Published tribunal order
Tenancy Tribunal case 9066924 — Unit Titles in Te Aro, Wellington
Decided 15 Apr 2026 · Published 15 Apr 2026 · Application 9066924
- Unit Titles
Order
- The application for rehearing filed by [The party] is dismissed.
- [The party] must pay Strata Title Administration Limited the sum of $6,414.13 immediately, being legal costs.
Reasons
- This dispute relates to an application filed by a unit owner ([The party]) against a body corporate manager Strata Title Administration Limited (or “the Manager”).
- Ms Dai applied for a range of orders against the Manager, which broadly related to various declarations or findings of wrongdoing on the part of the Manager.
- A hearing was convened on 5 March 2026 to consider the applications. The Manager was legally represented at the hearing.
- A decision was issued that same day. All Ms Dai’s applications were unsuccessful. In short, all applications related to matters that the body corporate was responsible for, not the Manager.
- The Manager has applied for costs. Ms Dai has applied for a rehearing. I set timetabling for submissions to be filed so both matters could be determined on the papers concurrently.
REHEARING APPLICATION
Unit owner’s submissions on rehearing
- Ms Dai filed submissions setting out why a rehearing should be granted, as follows: a. The Tribunal was wrong in concluding that the application should have been against the Body Corporate, rather than the Manager. b. Ms Dai has a right to file a claim in negligence against the Manager. c. The Manager has not proved it has a contract with the Body Corproate. d. The Manager was using an email address for Ms Dai, they knew Ms Dai was blocking. e. The notice for the body corporate meeting was not served and is invalid. f. New evidence is available to show that the Manager and its representative have acted in an improper and offensive way. Manager’s submissions on rehearing
- In short, the Manager’s position is that there is no basis to approve a rehearing. I record that Mr MacFadyen has addressed the specific points Ms Dai raised for seeking a rehearing. Analysis
- The Tribunal must consider whether a rehearing can be granted.
- Section 105 of the Residential Tenancies Act 1986 relates to rehearings. Subsection 1 confirms that: The Tribunal shall in all proceedings have the power to order a rehearing of the whole or any part of the proceedings on the ground that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur.
- The applicant need not establish an actual miscarriage of justice or substantial wrong, only that it may have occurred. However, in the District Court Judgment of Wellington City Council v McMillan [2003] DCR 50, Judge Tuohy held that the statutory language set a high standard, and that: [18] ... They most obviously apply ... to cases of procedural error eg a hearing which takes place in the absence of a party who has not been given notice of it; the improper admission or rejection of evidence; misconduct by the adjudicator or by one of the parties or a witness. The words may also encompass the discovery of new and important evidence not previously available. [19] In my view, however, the words do not cover a complaint that the Tribunal was merely mistaken or wrong in its findings of fact or in its application of the law. There are two reasons for this. First the strength of the language in s 105 is such that something more than a mere wrong decision must be shown. The section does not speak of a decision being wrong, but of a substantial wrong or miscarriage of justice occurring. This implies obvious injustice, not merely an erroneous decision. [20] Secondly, if a mere erroneous decision is enough, whether the error is factual or legal or both, it would enable parties to in effect appeal any decision twice: once to the very Tribunal which made it by way of an application for rehearing, and then again to the District Court against the grant or refusal of the application for rehearing. Not only does that offend the general hierarchical nature of the appeal system, it would also make the time limit for filing notice of appeal against an original decision nugatory.”
- As noted by Judge Christiansen in the District Court appeal of Loh v Puri [2019] NZDC 1993: In this Court’s view the Tribunal’s reasons for refusing a rehearing are correct. Rehearings are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.
- A rehearing may also be granted where there is new evidence that was not reasonably available at the first hearing, if it could have affected the outcome. In Jemma Trust v Rutherford (DC North Shore, CIV-2009-044-2056, 11 December 1999), the District Court quoted an extract from the Court of Appeal outlining the relevant considerations: The principles upon which further evidence is admitted are designed to balance the interests of the person seeking to adduce such evidence on the one hand with the interests of the opposite party is on the other. They are also designed to reflect the public interest in ensuring, so far as is possible, that parties put up their best case at trial. Any other approach would be very wasteful of public resources. The conventional requirements are that the further evidence must be fresh, it must be credible and it must be cogent. Evidence is not regarded as fresh if it could with reasonable diligence have been produced at the trial....While the absence of freshness is not an absolute disqualification, the criteria for admission in such circumstances must be very strict. In our view, when the evidence is not fresh it should not be admitted unless the circumstances are exceptional and the grounds compelling.
- I have carefully considered Ms Dai’s application for rehearing, and find it must be dismissed. I am not persuaded that Ms Dai’s application for rehearing identifies any procedural issue that arose in the hearing, for which a substantial wrong or miscarriage of justice may have arisen.
- What Ms Dai has done with her arguments for rehearing is to seek to relitigate the matters that were the subject of the Tribunal’s order from 5 March 2026. A rehearing cannot be used for that purpose. If Ms Dai wants to argue that the Tribunal’s assessment of the evidence or law, or conclusions were wrong, then she needed to appeal the 5 March 2026 order to the District Court.
- In terms of the new evidence that Ms Dai has referred to, I do not accept that is relevant evidence, and it certainly does not get around the primary reason Ms Dai failed in her application, which was that she is bringing proceedings against the wrong party. Again, if Ms Dai is aggrieved with what the Manager has done (which clearly she is), then it is the Body Corporate she needs to raise that with, and if not satisfied with what they say, then the Body Corporate would be the correct respondent if a claim was lodged with the Tribunal. However I wish to emphasise that in saying that, I am expressing no view as to the merits of such a complaint or claim.
- There is no basis to grant a rehearing, the rehearing application is dismissed.
COSTS APPLICATION
Manager’s submissions on costs
- The Manager seeks an order of costs at 2/3rds of the costs incurred, totalling $9,630.82. The time recordings are provided.
- The Manager has not provided a submission, but simply refers to another Tribunal decision. Ms Dai’s submissions on costs
- Ms Dai submitted that Mr MacFadyen represented the Manager as an Agent rather than as a legal representative. No consent was granted by the Tribunal for legal representation.
- Ms Dai also submitted that the dispute ought to have been resolved at mediation, but the Manager refused to undergo mediation. Analysis
- The Manager was the successful party from the substantive application, and has applied for costs.
- The Unit Titles Act 2010 (UTA) refers to the Residential Tenancies Act 1986 (RTA) as it relates to dispute resolution, and in particular, section 176 of the UTA confirms that part 3 of the RTA applies to the UTA.
- Part 3 of the RTA relates to the Tenancy Tribunal, and that includes at section 102, ‘Costs’.
- Section 102 confirms that costs are only available in limited circumstances, and that includes ”where any of the parties was represented by counsel”.
- In this case, the Manager was legally represented at the hearing by Price Baker Berridge – a law firm, and I accept that Mr MacFadyen who appeared from Price Baker Berridge, is a legal practitioner.
- Returning to the UTA, section 171, which relates to the jurisdiction of the Tenancy Tribunal, confirms that: Any person listed in subsection (2) may, by notice in writing to the Tribunal, appoint an agent to act on his or her or its behalf in relation to a dispute.
- The point Ms Dai makes, is that Mr MacFadyen appeared as an agent, not as a representative, therefore costs under section 102 cannot be ordered.
- I am not persuaded that such conclusion can be reached. There is no reason that I can see, that a person appearing as an agent, cannot also be counsel, meaning a lawyer. Strictly, the difference between the two roles is that an agent has authority to bind its principal, whereas a representative does not necessarily have that authority. To put that another way, and agent has greater authority than a representative.
- But in any event, section 102 does not limit orders of costs to representatives not agents, it limits the order to counsel – which I accept Mr MacFadyen is.
- Even if that were not the case, I would have made the costs order claimed, because I consider this application against the manager should not have been brought, because see was seeking orders from someone she had no legal relationship with.
- Ms Dai submits that costs should be declined, because the matter ought to have been resolved at mediation. I am not convinced there was any prospect of a mediated resolution. Ms Dai is convinced her position is correct, which is confirmed given the application for rehearing she has filed, where she still maintains her position is right. The only way that a mediation could have resolved the dispute is if the Manager had entirely capitulated to the claim, which would seem unjust given the Tribunal’s finding that there were no grounds to bring proceedings against the Manager.
- Even if that were not the case, the relevant provision of section 102 in full is: where, in the opinion of the Tribunal, the matter in dispute ought reasonably to have been settled before the Tenancy Mediator but that the party against whom the order is to be made refused, without reasonable excuse, to take part in proceedings before a Tenancy Mediator or acted in any such proceedings in a contemptuous or improper manner:
- In this case the order was not made against the Manager; it was made against Ms Dai.
- I find therefore that costs can and should be ordered, as costs normally follow the outcome. There is a presumption that where a party is represented by counsel, costs are awarded if claimed.
- It is unusual for a Tribunal or Court in New Zealand to award full indemnity costs against the losing party. What is considered to be ‘reasonable costs’ will depend on a range of factors. In Holden v Architectural Finishes Ltd [1997] 3 NZLR 143 Justice McGechan, in his reserved costs decision, held that: ...the sum in issue is a ‘reasonable’ ‘contribution’. It is not some mere gesture. It is not some virtual payment in full. It is merely a contribution, and a reasonable one. At the outer limits, proportions of reasonable actual fees can afford some guidance. A 10% or even 20% contribution – very little indeed – may seldom qualify. A 90% or 80% contribution, virtually the total, may be regarded as likewise...if the ‘reasonable contribution’ earlier determined falls within a middle range, say 40% to 70%,there is a feeling of some comfort...
- The High Court confirmed that when a party is represented by counsel, the following factors are relevant to be considered when assessing the amout to be ordered: a. The length of the hearing. b. The sum of money involved. c. The legal and factual complexity. d. Whether the argument lacking substance was advanced, and e. The degree of success achieved by the parties.
- Similarly in the judgment of David Blair Ltd v Hawkins Arms and Engineering Ltd (No 2) [1988] 1 PRNZ 162, Tompkins J considered a costs issue where the party was represented, and held: In addition to the length of the hearing, matters such as the amount of money involved, the importance either to the parties or generally of the issues, monetary or non monetary, the legal and factual complexities, the amount of time required for effective preparation, the number and complexity of interlocutory applications and the likely or actual solicitor and client costs incurred, may, in appropriate cases, be relevant to the exercise of the discretion.
- Taking the above factors into account, I conclude as follows: a. The hearing was scheduled for a half day. b. This was not a money claim, but there were important matters at stake for the Manager and Ms Dai for that matter. c. The matter had reasonable legal complexity, I am not surprised that the Manager appointed legal counsel. Furthermore, given the approach Ms Dai has taken toward the Manager, it was reasonable for the Manager to seek to have counsel appear as an intermediary. d. All of the Ms Dai’s arguments lacked substance. e. The Manager had complete success in defending the claim.
- In this case the manager seeks a contribution of two-thirds of its costs (66.6%). Taking the above considerations into account, I consider that the request is fair.
- I also consider that the total amount of the costs incurred, that is $9,630.82, is unsurprising. Taking account of what has been recorded in the time recording, those all seem like reasonable steps, and even when I step back, there is nothing surprising about that level of costs in this case.
- The Manager’s costs claim is ordered in full (that is 66% of the total costs).