What was Tenancy Tribunal case 9050284 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9050284?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9050284?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9050284?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10118810-UTA_Tribunal_Order.pdf.

What was Tenancy Tribunal case 9050284 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9050284?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9050284?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9050284?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10118810-UTA_Tribunal_Order.pdf.

Akaroa, Akaroa Tenancy Tribunal Case 9050284 — Unit Titles

Order

The application is dismissed.

Reasons

Mr Simpson, the chairperson, and Mr Lechman, the manager, represented the body corporate. Mr Angus attended by phone. He said he had authority to speak for Mr Freeman as well. The application was made against both unit owners. Background
This body corporate is well known to the Tribunal. In past orders, the Tribunal has commented on the dysfunction that has existed, and apparently continues to exist, due to what is essentially a factional division among the unit owners.
Mr Freeman owns 7 of the 14 units, Mr Angus owns 1. So, between them they own 8 out of 14 of the units. They are the majority and appear to act as one.
On 1 January 2024, Messrs Angus and Freemen gave notice to the body corporate chairperson and manager that they wanted the chairperson to call an extra-ordinary general meeting (EGM).
The motions to be voted on included the removal of the chairperson; the revocation of delegations of authority; and the termination of a service contract (the appointment of Strata Title Administration Ltd). Mr Simpson believed they also wanted to revoke an earlier resolution to set up a long-term maintenance fund.
Mr Simpson initially advised the unit owners that an EGM would be held on 14 February 2024 (despite objections as to that date). He later advised that he had decided not to call the requested EGM, but instead had decided to make an application to the Tribunal for directions.
Messrs Angus and Freeman stated in strong terms that they believed Mr Simpson to be in breach of the Unit Titles Act 2010 (UTA) and the regulations by refusing to call the EGM. The hearing
At the hearing today, Mr Simpson accepted that he had not followed the statutory process. He said the application was a pre-emptive one, since it was the clear intention of the majority (Messrs Angus and Freeman) to vote to pass resolutions that are contrary to the interests of the minority.
Mr Simpson said it was clear that Mr Angus and Mr Freeman wanted to take control and he wanted the Tribunal to require Mr Freeman to divulge his ‘long- term plan’. He said the value of the minority unit owners’ investments in their units was at risk, especially if the long-term maintenance fund were set aside.
Mr Angus said that 57.14% of the unit owners had called for the EGM; it was mandatory that an EGM be held; and the minority could not exclude the majority. He said the statutory process had to be followed.

What should the Tribunal do?

The Tribunal does not make ‘pre-emptive orders’. It is reactive, not proactive. It does not interfere with the running of a body corporate. It does not issue directions as to how a body corporate is run.
That said, Mr Simpson’s concerns, on behalf of the minority owners, are real and genuine.
He said he would like the Tribunal to consider the appointment of an administrator, but that decision rests with the High Court. Section 141 UTA provides: 141 Appointment of administrator (1) The body corporate, a creditor of the body corporate, or any person having a registered interest in a unit, may apply to the High Court for the appointment of an administrator. (2) In the case of a layered development,— (a) a head body corporate or parent body corporate may apply to the High Court for the appointment of an administrator of any 1 of its subsidiaries: (b) a subsidiary body corporate may apply to the High Court for the appointment of an administrator of its parent body corporate. (3) The High Court may, in its discretion on cause shown, appoint an administrator for an indefinite period or for a fixed period on such terms and conditions as to remuneration or otherwise as it thinks fit. (4) The remuneration and expenses of the administrator are to be met out of the operating account. (5) The administrator, to the exclusion of the body corporate and the body corporate committee, has and may exercise the powers of the body corporate and the committee, and is subject to the duties of the body corporate and the committee, or such of those powers and duties as the High Court orders. (6) The administrator may, in writing, delegate any of the powers vested in the administrator and may revoke any delegation at any time. (7) The High Court may, in its discretion on the application of the administrator or any other person referred to in subsection (1), remove or replace the administrator. (8) On any application made under this section the High Court may make any order for the payment of costs as it thinks fit. (9) As soon as an administrator is appointed, the administrator must lodge with the Registrar a sealed copy of the order of the High Court making the appointment.
The Tribunal has signalled in past orders that the dysfunction apparent in this body corporate could well result in the appointment of an administrator, with its attendant cost, were an application made to the High Court.
The motions drafted for consideration at the EGM might well prove to be the catalyst for that.
This is a body corporate application. Had it been a unit owner application, the Tribunal would have issued a direction for the EGM to be convened.
Mr Simpson was candid at the hearing. He said he knows that the UTA and the regulations require the body corporate to hold an EGM to vote on the motions proposed by Mr Angus and Mr Freeman. But he said he had decided not to call an EGM, preferring instead to seek a direction from the Tribunal.
Section 89A UTA provides: Requirement for extraordinary general meeting: request by unit owners of not less than 25% of principal units An extraordinary general meeting must be held in accordance with the regulations if the chairperson receives a notice that— (a) asks for an extraordinary general meeting to consider and decide motions proposed in the notice; and (b) is signed by or for the unit owners of not less than 25% of the principal units.
If the motions pass by virtue of Messrs Freeman’s and Angus’ majority interest, that does not mean they cannot be challenged. The UTA provides for the minority to apply to the Tribunal to set aside resolutions in certain cases. Or the body corporate (or the minority unit owners) could apply to the High Court for the appointment of an administrator.
Mr Simpson said that Mr Freeman had outstanding levies, so, on the face of it, he would not be eligible to vote anyway. That would remove 50% of the vote. The proposed motions might not pass. Other resolutions might require a 75% vote.
The Tribunal cannot predict what might happen. The process must take its course. If the motions proposed are passed and if the minority considers they are oppressive, the minority owners can apply for relief.
But there must be an EGM, a vote and resolutions before the Tribunal can intervene. It cannot simply over-ride the provisions of the UTA and the regulations as to process before the process has taken place.
For these reasons I must dismiss the application.
Mr Angus submitted that the application fee should be borne by the chairman. I make no order as suggested by Mr Angus. To do so would deter the body corporate from seeking Tribunal relief.
The chairperson’s role is a voluntary one. To require Mr Simpson to fund the application fee himself would be objectively unfair. It is a cost properly borne by the body corporate. The body corporate, especially in this case, must be free to make applications, even if these unit owners consider there are no grounds for the orders sought.

Order

The application is dismissed.

Reasons

Mr Simpson, the chairperson, and Mr Lechman, the manager, represented the body corporate. Mr Angus attended by phone. He said he had authority to speak for Mr Freeman as well. The application was made against both unit owners. Background
This body corporate is well known to the Tribunal. In past orders, the Tribunal has commented on the dysfunction that has existed, and apparently continues to exist, due to what is essentially a factional division among the unit owners.
Mr Freeman owns 7 of the 14 units, Mr Angus owns 1. So, between them they own 8 out of 14 of the units. They are the majority and appear to act as one.
On 1 January 2024, Messrs Angus and Freemen gave notice to the body corporate chairperson and manager that they wanted the chairperson to call an extra-ordinary general meeting (EGM).
The motions to be voted on included the removal of the chairperson; the revocation of delegations of authority; and the termination of a service contract (the appointment of Strata Title Administration Ltd). Mr Simpson believed they also wanted to revoke an earlier resolution to set up a long-term maintenance fund.
Mr Simpson initially advised the unit owners that an EGM would be held on 14 February 2024 (despite objections as to that date). He later advised that he had decided not to call the requested EGM, but instead had decided to make an application to the Tribunal for directions.
Messrs Angus and Freeman stated in strong terms that they believed Mr Simpson to be in breach of the Unit Titles Act 2010 (UTA) and the regulations by refusing to call the EGM. The hearing
At the hearing today, Mr Simpson accepted that he had not followed the statutory process. He said the application was a pre-emptive one, since it was the clear intention of the majority (Messrs Angus and Freeman) to vote to pass resolutions that are contrary to the interests of the minority.
Mr Simpson said it was clear that Mr Angus and Mr Freeman wanted to take control and he wanted the Tribunal to require Mr Freeman to divulge his ‘long- term plan’. He said the value of the minority unit owners’ investments in their units was at risk, especially if the long-term maintenance fund were set aside.
Mr Angus said that 57.14% of the unit owners had called for the EGM; it was mandatory that an EGM be held; and the minority could not exclude the majority. He said the statutory process had to be followed.

What should the Tribunal do?

The Tribunal does not make ‘pre-emptive orders’. It is reactive, not proactive. It does not interfere with the running of a body corporate. It does not issue directions as to how a body corporate is run.
That said, Mr Simpson’s concerns, on behalf of the minority owners, are real and genuine.
He said he would like the Tribunal to consider the appointment of an administrator, but that decision rests with the High Court. Section 141 UTA provides: 141 Appointment of administrator (1) The body corporate, a creditor of the body corporate, or any person having a registered interest in a unit, may apply to the High Court for the appointment of an administrator. (2) In the case of a layered development,— (a) a head body corporate or parent body corporate may apply to the High Court for the appointment of an administrator of any 1 of its subsidiaries: (b) a subsidiary body corporate may apply to the High Court for the appointment of an administrator of its parent body corporate. (3) The High Court may, in its discretion on cause shown, appoint an administrator for an indefinite period or for a fixed period on such terms and conditions as to remuneration or otherwise as it thinks fit. (4) The remuneration and expenses of the administrator are to be met out of the operating account. (5) The administrator, to the exclusion of the body corporate and the body corporate committee, has and may exercise the powers of the body corporate and the committee, and is subject to the duties of the body corporate and the committee, or such of those powers and duties as the High Court orders. (6) The administrator may, in writing, delegate any of the powers vested in the administrator and may revoke any delegation at any time. (7) The High Court may, in its discretion on the application of the administrator or any other person referred to in subsection (1), remove or replace the administrator. (8) On any application made under this section the High Court may make any order for the payment of costs as it thinks fit. (9) As soon as an administrator is appointed, the administrator must lodge with the Registrar a sealed copy of the order of the High Court making the appointment.
The Tribunal has signalled in past orders that the dysfunction apparent in this body corporate could well result in the appointment of an administrator, with its attendant cost, were an application made to the High Court.
The motions drafted for consideration at the EGM might well prove to be the catalyst for that.
This is a body corporate application. Had it been a unit owner application, the Tribunal would have issued a direction for the EGM to be convened.
Mr Simpson was candid at the hearing. He said he knows that the UTA and the regulations require the body corporate to hold an EGM to vote on the motions proposed by Mr Angus and Mr Freeman. But he said he had decided not to call an EGM, preferring instead to seek a direction from the Tribunal.
Section 89A UTA provides: Requirement for extraordinary general meeting: request by unit owners of not less than 25% of principal units An extraordinary general meeting must be held in accordance with the regulations if the chairperson receives a notice that— (a) asks for an extraordinary general meeting to consider and decide motions proposed in the notice; and (b) is signed by or for the unit owners of not less than 25% of the principal units.
If the motions pass by virtue of Messrs Freeman’s and Angus’ majority interest, that does not mean they cannot be challenged. The UTA provides for the minority to apply to the Tribunal to set aside resolutions in certain cases. Or the body corporate (or the minority unit owners) could apply to the High Court for the appointment of an administrator.
Mr Simpson said that Mr Freeman had outstanding levies, so, on the face of it, he would not be eligible to vote anyway. That would remove 50% of the vote. The proposed motions might not pass. Other resolutions might require a 75% vote.
The Tribunal cannot predict what might happen. The process must take its course. If the motions proposed are passed and if the minority considers they are oppressive, the minority owners can apply for relief.
But there must be an EGM, a vote and resolutions before the Tribunal can intervene. It cannot simply over-ride the provisions of the UTA and the regulations as to process before the process has taken place.
For these reasons I must dismiss the application.
Mr Angus submitted that the application fee should be borne by the chairman. I make no order as suggested by Mr Angus. To do so would deter the body corporate from seeking Tribunal relief.
The chairperson’s role is a voluntary one. To require Mr Simpson to fund the application fee himself would be objectively unfair. It is a cost properly borne by the body corporate. The body corporate, especially in this case, must be free to make applications, even if these unit owners consider there are no grounds for the orders sought.

Tenancy Tribunal case 9050284 — Unit Titles in Akaroa, Akaroa

At a glance

Claims & awards

Tenancy Tribunal case 9050284 — Unit Titles in Akaroa, Akaroa

At a glance

Claims & awards

Order

Reasons

What should the Tribunal do?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

What should the Tribunal do?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions