Published tribunal order
Tenancy Tribunal case 9058605 — Unit Titles in Milford, Auckland
Decided 15 Sept 2025 · Published 15 Sept 2025 · Application 9058605
- Unit Titles
Order
- Body Corporate 411246 must comply with the Unit Titles Act 2020 and the Unit Titles Regulations 2011, including complying with its long-term maintenance duties under ss 116 and 117, its recordkeeping duties under s 84A, the requirement to appoint a chairperson under reg 10(1), and the requirement to distribute the meeting minutes within one month under reg 27A.
- Body Corporate 411246 must pay Tamara Hosking as trustee for Dragonfly Trustee Limited $7,922.82 immediately, calculated as follows: DescriptionsApplicant Legal costs – for compliance claim$4,000.00 Expert engineer's costs – by consent$3,672.82 Filing Fee – 50%$250.00 Total award$7,922.82
Reasons
- This decision deals with compliance orders and costs. 1
- After several adjournments at the parties’ requests for the purposes of settlement, I heard the remnants of the original claims last Friday. Mr Iliev of McVeagh Fleming appeared for Ms Hosking. Mr Gould appeared for the Body Corporate. Background
- Ms Hosking’s unit is one of four terraced houses a short walk from Milford Beach.
- The complex was built in the 1970s. By the 2020s the pipes had deteriorated and were probably obsolete. The water lines to each unit were not built in a way that allowed each unit it have its own separate water meter. Over the years, the unit owners did not pay much heed to the Unit Titles Act and its regulations. Maintenance and the running of the complex was largely done over the back fence or over a cup of tea rather than formally through the body corporate entity.
- Ms Hosking brought a claim that the Body Corporate had breached its duty to maintain wastewater and stormwater pipes. The Body Corporate maintains it has always been willing to fix the pipes. Ms Hosking also claimed the Body Corporate had unreasonably withheld its consent to permit her to instal a water line and meter. Again the Body Corporate says it was agreeable to that in principle, but the parties could not agree on sensible terms for that to occur over such issues as easements and legal costs.
- However, the Tribunal was not asked to adjudicate on these principal claims because the parties finally agreed on terms for the pipes to fully replaced, water lines to be amended, and meters installed. That work has already been completed.
- Unfortunately, the parties could not agree on costs. Nor did the parties finalise Ms Hosking’s other claims seeking orders that the Body Corporate comply with procedural duties such a maintaining a long term maintenance fund and retain records.
- I deal first with the procedural issues then with costs. The issues for determination are a. Should the Tribunal make compliance orders? b. Should the Tribunal order costs?
Should the Tribunal make compliance orders?
- Ms Hosking seeks orders that the Body Corporate complies with its duties to keep records, 2 to have a long-term maintenance plan and fund, 3 to elect a chairperson, 4 and to provide copies of its minutes to unit owners within one month after the meeting date. 5 1 I heard this matter on Friday 12 September 2025. 2 Unit Titles Act 2010 (UTA) s 84A. 3 UTA, ss 117, 117. 4 Unit Titles Regulations 2011 (“The Regulations”) reg 10. 5 The Regulations, reg 27A.
- The unit owners ran the complex informally by chatting over the back fence or “over a cup of tea”. They had a body corporate manager to assist with compliance formalities. In practice, however, most of the time the unit owners in the individual capacities rather than through the Body Corporate and the formalities that involved.
- The Body Corporate denied the breaches and submitted that they were of historical interest only and did not require orders. The Tribunal shared that attitude up until the hearing. However, Mr Iliev pointed out that the Body Corporate has still not, for example, passed resolutions in respect to its long term maintenance obligations.
- Given how informally the unit owners ran the complex, it is probable that the Body Corporate did not fully comply with its duties. I am going to make the orders as sought. They are no more that what the statute and the regulations require. Even small body corporates comprising like minded unit owners must comply with these duties, and if they do perhaps unnecessarily fraught situations as occurred in this case may be avoided. A more formal process might have allowed for respectful expression of differences of opinion and confidence that the process was fair.
- The Tribunal orders the Body Corporate to comply with the Act and Regulations as set out above.
Should the Tribunal order costs?
- The issue of costs is complicated by the fact that the main claims were settled. Only costs and the compliance claim were not settled. Rather than consider costs globally, I have broken down the claims into the pipes claims and the costs and compliance claims. The pipes claims
- The parties fell into dispute about how the Body Corporate should address the complex’s pipes’ problems and shortcomings.
- After several adjournments, the parties resolved those claims, finally reaching substantial agreement on an earlier date allocated for hearing of the matter. As at the date of the hearing, all of the work on the pipes had been substantially completed.
- Mr Iliev submitted that the drainage issues were only addressed because Ms Hosking filed proceedings. Mr Gould submitted that the body corporate agreed to repair the pipes as far back as 2022 and the litigation only served to prolong the delay in commencing the work.
- At Mr Iliev’s request Ms Hosking gave evidence and was emphatic that she had been proactive in trying to get the Body Corporate to replace the pipes to a proper standard, but the Body Corporate only wanted to do a “partial repair” and “sat on its hands”. She felt compelled to instruct a professional engineer whose opinion the Body Corporate belatedly accepted. It was only when the owner of unit 1 sold and was replaced by another unit owner that any sensible progress occurred.
- Another unit owner, Mr Horrocks disagreed with Ms Hosking. He stated in his witness statement that, “It is not correct that the Applicant had no choice but to initiate these proceedings. In my respectful view, I do not believe that these proceedings should ever have issued, as the Body Corporate has not done anything unlawful to prejudice the Applicant’s position.” Rather, “It is the Applicant’s refusal to agree to reasonable conditions and her inability to accept majority Resolutions which has prompted this unfortunate proceeding.” Legal principles
- Under s 85(2) of the Residential Tenancies Act 1986 , the Tribunal is required to determine disputes in accordance with the general principles of law and the substantial merits and justice of the case: (2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
- A fair contribution to fees can be considered in the light of ordinary civil costs principles. In Holden v Architectural Finishes Ltd, McGechan J, held that reasonable costs must be determined objectively, and a reasonable contribution will likely fall with the range of 40-70% of reasonable actual costs. 6
- The Tribunal’s power to award the filing fee is governed by s 102(4) of the Residential Tenancies Act 1986, which provides: (4) If the applicant— (a) has been wholly successful in his or her claim, the Tribunal must order that the respondent pay the applicant the filing fee paid for the application: (b) has been partly successful in his or her claim, the Tribunal may order that the respondent pay the applicant the filing fee paid for the application.
- Costs follow the event. There is a presumption that the Tribunal may award costs to the successful litigant that the unsuccessful litigant must pay. In this case there is not successful litigant as the pipes claims were settled. As to be expected, the parties continue to assert the reasonableness of their positions in the litigation.
- High Court, Rule 15.23 provides some guidance in a situation like this. That rule creates a presumption that a plaintiff who discontinues will pay costs to the defendant. The rule is flexible, however. The Court in FM Custodians Ltd v Pati illustrates how the rule may be approached: 7 [10] The presumption [that the discontinuing plaintiff pay the defendant’s costs] may be displaced if the Court finds there are circumstances which make it just and equitable that it should not apply. [11] The Court is not limited in the factors that can be taken into account when considering whether the presumption is displaced, but the following are matters which are taken into consideration: 6 [1997] 3 NZLR 143 at 149. For application of this decision in the Tribunal see for example, Barfoot & Thomson Limited and Lei v Cullum [2021] NZTT Remote Location 4272190, 4188182, 4209293 at [17]-[19]. 7 [2012] NZHC 1902. (a) As the general rule the Court will not consider the merits of the respective cases (unless they are so obvious that they should influence the costs issue). (b) The Court will consider the reasonableness of the stance of both parties in the proceeding (whether it was reasonable for the plaintiff to bring and continue the proceeding, and for the defendant to oppose and continue to oppose it, up to the point of discontinuance). (c) Conduct prior to the commencement of the proceeding may be relevant (for example, if any conduct by a defendant has precipitated the litigation), as may be the reason for discontinuing (for example, where a change of circumstances has made the proceedings unnecessary). [12] The Court's general discretion in relation to costs can also override the general principles in relation to discontinuance. Discussion
- In this case the applicant, Ms Hosking, submits (in effect) that any presumption is displaced. Ms Hosking considers the litigation was necessary, the Body Corporate do not.
- The merits of the respective cases are not so obvious that they should influence the costs issues. It is true that this matter appeared eminently capable of settlement, but without opening up the entire saga and the minutiae of dialogue between the parties I cannot confidently say what made this matter drag on as it did.
- Nor do I discern that the parties’ stances were unreasonable. Early in the peace Mr Gould wrote among other things, “As previously agreed, the Body Corporate agrees that the wastewater drainage system needs to be replaced, given it was installed in about 1970”. For the waterline, the Body Corporate required Ms Hosking to arrange and easement. That may not have been necessary, but it should not have been an insuperable stumbling block – as ultimately proved to be the case because the matter was largely settled prior to hearing.
- The Body Corporate’s stance to the litigation has struck me as reasonable throughout the proceedings. I need not analyse the reasonableness of Ms Hosking’s stance to the litigation because the Body Corporate is not seeking costs from her.
- Ms Hosking is critical of the Body Corporate’s conduct prior to the proceeding. However, I am not persuaded the Body Corporate’s earlier conduct is such that the presumption is to be displaced and, indeed, reversed. As early as March 2022, the other unit owners (not the Body Corporate) through its then-counsel, Mr Tee, expressed a willingness to replace the pipes. Ms Hosking was not happy with the terms of the work proposed, but the Body Corporate’s conduct appears defensible. It is not at all clear that the Body Corporate’s earlier conduct is relevant to impact on costs.
- Nor do I see that the Tribunal should exercise its general discretion in respect to costs. I had thought the Body Corporate should in fairness reimburse Ms Hosking for her expert’s report because it was useful in completing the works. However, the Body Corporate readily consented to reimbursing Ms Hosking, so I make the order by consent.
- Costs are not allowed for the claims relating to the pipes. The compliance orders
- Ms Hosking was successful in respect to the compliance orders she sought.
- It is appropriate to exercise the Tribunal’s discretion to award costs for those. Mr Iliev estimated actual costs were in the vicinity of $7,500.00 and suggested $4,000.00 as a reasonable contribution.
- The Body Corporate wants to move on from this litigation and did not voice opposition to the Tribunal’s pragmatically ordering costs in this amount. The unit owner most opposed to Ms Hosking has sold to a new unit owner who is not at all antagonistic to Ms Hosking’s legitimate desire to, among other things, ensure the Body Corporate is properly run. Hopefully, from now on, the unit owners can enjoy their units and cooperatively run the Body Corporate together.
- The Tribunal orders the Body Corporate to pay of $4,000.00 to Ms Hosking for legal costs. Filing fee
- The Tribunal has a discretion to order the filing fee where a party has been substantially successful.
- Ms Hosking has partially succeeded in the proceedings. I am going to order the Body Corporate to pay 50 per cent of the filing fee.