What was Tenancy Tribunal case 9061404 about?

The tribunal order states: no costs or only modest costs

How much money was awarded in case 9061404?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9061404?

The primary dispute was Unit Titles. Related themes: Costs.

Where can I read the official tribunal order for case 9061404?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13640220-Tribunal_Order.pdf.

What was Tenancy Tribunal case 9061404 about?

The tribunal order states: no costs or only modest costs

How much money was awarded in case 9061404?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9061404?

The primary dispute was Unit Titles. Related themes: Costs.

Where can I read the official tribunal order for case 9061404?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13640220-Tribunal_Order.pdf.

Newmarket, Auckland Tenancy Tribunal Case 9061404 — Unit Titles

Order

no costs or only modest costs primarily because Ms Tham was no more successful in the litigation than the body corporate: The BC submits that costs should lie where they fall because the parties have both achieved a measure of success.

The principal issues for determination are: a. was Ms Tham substantially successful in her claims. b. What should the contribution rate (if any) be?
Once those issues are decided, the outcome naturally follows. Legal principles
The Tribunal has the power to order costs in limited circumstances. 1 One of those circumstances applies in this case: the parties are represented by counsel. 2
The Tribunal applies its own costs principles under its governing legislation as it is empowered to do. 3 Section 96(4) of the RTA provides the Tribunal may regulate its own procedure: (4) Except as expressly provided in this Act or in any regulations made under this Act, the Tribunal may regulate its own procedure in such manner as it thinks fit. 1 See for example Barfoot & Thomson Limited and Lei v Cullum [2021] NZTT Remote Location 4272190, 4188182, 4209293 at [14]. Sections 124 and 127 of the Unit Titles Act 2010 provide for the body corporate to recover its costs in levy claims and where the unit owner is at fault, but those provisions do not apply here. 2 Residential Tenancies Act 1986 (RTA) s 102(2)(b). 3 See Commissioner of Police v Andrews [2015] NZHC 745 at [60]. That decision is on the Human Rights Review Tribunal costs principles. But Mallon J’s reasoning applies to the Tribunal.
The Tribunal does not yet have any regulations, rules, or guideline judgments setting out costs principles. However, in a case like this it applies conventional civil litigation costs principles. As the author of one of the leading textbooks on residential tenancy law, Stewart Benson, has written, “In principle, costs are awarded to the successful party”. 4 The author of the other leading textbook, David Grinlinton wrote: 5 The general principles that are applied by the courts on the quantum of costs, may also be applied by the Tribunal. What is considered a “reasonable contribution” to a successful party's costs will depend on many factors, but there is authority that a figure of 60 per cent is regarded as the average, with most awards falling within the range of 40 - 70 per cent of actual costs.
