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Tenancy Tribunal case 9068124 — Leaks in Auckland Central, Auckland

Decided 4 Sept 2026 · Published 4 Sept 2026 · Application 9068124

Leaks
Unit Titles

View official order on MoJ →Explore similar cases

At a glance

Key facts from the published tribunal order.

Location

Auckland

Tribunal region

Adjudicator

R Woodhouse

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

No individual claim amounts were reconciled for this order. View the official Ministry of Justice PDF for full detail.

Order

The application is dismissed.

Reasons

The Tribunal must consider an application filed a unit owner, seeking orders in relation a water leak that arose from flooding, and heavy rainfall events. The applicants position is that either the body corporate or neighbouring principal unit owner has not done enough to avoid the water ingress, and should therefore be liable for the cost of assessing, and waterproofing the inside of the applicants unit, and undertaking other works around avoiding future flooding.
All parties appeared at the hearing today. Mr Turley attended for the applicant company, Snug Harbour Limited. Ms Toan appeared as counsel for the Body Corporate, and Messrs Dyson and and Koulanov appeared representing the owners of the neighbouring unit, PU1000B.

BACKGROUND

This application follows previous orders from the Tribunal in relation to these premises and parties, and the background is set out in more detail in those earlier orders.
In short however, the premises are known as the ‘Victoria Park Markets’ (VPM), and are unit titled premises.
The applicant is Snug Harbour Limited (‘SNL’), which owns one of the commercial units in the complex, known as Principal Unit 23 (‘PU23’). SNL is represented by its director, Mr Turley.
The overall complex is unusual, because while there are extensive public areas like walk ways around the complex, those areas are not common property as would normally be the case in a unit titled development like this, rather they are a separate principal unit owned by VPM Investments Limited and the Dysons, that unit is known as Principal Unit 1000B (‘PU1000B’), and in this decision that is how I will refer to it. Flooding events
I am advised there is a history of flooding at the complex, but in terms of this dispute there is a focus on flooding which occurred on 8 December 2023, from a burst water main on Drake Street. For the avoidance of doubt, there is no suggestion that the body corporate was responsible for that burst main.
Also there was flooding following the significant weather events in January and February 2023.
Photographs of the flooding have been provided, and confirm water inside PU23, which is an office, around shin height.
A claim was made on the unit owners insurance policy, and the insurer covered the damage and remediation costs, those are not in dispute in this claim. Rather, this claim relates to work to the building, to address the underlying cause of the leak. Assessment of cause
It was discovered that the source of the water ingress, was a hole in the wall between PU23, and PU1000B.
SNL engaged Forensic Building Consultants Limited to assess the building for the likely cause of the water ingress. I have been provided a report from Glynn Robertson dated 11 March 2024. The report only has limited discussion around any defects with the wall, which allowed water entry, but noting that water was coming through a void behind the rear wall of unit 23. A recommendation was made to fill the void with a resin product. Work undertaken by SNL and the Body Corporate
I am not certain of the precise date, but on or around October 2024, SNL had a waterproofing membrane installed to the computer room, to prevent further water ingress occurring.
The Body Corporate also moved the vent that was in SNL’s unit.
On 19 May 2025, SNL filed this application with the Tribunal.

APPLICANTS CLAIMS

Mr Turley submitted that there is a history of flooding at the premises.
There was a water main on Drake Street which burst. Because of the nature of the wider premises, the water flowed toward his unit flooding into his unit. While this was covered by insurance, the insurer advised that they expected that the cause of the water ingress needed to be addressed.
Mr Turley also referred to flooding from weather events.
Mr Turley accepted that he could have blocked the vent from which the water entered his unit himself, but he was not sure what the result of that would be, that is, whether it would cause other problems.
Mr Turley states that he engaged with the Body Corporate around the vent and leak, including with the manager of PU1000B, and when no action was being taken, he considered there was an obligation that he mitigate the risk which he did.
Mr Turley states that ultimately the vent was moved further along the building, to a different location of the building that was acceptable to him.
It was submitted that the Body Corporate should be responsible for the works he undertook and need doing, and the associated costs, and if they deem it right to do so, on charge that to the owners of PU1000B.
In his concluding submissions (responding to the below arguments and evidence), Mr Turley submitted that it was not an excuse for the Respondents to simply point to this as an issue from ‘weather’.
Mr Turley disputes that the Body Corporate has spent disproportionately large sums on his unit.
It was submitted that the Body Corporate appears to accept it was responsible for addressing the vent hole.
Mr Turley states that when he did the repair, he did so not knowing what the Body Corporate was doing given the delays, and his concern around his mitigation obligation.
SNL seeks orders as follows: a. Compensation totalling $11,271.32 as follows: i. Membrane application $3,706.48 ii. Tenant costs $2,276.74 iii. Building consultant report $5,288.10 b. Interest c. Order for the installation of backflow protection d. Order to fix the vents on PU 23 that leak e. Costs f. Any other order the Tribunal deems fit.

