What was Tenancy Tribunal case 9055764 about?

The tribunal order states: Body Corporate 21207 to pay [The party] $41,379.15 immediately.

How much money was awarded in case 9055764?

1. Body Corporate 21207 To Pay Colin…: $41,379.15 awarded to landlord

What type of tenancy dispute was case 9055764?

The primary dispute was Mould & damp. Related themes: Harassment, Leaks, Unit Titles.

Where can I read the official tribunal order for case 9055764?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12755274-Tribunal_Order.pdf.

What was Tenancy Tribunal case 9055764 about?

The tribunal order states: Body Corporate 21207 to pay [The party] $41,379.15 immediately.

How much money was awarded in case 9055764?

1. Body Corporate 21207 To Pay Colin…: $41,379.15 awarded to landlord

What type of tenancy dispute was case 9055764?

The primary dispute was Mould & damp. Related themes: Harassment, Leaks, Unit Titles.

Where can I read the official tribunal order for case 9055764?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12755274-Tribunal_Order.pdf.

Birkenhead, Auckland Tenancy Tribunal Case 9055764 — Mould & damp

Claims and awards in Tenancy Tribunal application 9055764. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
1. Body Corporate 21207 to pay Colin Marshall	$41,379.15		1. Body Corporate 21207 to pay Colin Marshall

Claims and awards in Tenancy Tribunal application 9055764. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
1. Body Corporate 21207 to pay Colin Marshall	$41,379.15		1. Body Corporate 21207 to pay Colin Marshall

Order

Body Corporate 21207 to pay [The party] $41,379.15 immediately.
The Body Corporate’s counterclaim is not proven ad therefore dismissed.
If the parties cannot reach resolution on costs by 1 Febaury2026, then they are to each file a memorandum on costs by 20 February 2026 and a decision will be made by the Tribunal on the papers.

Reasons

The body corporate is a nine-unit complex consisting of plaster clad three level townhouses. The townhouses are adjoined in a terraced formation.
The Applicant Mr Marshall was the owner of unit 4A. Mr Newton is the owner of 3A.
Mr Marshall purchased his property in 2017. In January 2022, Mr Marshall was relocating to Nelson and wanted to sell his unit. He undertook an infrared survey of his unit. The survey found high moisture levels indicating moisture ingress and indicated a problem with moisture ingress in 3A as well. Mr Marshall notified the Body Corporate immediately and in late January and early February 2022, Body Corporate committee meetings were held to determine what the next steps would be. As a result of the meetings the Body Corporate engaged DBS Limited to complete repairs.
The water ingress was found to be as a result of leaks in the butanol roof and the failure of the rain head which was located on the exterior wall of 3A. The only two units that suffered water ingress into the units were 3A and 4A.
During the repairs it was discovered that Mr Newton (the owner of 3A) had, from 2018 noticed some leaking in his unit when it rained heavily. He had not notified the Body Corporate or anyone else of the issue.
The repairs were carried out between January 2022 and December 2022. During the repairs the building had scaffolding erected and was wrapped.
Mr Marshall claims that the Body Corporate required him to pay for some of the repairs, took too long to fix the repairs which cost him extra in mortgage repayments, interest and lead to delays in the sale of his unit. Mr Marshall says that he was disadvantaged because the market fell at that time leading to him having to accept a lower price.
The dispute is about who is liable for the costs of the repair and whether the Body Corporate should pay for consequential losses Mr Marshall says he has incurred. Mr Marshall also sought for the Tribunal to consider Mr Newton’s liability under s127 UTA, for failing to notify the Body Corporate of the leaks in his property, which Mr Marshall claims was a breach of the Body Corporate operational rules and contributed to the extent of the damage.
Mr Newton is not a party to these proceedings. As such I do not consider that the Tribunal has any jurisdiction to make orders against him or make any finding of Mr Newton’s liability. I do not consider that another owner can require the Body Corporate to take an action under s127 UTA against another owner. The ability to recover a debt under s127 is the Body Corporate’s decision. Procedural matters.
The hearing was held via video in three parts, the full day on the 11 November 2025, where I heard evidence from Mr Marshall and Mr Newton, a part day on the15 November where I heard the evidence of the Body Corporate Chairperson Mr Butcher, and on Friday 21 November where I heard submissions.
Mr Wolfe and Mr Rumble attended as Counsel for Mr Marshall; Mr Wood attended as Counsel for the Body Corporate. Mr Marshall also attended all three hearings.
I confirm that before completing this decision that I have read all the evidence submitted by both parties and the submissions of both parties.
On the first day of the hearing, an issue of jurisdiction was raised, during that discussion Mr Wolfe confirmed that Mr Marshall would abandon his claim for a declaration of non-liability, as that claim was circumvented by the Body Corporate making its own counter claim.
Mr Wolfe also confirmed that Mr Marshall was abandoning his claim for the loss of value of his unit.
I made an oral decision determining that the Tribunal had jurisdiction to hear this matter for the following reasons: 1 a. A party may abandon part of its claim to bring it within jurisdiction. I consider that Mr Marshall has abandoned his claim for a declaration of non-liability. That is unnecessary now, because the Tribunal will assess Mr Marshall’s liability to the Body Corporate in hearing the Body Corporate’s claim. b. There is no possibility that the Tribunal will make orders that exceed $100,000. c. I do not consider that there is an indirect consequence of the orders that the Body Corporate will that the Body Corporate will incur, as a result of the orders, expenditure exceeding $100,000.

