properly convened. The decisions made reflect the general democratic nature of a Body Corporate. Mr Cooper’s dissatisfaction with the resolutions passed and the decisions made is not something the Tribunal can address or remedy.

A Body Corporate is not expected to be perfect, but it is expected to follow the provisions of the UTA. Unit owners are bound by decisions of the majority, except in limited situations such as where the decisions are ultra vires or objectively unfair on the minority. None of the issues raised by Mr Cooper establishes any ultra vires decision making by the Body Corporate. His dissatisfaction alone is not sufficient to have the Tribunal make the orders he seeks.

For these reasons the application is dismissed. Costs

Mr Cooper sought costs. As the application is unsuccessful, he is not entitled to costs.

Property 101 has provided 2 invoices. The first is for $1,702.00 for the first hearing; the second is for $1,574.75 for the second hearing. The costs it seeks are higher than those sought by the Body Corporate.

Property 101 had no involvement in the hearing today other than for its costs application.

I award Property 101 costs of $550.00, given its limited involvement and the fact that as a matter of jurisdiction Mr Cooper could not proceed against it. Its only involvement at the hearing today was for Ms Mackey to present its costs application. She was present anyway to represent the Body Corporate.

The Tribunal must take care when awarding costs to ensure that the applicable legal principles are respected – see BC 346799 v Ikeda [2020] NZDC 3669 and BC S83247 v Watkins [2022] NZTT 9029601. Costs are not awarded based on the District Court scale for example.

The Body Corporate has sought costs of $1,369.35 plus GST. As pleaded, the costs seem to include the costs Property 101 invoiced to it. If so, there will need to be deductions accordingly – Property 101 cannot both retain the costs awarded and charge the same costs to the Body Corporate.

I award the Body Corporate costs of $800.00 which I consider is a reasonable contribution to its costs defending the application. Full indemnity costs are not awarded on an application such as this.

Reasons