The District Court approves of that approach. 6 Generally, the Tribunal should order costs where “the parties are represented by counsel, the dispute is complex, and the amount of the claim is substantial: Westwood v Western [1994] DCR 759”. 7
What will amount to a reasonable contribution to costs will depend on a range of factors. The following factors are often relevant to be considered when assessing costs: (a) The length of the hearing. (b) The sum of money involved. (c) The legal and factual complexity. (d) Whether argument lacking substance was advanced. (e) The degree of success achieved by the parties.
In Holden v Architectural Finishes Ltd Justice McGechan held that: 8 ...the sum in issue is a ‘reasonable’ ‘contribution’. It is not some mere gesture. It is not some virtual payment in full. It is merely a contribution, and a reasonable one. At the outer limits, proportions of reasonable actual fees can afford some guidance. A 10% or even 20% contribution – very little indeed – may seldom qualify. A 90% or 80% contribution, virtually the total, may be regarded as likewise...if the ‘reasonable contribution’ earlier determined falls within a middle range, say 40% to 70%, there is a feeling of some comfort... 4 Stewart Benson Residential Tenancy Law in New Zealand (Thomson Reuters New Zealand Limited 2018) at p 284. 5 David Grinlinton Residential Tenancies: The Law and Practice (4 th ed, Lexis Nexis, Wellington, 2012) at 8.3.5. 6 See for example, French v Ryan DC Auckland CIV-2012-004-000711, 29 November 2012. Judge Taumanu increased the Tribunal’s costs award applying the conventional civil litigation principles. 7 Civil Procedure: District Courts and Tribunals Westlaw online service at TE3.05. 8 [1997] 3 NZLR 143.
His Honour went on to emphasis the important principles underlying “shopping lists” of specific factors for determining a reasonable contribution: 9 These specific factors, generally referred to as the first port of call, have their important place, but a Court should not forget the ultimate question, or overlook the principles which underlie. There is a wood as well as these trees. The ultimate question always remains: What is a reasonable contribution in these particular circumstances? In my view, there are two underlying principles to be kept in mind. They underlie most if not all of the "shopping list" factors just noted. They interweave, and at times conflict. (1) The wrongdoer should pay the costs of the injured party obtaining compensation for the wrong, unless good reason exists to the contrary. The wrongdoer - not the injured party - should bear that further expense. That, I suggest, is a matter of elementary justice. It is not comprehensive. As noted, there is a threshold rule that costs nevertheless will be a "reasonable contribution" only, and not a total recovery. That is for public policy