Who paid for what work?

At the heart of this dispute is who is liable for the costs of the repair work.
DBS Limited was engaged by the Body Corporate to complete all the repair work. Mr Marshall, who was the Body Corporate Chairperson till October 2022, instructed DBS to carry out the work and signed the terms of trade.
Up until late August 2022 the Body Corporate paid for all the invoices out of its long- term maintenance fund. This fund was paid for by way of levy by owners annually.
In September 2022 the Body Corporate became concerned with the nature and extent of the building work and its ongoing liability and cost. It is safe to say that when the work was first started no one was aware of the true nature and extent of the work and what would need to be undertaken. By September 2022 the long-term maintenance funds were running out and DBS were threatening to walk away from the job unless their accounts were paid.
A meeting was held on the 13 September 2022, where the committee members and representatives from DBS were present. At that meeting the 3 remaining committee members voted unanimously (Mr Marshall and Mr Newton were not able to vote as they were deemed to have a conflict of interest) that the Body Corporate would pay $50,000 to have the repairs completed and on charge the costs to Mr Marshall and Mr Newton, and that Mr Marshall and Mr Newton would meet any additional costs. The minutes are recorded below. 2 1 A more comprehensive decision was issued orally. 2 See common bundle page 225.
The Body Corporate now accepts that the Body Corporate should have undertaken and paid for all the repairs pursuant to s138 UTA (and pay for this by levying all owners) and then sought to recover the costs from individual unit owners under s138(4) or s126 or s127 UTA. The amounts paid by each party.
Mr Marshall has paid invoices which he says total $41, 523.01. 3 a. $21,908.50 to DBS, per Invoice #90098 (dated 23 August2022); b. $7,236.95 to DBS, per Invoice #10000 (dated 30 August2022); c. $3,459.20 to DBS, per Invoice #10012 (dated 6 September2022); d. $8,774.50 to DBS, per Invoice #10074 (dated 10 September 2022); e. An additional $143.71 to Tile Depot Albany for costs relating to the Repair Works (dated 4 November 2022).
Mr Marshall is seeking the Body Corporate reimburse him for the invoices that he paid for above which he says should have been paid by the Body Corporate under s138 UTA.
Mr Newton has said in his evidence that he has paid: 4 30/ 9/22 Invoice 10009$15,552 30/9/22Invoice 90097$21,523.40 30/9/22Invoice 10013$4,789.75 The Body Corporate seeks payment seeks payment by Mr Marshall of $50,483.18 5 . They submitted the following calculation to justify this amount. The Body Corporate says a= what the Body Corporate paid b= What Mr Marshall paid c= what Mr Newton paid (note that this includes the following extra invoices for Mr Newton) 3 Paragraph 94 Mr Marshall’s brief of evidence. 4 Paragraph 17 of Mr Newton’s affidavit dated 20 May 2025. (Pages 463 and 464 of the Bundle) 5 See Body Corporate’s calculation page 492 of Bundle.
Effectively the Body Corporate are seeking the total cost of all the invoices that the Body Corporate, Mr Marshall and Mr Newton paid and divided by two, half from each of the owners of units 3A and 4A and then deducting the amounts they have paid. There are many flaws in this methodology: • The Body Corporate did not actually incur all these costs. It has not paid Mr Marshall for the invoices he says that he has paid. Whilst it has given a credit for these amounts in its calculations, I do not consider that the Body Corporate can say that the invoices have been incurred, when the Body Corporate submits it is not liable for such invoices when defending Mr Marshall’s claim. • The Body Corporate has included the extra invoices (58,2008,23006) that Mr Newton paid that relate solely to Mr Newton’s unit. As such the Body Corporate is not liable for those invoices under s138 UTA and cannot pass those invoices on to another owner. • It is unclear if the Body Corporate or Mr Newton paid the Invoices 10009, 90097 and 10013, as Mr Butcher gave evidence that they had been paid for by the Body Corporate 6 and also Mr Newton says he has paid them. • The Body Corporate has paid the $109,004.77 out of the long term maintenance funds which had already been levied (and therefore paid for) by Mr Marshall and Mr Newton according to the utility interest- no credit has been given for this.
At the hearing the Body Corporate confirmed that they acknowledge that Mr Marshall and Mr Newton should have also been given credit for the levies that they had paid toward the invoices.
The Body Corporate says that on the 17 March 2025 it passed a resolution where it levied (by utility interest) the unit owners $207,913.42 which they say is the total cost of repair pursuant to s138 UTA and then sought to reclaim half of the debt less the amount paid from the owners of 3A and 4A.
It is hard to understand why the Body Corporate sought to raise a levy from current owners when it had already paid for what it claims was its share from the long-term maintenance funds and funds on hand, all of which had accumulated from amounts that had been previously levied and paid by owners over time. The positions of each party 6 Paragraph 41 and exhibit B of the Affidavit of C Butcher dated 29 May 2025 (page 488 of Bundle)
Mr Marshall says that he should not be liable for the costs of the repairs because: a. The Body Corporate had an obligation under s138 UTA to pay for the repairs, as the repairs were to building elements and infrastructure that relate to or serve more than 1 unit. b. That the repairs were for weathertightness, storm water disposal system, which is a building element and infrastructure that affects the whole complex. All proprietors have an interest in having water ingress issues caused by leaks in roof or failure of the rain head being fixed promptly. c. That Mr Marshall did not substantially benefit from any of the repairs works. d. That the Body Corporate ought to have pursued Mr Newton for failing to report water ingress which has contributed to nature and extent of the damage. e. That the Body Corporate’s resolution of the March 2025 is ultra vires because: (i)It was a resolution made by the committee not the Body Corporate- Mr Marshall says that the Body Corporate must make a resolution to levy an owner, the Body corporate cannot delegate that power. (ii)It did not follow the meeting procedure set out in the UTA. (iii)It seeks to be reimbursed monies it has not paid. Mr Marshall submits that the Body Corporate cannot levy an owner for a debt it has not incurred. (iv)Some of the invoices that the BC seeks to recover do not relate to repair work for damage caused by the rain head and gutters. (v)Mr Marshall was not afforded natural justice because he was unable to vote on the resolution, having already sold his unit. (vi)When Mr Marshall’s unit was sold the body Corporate confirmed in the pre disclosure statement that there were no outstanding levies. The Body Corporate’s position is: a. It accepts that it should have, in the first instance, paid all the repair costs by levying all owners and then levied individual owners pursuant to s138(4), 126 or 127 UTA. b. Despite that acceptance, it says that it can now seek reimbursement from Mr Marshall pursuant to s138(4) and s126 for the costs. c. That the costs of repair were contained to both Mr Marshall’s and Mr Newton’s units and as such the Body Corporate is entitled to recover those costs pursuant to s138(4) from Mr Marshall and Mr Newton. d. That in addition the Body Corporate can collect the costs pursuant to s126 from Mr Marshall and Mr Newton because they are the units that substantially benefit from the repairs. e. That the resolution of is not ultra vires because: (i)The committee has the power to levy an owner. (ii) Body Corporate have taken into account the payments made by Mr Marshall and Mr Newton when calculating the amounts owed. (iii)That the Courts have previously allowed Body Corporate’s to raise and seek levies from owners who have since sold.

Who is liable for the costs of repairs caused by water ingress?

In order to address this question, it is necessary to break this question into smaller parts. a. What was the cause of the damage? b. Was the damage to a building element or infrastructure? What was damaged?

What was the cause of the damage?

At the beginning of the hearing, Counsel submitted that the cause of the damage was disputed. However, throughout the hearing it was not disputed that the origins of the water ingress were as a result of butanol failures in the roof and the failure of the rain head which is located on the exterior wall of 3A.
It appears that when Counsel were referring to the cause of the damage being disputed that they were referring to Mr Newton’s contribution to the extent of the damage, which Mr Marshall submits may have been considerably less had Mr Newton reported water ingress to his unit as soon as he discovered water ingress in or about 2018.
I do not consider that I need to address that submission or make any finding on whether Mr Newton’s alleged failure to notify the body corporate of water ingress made the problem larger or worse than it might have otherwise been. I say that because Mr Marshall’s claim is solely against the Body Corporate not Mr Newton. Mr Marshall could have added Mr Newton as a party in his claim, but he did not do so. As neither party has sought to have Mr Newton added as a party to these proceedings then I cannot make any determination on his liability or otherwise.
I also note that no party filed any evidence from a builder or other tradesperson that identified whether, if Mr Newton had told the Body Corporate earlier, what effect that may have had on the damage that occurred. Mr Marshall and Mr Butcher gave evidence on this point, but neither of them is qualified to make such an assessment.
For the above reasons I am satisfied that the cause of the water ingress into 4A was a failure of the butanol roofing and the failure of the rain head on the exterior wall of 3A.

What needed to be repaired?

As a result of the failure in the butanol roofing and the failure of the rain head, the roof needed repair, the rain head needed replacement, interior walls needed to be repaired and or replaced which required the cladding to be opened up and then subsequently remediated, painting and plastering.

Was this damage to a building element or infrastructure?

The starting point for determining the respective obligations of a unit owner and body corporate is the UTA.
Section 84 of the UTA sets out the “Powers and duties of Body Corporate[s]” which refers to specific sections in the Act, including section 138. Section 138 relates to the body corporate’s duties for repair and maintenance, and confirms that: The Body Corporate must repair and maintain— (a) the common property; and (b) any assets designed for use in connection with the common property; and (c) any other assets owned by the Body Corporate; and (d) any building elements and infrastructure that relate to or serve more than 1 unit. [Adjudicators emphasis]
The terms ‘building elements’ and ‘infrastructure’ are defined in the interpretation section (section 5) as follows building elements includes the external and internal components of any part of a building or land on a unit plan that are necessary to the structural integrity of the building, the exterior aesthetics of the building, or the health and safety of persons who occupy or use the building and including, without limitation, the roof, balconies, decks, cladding systems, foundations systems (including all horizontal slab structures between adjoining units or underneath the lowest level of the building), retaining walls, and any other walls or other features for the support of the building. infrastructure includes pipes, wires, ducts, conduits, gutters, watercourses, cables, channels, flues, conducting, or transmission equipment necessary for the provision of water, sewerage, drainage, stormwater removal, gas, electricity, oil, shelter, protection from fire, security, rubbish collection, air, telephone connection, Internet access, radio reception, television reception, or any other services or utilities to or from a unit or to or from the common property.
Accordingly, section 138 would apply to confirm that the responsibility for maintaining any building element would fall to the Body Corporate, providing that the building element or infrastructure “relate[s] to or serve[s] more than 1 unit”.
To put this another way, if the building element or infrastructure relates to or serves more than 1 unit then the Body Corporate will be responsible for its maintenance, otherwise the responsibility for any maintenance will fall to the individual Unit Owner.
The Body Corporate now accepts that these repairs were a repair of a building element or infrastructure as they affected more than one unit. It accepts that in the first instance the Body Corporate should have paid for all the repairs and then sought levies, if appropriate pursuant to s138(4) or 126 UTA. Is the Body Corporate entitled to levy Mr Marshall for the costs of the repair.
The Body Corporate seeks Mr Marshall to pay half of the total costs of repair for the. It submits that it can seek this under s138(4) or s126 UTA
Section 138(4) UTA provides Any costs incurred by the body corporate that relate to repairs to or maintenance of building elements and infrastructure contained in a principal unit are recoverable by the body corporate from the owner of that unit as a debt due to the body corporate (less any amount already paid) by the person who was the unit owner at the time the expense was incurred or by the person who is the unit owner at the time the proceedings are instituted.
Section 126 says: (1) This section applies where the body corporate does any repair, work, or act that it is required or authorised to do, by or under this Act, or by or under any other Act, but the repair, work, or act— (a) is substantially for the benefit of 1 unit only; or (b)is substantially for the benefit of some of the units only; or (c)benefits 1 or more of the units substantially more than it benefits the others or other of them. (2) Any expense incurred by the body corporate in doing the repair, work, or act is recoverable by it as a debt in any court of competent jurisdiction (less any amount already paid) in accordance with the following: (a) so far as the repair, work, or act benefits any unit by a distinct and ascertainable amount, the owner at the time when the expense was incurred and the owner at the time when the action is instituted are jointly and severally liable for the debt; or (b) so far as the amount of the debt is not met in accordance with the provisions of paragraph (a), it must be apportioned among the units that derive a substantial benefit from the repair, work, or act rateably according to the utility interest of those units, and in the case of each of those units, the owner at the time when the expense was incurred and the owner at the time when the action is instituted are jointly and severally liable for the amount apportioned to that unit. (3) Despite subsection (2)(b), if the court considers that it would be inequitable to apportion the amount of the debt in proportion to the utility interest of the unit owners referred to in that paragraph, it may apportion that amount in relation to those units in the shares as it thinks fit, having regard to the relative benefits to those units. The cases on liability of a unit owner.
The courts have considered various appeals over the years, where it has needed to consider the extent of body Corporate or owner obligations around maintenance or remediation of building elements. In the High Court judgment of Wheeldon v Body Corporate 342525 [2015] NZHC 884 [1] , the High Court confirmed: [84] I accept that, typically, it may be more natural to talk of building elements within private property “relating to” other units or common property than of them “serving” such property and that the word “serve” typically is more naturally associated with infrastructure in the nature of pipes, wires, ducts etc. However, there may be building elements best described as serving more than one unit and infrastructure best described as relating to more than one unit and I would not preclude such a construction. [85] Having regard to the purposes in s3, I accept Mr Allan’s submission that Harrison J’s approach means that s 138(1)(d) will be satisfied if the relevant building element or infrastructure: (a) naturally attaches to another unit (as in physically adjoining units); or (b) is causally relevant to another unit whether physically or economically (as in non-adjoining units) ; or (c) is referable to another unit whether physically or economically (as in both adjoining and non-adjoining units); or (d) is concerned with another unit whether physically or economically. [86] I would add to this that the inclusion of aesthetics in the definition of “building elements” and the emphasis on “integrity of the development” in s 3 means, in my view, that the economic relationship to which Mr Allan refers should include those factors, which inevitably reflect in value. [87] As indicated, the present case engages both issues of building elements and infrastructure.
In the High Court decision of Body Corporate 198245 v Wong [2012] NZHC, the Court needed to consider a case where there were water leaks effecting both common property and individual units. The body corporate in that case sought orders that the levies raised for the repairs be paid by particular body corporate members. Those unit owners opposed the claim, on the basis that given they did not receive any direct benefit from the works, and on that basis should not need to contribute to the costs. The respondent’s position was that the works should be charged to the relevant unit owners who would receive a benefit, under section 33 of the legislation that applied at that time, which is the equivalent of the current section 126. The High Court did not accept that argument, confirming that for the purpose of funding the works, that weathertightness issues are interrelated for the entire building. Justice Ellis confirmed at paragraph 70 that: [1] The High Court decision confirmed in the Court of Appeal judgment of Wheeldon v Body Corporate 342525 [2018] NZCA 20. a. the weathertightness of the entire building is interlinked and indivisible; b. the proprietors all have a mutual interest in ensuring that the building as a whole is weathertight and kept in good repair. In the absence of expert evidence on the point,14 it can reasonably be assumed that if part of the building is not weathertight then that would adversely affect the saleability and value of all units, regardless of whether they themselves are in fact leaky; c. each of the owners bought into the building as a whole, not just their individual unit; d. each owner must be taken to have bought into the building knowing, and on the basis, of the division between common and private property in the unit plan and knowing of their responsibility to contribute to the maintenance and repair of the common property as so defined; e. the sharing of common property repair costs on a unit entitlement basis necessarily contemplates that there may be an element of disproportionality and that prospect must also be taken to have been accepted when each owner bought into the Ridge.
More recently, and applying the current statutory scheme, are the line of cases in the Otway dispute, particularly the decision from the High Court [2] and Court of Appeal. [3] Justice Woolford in the High Court accepted that: • Like the finding in Body Corporate 198245 v Wong, weathertightness of the building is interlinked and indivisible. • If part of the building is leaking, it affects the whole of the complex as it relates to saleability and value.
I also note the High Court decision of Body Corporate 199380 v Cook & Anor [2018] NZHC 1244. In that case the Court discussed the impact of Otway, and confirmed that the Court did not support recovery against particular unit owners under section 126, when the issue was weathertightness that would potentially impact the wider complex: [87] Some important lessons can be drawn from the approach followed in Otway. First, Woodford J considered the scope of recovery of repair costs under both sections 126 and 138(4) – as well as under s 127 which was held not to apply. While that may have been the consequence of the way the body corporate put its case, the decision shows that by considering recovery under the various tools under the Act, rather than just on the basis of title, fuller account can be taken of the causes of the damage and, therefore, of the bases on which costs can be allocated. For example, a number of the reasons identified by Woolford J for deciding the major costs should remain with the body [2] Body Corporate s73368 v Otway [2017] NZHC 3265. [3] Body Corporate S73368 v Otway [2018] NZCA 612. corporate rather than borne by individual unit owners – such as the role of the deck and underlying membrane in ensuring the overall weathertightness of the building and the interest of all unit owners in maintaining that weathertightness – might well have been applicable in the present case.
As noted in the commentary to section 126 by Westlaw (on-line), in relation to the Cook decision: The first principle was that the owner of the unit should bear the cost of repair to the unit. However where the issue dealt with weathertightness, it was reasonable and “fair” to conclude that other unit owners should reasonably bear a cost in so far as the other units in the development were protected. Further, where the repair benefited the building generally (and not some unit owners more than others), then all unit owners should contribute on the basis of payment of their apportioned utility interest.
The Body Corporate submitted that: a. All the repair work was located within 3A and 4A. b. The rain head that failed only disposed of water for some of the units namely it was from run off from the roofs from units 2-5. Units 1, 6-9 roof water disposed of in other gutters or drainage systems. c. The roof guttering that failed was likewise for the above units only. d. That as the rain head and part of the roof/ guttering that failed did not service all of the units then it could not be said to be for the benefit of all owners. e. That the rain head and guttering were a distinct part of the stormwater system that could be separated out, this was different to the Otway case where the court held that every part of the system was interlinked. f. That Mr Marshall and Mr Newton received a disproportionate and substantial benefit from the works g. It would be unfair to levy all of the owners by utility interest, when some of them received no quantifiable benefit.
Having considered all of the evidence I am satisfied that the Body Corporate cannot claim the costs of repair pursuant to either s138(4) or 126 UTA as a debt from Mr Marshall for the following reasons: a. I consider that this case is analogous to the Otway case. I am satisfied that the repairs were to building elements and infrastructure and repairing these was crucial to the weathertightness of the building. The repairs were effectively to the roof and stormwater system. Whilst there were some repairs to the internal walls within Mr Marshall’s unit, I consider that this building work was necessary because it arose out of repairs to the rain head and was part of the weathertightness and fire protection for the whole building. b. There was no evidence from anyone qualified to speak to the submission that the only units who benefited from a repair to the roof or the rain head were units 2-5. No plans were submitted that showed completely separate stormwater systems for the other units. c. The roof guttering and stormwater disposal maintenance was considered a joint obligation of all owners in the long-term maintenance plan. d. The weathertightness and repair of the failures is of value and benefit to all the owners. This was accepted by the current chairperson of the Body Corporate Mr Butcher who said in cross examination “Everyone benefits from the fix to the gutters and rain head”. Mr Butcher accepted that the ongoing repairs affected all of the owner’s ability to sell their property. e. I do not accept that this case was different to the Otway case, the rain head and guttering were an important part of the stormwater disposal for the whole building, and as such, all owners have interest in having the repairs completed. f. I do not consider that Mr Marshall received a disproportionate or substantial benefit from the repairs to the roof or rain head. The nature of all the higher Court’s decisions is consistent and clear; where there has been a failure of the building element or infrastructure it is in all owner’s interests to have the repair fixed to ensure that the building is weathertight. g. To look at it another way I also consider that it would be manifestly unjust to require unit owners who have rain heads or a significant part of the stormwater disposal system on or near their unit to solely or disproportionately bear the risk of that failing. Were any of the costs that were paid for by the Body Corporate for the substantial benefit of Mr Marshall or solely contained within his unit?
The short answer to this is no. I have looked at all of the invoices that the Body Corporate paid and I can see no work that is clearly for the substantial benefit of Mr Marshall or solely contained within his unit (If it was solely contained within his unit then the Body Corporate is required to pay as per s138 UTA) The invoices from DBS appear all to relate to the roof and rain head repairs. I acknowledge that the narrations on some of the invoices do not make it clear the type of labour that was done, for instance was it painting within Mr Marshall’s unit or fixing the gutter? I would have been satisfied that paint work or carpet replacement in 4A 7 was for the sole or substantial benefit of Mr Marshall, but given the lack of specificity and In the absence of detailed narrations, I cannot make any assessment on whether the work was for Mr Marshall’s interior and therefore I am unable to say that any of the work was for Mr Marshall’s sole or substantial benefit.
This also applies to the invoices that Mr Marshall paid bar one invoice $143.71 to the Tile depot. The tiles were within his unit and therefore are his responsibility. The remaining invoices that Mr Marshall paid have narrations such as scaffolding and 7 I note that in the invoices that DBS submitted to Mr Newton for this type of work, detailed the work – carpet replacement and wall painting. construction labour, those costs were directly related to the repair of the building element and infrastructure and should have been paid by the Body Corporate.
I also note that the repair works to the roof and rain head were completed in or about the 3 October 2022 8 . However, the Body Corporate had DBS undertake further work on the building to complete repairs to the cladding on the north wall of the building. These works were for the whole building and again were part of the weathertightness of the building. It appears that some of the construction invoices that relate to that work, including the scaffolding invoices have been included in the amounts that the Body Corporate now seeks from Mr Marshall. Did Mr Marshall agree at a meeting on the 13 September 2022 to pay the costs he paid?
The Body Corporate submitted that Mr Marshall agreed to pay the costs he now seeks to recover. They say that he did so at a meeting on the 13 September 2022. There is nothing in the minutes of the meeting that records Mr Marshall’s agreement to paying the costs. In fact the minute says “until we have agreement acceptance with the owners of 3A/4A...” the use of the word until, clearly shows that Mr Marshall had not agreed to pay the costs at that meeting. The resolution.
On the 12 March 2025, the Body Corporate Committee unanimously passed the following resolution (which is recorded as being passed on the 17 March 2025.) (1) The body corporate raises by an ordinary resolution on all owners by utility interest $207,913.42 for the repairs conducted by DBS in 2022 to 2023. The body corporate raised the funds above at odds with the provisions of the Unit Titles Act 2010. This is a retroactive levy, the contractor has been paid and will not require further payments by the owners. It is administrative regularising the past actions of the body corporate where it reasonably but erroneously believed that the exterior to the units was common property and the body corporate should pay for that, but the owners of 3A and 4A should pay for the interior unit property.
The body corporate decides to recoup from unit 3A and the former owner of unit 4A half the cost each of the repairs in 1. above being $103,956.71. Credit will given for those amounts the owners paid directly to DBS and others (being $56,741.64 and $41,523.01) respectively. The body corporate may in its discretion exercise its power to recoup under section 126 where one or more owners benefit substantially more than other owners. It may pursue the owner at the time that the repairs occurred. The repairs undertaken by DBS substantially benefit units 3A and 4A more than other owners. Their utility interest is equal and there is no discernible way to apportion the benefit in another way.
The body corporate decides to make a claim from Mr Marshall for the nett amount owed ($62,433.70) from the monies recouped under 2. above. The body corporate has a 8 Paragraph 76, brief of evidence [The party], page 16 Bundle and CGM 51. discretion on whether to pursue any owner for debts owed. Here Mr Marshall has already made a claim against the body corporate. There is a timetable in place for the body corporate to decide to sue Mr Marshall and this must be done without delay. The body corporate can decide what it wishes to do about the debt owed by Mr Newton in time.
There are several issues with this resolution. a. The Body Corporate did not actually make payment or incur expenditure of $207,913.42. Mr Marshall and Mr Newton paid some of these accounts themselves. The Body corporate only incurred expenditure of $109,004,77 all of which it appears from the invoices provided related directly to the repairs of the rain head and roof or for other work done to the building after the roof repair was finished. None of this work I have have determined to be for the substantial benefit or sole benefit of Mr Marshall. b. The resolution was passed by the committee, rather than the body corporate. Mr Woolfe submits that the body corporate cannot delegate its powers to raise a levies c. That as Mr Marshall was no longer an owner, he had no ability to challenge the levy raised and the resolutions passed. d. That Body Corporate meeting procedure was not followed, there was no agenda circulated and owners not in the committee were unaware of the resolutions and had no opportunity to vote on them. e. The Body Corporate did not actually levy the current owners, instead the funds were and always had been paid from already levied funds- both the long-term maintenance plans funds and other funds on hand.
I do not consider it necessary to go through these submissions and evidence and address the law on each of these issues, because the validity or otherwise of the resolution does not and did not prevent the Body Corporate from seeking to recover money it had already paid for repairs from the owners under s126 or 138(4). That is because in both instances the legislation specifically provides that the Body Corporate does not have to raise a levy to recover the debt, they can simply seek recovery through the courts as they have done here.
I am satisfied that even if the Body Corporate was seeking to collect the debt, they can only collect under s138(4) or s126 if they have expended that money. They cannot seek to collect money paid by someone else.
I also note that some of the invoices paid by Mr Newton and included in the Body Corporate’s claim relate solely to Mr Newton’s property, such as recarpeting and painting the interior. The Body Corporate is not liable to pay for any repairs to furnishings or painting contained in one unit.
As I have already decided that that the Body Corporate’s claim under s138(4) and 126 fails as the repairs benefitted the all the unit owners because they were repairs to weathertight building elements and infrastructure and therefore the Body Corporate cannot collect the money expended from Mr Marshall, I do not need to address the remaining submissions regarding the resolution. Conclusion on liability under s126 and 138.
Mr Marshall has paid for repairs which the Body Corporate should have paid for under s138 UTA.
The invoices paid by the Body Corporate relate to the weathertightness of building and benefit all owners
I do not find that Mr Marshall substantially benefitted or solely benefitted from any of the work detailed in the invoices
All of the repairs were to weathertightness elements (roof, gutters rain head and cladding) and therefore benefitted all the owners.
That being said, I consider that the tile invoice to only relate to Mr Marshall’s unit and therefore the Body Corporate is not liable for that under s138.
Therefore, I order the Body Corporate to pay Mr Marshall the sum of $41,379.15 being reimbursement of the invoices he paid except the tile invoice. The claims for additional interest costs and compensation.
Mr Marshall is claiming for the cost of additional interest he incurred on the money he expended to get the work done. He says that he had to pay interest on a mortgage whilst the repairs were being completed and due to the water ingress issues, he could not sell his property.
As I have mentioned above any owner in a complex such as these will have difficulty in selling a unit if there is weathertightness issues. Mr Marshall was not the only owner who could not sell in a declining market due to the weathertight issues, his fellow members of the Body Corporate also had these difficulties.
Whilst it is correct that the Body Corporate should have paid for the repairs, it is also correct that had they had done so then Mr Marshall would have been liable to pay levy at his utility interest to cover the shortfall that Mr Newton and he paid. In other words, he would have had to pay something in order to get the work done. If he was waiting on his fellow owners to come up with the levied funds this may have taken time as well and lead to the work taking longer to complete.
I am not satisfied that the Body Corporate failure to pay for repairs caused Mr Marshall additional mortgage or other costs. The additional mortgage costs arose out of his inability to sell his unit, this was likely multifaceted, a combination of the weathertightness issues and a declining market.
There was no evidence at hearing which supported Mr Marshalls claim that the Body Corporate or DBS had taken too long to complete the repairs. Mr Marshall told me that he as Body Corporate chairperson engaged DBS because of difficulties in securing tradespeople post covid. I am also mindful that during the repairs Mr Marshall was the Body Corporate Chairperson, if there was any delay with DBS repairing the roof, then he was in the position to try and remedy that. Costs.
Mr Marshall has been partly successful in his claim.
The Body Corporate has not been successful.
I request the parties attempt to resolve the issues costs, and if they have not done so by 1 February 2026, they are to then file costs submissions by 20 February 2026 date and I will make a decision on costs on the papers.

Tenancy Tribunal case 9055764 — Mould & damp in Birkenhead, Auckland

At a glance

Tenancy Tribunal case 9055764 — Mould & damp in Birkenhead, Auckland

At a glance

Claims & awards

Order

Reasons

Who paid for what work?

Who is liable for the costs of repairs caused by water ingress?

What was the cause of the damage?

What needed to be repaired?

Was this damage to a building element or infrastructure?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Who paid for what work?

Who is liable for the costs of repairs caused by water ingress?

What was the cause of the damage?

What needed to be repaired?

Was this damage to a building element or infrastructure?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions