Published tribunal order
Tenancy Tribunal case 9064044 — Property damage in Kilbirnie, Wellington
Decided 8 May 2026 · Published 8 May 2026 · Application 9064044
- Property damage
Order
- The Tribunal declares that there was a flaw in the May 2025 AGM procedure, where a ‘rotating’ chair was voted. That resolution is declared invalid, so the Body Corporate must elect a new chair (if it has not already done so).
- By consent of the parties, the Body Corporate is to provide a list of all decisions made or documents signed since the 10 May 2025 AGM.
- The Tribunal declares that the Body Corporate should have obtained formal approval from the Body Corporate prior to obtaining legal advice from WCM Legal.
- Body Corporate 49997 is to pay [The party] and [The party] the sum of 11,048.67 immediately, calculated as follows: a. Kitchen repair, vinyl replacement$1,262.00 b. Compensation for rent losses$9,286.67 c. Filing fee$500.00
- All other claims are dismissed.
Reasons
- The matter before the Tribunal is an application filed by co-owners of two units, in an eight-unit body corporate in Wellington. The claim is extensive, but broadly the applicants seek various work orders, and orders for compensation, The claims relate to water ingress at the applicants’ units, and what the applicants propose to be mismanagement at the complex. Claims to be determined
- At the hearing on 15 October 2025, the applicants confirmed the claims to be adjudicated, are as follows: a. An Order setting aside Resolutions 20 and 21, or in the alternative, that the Body Corporate engage a Structural Engineer or other suitably qualified professional to sign off on the crack repair work to ensure that the insurance exclusions can be removed. b. An Order that the Body Corporate install continuous strip drains along the entire length of the southern elevation of the northern apartment block. c. A declaration that the resolution to appoint a committee member to hold the position of Chairperson on a temporary and rotational basis is unlawful and of no effect. d. An order that the Body Corporate provide details of any decisions made or documents signed since the 10 May 2025 AGM by the purported chairperson. e. The declaration that Lawrence Cameron does not have authority to exercise any rights or powers held by Colin Cameron either in the capacity as Chairperson or in the capacity as a Committee Member, and any such actions would be unlawful and of no effect. f. An order that the Body Corporate provide details of any decisions made or documents signed by Lawrence Cameron since the 10 May 2025 AGM either as: i. ‘representative’ for Colin Cameron in the purported capacity as Chairperson; or ii. ‘representative’ for Colin Cameron in the capacity as a Committee Member. g. A declaration that the Body Corporate has, without authorisation, approved and spent Body Corporate funds to pay ACE Body Corporate and WCM legal. h. A declaration that the Body Corporate was and is in breach of its duty to administer the unit titled development by failing to take steps to ensure that all owners comply with the rules in relation to use of the common property. i. An order that the Body Corporate pay the Applicants for the costs of repairs and restoration of the internal linings of the unit to restore habitability and/or the value of the unit in the amount of $7,662.00. j. An order that the Body Corporate pay the Applicants $55,720.00 for lost rent plus interest from the date of filing their application, calculated in accordance with the Interest on Money Claims Act 2016.
BACKGROUND
- The applicants are Mr and Mrs Sandhu, who are owners of unit GC as defined on the certificate of title. Unit GC is a ground-floor unit in a block of four units. There is one adjoining unit on the ground floor, with both ground floor units having two units above.
- The Sandhu’s have been renting their ground floor unit, they report that has been since March 2016, and that a new family moved in over August 2016.
- The Sandhu’s say that a water leak was noted and advised to the Body Corporate Manager (Oxygen) on 8 April 2017.
- Oxygen then referred the matter to WBS for an assessment and report. WBS report 29 August 2017
- A report is on file from WBS Property Services from 29 August 2017. Unfortunately this report does not identify what unit it related to, but the report confirms that there are moisture issues inside the building. The report also noted that “the ground level was less than 50mm below the floor level of the apartment...Recommendations: Lower the exterior ground level and or install strip drainage.”
- The Body Corporate had strip drains installed around the unit in March or April 2018. AGM 12 November 2018
- The minutes from the 2018 AGM, record that “there have been problems with water ingress in most of the units”, and that House Check Limited (the builder for one of the unit owners), had found leaking to window frames. It was agreed that the two large windows on each unit would be replaced.
- It is also recorded that House Check Limited had recommended that repairs be undertaken to multiple cracks to the exterior concrete. The Body Corporate agreed that work was needed to be completed urgently. A quotation had been received from Concrete Solutions, which was to the sum of $28,393. It was agreed this work needed to be completed urgently, but that it would be put on hold until the windows had been replaced.
- It turned out that the cost for the works to the window where higher than expected, and only some of the windows were addressed at the time, which did not include the windows in unit 6, the Sandhu’s unit.
- On 16 June 2020, Mr Sandhu emailed Oxygen, raising concerns over the delays in getting the windows in their unit replaced. Mr Sandhu states that since the investigative work with WBS commenced in 2017, the rent losses have been around $9,240. Mr Sandhu notes that given the wall linings in the unit had been removed, they were surprised that the unit was not one of the first to have the windows replaced. Tribunal order 24 March 2021
- The Tribunal considered an application filed by Mr Cameron (owner of unit 3) against the Body Corporate (application 9022022). The matter came before adjudicator Henwood, who issued an interim order on 24 March 2021.
- Mr Henwood noted that the historic practice at the complex was that each unit owner repair and maintain their own waterproofing.
- In large measure, the issue Mr Henwood needed to consider related to the funding of works, and various orders were made in that regard.