Reasons

. However, the Court's first inclination properly can be to lean toward a high level of compensation for the injured party, rather than the other way. (2) Court time is a valuable public resource. It is expensive, and in short supply. It always has been, and I fear it always will be. As a matter of public interest, Court time must not be wasted. There should be corresponding disincentives to unwarranted proceedings, or elements of proceedings, and to inefficient practice within proceedings. An injured party can expect some initial leaning towards a high level of recovery from the wrongdoer, but there must be a significant leaning the other way to the extent the injured party's own proceeding has been misguided or inefficient. The unsuccessful party should be placed under the same discipline. So far as disincentives to waste are concerned, this public interest coincides with and shelters the opposite and affected successful party. In reaching any final decision as to "reasonable contribution", Courts should include a broader consideration in principle along these lines, as well as focusing on traditional specific factors.

Was Ms Tham substantially successful in her claims?

The Tribunal first heard and issued its decision on 24 July 2024. At that hearing, counsel from Pidgeon Judd represented Ms Tham. Ms Tham claimed, in summary were that the body corporate’s 2022 and 2024 AGMs were invalid for lack of quorums; L & Y should be removed as manager; the body corporate committee and chairperson should be removed; and the body corporate’s levies from 2024 were improperly raised for noncompliance with s 121 of the UTA. The Tribunal found, in summary: the body corporate manager must be removed as a party; that the body corporate and body corporate manager’s purported “counterclaim” must be dismissed for not being validly filed; the 2024 AGM was not properly convened and there were voting defects; that the body corporate had failed to release the owners’ register. Further, the Tribunal urged the body corporate to review how it calculated levies. 9 Ibid p 149.
The Tribunal did not find in Ms Tham’s favour in respect to the 2022 AGM not being properly convened; and removing the body corporate manager and chairperson. The Tribunal declined to make a number of orders Ms Tham sought including that five named people be prohibited from election for various body corporate positions, or that the body corporate be directed to manage its affairs in various ways involving its long- term maintenance plan and auditing the recladding and fire sprinkler projects.
The body corporate was not represented at the original hearing. Ms Lim who appeared as counsel for L & Y Holdings had previously represented both L& Y and the body corporate. However, two days before the hearing, the body corporate withdrew its instructions due to its insurer’s objections. The Tribunal proceeded with the hearing, relying on Ms Lim’s written statement of defence filed when Ms Lim acted for the body corporate. The Tribunal’s decision does not record if the body corporate had instructed alternative counsel to appear or sought an adjournment.
The body corporate appealed the Tribunal’s decision based on the Tribunal not adjourning the hearing and not hearing evidence from two witnesses. The Court remitted the claim back to the Tribunal by consent of the parties, directing the Tribunal to hear: [F]ull evidence from both parties, either oral or in writing, relating to the issues regarding the levies and the voting rights of units and other matters which have been raised by Ms Tham in her application to the Tenancy Tribunal. 10
Following the first proceedings, Ms Tham instructed new counsel, Ms Wendt. Ms Wendt on Ms Tham’s behalf filed a new claim based on the body corporate’s continued similar alleged breaches. This latter claim focussed primarily on the body corporate’s levying resolutions.
The Tribunal consolidated the two sets of claims. I heard the claims on 25 February 2026 and issued my decision on 3 March 2026. In Ms Tham’s consolidated statement of claim dated 25 August 2025 she claimed inter alia: the 2024 AGMs were invalid due to there being no valid quorum; the body corporate’s levy resolutions were invalid for not complying with ss 121 and 124 of the UTA; the body corporate’s attempt to ratify its invalid resolutions was itself invalid; and that Ms Tham was invalidly excluded from committee nomination and from proposing motions.
In my decision, I broadly conceived of the claims before me as raising two issues: 11
I have approached the matter as raising the following issues: 10 Body Corporate # 384983 v Tham CIV-2024-004-001811 Minute dated 13 May 2025. 11 Tham v Body Corporate 384983 [2026] NZTT 9061404, 9051364 [3 March 2026] at [8]. a.Did the body corporate’s determination and imposition of levies comply with the UTA? b.Did the body corporate comply with the UTA and its regulations for voting eligibility?
On the first issue I found in Ms Tham’s favour.
I did not determine the claims coming under the second issue because the parties resolved the claims relating to it by agreeing to a declaration (only) that the body corporate had breached voting eligibility requirements for two units. Ms Tham’s exclusion claims fell away also.
I had actively encouraged the parties to resolve the voting eligibility concerns because in my view the body corporate had engaged counsel who were competently advising the body corporate about correct meeting and voting procedures, and the body corporate was heeding that advice. Moreover, the Tribunal accepted Ms Tham’s argument that the levy resolutions should be struck down as being invalid.
The Tribunal recorded the outcome on the voting issues in its decision as follows: 12

Did the body corporate breach proxy vote and representative vote requirements?

Ms Tham claims that the body corporate did not comply with s 96 of the UTA which deals with voting eligibility.
The determination of the previous (and in my view the principal) issue results in the body corporate having to revise its incorrectly calculated struck levies. The determination of this voting eligibility issue would not pragmatically advance the remedies already ordered. Ms Tham’s challenge to the body corporate’s meeting and voting procedures has had the desirable effect of emphasising to the body corporate that must the comply with the UTA and its regulations in respect to voting eligibility. That is sufficient in my view. During the hearing, I encouraged the parties to consider agreeing to a declaration to address Ms Tham’s concerns about voting and procedure for future meetings rather than expending hearing time critiquing past failings.
At the commencement of the second day of the hearing, the parties agreed to Order
I am satisfied that at the 23 January 2024 AGM, the body corporate accepted a purported representative’s votes for units K2E24 and Q5D05 despite the purported representative not being on the register of owners of principal units.
These comments did not address how the issue of costs would be affected by the late resolution of the claims. 12 Ibid at [28]-[30].
Ms Wendt submits, “There can be no dispute that Ms Tham was substantially successful against the Body Corporate.” 13
However, counsel for the body corporate disagrees. In its submissions, the body corporate broke down Ms Tham’s claims and outcomes in a table, which I reproduce here: No.Ms Tham’s Consolidated ClaimsSuccess? Claims from first statement of claim (29 April 2024) 1Access to owners register.Yes, at first hearing. Not the subject of the rehearing. 2 No valid AGM in 2022/2023 and 2023/2024 on the basis that there were proxy and voting irregularities. No, claim withdrawn on day two of hearing. 3Misconduct allegations against L&Y Holdings. No, application dismissed at first hearing. 4Misconduct allegations against BC Committee and Chairperson. No, application dismissed at first hearing. 5All levies from 2023/24 AGM should be revoked. Reheard and successful. Claims added in Second statement of claim (25 August 2025) 6Any levy resolution passed at 2024/2025 AGM was ultra vires. Yes, essentially the same claim as point 5 above. 7The ratification resolution at the 30 September 2024 EGM was invalid. Partial – only the levy resolution was declared invalid (same claim as point 5 above). 8Ms Tham’s exclusion from committee nomination was ultra vires. No, claim withdrawn on day two of hearing. 9Exclusion of Ms Tham’s motions were ultra vires. No, claim withdrawn on day two of hearing.
I have considered the table and note: a. Claim 2 was part of the “resolved” matters. b. Claim 3 is irrelevant because it relates to the body corporate manager not the body corporate. c. Claim 4 involving the body corporate’s committee and its chairperson was dismissed at the first hearing. 13 Submissions of counsel for Ms Tham at [12]. d. Claim 5 is levies resolution claim that was decided in Ms Tham’s favour at both hearings. e. Claim 6 replicates claim 5. f. Claim 7 followed from the decision on claims 5 and 6, but in respect only to the levy resolutions not other matters. g. Claims 8 and 9 related to Ms Tham not being able to participate in body corporate functions because she was ineligible due to refusing to pay her levies. She did not proceed with these claim (a course the Tribunal encouraged).
The body corporate submits: 14
Notably, allegations of proxy and voting fraud were made in the July 2024 Tribunal hearing (First Hearing) and continued to be made in the Second Hearing without any basis. Ms Tham continued advancing these very serious allegations even though she had been provided a copy of the owners’ register in 2024 which would allow her to verify that the representative votes were valid. There was no evidence to support this claim and counsel acting for the Applicant had responsibility to ensure such serious allegations are not advanced without adequate evidence. This claim by Ms Tham had simply no prospect of succeeding at the rehearing.
I do not recall that Ms Tham alleged fraud at the hearing I heard, but she did make allegations such as “it is apparent that there was either fabrication or retrospective obtaining of proxies, which was very concerning.” 15 Discussion
The parties’ decision to resolve the matters at hearing was responsible. It saved the Tribunal hearing time and saved the parties legal costs. Such a resolution does leave hanging the issue of who has substantially succeeded in proceedings. However, it would be unfortunate if costs imperatives dictated that proceedings continued only so that costs could be decided.
From Ms Tham’s point of view, when she settled the voting and procedural issues it was obvious she would succeed in her ultra vires levies claim. That being so, the other claims would have ceased to have much importance. Ms Tham’s concerns about ensuring proper governance and adherence to meeting and voting protocols would 14 Respondent’s submissions dated 8 May 2026 at [13]. 15 Counsel’s submissions dated 13 January 2026 at [54]. have been assuaged by the fact that experienced counsel was assisting the body corporate on such matters. Moreover, a group of unit owners were pursuing a similar claim in the Tribunal.
From the body corporate’s point of view, if Ms Tham had fully succeeded in the voting irregularities claim, the body corporate would potentially have had to reconvene an EGM to remediate invalid called AGMs. Avoiding that would be a significant boon to the body corporate. Moreover, the outcome may have affected the claim the other unit owners were bringing.
Having not heard the claims, I cannot say with confidence which party would have substantially succeeded on the proxy and voting irregularity issues. The body corporate explicitly conceded two votes were irregular. It was common knowledge at the hearing that the body corporate sent out obsolete notices on proxies for the 2024 AGM. These were minor concessions by the body corporate as against the claims that were withdrawn. In terms of outcome, Ms Tham was not substantially successful in these claims.
Ms Tham’s claims for being improperly excluded would have required consideration of the “pay now, argue later” principle versus the principle that ultra vires resolutions are void ab initio. That is an interesting issue which may have helped clarify the law. However, the outcome would have been of largely academic interest for Ms Tham. Nor can I say what the Tribunal’s decision would have been without the benefit of full argument.
Overall, Ms Tham was substantially successful in her claims in both hearings against the body corporate in terms of outcome. The Tribunal found the body corporate’s levies resolutions invalid. That is so, even though as the body corporate point out, the amounts of levies that Ms Tham will have to pay will be substantially the same.
However, Ms Tham’s claims relating to the second issue necessitated significant additional work and Ms Tham was not substantially successful with those claims. She achieved only a minor concession in the form of technical non-compliance in respect to two votes. What is a reasonable contribution rate (if any)?
The hearings took about two days.
The issues involved were important to the parties. They went principally to how the body corporate levied and to the correctness of the body corporate’s governance and meeting and voting procedures.
The issues had a moderate level of legal and factual complexity.
The amounts claimed for effective preparation are broadly commensurate to the claims. The levy claims would have required more legal research and analysis. The voting irregularity claims would have required more evidence gathering work.
I do not consider that either party’s claims or arguments were plainly unmeritorious even if some aspects of their cases may have been stronger than others.
The parties conducted the hearing I heard in an efficient, professional manner. They agreed to resolve the secondary claims which saved Tribunal time. The first hearing appears to have been conducted efficiently with counsel’s assistance.
If Ms Tham had only brought the levying claim, the appropriate contribution rate would have been in the vicinity of 66 per cent. However, Ms Tham also brought the other claims in respect to which she was not substantially successful.
Ms Tham was wholly successful on the levying resolution issues. I took the view at the hearing that that was the principal issue. She was 100 percent successful on that claim.
Ms Tham was perhaps only 10 percent successful on the voting irregularity issues. I did not have to decide those claims. However, I accept the body corporate’s view that a lot of counsel’s preparation for the hearing would have been expended on these issues and the issues were of considerable importance to the body corporate.
For the purposes of determining the appropriate contribution rate, I have come to the view that issues should be weighted equally. Thus, I attribute each 50 percent significance.
Ms Tham was 100 percent successful on the levying validity issue. That is 50 percent of the whole. I consider she was about 15 percent successful on the other matters. That is 7.5 percent of the whole. I do not lose sight of the fact that the parties sensibly resolved the latter matters and that the exclusion from participation claims fell away. This assessment is made for the purposes of costs only.
Overall, I find for the purposes of determining the appropriate contribution rate that Ms Tham was substantially successful in the proceedings, with a value of 57.5 percent to be attributed to that success for assessing costs.
I consider it is just to reach a contribution rate by assessing it at 57.5 percent of the “starting” contribution rate of 66 percent. The result is that I set a base contribution rate of 38 percent.
Having read the parties submissions, having regard to pleadings and correspondence, Tribunal decisions, and the hearing I heard, and all other matters and then standing back and objectively considering the 38 percent figure arrived at, I am content that a 38 percent contribution rate is apposite.

Different contribution rate for application to transfer to the District Court?

The body corporate applied to the Tribunal to transfer Ms Tham’s second claim to the District Court with the appealed claim. Ms Tham seeks costs of 100 per cent for her legal costs to defend the application because the application was groundless.
I am not persuaded that the application was entirely without merit. The Tribunal could conceivably have decided that the District Court was the more appropriate venue. Nonetheless, the application did not proceed because the District Court transferred the first claim back to the Tribunal for rehearing.
I consider costs at the rate of 66 per cent are apposite. Attendances after Ms Tham’s Calderbank offer
Ms Tham made a settlement offer without prejudice save as to costs on 5 February 2026.
The offer focussed on a “key issue” of “compliance moving forward” with correct levying by way of utility interest under the Act. The sum Ms Tham offered for costs is less than what the Tribunal is ordering. The body corporate rejected the offer.
The body corporate submits it genuinely believed its levying practices were lawful. However, it was incorrect in that belief. The body corporate says it the committee could not commit to changing the body corporate’s resolutions itself. That does not absolve the body corporate, which did not mention that purported hurdle in its rejecting Ms Tham’s offer.
The offer was intelligible and reasonable. I accept Ms Tham’s submission that a 25 per cent uplift should be applied to her costs after the offer was refused. Other matters
The body corporate disputes some of Ms Tham’s itemised costs.
Once Ms Tham instructed counsel, the Tribunal directed her to file a better and more particularised statement of claim. That is to be expected since Ms Tham is a lay person.
The body corporate targets Ms Tham’s application for interlocutory orders included application to add parties and for disclosure as wasted time. The Tribunal did not address the application. On 7 June 2024, the Tribunal chose not to make and orders “at this time”. The application for disclosure may well have assisted Ms Tham’s pleadings and helped streamline the issues if the Tribunal had ordered it. I cannot say that the application was wasted. I do not consider it is necessary to vary costs for this.
I do not allow Pidgeon Judd’s 21 August 2024 invoice for $5,142.82 because it related to costs, the appeal and other matters that do not appear to relate to the Tribunal proceedings.
The body corporate challenges Ms Wendt’s allocation of her own costs. Ms Wendt would understand her attendances accurately. Subject to Ms Wendt disabusing the Tribunal of any inaccuracy, I trust that her allocations are correct. Filing fees
I allow the filing fees sought. Ms Tham filed a second application primarily due to the body corporate’s continuing to levy in breach of the UTA when her original application was under appeal. 16 She was partly successful in both claims. L & Y Holding’s costs
The Tribunal removed L & Y as a party in its original decision based on the law against derivative actions which is now settled law in respect to body corporate managers as discussed in Singh v Boutique Body Corporates Limited. 17
In the Tribunal’s decision dated 3 March 2026, it said about costs:
The Tribunal must consider the parties’ costs from the earlier proceedings also. Ms Lim acted for the body corporate and L & Y initially. The body corporate withdrew its instructions two days before the original hearing leaving the body corporate 16 Residential Tenancies Act 1986 s 102(4)(b). 17 [2019] NZHC 1707. unrepresented. Ms Lim may wish to separately break down her attendances for the body corporate and L & Y because the body corporate is unsuccessful in the proceedings, but the Tribunal removed L & Y as a party at the original hearing.
In the Tribunal’s costs directions dated 29 April 2026, I noted:
In a previous hearing, Ms Lim appeared for L & Y Holdings. Ms Lim had also represented the body corporate until two days prior to the hearing and the Tribunal relied on her submissions for the body corporate and L & Y Holdings which included a joint “counterclaim” which the Tribunal dismissed.
From the Tribunal’s decision, it appears the Tribunal raised the critical derivative action point (not L & Y), so it is quite possible that virtually all of Ms Lim’s preparation for the hearing was on the substantive matters affecting both the body corporate and the body corporate manager. If that is so, I am not sure that L & Y would be eligible for an award of costs.
To consider L & Y’s costs, at a minimum, the Tribunal required evidence of what Ms Lim invoiced the body corporate and what she invoiced L & Y and a clear understanding of what work invoiced related to what aspect of the proceedings.
I make further directions for L & Y to file and serve costs submissions if it wishes to pursue them.

Tenancy Tribunal case 9061404 — Unit Titles in Newmarket, Auckland

At a glance

Claims & awards

Tenancy Tribunal case 9061404 — Unit Titles in Newmarket, Auckland

At a glance

Claims & awards

Order

Reasons

Was Ms Tham substantially successful in her claims?

Did the body corporate breach proxy vote and representative vote requirements?

Different contribution rate for application to transfer to the District Court?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

Was Ms Tham substantially successful in her claims?

Did the body corporate breach proxy vote and representative vote requirements?

Different contribution rate for application to transfer to the District Court?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions