Published tribunal order
Tenancy Tribunal case 9066504 — Healthy homes in Milford, Auckland
Published 24 May 2026 · Application 9066504
Dismissed
- Healthy homes
- Exemplary damages
- Harassment
- Unit Titles
Order
- Body Corporate 89662 is added as a party to these proceedings.
- BC 89662 must: a. engage the services of a registered electrician, who can be nominated by the applicants; b. the electrician must be provided with a copy of the report from Electra-Safe Inspection Services Limited dated 17 December 2025; c. the electrician must be instructed to check the electrical wiring at the development and report on requirements to have it brought to compliance with AS/NZS3000:2018; and d. to ensure that the installation of the solar array at Unit B does not prevent the power supply through the wiring in the ceiling cavity of Unit A being disconnected;
- The Body Corporate must then engage that or another registered electrician to carry out: i.the work recommended in the Electra-Safe report; and ii.any work required to meet AS/NZS3000:2018 compliance and iii.Order 2d.
- The cost of that work should be levied against the Unit owners: a. equally for any work required on the electrical infrastructure up to the point where it serves only Unit B 1 ; and b. against the Unit B owners from that point and to achieve Order 2d 2 .
- Neither Unit Owner may park vehicles on the common property identified as such on the Unit Plan, attached as a schedule to this Order.
- Arthur Ronald Murray must pay Paul Otto Heintze and, Joelene Jennifer Heintze $28,500.00 immediately, as follows: a. compensation for breach of right to quiet enjoyment - $3,000.00 b. costs - $25,000.00 c. filing fee - $500.00
Reasons
Background
- Both parties have attended the hearings in these proceedings.
- Mr and Mrs Heintze have been represented throughout by Evolution Law (Mr Blow). Mr Murray has largely appeared for himself but has been advised and at times represented by his son, who I understand is a practising lawyer. Introduction
- These proceedings are about a unit title development comprising only 2 units. The Units are standalone dwellings joined by a common wall between the garages, as shown on the unit plan.
- Mr Murray has owned Unit A and accessory unit 1 - 1/ 11 Milford Road (CT NA46D/519) since 1994. Mr Murray does not occupy his unit. It is currently vacant.
- Mr and Mrs Heintze own and occupy Unit B and accessory unit 2 – 2/ 11 Milford Road (CT NA46D/520). They bought the unit through a trust in 2015. It was transferred to them personally in 2023. 1 S.121 UTA 2 S.126(1) UTA
- When they bought it, Unit B had a solar power array installed, with the panels located the roof of Unit B adjacent to the Unit A garage. The solar array was installed in 2013.
- The relationship between Mr and Mrs Heintze and Mr Murray has become extremely strained, to the point where the body corporate has been unable to function.
- The wires supplying electricity to Unit B run through the ceiling cavity of Unit A. A significant focus of these proceedings has been on Mr Murray’s concern that the installation of the solar array and the lack of independent mains switching at the point of electrical supply to the development, prevents him from safely completing work needed to repair the roof and improve insulation in that space, so he can rent it out. Discussion
- These parties are in a very difficult situation.
- While they may prefer it otherwise, their properties are strata titles. Early in the proceedings the opportunity was given for them to discuss whether converting to fee simple or cross lease titles might be feasible. No agreement about that was reached.
- What that means is that decisions about the development and their respective rights and responsibilities as Unit Owners, are governed by the Unit Titles Act 2010 (“UTA”). The provisions of the UTA are particularly hard to implement when the body corporate comprises only 2 Unit owners who are in conflict. Where a body corporate comprises 2 or more members, the quorum for any general meeting is 2 entitled voters. 3
- The evidence suggests that Mr Murray has become very frustrated with the unwillingness of Mr and Mrs Heintze to engage with him in the required governance processes. He appears to have made BC decisions on his own, convening meetings, appointing himself chair and passing resolutions, relying on R.13(1), which allows a general meeting to proceed without a quorum of more than 25% of voting rights are present. In my view those resolutions cannot be effective. A general meeting can only be called by the BC chairperson 4 , a chairperson can only be elected following nomination by another Unit Owner 5 .
- Mr and Mrs Heintze find Mr Murray’s approach confrontational and overbearing, which dissuades them from engaging in governance processes with him. 3 S.95(1A) UTA 4 S.90 UTA 5 R10(2) Unit Titles Regulations 2011
- Mr Murray asks the Tribunal to make a series of Orders to end the “uselessness” of the Body Corporate and to set out in some detail what the Body Corporate is required to do.
- Mr and Mrs Heintze suggest the Tribunal should recognise that the Body Corporate is dysfunctional and effectively ignore it by making Orders only directed to the Unit Owners.
- Where the evidence proves, as with the electrical infrastructure, a need for action to address issues that are the statutory responsibility of the body corporate under the UTA, I cannot see how any order can be made other than against the body corporate, however impractical that might seem. Where the evidence proves breaches of obligations that, under the UTA, are owed by unit owners, the Order must be made against the unit owners.
- When it comes to Orders about the ongoing functioning of the body corporate, what Mr Murray seeks would really amount to the Tribunal reciting the relevant provisions of the UTA. Mr Murray provides an example (TT9058605) of where the Tribunal has previously done that. There may be value in Orders clarifying the obligations of the body corporate where it is within the powers of the body corporate to meet its obligations. Here, where the problem is that there is no functioning body corporate I see little benefit in doing so.
- Really, the Unit owners have to find a way of managing the development. Independent meeting moderation, appointing a BC manager or as a last resort applying for appointment of an Administrator by the Hight Court 6 are options.
- The Tribunal has jurisdiction to make orders in relation to breaches of a relevant party’s obligations, and to make “supplementary orders of a consequential or ancillary nature necessary to exercise or perfect the exercise of any of its jurisdiction.” 7
- It does not have jurisdiction to require unit owners to exercise their participation or voting rights in any particular way. That jurisdiction is not given by the ability to make supplementary orders. The Proceedings
- These proceedings began with an application by Mr. and Mrs Heintze, which was filed on 9 April 2024.
- That application sought orders: a. for compensation from Mr Murray for breach of Mr and Mrs Heintze’s right to quiet enjoyment of their unit; 6 S.141 UTA 7 S.171(3A) UTA b. for compensation for legal costs; c. by way of declaration, as to the rights and obligations of the parties; d. by way of interim injunction, preventing Mr Murray cutting off the power and water supply to Mr and Mrs Heintze’ unit.
- The matter was first considered by the Tribunal on 26 June 2025. That fixture was convened as a case conference, a substantive fixture date of 4 August 2025 had also been scheduled.
- An interim order was made that Mr Murray , “...will not directly or indirectly interfere with or restrict the rights of the applicant as they relate to the passage or provision of water and electricity or any other utilities pending determination of the substantive application (9066504) before the Tribunal save with the express written permission of the applicant.”
- Directions were made for the filing of the cross application indicated by Mr Murray with evidence in support and for the filing of reply evidence before a further case conference in preparation for the 4 August fixture. The possibility of a referral to mediation was discussed as was the possibility of a subdivision being completed to enable fee simple rather than unit titles to be issued.
- Mr Murray filed his cross application on 24 July 2025. In that application Mr. Murray claimed $10,000.00 for Mr and Mrs Heintze’s breach of his right to quiet enjoyment of his unit. That application has been followed by multiple and extensive communications containing other claims, allegations and submissions.
- It was not possible to schedule a case conference before 4 August, so that fixture, proceeded as a case conference. Much of that conference was spent clarifying Mr Murray’s cross applications.
- The issues were noted as being: a.each party’s claim for compensation for the other’s breach of their right to quiet enjoyment of their units; b.Mr Murrays’ claim that a recent change to the solar array installation at Unit A prevents him switching off the supply of mains electricity to his unit, Unit B; c.Mr Murray’s request for an Order that Mr and Mrs Heintze be required, at their cost to obtain certification for an electrical inspection confirming that the solar installation is safe; d.Mr Murray’s claim for orders that; i.he be indemnified by the applicants against any costs associated with their services passing through his unit; and; ii.Mr and Mrs Heintze prepare a maintenance plan for those services at their cost.
- Because of the implications for costs claims, I noted the Tribunal’s preliminary views on the claims as follows: “a. On the material currently presented, I struggle to see how the Tribunal could make the Orders sought by Mr Murray in respect of what appears to have been the property’s original services configuration. b. Both parties agree that the common area driveway should not be used for parking. The form of any Order about that can be discussed at the next hearing. c. Mr Murray asks the Tribunal to make a series of Orders to “fix” issues with the way this strata development is structured and governed including: i.surveying and marking the boundaries; ii.the parties engaging in discussion about separation of services; iii.re-establishing the body corporate and establishing rules for frequency of meetings, appointments and governance rules. d. without having heard full argument on the matter, it seems to me that the Body Corporate is already established by operation of s.75 UTA. The UTA prescribes the roles and responsibilities of the Body Corporate and Unit owners and empowers the Body Corporate (alone) to make operational rules. e. Mr Murray cites s.171(3A)(c) UTA as the Tribunal’s jurisdiction to make the orders sought. That provision allows the Tribunal to make , “...any supplementary orders of a consequential or ancillary nature necessary to exercise or perfect the exercise of any of its jurisdiction. The orders sought by Mr Murray currently seem to me to be of a substantive nature which would override the Body Corporate’s statutory powers, rather than consequential or ancillary to orders the Tribunal is able to make under s.171(3A) (a)-(ba).”
- The substantive hearing was held by teleconference on 16 December 2025. Following that hearing, because the evidence did not, in my view, satisfactorily address whether there is a safety issue with the electrical reticulation at the development, I directed that the parties engage an electrical inspector to provide a report, with the intent that the Tribunal would then be in a position to determine the claims without further hearing time being required.
- That became a somewhat tortuous exercise with the parties disagreeing about whether an electrical inspector or a registered electrician was the best source of that evidence and issues arising over access to the wiring for safety inspection and the adequacy of the instruction given to the assessor.
- That led to the matter being called again, to address that last aspect of the evidence, at a teleconference on 24 April 2026. Before that hearing a report was filed by Mr Murray, prepared by electrical inspection firm Electra-Safe Inspection Services Limited, dated 17 December 2025. The Claims Right to Quiet Enjoyment – Mr and Mrs Heintze’s claim
- Unit Owners have the right to quiet enjoyment of their unit without interruption by other unit owners or occupiers, or the body corporate or its agents. 8
- The Tribunal has jurisdiction through s.176 UTA and s.78 Residential Tenancies Act 1986 (“RTA”) to order compensation for breach of Unit Owners’ obligations to each other.
- Mr and Mrs Heintze have provided in evidence correspondence to them from Mr Murray 9 that: a. alleged illegal work was carried out by them in Mr Murray’s meter box; b. required relocation of the electrical reticulation supplying Unit B; c. threated action through electricity suppliers, d. threatened disconnection of supply if Mr and Mrs Heintze did not comply, “Your suppliers know fully my reluctance to turnoff supply. It is in your hands, this mail is a reminder, time is ticking away & I am available if you require. All that is needed is a plan and a time frame for your services to be relocated to your services strip, as shown on your title.”
- Evolution lawyers (Mr Bloy), on behalf of Mr and Mrs Heintze responded 10 : a. requesting an assurance that service to Mr and Mrs Heintze’s unit would not be disconnected; b. proposing a meeting to discuss the issues; c. setting out the statutory reasons and why Mr and Mrs Heintze did not believe Mr Murray was entitled to disconnect services; d. noting, “Please direct all future correspondence in connection with this matter to us in the first instance.”
- Mr Murray responded with a further letter direct to Mr and Mrs Heinz 11, acknowledging the letter from Mr Bloy and making further allegations, including that it was,”...your dangerous (to our property) and illegal install that 8 S. 9 Letter dated 8 January 2025 10 Letter dated 28 January 2025 11 Letter dated 4 February 2025 triggered our investigation – as you well know. The install is non-compliant, unauthorised and troublesome. Water removal was agreed in 2012.”
- Mr Bloy replied 12 reiterating the request that Mr Murray communicate though him.
- Mr Murray again wrote directly to Mr and Mrs Heintze on 17 February 2025, in a similar vein to the previous correspondence.
- My findings are that: a. Mr Murray’s allegations that Mr and Mrs Heintze have carried out improper/ illegal electrical work at the development are not proved. They have given direct evidence to the contrary, there is no direct evidence proving Mr Murray’s claim; b. Mr Murray had/ has no right to interfere with the provision of electrical or water services to Unit B 13 ; c. Mr Murray’s communications with Mr and Mrs Heintze with their repeated and unfounded allegations of improper conduct, threat to disconnect the supply of services to their unit and repeated disrespect of the legitimate request that communication be through Mr Bloy were, and were intended to be, threatening, intimidatory and disturbing.
- I find it proved that Mr Murray’s conduct and refusal to confirm that he would not interfere with the Unit B services, had a significant and negative impact on Mr and Mrs Heintze’s right to quiet enjoyment of their Unit for which compensation should be paid.
- The RTA provides that breach of quiet enjoyment rights in circumstances amounting to harassment is an unlawful act giving rise to the possibility of exemplary damages 14, the Tribunal’s jurisdiction under the UTA does not include awarding exemplary damages. 15
- In considering what compensation would be just, there is a useful comparison with awards of general damages under the RTA. Those awards are generally made where loss or harm is caused by another party’s breach, which is difficult to calculate mathematically.
- The purpose of such an award is not to compensate for a quantifiable loss but to compensate for pain or suffering or emotional distress, which is the nature of the harm alleged here. 16
- Awards tend to range from up to $2,000.00 for inconvenience, frustration, annoyance, or disappointment, up to $3,000.00 for mental distress such as worry, stress, tension, and higher where real hardship, insecurity, humiliation, intimidation, aggravation, or fear are caused. 17 12 Letter dated 11 February 2025 13 S.73(2) and 80(1)(g) UTA 14 S.38(3) RTA 15 S.176(1)(c) UTA 16 See Birch v Otautahi Community Housing Trust [2020] NZDC 17667 (at para [35]) 17 See for example Tenant v Ezy Rentals [2022] NZTT 4323927
- Those are only broad categories and each case must be considered on its own facts. Here I am satisfied that Mr and Mrs Heintze suffered actual and understandable anxiety and fear at the threat of essential services to their home being interfered with, compounded by Mr Murray’s refusal to desist and engage with their legal advisor instead. That had a severe impact on their use and enjoyment of their home. I find the sum claim justified on the evidence. Right to Quiet Enjoyment – Mr Murray’s claim
- The evidence does not show actions on the part of Mr and Mrs Heintze, directed at Mr Murray, that had the effect of interfering with his right to quiet enjoyment of his unit, which he does not occupy. All they really did was fail to comply with Mr Murray’s demands.
- It follows, from the discussion above, that Mr and Mrs Heinze cannot hope that they do not have to deal with Mr Murray, as the other unit owner in a 2 unit strata development. Their reluctance to do so is not a breach of Mr Murray’s right to quiet enjoyment.
- That claim is dismissed. Mr Murray’s other claims
- I acknowledge the enormous amount of work that Mr Murray has clearly put into researching and presenting his claims.
- A final submission addressing his 13 claims (withdrawing 2) seeks compensation totalling $41,630.00. The final revision was provided immediately prior to the 16 December hearing. I have not considered the material filed after that hearing, except relating to the additional electrical report directed.
- Claim 1 – the claim for breach of the Mr Murrays right to quiet enjoyment. That has been determined above.
- Claim 2 – procedural complaints. There is no doubt Mr Murray was well aware of the nature and substance of Mr and Mrs Heintze’s claims and the evidence relied upon by them. Mr Murray has had ample opportunity to respond and pursue his claims. That claim is dismissed
- Claim 4 - solar array/ distributed generation. Mr Murray asks for an Order that the solar array installed on Unit B be removed.
- The array was installed in October 2013 before Mr and Mrs Heintze bought their unit. They have provided a Compliance and Electrical Safety Certificate from the installer Solar King. The installation is not proved to be non- compliant or inadequate.
- Mr Murray’s complaint is that the array was installed without approval of the body corporate, which Mr Murray says was required by s.80(1)(h) and (i) UTA; a. It is not clear from the evidence that installation of a solar array on the roof of a detached unit would require notification under subs (1)(h) or consent under subs (1)(i). Properly installed it should not be an addition materially affecting another unit, which a unit owner has the right to install 18 ; b. if there were a breach of that obligation by the then Unit B owners, it would be a breach of their obligation to the body corporate, not to Mr Murray; c. any claim arising from that breach would need to have been brought within 6 years of the date on which Mr Murray became aware of the installation (at which point he would have been aware whether it was notified to or consented by the Body Corporate). 19 That claim is dismissed
- Claim 5 – withdrawn
- Claim 6 – indemnity for loss. Mr Murray claims compensation for losses caused through his inability to rent his unit from being unable to carry out necessary work.
- This claims is brought on the basis of, “....lack of maintenance by 11b owners of the facility or lack of precise action implementation as a BC member.”
- It may be that Mr Murray is suffering loss through his inability to rent out the unit. The evidence does not prove that loss to have been through a breach of any obligation owed to him by Mr and Mrs Heintze, which would be required to support any indemnity or compensation claim. That claim is dismissed.
- Claim 7 – withdrawn
- Claim 8 – Parking. Mr Murray seeks compensation for Mr and Mrs Heintze parking on the common property. Mr and Mrs Heinze make the same claim against Mr Murray. The Unit Titles Rules 20 stipulate that a Unit Owner must not park on the common property unless the body corporate has designated it for car parking or the body corporate consents. Both parties agreed during the hearing that neither should park there. An Order is made accordingly.
- The evidence does not prove which party may have more often or more egregiously been in breach or any loss caused. The claim for compensation is dismissed.
- Claim 9 – withdrawn
- Claim 10 – compensation for loss. These are the same losses as those for Mr Murray seeks to be indemnified against in Claim 6. The same analysis applies.
- Compensation can only be awarded where the other party has been shown 18 S.79(e) UTA 19 Limitation Act 1010 and s.77(1) RTA 20 Schedule 1 Unit Titles Regulations 2011 to have breached an obligation owed. I do not find it proved that Mr and Mrs Heintze breached such obligations.
- I have found that they are required to allow disconnection of the electricity supply to/ from their unit as required to allow necessary repair work on Unit A to be carried out. They have said during the hearing that they would not have opposed such a request.
- The evidence does not show that Mr Murray asked that he be able to disconnect the electrical supply to Unit B for a reasonable and limited period to enable repair work to be carried out. It shows that unjustified demands were made for removal and relocation of the electrical infrastructure.
- While it is prudent to ensure the safety of the situation, the evidence provided does not support Mr Murray’s contention that the electricity produced by the solar array means the wires through the Unit A ceiling cavity are always live with electricity flow unable to be disconnected. When questioned about that, the installer Solar King confirmed to Mr and Mrs Heintze in August 2025 that, “Hi Joelene, yes correct if your switches both of these switched off there will be no power in the system at all nothing from the panels to the inverter and nothing from the inverter to the DB,”
- Claim 11 – body corporate responsibilities. Mr Murray seeks a series of orders setting out the responsibilities of the Body Corporate and what should be noted in the minute book.
- I understand Mr Murray’s wish to have a functioning body corporate in place, fulfilling its obligations under the UTA. That needs to happen. I also understand Mr and Mrs Heintze’s trepidation about that. The limits on the Tribunal’s jurisdiction to achieve that through Orders, is largely set out in the discussion in the beginning of this Order.
- Specifically, in relation to Mr Murray’s requests: a. the Tribunal cannot make orders requiring amendment of the Titles; 21 b. it is for the Body Corporate chair to keep and distribute meeting minutes; c. for the reasons given, the evidence does not enable the Tribunal to assess whether the minutes Mr Murray wants added to the minute book are a record of properly passed resolutions; d. the duty of good faith applies to body corporate managers 22 I am not aware of any provision which give the Tribunal jurisdiction to require that a Unit Owner exercise their right to participate in body corporate meetings, vote at any such meetings or for that matter vote in any particular way; e. the Tribunal cannot deprive Mr and Mrs Heintze of their right to legal representation and require that they communicate with Mr Murray directly.
- Claim 12 – easement and associated costs. There has been much 21 S.171(4)(c) UTA 22 Schedule 1B Unit Titles Regulations 2011 discussion during the hearings about the question of whether there is an easement allowing Mr and Mrs Heintze to have the wires supplying electricity to Unit B pass through the ceiling cavity of Unit A.
- I find the position to be this: a. there is no evidence that the layout of the electrical infrastructure now, is different than when the development was built; b. wires conducting electricity to Unit B are wires necessary for the provision of electricity to a unit, and are infrastructure as defined in the
UTA
23 ; c. As such: i.Mr and Mrs Heintze have the right to take electricity through that infrastructure, “as if” there were an easement in place 24 ; ii.a registered easement is not required to protect that right; iii.maintenance of that wiring is not the responsibility of the Body Corporate as it is infrastructure serving only Unit B – that maintenance must fall to Mr and Mrs Heintze 25 ; iv.Mr Murray must maintain Unit A so as to prevent damage to that wiring infrastructure 26 : and must v.allow Mr and Mrs Heintze access to that wiring infrastructure to inspect/ repair it; 27 vi.Mr and Mrs Heintze must allow interruption of the electricity supply through those wires where required for any necessary renewal or repair work. 28
- Mr Murray claims that Mr and Mrs Heintze should pay compensation of $10,180.00 as the cost of repairing the roof and underlay where the electrical wires to Unit B pass through the Unit A ceiling cavity. The claim is made because as grantees of the easement they are responsible for arranging the repair and maintenance of the easement facility. 29
- If the ceiling cavity of Mr Murray’s unit is the “easement facility” for the purposes of the Land Transfer Regulations, Mr and Mrs Heintze do not have exclusive use and benefit from that facility, the required repair is to the roof and ceiling of Mr Murray’s unit, which he benefits from. The position is covered by s.80(1)(g) UTA, as noted above.
- If repair of the party wall is required, being a building element that serves both units, the repair would be the responsibility of the body corporate 30 and both unit owners may be required to contribute, by levy, to the cost. The 23 S.5 UTA 24 S.73(1)(b) and (3) UTA 25 S.138(1)(d) UTA 26 S.80(1)(g) UTA 27 Clause 12 Schedule 5 Land Transfer Regulations 2018 28 Clause 7(2) Schedule 5 Land Transfer Regulations 2018 29 Clause 11 Schedule 5 Land Transfer Regulations 2018 30 S.138(1)(d) UTA need for such repair is not proved here.
- Electrical Issues – other.
- Electricity distribution from the point of supply to both of the units, before the supply to Unit B alone, is infrastructure the Body Corporate is responsible to maintain. 31
- The report from Electra-Safe notes that: “a. MEN switchboard requires replacement with 30mA RCD; b. Meter board/ panel to have dedicated main switch to isolate individual ICP’s; c. Electrician to check for all wiring configuration as per ANZS 3000.”
- The report shows that: a. it is necessary to assess the electrical reticulation and carry out improvement work; and b. there is substance to Mr Murray’s concern about the compliance of the existing configuration.
- There was a suggestion at the hearing that the Tribunal should Order a registered electrician’s assessment and adjourn for further orders/ directions about implementation of the findings.
- While I understand the concern about how the parties will achieve what is necessary, given the state of their relationship and the non-functioning body corporate, the Tribunal cannot not “project manage” the performance of the body corporate’s statutory responsibilities. The Tribunal can only make an Order requiring that the legally responsible entity carry those responsibilities out.
- From a safety perspective it is fundamental that the mains electricity to Unit B through the wiring in the Unit A ceiling to Unit B and any “back flow” of electricity from the solar array can be turned off while any repair work is carried out. While the evidence does not prove that to be a risk, it is appropriate that a review of the electrical reticulation makes sure that is the case.
- Mr and Mrs Heintze confirmed during the hearing that they have no objection to allowing interruption of their electricity supply, while reasonably necessary for that repair work to ne done.
- Given the clear findings in this Order, I am not persuaded there is a need for an ongoing injunction preventing interference with the supply of services to Unit B. 31 S.138(1)(d) UTA
- Claim 13 – Costs. Mr and Mrs Heintze claim indemnity costs of $46,208.28
- The costs claim must be considered under the Tribunal’s general costs jurisdiction, provided by s.102 Residential Tenancies Act 1989 (“RTA”).
- Section 102(3)(b) RTA provides that in proceedings such as these, where a party is represented by counsel, “...the Tribunal may order a party to pay— (b) to another party, the reasonable costs of that other party in connection with the proceedings.”
- The following extract from Residential Tenancy Law in New Zealand - S. Benson (2018 Thompson Reuters NZ Limited), was cited with approval by the District Court in BC346799 v Ikeda 32 : “An award of costs for counsel is usually a reasonable contribution to legal costs, not full costs. The usual range is 40 to 70% of actual costs and factors to consider include the party’s success, length of hearing, amount involved, importance of the issues, complexity, urgency, time for effective preparation, any unnecessary steps, arguments without substance, abuse of process, poor presentation, whether hearing time was lengthened by a party’s conduct and, for guidance purposes the District Court’s scale of costs.”
- Those considerations largely mirror those outlined in Holden v Architectural Finishers Ltd 33 .
- Only costs incurred in connection with the proceedings can be taken into account. Legal costs incurred by Mr and Mrs Heintze for advice and representation before filing their application should not be considered. In Ikeda (above) at paragraph 7, the court noted, “I am of the view therefore that the word “proceedings” in s.102 encompasses the application to the Tribunal, any interlocutory matters that are dealt with by the Tribunal, preparation for the hearing and the actual hearing before the adjudicator, as being the proceeding that is amenable to a costs order”
- The fees invoice provided with Mr and Mrs Heinze’s application totals $5,188.87. It is for advice and steps taken prior to filing the application. In terms of Ikeda, I assess those as costs incurred prior to, not in connection with the proceedings, and should not be considered. That brings actual costs in connection with the proceedings to $41,019.41
- Costs follow the event. The Tribunal has upheld Mr and Mrs Heintze’s claims for in initial injunctive relief and for compensation for breach of their right to quiet enjoyment of their unit. Mr Murray’s cross applications identify legitimate concerns about the need for the body corporate to assess and upgrade the electrical infrastructure, which the Tribunal has attempted to address though this Order. He has raised understandable concerns about the dysfunction of the body corporate but for the most part has applied for Orders that cannot be made by the Tribunal. His claims against Mr and Mrs Heintze directly have 32 BC346799 v Ikeda [2020] NZDC 3669 33 Holden v Architectural Finishers Ltd [1997] 3 NZLR 143 been dismissed.
- While an order has been made to address the need for Mr Murray to be able to safely undertake work on his Unit, the evidence does not show that these proceedings were necessary to achieve that. The evidence does not prove the safety risk alleged or that Mr and Mrs Heintze wrongly impeded that work being done. It suggests that had an appropriate approach been made, Mr and Mrs Heintze would have consented to disconnection of the electricity to/ from their unit to enable repair work to be done safely.
- The costs of the proceedings were undoubtedly increased by the manner in which they were conducted by Mr Murray. Claims brought were far ranging and changing, very large quantities of material, much of it of little evidential value was filed sporadically, and claims were pursued despite the Tribunal expressing reservations, because of the implication for costs, about its ability to make the Orders sought.
- In terms of District Court scale costs as a comparison, these are matters of moderate legal complexity. I consider that 2B scale costs would be the appropriate comparison.
- The scale would suggest costs of the following order. StepTime allowance (days)Cost allowance Application1.5$3,975.00 Response to counter claim 1$2,650.00 Conference preparation (3 x .25) .75$2,013.75 Conference attendance (3 x .3) .9$2,385.00 Hearing preparation 1$2,650.00 Hearing attendance.5$1,325.00 Additional steps (obtaining Tribunal directed evidence) 1$2,650.00 Submission preparation12,650.00 Total$20,308.75
- My view is that scale costs would not adequately recognise the additional work required of counsel for Mr and Mrs Heintze to respond to Mr Murray’s claims and the way they were pursued.
- In the context of this difficult matter, while I do not find that indemnity costs should be awarded, a reasonable costs award would be $25,000.00 approximating 1.25 x scale costs and a little over 60% of actual costs. That is appropriately within but at the higher end of the recognised range.
- As Mr and Mrs Heintze have substantially succeeded, I reimburse their filing fee.