- I note that Mr Henwood addressed the issue of funding of repairs to the interior of the units, where he said at paragraph 61. Finally, the applicant addresses interior repairs within units. I assumed by this he means damage consequential on the leakage or seepage. Assuming contractual principles apply, it appears to be accepted in the submissions of counsel for the applicant, citing. Body Corporate 204299 v Sayer [2016] NZHC 1164, this is governed by the rules relating to remoteness of damage and is generally taken to be the compensation reasonably required to put the injured party in a position, it would have been if the breach or other act had not taken place. If the body corporate has failed to meet its obligations and respect of repair, then it is liable for the consequences, irrespective of location. Its position vis-à-vis unit owners is, in that respect, no different than if, for example, it failed to properly maintain a tree on common property which then fell onto a neighbouring property.
- On 8 December 2021, Mr Sandhu wrote to the body corporate again raising concerns over dampness inside the unit, and complaints from their tenants, including a wet smell, fungus and rotting carpet. Photographs were provided.
- On 10 December 2021, the body corporate responded to the Sandhu’s, advising that given the time of year they would be unable to obtain the necessary legal advice, but recommended that the unit owners undertake any work necessary themselves, with a view to them seeking recovery from the body corporate.
- The new windows were installed in April 2022 by the Body Corporate.
- The Sandhu’s report being advised by the tenants in unit 6, of water coming into the kitchen from the wall and floor junction. The Body Corporate chair was notified of the leak. A builder and plumber attended subsequently but could not identify the cause of the water leak. AGM 10 May 2022
- Minutes from the 2022 AGM record Mr Sandhu advising that the windows in the unit had been replaced, and that he had paid a deposit on the new carpet but wanted the interior repair work completed first. Two of the body corporate members expressed interest in inspecting the carpet, and if it was mouldy throughout then they considered the body corporate should pay for new lounge carpet.
- In an email from 19 May 2022, Mr Jia advised he had inspected the carpet in unit six, confirming there was substantial black mould on the carpet and underlay, but his opinion was that the body corporate should replace the carpet in two of the rooms.
- On 25 July 2022, the body corporate division manager of oxygen wrote to the body corporate giving it notice to end the contract. The manager noted that the ongoing disputes between the unit owners were impacting the health and safety of the Oxygen staff, and because of that, they were withdrawing their services.
- The body corporate then appointed ACE Property Manager as the manager. I note an email from ACE dated 19 December 2022 to all unit owners, where Ms Walsh notes: It was made clear to me that the body corporate is very dysfunctional and I saw this when being flooded with emails before the[AGM] Jack was at breaking point and made it very clear. He could no longer continue. We tried to convince him to stay and we said we would help him to overcome the issues. Others were also very supportive of Jack and understood why he wanted to resign, and mentioned bullying that had occurred. Clear processes that other body corporate follow to operate efficiently, and for those not present and as a reminder to those that were, they are as follows...
- The Sandhu’s report that their tenant moved out in December 2022 “after patiently waiting for years for the unit to be made watertight”, and that “This put us in a very difficult position as the flat wasn’t able to be rented out in it’s current condition given the water ingress and black fungus infested carpet and mouldy vinyl in the kitchen” Building Wizard – July 2023
- The Sandhu’s obtained an assessment of unit 6 by Stuart Jeffs of ‘Building Wizard’, who provided a “preliminary ground water-ingress report” dated “July 2023”. Mr Jeffs records that he is a Licensed Building Practitioner and Registered Building Surveyor.
- Mr Jeffs determined that the asphalt carpark was 46 mm higher than the floor level of the common property entrance foyer, and 36 mm above the kitchen floor height on the southeast corner of unit 6. Mr Jeffs considered that there was likely ingress of water through the concrete walls and floor.
- Mr Jeffs considered the water ingress had impacted the floor coverings, caused mould and damaged walls.
- A photograph was provided of the hot water cylinder in the unit, noting that “the discharge pipe entered the concrete floor and not exiting the foundation wall as per other unit”
- Various recommendations were made, including the installation of strip drains the length of the southern elevation, and ensuring wall junctions are suitably sealed. An asphalt haunching was recommended against the wall to stop water pooling. Communications
- On 11 September 2023, the Sandhu’s wrote to the Chair, challenging that she was not adequately addressing an issue with the hot water cylinder: So are you taking it upon yourself to ignore the experts report and not get the hot water cylinder over overhead pipe work done? So what Jack did by ignoring the water ingress in unit six from this pipe for over a year... Now you are doing the same.
- The chair replied that same day, disputing that she was not focused on getting any leaks resolved noting that: With regard to the strip drain there is no water entering unit five and the original strip drain did not remedy unit six as window was the major fault as identified an expert report from WBC. With hot water being turned off in unit six for several months it is obvious water ingress is not coming from high-pressure relief valve. We cannot accept any work quotes until we can determine how much money remains in contingency fund. Clark Construction Services 9 October 2023
- The body corporate obtained an assessment from Clark Construction Services. A report has been provided dated 9 October 2023. The report records that Remy Jannot undertook an inspection on 29 September 2023 noting that damage was apparent on the façade of units four and six, and ”several cracks are visible from ground up to level two on both units, and unit six was described as having more cracks overall, with approximately “54 linear metres of crack with a crack width ranging from 0.5 MM to 3MM.”
- The author advised that the cause of the damage appeared to be the combination of age, consecutive earthquakes, settlement, and weather events since the construction. The author recommended injecting the cracks with a particular product, and a mortar repair using Sika MonoTop-352. Waterproofing was recommended. A channel drain was recommended around unit four.
- On 20 October 2023, the Sandhu’s wrote to the body corporate noting that at a previous AGM, it was agreed the body corporate manager would contact the insurance broker to seek the necessary approval for remedial works as proposed by Clark’s construction. The Sandhu’s state that “it seems like you have gone ahead on your own with this task.” Note was made that other quotations had been provided, and: Unit 6 & 8 would like to request that you wait before you proceed any further and confuse matters more until we see the minutes of our AGM first. At least it will then be clear who has been delegated which task.
- On 2 November 2023, the insurance broker wrote to the applicants, with a copy to the chair (Ms Neill) advising that the insurance policy would not cover existing building defects “therefore any property issues noted on the report from building wizard are not covered under the policy”.
- On 13 November 2023, Ms Neill, the Chair, emailed the applicants advising that she was not able to attend to inspect their premises that day, as the water engineer who was going to accompany her was not available, and there was no point in her going on her own.
- On 13 December 2023, the applicants wrote to the body corporate seeking permission to proceed with the internal reinstatement of the unit given the Clark construction work and pipework had been completed. The Body corporate replied on 10 January 2024, the body corporate advised the applicants they could proceed with the internal repairs, ”we only asked that you defer recladding wall area until Clark’s job was proven.”
- The Sandhu’s report that following the walls being sealed, and new carpet and vinyl installed, the unit was ready to be re-tenanted around 25 January 2024. Tenants later move in around mid-February 2025 for a weekly rental of $645.00. WCM Legal 26 January 2024
- The body corporate appointed WCM legal to provide advice on a body corporate dispute. I note the engagement letter of 26 January 2024.
- On 15 February 2023, Mr Sandhu emailed Mr Jia advising of water in the unit and to urgently come to the premises to view the kitchen that had flooded. Mr Sandhu states that the water was from an exterior wall that went underneath the oven, and along the wall. The carpet was described as soaking.
- On 16 February 2023, WCM legal wrote to all unit owners, noting the instructions from Mr Jia who was the current chairperson of the body corporate, and the sole remaining member of the body corporate committee. Mr Bale noted that his assessment was that the body corporate was dysfunctional, and not able to continue in the manner it was. Examples were given of the issues. Two options were raised to move forward, one was to proceed with mediation, the other to appoint an administrator.
- The file indicates that Mr Jia worked hard to move matters forward as far as the relationship issues are concerned, such as advancing the mediation process. Emails confirmed that the Sandhu’s disagreed with approaching WCM legal for support. MR SWAIN’S EVIDENCE
- Mr Swain attended the hearing as a witness for the Body Corporate where he gave evidence in relation primarily to the cracks in the walls..
- Mr Swain advised he is a Licenced Building Practitioner with 50-odd years of experience, and that includes experience in inspections.
- Mr Swain advised he is very familiar with the premises, having started work at the complex in 2018.
- Mr Swain confirmed he had read the reports on file.
- In terms of the leaks to the lobby, he started with a laser level to check levels, and then undertook a water test, where water is poured on the floor, to see where it flows.
- Mr Swain undertook a ‘drumminess’ test where walls are tapped, and only one area of drumminess was found. No gaps could be found in the walls.
- It was Mr Swain’s view that the levels in the Wizard report were different to those which he found, noting that the water flows passed the western side of unit 6, and he found there was no accumulation of water in the corner area. It was accepted that there would be some change if there was wind. Mr Swain considered that a fault with the Wizard report is that they did not undertake water tests.
- The lobby was raised, so it would not be possible for water to get into the lobby.
- Mr Swain confirmed that he tested levels with both a standard level, and a laser level.
- Some of the walls had cracks, and where cracks were found on walls, they were injected with a Sika product.
- In relation to the photographs of unit 6, when the wall was opened, the concrete was in poor shape and came away in his hands. He also found that the bottom plate was rotten, which Mr Swain considered was probably from a leaking pipe, given how high it was compared with the ground level. Further, there was water staining seen on the back of the interior plasterboard, again suggesting water exposure.
- Mr Swain advised that all Sika products had been applied to the manufacturer’s instructions, and at one stage, a Sika representative attended the site. Otherwise, Mr Swain described the repairs he had made, and confirmed that all work he has undertaken is within his skill set.
- In terms of whether a structural engineer was needed, Mr Swain advised that this work is not structural work so not needing a structural engineer.
- Mr Swain advised that he did not see any evidence of spalling of concrete.
- Mr Calder cross-examined Mr Swain, who responded as follows:
- Mr Swain confirmed that his licence was in carpentry, which included the authority to undertake the concrete repair works.
- Mr Swain confirmed that he had been involved with another property in Thorndon which had similar issues, but the problems were not as extensive, but there was also no structural engineer involved in that project. An engineer had been contacted, who advised it was not required.
- Mr Swain was asked what the process would be to repair the cracks. That involved identification of the problem area, tapping with the hammer and looking from drumminess. The inspection process was described, to determine if damage was just to the plaster, or if it went to the concrete itself. Cracks to the concrete would be ground out. If it is a modest crack, then the process would be to apply a product called ‘monotop’ and then plaster over the repair.
- However if the crack was significant, then the crack would be injected with a ‘two pot’ injection mix.
- To my question, Mr Swain confirmed that the Monotop was as described on the Sika New Zealand website 1 , where it records that it was suitable for restoration work, and repair of spalling of concrete in buildings, bridges and infrastructure, and structural strengthening, increasing the bearing capacity of the concrete structure by adding mortar. 1 https://nzl.sika.com/en/construction/concrete-refurbishment/repair/sika-monotop-412n.html
- When undertaking levels, Mr Swain advised that was originally the floor level in a cupboard, and he found that his measured levels were around 30 mm different from the assessment of Building Wizard. The exterior ground level is still higher than the floor level, but not to the extent assessed by Building Wizard.
- Mr Swain advised that during his work on the building, Mr Sandhu would not talk to him, but would take videos of his work.
- In terms of progress of the repairs, Mr Swain advised that he was more than three-quarters of the way through the repairs, about another 1-2 weeks’ work (as of 15 October), but he was awaiting confirmation of the Body Corporate to proceed with the work.
- Mr Calder asked whether Mr Swain considered the dampness shown on photograph 300.0002 (unit 5), represented a fall to the building that would be benefit from a channel drain. Mr Swain advised that he is not a drain layer.
- In relation to photograph 300.0060 showing unit 5 with rain, Mr Swain advised that water would naturally find its own level, but he considered that there was sufficient fall for the water to flow away, however he accepted that a channel drain would assist with resolving the water pooling as shown in the photograph.
ANALYSIS
- I will now consider the claims in turn. Claim 1: An Order setting aside Resolutions 20 and 21 or in the alternative, that the Body Corporate engage a Structural Engineer or other suitably qualified professional to sign off the crack repair work to ensure that the insurance exclusions can be removed.
- The applicants seek an order for minority relief in relation to resolutions 20 and 21 from the AGM on 10 May 2025.
- The applicant’s concern is that without professional oversight, the methodology proposed for crack repair, and resolved, may not be fit for purpose and impact insurance.
- Mr Calder noted that Mr Swain started his work in June 2025 and then stopped work in September 2025, and the works are about 70% completed, but the end result is a cost blowout. The unit owners then voted not to complete the works.
- Mrs Sandhu states that the chair has made it clear that the work must be completed using the same methodology, but the other companies would do the work differently. Mrs Sandhu states that they had requested that the Body Corporate wait until the Tribunal had considered this issue, but they were not willing to do so. Mr Sandhu is concerned that if this matter is not resolved properly, it could impact the insurance cover.
- In response, the Body Corporates’ position is that no order should be made for a structural engineer to be engaged, because a structural engineer is not required to complete this work.
- It is disputed that the Tribunal should interfere with resolution 20 or 21. It was submitted that the Body Corporate did consider the contractor proposed by the Sandhu’s, but they were satisfied with the decision they made. Mr Cameron states that the Sandhu’s did not present a good argument at the meeting on why their preferred contractor should be approved. Analysis
- This dispute relates to a resolution from the AGM on 10 May 2025. The resolution approved the works proposed by Mr Swain to the sum of $32,137 excluding GST. That vote was passed 6 votes to 2. There was a second resolution around the identification and assessment of the proposed works, and that passed 4 votes to 2.
- The Applicants seek an order for minority relief, that is an application under section 210 of the UTA, which is as follows: 210 General relief for minority where resolution required (1) In any case where this Act requires a resolution and the resolution is passed, any person who voted against the resolution may apply to the appropriate decision-maker for relief on the grounds that the effect of the resolution would be unjust or inequitable for the minority. (1A) Subsection (1) does not apply if the resolution is a designated resolution. (2) An application for relief under subsection (1) must be made within 28 days of the passing of the resolution.
- The Court of Appeal has confirmed in Tremont Holdings Limited v Body Corporate 401803 [2015] NZCA 314, that the threshold for establishing that any resolution is unjust or inequitable for the minority is a high threshold. The courts have consistently emphasised the weight that should be given to decisions made by Body Corporates and confirmed that it is only in limited circumstances will the majority decision will be interfered with.
- The question then is whether the Tribunal can or should interfere with resolutions 20 and 21. I have determined that this claim must be dismissed, for four particular reasons.
- Firstly, in my view this application is now moot for the simple reason that the work has now largely been completed. The applicant has confirmed that the work is about 70% finished. The only reason that the work has not been completed, is because of funding. Obviously, to secure further funding, the body corporate will need to have a further vote on that, and if that occurs, then the applicants will of course have a further opportunity to engage and to be heard on the work going forward.
- The High Court has confirmed that the Tribunal cannot adjudicate applications which are moot or academic. In the decision of Body Corporate 375933 v Tenancy Tribunal [2017] NZHC 1619, Justice Williams explained: [14] It has long been the case that the Courts (at least) will not answer “purely abstract questions in anticipation of an actual controversy”, whether in future negotiations or court action. This principle was reiterated relatively recently in Omaha Beach Residents Society Inc v Townsend Brokers, in which the plaintiff sought clarification of the effect of a restrictive covenant. O’Regan P found: [T]he courts will normally decline as a matter of discretion to issue a declaration in a case in which the factual context is either hypothetical or a prediction of future events. [15] Although both cases occurred in the context of a formal application for declaratory relief under the Declaratory Judgments Act 1908, the principle is broadly applicable and referable to the use of scarce court time, as well as the limited role of the courts in our system of law and government, a subject to which I will return below. [16] There is no reason, in my view, to consider that the Tenancy Tribunal is in any different position to the ordinary courts in the respects described by McCarthy P and O’Regan P. Mr Grieve’s claim to the Tenancy Tribunal must be taken at face value. Since there are no other extant proceedings between these parties, the claims (b) and (c) lodged by the second defendant in this case, can only be taken to be moot.
- I note an analogous case involving a Lower Hutt Body Corporate, being Body Corporate 68792. An application was advanced by one of the unit owners, Mr Memelink, on a number of grounds, but principally that there were procedural defects with an AGM in 2014, at which Mr Memelink claims that he was voted in as the Chair. Mr Memelink applied to the Tribunal for orders including a declaration that he was the correct Chair following the 2021 AGM. That application was filed with the Tribunal in November 2016.
- Ultimately the matter came to a hearing in 2020, and the unit owners application was dismissed. 2 The adjudicator determined that there had been so much water flow under the bridge since the 2014 AGM, that there could be no utility in finding for Mr Memelink (even if he were correct in his view he 2 Memelink v Body Corporate 68792 [2021] NZDC 11664. should be recognised as the Chair). To put that another way, even a finding in Mr Memelink’s favour, would not change anything in 2020.
- Mr Memelink appealed the decision to the District Court. Judge Tompkins dismissed the appeal. 3 The Court considered that given the events that had transpired, to make any rulings in favour of Mr Memelink would amount to an abuse of process.
- Mr Memelink then appealed the District Court’s decision to the High Court, where he was also unsuccessful. Justice Cooke considered the approach in the Tribunal and District Court to be correct, stating: [18] ... In the present case [the Tribunal] concluded that the matters raised by Mr Memelink had been overtaken by other events, and that they had been the subject of extensive litigation between the parties in the High Court which had been determined against Mr Memelink. It held that the declaration sought would not serve any purpose. The District Court summarised this as a finding that the issues raised by Mr Memelink were moot and amounted to an abuse of process. [19] Those conclusions seem to me to be correct for two essential reasons. [20] First, the Tribunal proceeded in the manner required of it in dismissing a claim on this basis because it no longer had any practical significance for the participants. It is not the role of the Tribunal to make declarations on matters that have no such significance. Rather it must address disputes between them, and it must do so in light of both the principles of law and the substantial merits and justice of the case. If upholding a claim is not consistent with the substantial merits and justice of a case, and it does not resolve a real and practical dispute between the parties, then it would not be appropriate for the Tribunal to grant the relief sought. To do so would be unfair and unjust to the other parties to the suggested dispute. [21] I also conclude that the Tribunal’s decision was properly made in the present case. As both the Tribunal and the District Court have held the events that have transpired in the seven years since the 2014 meeting mean that there is no practical utility in the Tribunal now seeking to rule on that meeting. The Body Corporate is essentially insolvent and an administrator has been appointed. Mr Memelink is bankrupt. If the Tribunal were to declare that he had been properly elected Chair more than seven years ago that would not make him the Chair now. Such a declaration would have no utility. To expect the respondents to engage with re-litigating such an historic matter would be unjust, and procedurally unfair. [22] ... [23] As the District Court has held the declaration that Mr Memelink sought could have no practical effect. I agree with the Judge’s 3 Memelink v Body Corporate 68792 [2019] NZTT 900347. conclusion that any attempt to make such a declaration would effectively amount to an abuse of process, and that the Tribunal was right not to grant the relief Mr Memelink sought in those circumstances. [24] For these reasons I conclude that the Tribunal properly exercised its jurisdiction in dismissing the claim, and that there was no error of law in the District Court’s decision upholding the Tribunal’s decision.
- It is fair to recognise that the facts in the Memelink case above were more stark than in the matter before me (ie, the applicant being bankrupt, and the body corporate in administration), but the principle remains that the Tribunal should not consider matters where there would be no practical outcome for the parties.
- In the situation before me with Rosscourt, the work has now progressed so far, that the application for minority relief is either moot, or there would be no utility in making the order.
- Even if I were wrong in that, the second reason this claim must be dismissed, is because it is out of time. The Tribunal notes that there has previously been a resolution about the appointment of a structural engineer, which was at the AGM on 20 November 2024, but the resolution was not passed (there were 2 votes for, 6 votes against). As we discussed at the hearing, the Sandhu’s cannot now challenge this resolution as a minority relief claim, because this application was filed more than 28 days following the resolution being passed.
- The third reason this claim cannot succeed, is because the argument from the Applicants is that the Body Corporate made the wrong decision proceeding down the path with appointing House Checkers Limited (Mr Swain) to do the work.
- This is a case where the Body Corporate had more than one path to take; they evaluated the options and decided on a particular remedial action. There is nothing unusual in that. It is commonly the case that a body corporate will resolve to accept one option, which may not be supported by a minority of unit owners – that is the case here.
- But in order for any application for minority relief to be successful, I would need to be satisfied that the resolution would be “unjust or inequitable for the minority”, but I am not persuaded that has been established.
- The fourth reason this claim would be unsuccessful, is because the Tribunal will not interfere with the merits of decisions that the Body Corporate make. I note the High Court decision of Singh v Boutique Body Corporates Limited [2019] NZHC 1707. That was a dispute between a unit owner (Ms Singh) in relation to weathertightness remediation. The High Court noted that sometimes body corporates will make decisions, which with the benefit of hindsight, was not the best decision. The court noted that “... owners generally must take the consequences of decisions in general meeting for better or worse. If the body corporate makes a botch of matters, the owners may be worse off and may face increased levies to put matters right, but they will not have recourse against the body corporate or each other. “
- Again in the circumstances of this Body Corporate, more is needed to justify an order of minority relief, other than an argument or even a finding that a different decision may have resulted in a better outcome. The majority has voted on a course of action for the reasons they did, and it would not be reasonable for me to interfere with that.
- At the hearing both parties presented their arguments, and I found their presentations to be well considered and well-argued. However, I cannot identify any flaw in the Body Corporate’s reasoning, or the advice they received, that would necessitate the setting aside of this resolution at this late stage.
- In terms of the insurance, while I accept that in the usual course of things, insurers wish to see work properly undertaken to the insured building, and by properly qualified people, in this case I have not seen evidence that the insurer has any concerns around the work approved at the May 2025 AGM, or that they are concerned about Mr Swain completing this.
- There is insufficient evidence to support a finding that a structural engineer is needed to engage with or oversee the remedial work. I accept that Mr Swain is properly qualified to undertake the work without needing a structural engineer.
- For the above reasons, I decline to make any order for minority relief, nor make any order that a structural engineer or any other expert be appointed. Claim 2: An Order that the Body Corporate install continuous strip drains along the entire length of the southern elevation of the northern apartment block.
- Mr Calder referred to the July 2023 Building Wizard report (200.0242) which recommended installing strip drains.
- As I raised at the hearing, this claim cannot succeed. That is for the simple reason that there has not been a resolution from the Body Corporate on this matter. If the Sandhu’s seek to have a resolution that strip drains be installed, they should put that forward at a general meeting in the usual way. If the resolution is not passed, and the Sandhu’s voted against it, then they have an ability to seek an order for minority relief at that time. Claim 3: A declaration that the resolution to appoint a committee member to hold the position of Chairperson on a temporary and rotational basis is unlawful and of no effect.
- Mr Calder submits that the motion to be considered at the May 2025 was the appointment of either Ms Neill or Ms Singh to be appointed chair. However, it is the case that both Ms Neill and Ms Singh withdrew their nomination.
- The minutes record: It was resolved during the meeting that after the appointment of the committee that a member of the committee will serve as the Chairperson of the Body Corporate on a 8 – 10 week rotation.
- That resolution was passed 7 votes to 1.
- The issue Mr Calder submits, is that there was no resolution to have a rotating chair (even if you could have one), and because one of the unit owners was absent (that is Haifeng Jia), then the body corporate could not have made that resolution. Analysis
- As discussed at the hearing, there are problems with how the Body Corporate has approached the vote for the chairperson. The Unit Titles Regulations 2011 apply, clause 10 relates to the election of a chairperson. The regulations require that “a” chairperson be elected, but they must also be nominated.
- In this case, the process that took place at the May 2025 AGM has not complied with those requirements. The regulations do not allow for a rotating chair.
- The Tribunal accordingly declares that the Body Corporate has not complied with the requirements under the Regulations for the appointment of a chair, so they must proceed to vote in a chair again, unless the Body Corporate has since had a new election.
- A further problem is that not all members of the Body Corporate were present when it was decided that they would move to a ‘rotating’ chairmanship. Mr Calder is right, a new resolution can only be proposed during a general meeting if all members are present. Section 101 of the UTA sets out how matters at a general meeting are to be decided, and confirms: Any matter that is not on the agenda for a general meeting may be discussed at the meeting but, unless all the eligible voters are present at the meeting, no resolution may be voted on and made in respect of that matter except to include that matter on the agenda for a subsequent general meeting.
- Therefore, it was not procedurally open to the Body Corporate to proceed to vote for the rotating chair as it did (even if they could have a rotating chair).
- The result is that the Body Corporate must now have a new vote and elect a chairperson if it has not already done so. Claim 4: An order that the Body Corporate provide details of any decisions made or documents signed since the 10 May 2025 AGM by the purported chairperson.
- Given the discussion above regarding the voting of the chair, Mr Calder advised that it would suffice for the Applicant that the Body Corporate provide a list of the decisions made by the purported Chairperson to the Sandhu’s.
- The Body Corporate agrees to provide this list within two weeks. That settles this claim Claim 5: The declaration that Lawrence Cameron does not have authority to exercise any rights or powers held by Colin Cameron either in the capacity as Chairperson or in the capacity as a Committee Member.
- This claim is withdrawn. Claim 6: An order that the Body Corporate provide details of any decisions made or documents signed by Lawrence Cameron since the 10 May 2025 AGM either as: i. ‘representative’ for Colin Cameron in the purported capacity as Chairperson; or ii. ‘representative’ for Colin Cameron in the capacity as a Committee Member.
- This claim is withdrawn Claim 7: A declaration that the Body Corporate has without authorisation approved and spent Body Corporate funds to pay ACE Body Corporate and WCM legal.
- Mr Calder submits that there was spending in 2023 that was outside the budgeted amounts. It is submitted that the Chair or Committee should have got approval before those costs were incurred. The Sandhu’s believe that some of those costs should be recovered from the insurance policy, if they were incurred without authorisation.
- The Body Corporates’ response is that the payments made, were at the Body Corporates’ discretion. It is accepted that there is a rule that applies where costs over $1,000 needed to be approved by the Body Corporate.
- It is submitted that the Sandhu’s have a conflict of interest as it relates to the legal fees, because the advice received related to the conflict with the Sandhu’s. Ultimately, the services of the external provider were received, so they need to be paid for.
- Ms Cameron notes that there was no committee in place at the time because of retirements. Mr Jia obtained advice from the complex manager (ACE Body Corporate), who recommended obtaining legal advice so that is what occurred.
- Mr Jia advised that at the time, he was the only remaining committee member, and ACE recommended he obtain legal advice, so that is what he did. Analysis
- I accept that Mr Jia was acting in good faith. Given the resignation of the committee members, Mr Jia was placed in a difficult position where he needed to make decisions without the support of other committee members. Seeking advice from the complex manager was a very reasonable thing to have done, that is the point of having a professional complex manager. That resulted in the request for legal advice, which was obtained for the Body Corporate.
- I am not persuaded that Mr Jia acted outside his authority in obtaining advice from the ACE, the Body Corporate manager. That appointment was approved by the Body Corporate, so it could be expected that ad hoc advice will be needed from time to time.
- However, I do consider that advice (or costs) should not have been incurred with obtaining legal advice, without first receiving approval from the Body Corporate. That could have been done by way of a postal vote for example, but it should have been obtained all the same. I make a declaration to that extent only. Claim 8: A declaration that the Body Corporate was and is in breach of its duty to administer the unit titled development by failing to take steps to ensure that all owners comply with the rules in relation to use of the common property.
- This claim is withdrawn Claim 9: An order is sought that the Body Corporate pay the Applicants for the costs of repairs and restoration of the internal linings of the unit to restore habitability and/or the value of the unit in the amount of $7,662.00.
- The Applicant’s position is that the building has been leaking for some years. Because the Body Corporate has not done anything for some years to fix the issues, that has caused damage to their units, including needing to undertake a replacement of wall linings and coverings. Had the Body Corporate acted efficiently, then the Sandhu’s would not have sustained this damage.
- The Sandhu’s submit that the Body Corporate had delayed proceeding with the work, because of a lack of funds. The windows for example were identified as needing replacement in 2017, but were not replaced until 2021.
- The Sandhu’s dispute that the water ingress is from a leaking hot water cylinder.
- The Applicants seek compensation as follows: a. Replacement carpet and vinyl last laid in 2015 ($6,300.00), b. Kitchen wall repair ($1,012.00).
- In response, the Body Corporate say that in August 2017, WBC recommended replacing wooden windows with aluminium ones. The Sandhu’s advised that they would get quotations, but they did not follow through with that, so consider that any leaking from windows is of their own making. Otherwise the windows were replaced in 2022.
- The Body Corporate consider that the Limitation Act may be relevant, and that the Sandhu’s have failed to mitigate their losses.
- In relation to the carpet and vinyl, the Body Corporate say that there were earlier issues with the flooring. The Body Corporate say that depreciation would apply to see the carpet fully depreciated.
- In terms of the wall linings, the Body Corporate consider this is simply an upgrade for the Applicants, as there was no identification of a water leak from WBC.
- It was submitted that it would be unlikely that there would be water ingress from the floor wall joint, because in order for that to have occurred, then there would have needed to be a failure of the waterproofing, and further, the box channel was lower than the level of the floor, so it would be unlikely that this would be a water source.
- Further, it was submitted that if there was a single point of the leak, it would not make sense that the full wall is replaced.
- Mr Cameron referred to the latest Building Wizard report of 5 February 2026, which indicates issues with the concrete slab:
- Mr Cameron referred to E2 the building records, which support that there is a damp proof layer.
- The Body Corporate objects to the claim because they have been denied access to the premises for its own inspection.
- As it relates to the windows, it was submitted that the Applicants did not allow the windows to be replaced.
- It was submitted that there are flaws with the original Wizard report, because there was an inconsistency between where the carpet was found mouldy, would have also meant there would be flooding in the lobby, which there was not.
- Reference was also made to curtains stated to be moisture-damaged, but the lower level of the curtains was well higher than the floor level.
- In reply, the Sandhu’s case is that water was coming in from the windows and from the ground level. In any event, it is not the unit owners who are responsible for doing the work to the outside of the dwelling.
- Further it was submitted that given the fall of the floor advised by the Applicants, that this would not be consistent with the photograph provided.
- In relation to the rot, it is not clear whether this was pre-existing.
- If there were issues with the internal plumbing of the premises, then that would be the Applicant’s responsibility. It was submitted that the hot water cylinder was not compliant because it did not have a catch pan under the cylinder as would be required.
- The Sandhu’s dispute that they did not allow the Body Corporate into the house. Analysis
- The primary question in this dispute is who is responsible for the water leak, the Body Corporate or the Sandhus.
- It is necessary to summarise the legal obligations that arise in relation.
- 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’ is 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
- Accordingly then, 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 “relate[s] to or serve[s] more than 1 unit”.
- To put this another way, if the building element 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. Determining whether a building element relates to or serves more than one Unit Owner, will always be a question of fact.
- The courts have considered various appeals over the years, where it has needed to consider the extent of body Corporate obligations around maintenance or remediation of building elements. In the High Court judgment of Wheeldon v Body Corporate 342525 [2015] NZHC 884 4 , 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 s 3, 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 4 The High Court decision confirmed in the Court of Appeal judgment of Wheeldon v Body Corporate 342525 [2018] NZCA 20. (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: (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 5 and Court of Appeal. 6 Justice Woolford in the High Court accepted that: a. Like the finding in Body Corporate 198245 v Wong, weathertightness of the building is interlinked and indivisible. b. 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 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.
- In this case with the Sandhu’s unit, I find by a very comfortable degree, that the water leaks are more likely than not to be a building infrastructure issue. I cannot determine the precise location or cause, but then I do not consider the expert evidence has managed that conclusion. It is very likely that the water ingress is from either the windows, cracks in the wall, the junction of the wall 5 Body Corporate s73368 v Otway [2017] NZHC 3265. 6 Body Corporate S73368 v Otway [2018] NZCA 612. and the slab or the foundation. It is not necessary for me to be more specific, because if the leak was from any or all of those causes, it is infrastructure.
- The leak to the infrastructure is a weathertightness issue, which calls to the whole of the Body Corporate for the reasons discussed above.
- While it is possible that the leak is from some plumbing that serves only the Sandhus’ unit, there is insufficient evidence to conclude that is likely. The much more likely cause is simply a weather-tightness problem, in the context of a unit which has an internal floor level materially lower than the external ground level.
- The question then becomes whether compensation can be ordered.
- The Tribunal must apply depreciation, but depreciation does not apply to structures of the house, like walls. I accept that the kitchen wall repairs would be the liability of the Body Corporate, for the entire cost being $1,012.00. That is ordered in full.
- However, I am not persuaded that it would be reasonable to order the Body Corporate to pay the full cost of the carpet and vinyl replacement. I agree with the Body Corporate that the carpet would be fully depreciated. The Inland Revenue Depreciation Guides (IR 265) records the expected economic life of carpet in a residential tenancy to be 5 years. I accept that the vinyl would last longer than carpet, so it is fair that a contribution be made for the vinyl replacement. I consider a contribution of $250.00 for the vinyl would be fair.
- I therefore order the Body Corporate to compensate the Sandhu’s the sum of $1,262.00. Claim 10: An order is sought that the Body Corporate pay the Applicants $55,720.00 for lost rent plus interest from the date of filing their application, calculated in accordance with the Interest on Money Claims Act 2016.
- Mr Calder submits that lost rent should be ordered based on the assessment from Green Rabbit dated 6 May 2024. Mr Calder notes that the report from Green Rabbit commences in 2017, and accepts that this would include losses more than 6 years prior to the commencement of the proceeding, so the claim is limited to the losses over the 6-year period prior to the application only.
- The Applicant submits that because of the leaks in the premises, they have been unable to charge a market rent for the premises, and they should be compensated for this. There were times when the unit could not be rented at all, because the unit was not in a habitable condition.
- In relation to the Body Corporate’s position that Mr Bowden is conflicted as the Applicant’s property manager, Mr Calder notes that no alternate evidence has been presented.
- In relation to the Body Corporates’ view that there should have been insurance, it is submitted that there is no obligation to have insurance. Mr Sandhu says that even if there was insurance, it would be unlikely to cover any claim arising from a lack of maintenance.
- In response, the Body Corporate’s position is that the issues with leaking are long-standing, and the Applicants should have been aware of this when they purchased the unit. Reference was made to Mr Jia’s statement and that: The WBS report in 2017 also confirmed that the leaks in Unit 6 were long – term, with existing signs of wall and carpet damage already visible. These were not new problems caused by the Body Corporate, but long-standing issues that the Applicant should have discovered when purchasing the unit. Under the principle of /caveat Emptor, the Body Corporate has no obligation to compensate for deterioration and rot inside the unit that result from such pre-existing defects.
- It was further submitted that the Sandhu’s were obstructive with getting work completed at the unit, and that when work was proposed to be completed by Mr Swain, the Sandhu’s refused to allow that to occur.
- It was submitted that the Body Corporate did its best to get the work completed.
- It was further submitted that when attending the premises in March 2023, there was water found around the hot water cylinder inside unit, but the Applicants would not support the plumber attending because they did not consider it necessary.
- The Body Corporate considers that as experienced landlords, the Applicants should have had proper insurance.
- In relation to the rent loss claim, the Body Corporate has concerns that the report has not been updated to take account of the rent losses more than 6 years ago. It is submitted that there is a discrepancy between the rents recorded in the tenancy agreement and what Mr Bowden has applied Analysis
- The Body Corporate submitted that the Applicants should have had proper insurance. However, Mr Calder is correct, there is no legal obligation on a landlord to hold insurance to cover potential rent losses. If there was to be such an obligation, it would be for Parliament to set that expectation, not the Tribunal to do that.
- In this case, I accept that for a period of time the premises could not be rented, because there was either an active water leak, or given the damage to the walls and carpet. A landlord has a statutory obligation under the Residential Tenancies Act 1986 to ensure they meet the laws in relation to buildings, health and safety (section 45), and that include obligations under the Housing Improvement Regulations 1947. That requires that a residential dwelling be free from damp. In this case, the premises were damp for periods at least, but sufficient periods to accept that the premises should not have been rented until the repairs were completed.
- I accept that the Sandhu’s used this unit as a rental, and because they could not rent the property, they incurred a loss. Because the lose arose from a breach on the part of the Body Corporate, the Body Corporate is responsible for compensating that loss.
- The Sandhu’s have claimed $55,720.00, effectively losses over 6 years.
- I have no reason not to accept the Green Rabbit calculations; they do not seem materially wrong.
- I agree with the Body Corporate, that there was a duty on the Sandhus to mitigate their loss. That means that the Sandhu’s needed to take reasonable actions to reduce their lost rent, they cannot just sit on their hands and then sue the Body Corporate six years later for their losses.
- Renting a tenancy is akin to a commercial operation, so there is an expectation that landlords act in a business-like way in how they approach their rental. In my view, a business-like approach would require the landlord to allow a reasonable opportunity for the Body Corporate to resolve the leak, before taking action. Obviously the first step should be working with the Body Corporate, but if that did not result in action (and here the Sandhu’s have clearly claimed inaction on the part of the Body Corporate), the appropriate action would be to file a claim with the Tenancy Tribunal for orders. The Sandhu’s did not do that.
- When I step back and consider the matter in the round, I consider that it would be reasonable to order the Body Corporate to reimburse a sixth of the claim (more or less a year of rent loss). Had the Sandhu’s filed with the Tribunal when they determined there was inaction, orders could have been made much sooner.
- I therefore order the Body Corporate to pay $9,286.67 for rent loss.
- I do not accept that there is any basis to decline the claim because the Sandhu’s should have known the premises leaked. The order above has been made because the Body Corporate had obligations it had not met.
- The Applicants seek an order for the payment of interest under the Interest on Money Claims Act 2016. As I indicated at the hearing, the Tribunal is not able to make interest orders under that legislation. The Act allows a “court” to make an order under that Act, but under the interpretation section, it expressly says that “court—does not include a tribunal or an arbitral Tribunal”. In short, the Act expressly says that a Tribunal (like this Tribunal), cannot make an interest order under that Act.
- There is otherwise no ability in the UTA for the Tribunal to order that interest be paid for compensation ordered to a unit owner.
COSTS
- Costs have been claimed.
- Because the Sandhu’s have been partly successful, I have ordered that the filing fee paid to commence this proceeding, be paid by the Body Corporate.
- Beyond that, I consider this is a case where the parties should be responsible for their own costs. Costs normally follow the result. Certainly, the Sandhu’s had some success with this application, but in the context of the amount claimed, including the number of claims, that success is limited.
- Some of the claims should not have been made, which has caused additional work for the respondent and consumed Tribunal time. Some of the claims would have no practical significance for the parties, and could have been resolved without the involvement of the Tribunal.
- Taking that into consideration, I find this is a case where the parties should be responsible for their own costs.