BODY CORPORATES CASE

Ms Toan submitted that the outer part of the exterior wall is owned by PU1000B.
The Body Corporates duty is to repair and maintain building elements and infrastructure that relate to or serve more than one unit.
However, what SNL is seeking is not a repair or maintenance, but an improvement.
Further, the flooding was from a ruptured pipe or extreme weather event, it was not within the ability of the Body Corporate’s ability to control that.
There is no ability to reimburse unit owners for their own improvement works.
The Body Corporate does not take responsibility for the sealing work that were undertaken, but the Body Corporate has undertaken work to move the vent.
The Body Corporate Chair, Andrew Moore, attended the hearing where he gave evidence, setting out the history of the site, including noting that the building is found in the lowest part of the Auckland CBD, and flooding has been an issue for centuries.
Mr Moore considers that the Body Corporate has been proactive with work, including filling the hole in the wall that was discovered, and moving it. Other work was undertaken at the Body Corporates cost. Mr Moore does not consider it is the Body Corporate’s responsibility to upgrade the SNL unit computer room by sealing the walls.
When the building was built in 1905 there was no water proofing, and it was built to the standards of the time. PU1000B’ CASE
At the relevant times, the premises were managed by Barfoot & Thompson. The owners also set out their assessment of the interpersonal relationships between the parties. Mr Dyson notes that decision are made by a committee of seven members.
Note was made that when there is flooding, it affects other units as well, not only SNL’s unit.
Otherwise, the owners of PU1000B agree with the position advanced by Ms Toan.

ANALYSIS

There is no dispute between the parties that there has been water ingress in PU 23. The body corporate does not dispute that it has obligations around water ingress, and it has taken some actions to make changes to the building in that regard. However, the respondents oppose the current claims which relate to costs for additional building work, the assessment report, and sealing the inside of the unit.

What are the obligations on the Body Corporate?

Section 138(1) sets out the duties bodies corporate have around repairs and maintenance: 1 138 Body corporate duties of repair and maintenance (1) 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 1 I note that SNL’s written submissions include a ‘quotation’ of section 138(1), which is not at all correct. (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.
In the circumstances of this case, it is only section 138(1)(d) that would be relevant, because the portion of the building in question is owned by SNL and PU1000B (not the Body Corporate nor is it common property). The question then becomes, whether the relevant parts of the building would be classed as a building element or infrastructure, and whether it served more than one unit.
The term ‘Building elements’ is defined in the interpretation section of the UTA 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
The term ‘Infrastructure’ is defined as: infrastructure includes pipes, wires, ducts, conduits, gutters, watercourses, cables, channels, flues, conducting, or transmission equipment necessary for the provision of water, sewerage, drainage, stormwater removal, gas, electricity, oil, shelter, protection from fire, security, rubbish collection, air, telephone connection, Internet access, radio reception, television reception, or any other services or utilities to or from a unit or to or from the common property
To the question of whether the water is entering PU23 from a building element or infrastructure, the answer must be ‘yes’. But that does not necessarily mean an order must be made in favour of SNL.
What is notable about this case, is that the Tribunal has been provided with very limited technical information, the only independent evidence I have available is the report from Forensic Building Consultants Limited.
I note at this juncture, that the onus sits with SNL to establish its claims, that is, SNL must provide sufficient evidence and argument to support that the orders requested should be made. As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
As far as the claims are concerned, SNL have not proven that the orders should be made for these reasons.
The first claim is for reimbursement of costs associated with sealing the inside of PU23.
The first problem that SNL face, is that I have not received any evidence from a suitably qualified expert, showing that the sealing work was necessary in order to remedy a breach on the part of either the Body Corporate, or PU1000B. The fact there was water ingress off PU1000B and through a building element that is the responsibility of the Body Corporate, does not of itself prove a breach of an obligation to SNL, such as a being a failure to repair or maintain.
I note an email from 1 October 2024, from Mr Turley to the body corporate manager, in which Mr Turley states “100% this is not a repair, it is a mitigation. It protects the servers in the server room, inside my unit”
The sealing was undertaken by way of a mitigation strategy, in the event future flooding should occur. There is no provision within the UTA which requires a body corporate, or neighbour to undertake mitigation strategies. Certainly the body corporate has a duty to repair and maintain, but that would not extend to mitigation measures. Mr Turley would need to establish that the sealing work was necessary to address a breach of the body corporate duty around repairing and maintaining a building element or infrastructure, and he has not established that. Again, I have received no expert evidence which identifies that this work was required for that purpose. I agree with Ms Toan that the sealing work was most likely an improvement to PU 23.
SNL submit that it reasonably undertook the membrane work, because the body corporate was not responding with sufficient pace. Reference is made to Blumberg v Frucor Beverages Ltd [2018 NZHC 1876. However, that decision supports the conclusion that recovery of mitigation expenses are only available after liability and cause or loss is first established. That means, there first needs to be proven that either the body corporate, or PU1000B, were legally responsible for the underlying defect, and that the membrane work was a reasonable response to that breach, and for the above reasons, that has not been established.
Putting that to one side, on the basis of the information valuable, I have been unable to identify any particular defect with the building from which the other claimed work could be ordered. Undoubtedly flooding occurred with two events that were outside the control of the body corporate, that was a burst council water main, and an exceptional weather event. Buildings are not designed and constructed with an intention to avoid events like burst water mains. But buildings are designed to withstand weather events, however in this case I have not seen any evidence to show that there is a fundamental defect with the building, which would require repair or maintenance.
I note that from the weather event events in January and February 2023, a great many buildings around Auckland flooded, and many of those buildings met all of the necessary building standards.
I understand that water entered PU23 via a vent, which was presumably put into the wall at the time of construction, intentionally. Again, I have not received evidence to show that the vent was improperly installed, or designed, or that it was not doing what it was designed to do.
For those reasons alone, the claims cannot succeed. Rylands v Fletcher argument
In his written submissions, Mr Turley submits that the case of Rylands v Fletcher is authority for the proposition that a owner of land, is responsible for any harm arising from things that are brought onto the land.
Normally to found a strict liability claim using the rule of Rylands v Fletcher, it is necessary to established that: a. The respondent brought onto or accumulated something on its land for its own purposes; and b. The thing was likely to cause mischief if it escaped; and c. The respondent's use of the land was a non-natural or extraordinary use, involving a special use that brought with it an increased danger to others; and d. Thing escaped and caused the relevant damage; and. e. The type of damage suffered was reasonably foreseeable.
I cannot see that SNL have proven that PU1000B brought the stormwater or flood water onto its land, or accumulated it for its own purpose. I am also not persuaded that it could be said that PU1000B’s use of the land was extraordinary, unusual, or non-natural, and certainly I cannot see that is used the land in a way which brought with it an increased danger to others. Recovery of costs
Given my above finding, the claim cannot succeed. However, before I conclude I make the observation that even if SNL were successful in its claim, it may have ended up paying for the works undertaken inside PU23 in any event.
Relevantly, when a body corporate undertakes repairs or maintenance to a building element or infrastructure that is within a principal unit, which is the case here, then the body corporate can recover the cost for that work, from that unit owner. That is confirmed in the section 138(4) of the UTA, which relates to the body corporate duty of repair and maintenance: Any costs incurred by the body corporate that relate to repairs to or maintenance of building elements and infrastructure contained in a principal unit are recoverable by the body corporate from the owner of that unit as a debt due to the body corporate (less any amount already paid) by the person who was the unit owner at the time the expense was incurred or by the person Costs
If there are any issues around costs, then the parties should try to resolve that directly. In the event an order is needed, then the Body Corporate may file written submissions no longer that 4 pages and within 20 working days of the date of this order, and then SNL may provide a response submission, also no more than 4 pages in length, and within 10 working days, and I will address the matter on the papers following.

Topics & place

Topics are dispute themes across the order (not the same as claim-type money lines).

Leaks Unit Titles Auckland

Residential Tenancies Act sections

s0800, s1, s138(1), s138(4), s16, s40, s61, s63, s7

Key findings

Dispute theme: leaks
Dispute theme: unit titles

Property management

SNUG HARBOUR LIMITED (applicant)
VPM INVESTMENTS LIMITED (respondent)

Frequently asked questions

Common questions about this Tenancy Tribunal case.

What was Tenancy Tribunal case 9068124 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9068124?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9068124?

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

Where can I read the official tribunal order for case 9068124?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/14166350-Tribunal_Order.pdf.

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Reasons

The Tribunal must consider an application filed a unit owner, seeking orders in relation a water leak that arose from flooding, and heavy rainfall events. The applicants position is that either the body corporate or neighbouring principal unit owner has not done enough to avoid the water ingress, and should therefore be liable for the cost of assessing, and waterproofing the inside of the applicants unit, and undertaking other works around avoiding future flooding.

All parties appeared at the hearing today. Mr Turley attended for the applicant company, Snug Harbour Limited. Ms Toan appeared as counsel for the Body Corporate, and Messrs Dyson and and Koulanov appeared representing the owners of the neighbouring unit, PU1000B.

BACKGROUND

This application follows previous orders from the Tribunal in relation to these premises and parties, and the background is set out in more detail in those earlier orders.

In short however, the premises are known as the ‘Victoria Park Markets’ (VPM), and are unit titled premises.

The applicant is Snug Harbour Limited (‘SNL’), which owns one of the commercial units in the complex, known as Principal Unit 23 (‘PU23’). SNL is represented by its director, Mr Turley.

The overall complex is unusual, because while there are extensive public areas like walk ways around the complex, those areas are not common property as would normally be the case in a unit titled development like this, rather they are a separate principal unit owned by VPM Investments Limited and the Dysons, that unit is known as Principal Unit 1000B (‘PU1000B’), and in this decision that is how I will refer to it. Flooding events

I am advised there is a history of flooding at the complex, but in terms of this dispute there is a focus on flooding which occurred on 8 December 2023, from a burst water main on Drake Street. For the avoidance of doubt, there is no suggestion that the body corporate was responsible for that burst main.

Also there was flooding following the significant weather events in January and February 2023.

Photographs of the flooding have been provided, and confirm water inside PU23, which is an office, around shin height.

A claim was made on the unit owners insurance policy, and the insurer covered the damage and remediation costs, those are not in dispute in this claim. Rather, this claim relates to work to the building, to address the underlying cause of the leak. Assessment of cause

It was discovered that the source of the water ingress, was a hole in the wall between PU23, and PU1000B.

SNL engaged Forensic Building Consultants Limited to assess the building for the likely cause of the water ingress. I have been provided a report from Glynn Robertson dated 11 March 2024. The report only has limited discussion around any defects with the wall, which allowed water entry, but noting that water was coming through a void behind the rear wall of unit 23. A recommendation was made to fill the void with a resin product. Work undertaken by SNL and the Body Corporate

I am not certain of the precise date, but on or around October 2024, SNL had a waterproofing membrane installed to the computer room, to prevent further water ingress occurring.

The Body Corporate also moved the vent that was in SNL’s unit.

On 19 May 2025, SNL filed this application with the Tribunal.

APPLICANTS CLAIMS

Mr Turley submitted that there is a history of flooding at the premises.

There was a water main on Drake Street which burst. Because of the nature of the wider premises, the water flowed toward his unit flooding into his unit. While this was covered by insurance, the insurer advised that they expected that the cause of the water ingress needed to be addressed.

Mr Turley also referred to flooding from weather events.

Mr Turley accepted that he could have blocked the vent from which the water entered his unit himself, but he was not sure what the result of that would be, that is, whether it would cause other problems.

Mr Turley states that he engaged with the Body Corporate around the vent and leak, including with the manager of PU1000B, and when no action was being taken, he considered there was an obligation that he mitigate the risk which he did.

Mr Turley states that ultimately the vent was moved further along the building, to a different location of the building that was acceptable to him.

It was submitted that the Body Corporate should be responsible for the works he undertook and need doing, and the associated costs, and if they deem it right to do so, on charge that to the owners of PU1000B.

In his concluding submissions (responding to the below arguments and evidence), Mr Turley submitted that it was not an excuse for the Respondents to simply point to this as an issue from ‘weather’.

Mr Turley disputes that the Body Corporate has spent disproportionately large sums on his unit.

It was submitted that the Body Corporate appears to accept it was responsible for addressing the vent hole.

Mr Turley states that when he did the repair, he did so not knowing what the Body Corporate was doing given the delays, and his concern around his mitigation obligation.

SNL seeks orders as follows: a. Compensation totalling $11,271.32 as follows: i. Membrane application $3,706.48 ii. Tenant costs $2,276.74 iii. Building consultant report $5,288.10 b. Interest c. Order for the installation of backflow protection d. Order to fix the vents on PU 23 that leak e. Costs f. Any other order the Tribunal deems fit.

BODY CORPORATES CASE

Ms Toan submitted that the outer part of the exterior wall is owned by PU1000B.

The Body Corporates duty is to repair and maintain building elements and infrastructure that relate to or serve more than one unit.

However, what SNL is seeking is not a repair or maintenance, but an improvement.

Further, the flooding was from a ruptured pipe or extreme weather event, it was not within the ability of the Body Corporate’s ability to control that.

There is no ability to reimburse unit owners for their own improvement works.

The Body Corporate does not take responsibility for the sealing work that were undertaken, but the Body Corporate has undertaken work to move the vent.

The Body Corporate Chair, Andrew Moore, attended the hearing where he gave evidence, setting out the history of the site, including noting that the building is found in the lowest part of the Auckland CBD, and flooding has been an issue for centuries.

Mr Moore considers that the Body Corporate has been proactive with work, including filling the hole in the wall that was discovered, and moving it. Other work was undertaken at the Body Corporates cost. Mr Moore does not consider it is the Body Corporate’s responsibility to upgrade the SNL unit computer room by sealing the walls.

When the building was built in 1905 there was no water proofing, and it was built to the standards of the time. PU1000B’ CASE

At the relevant times, the premises were managed by Barfoot & Thompson. The owners also set out their assessment of the interpersonal relationships between the parties. Mr Dyson notes that decision are made by a committee of seven members.

Note was made that when there is flooding, it affects other units as well, not only SNL’s unit.

Otherwise, the owners of PU1000B agree with the position advanced by Ms Toan.

ANALYSIS

There is no dispute between the parties that there has been water ingress in PU 23. The body corporate does not dispute that it has obligations around water ingress, and it has taken some actions to make changes to the building in that regard. However, the respondents oppose the current claims which relate to costs for additional building work, the assessment report, and sealing the inside of the unit.

What are the obligations on the Body Corporate?

Section 138(1) sets out the duties bodies corporate have around repairs and maintenance: 1 138 Body corporate duties of repair and maintenance (1) 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 1 I note that SNL’s written submissions include a ‘quotation’ of section 138(1), which is not at all correct. (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.

In the circumstances of this case, it is only section 138(1)(d) that would be relevant, because the portion of the building in question is owned by SNL and PU1000B (not the Body Corporate nor is it common property). The question then becomes, whether the relevant parts of the building would be classed as a building element or infrastructure, and whether it served more than one unit.

The term ‘Building elements’ is defined in the interpretation section of the UTA 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

The term ‘Infrastructure’ is defined as: infrastructure includes pipes, wires, ducts, conduits, gutters, watercourses, cables, channels, flues, conducting, or transmission equipment necessary for the provision of water, sewerage, drainage, stormwater removal, gas, electricity, oil, shelter, protection from fire, security, rubbish collection, air, telephone connection, Internet access, radio reception, television reception, or any other services or utilities to or from a unit or to or from the common property

To the question of whether the water is entering PU23 from a building element or infrastructure, the answer must be ‘yes’. But that does not necessarily mean an order must be made in favour of SNL.

What is notable about this case, is that the Tribunal has been provided with very limited technical information, the only independent evidence I have available is the report from Forensic Building Consultants Limited.

I note at this juncture, that the onus sits with SNL to establish its claims, that is, SNL must provide sufficient evidence and argument to support that the orders requested should be made. As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

As far as the claims are concerned, SNL have not proven that the orders should be made for these reasons.

The first claim is for reimbursement of costs associated with sealing the inside of PU23.

The first problem that SNL face, is that I have not received any evidence from a suitably qualified expert, showing that the sealing work was necessary in order to remedy a breach on the part of either the Body Corporate, or PU1000B. The fact there was water ingress off PU1000B and through a building element that is the responsibility of the Body Corporate, does not of itself prove a breach of an obligation to SNL, such as a being a failure to repair or maintain.

I note an email from 1 October 2024, from Mr Turley to the body corporate manager, in which Mr Turley states “100% this is not a repair, it is a mitigation. It protects the servers in the server room, inside my unit”

The sealing was undertaken by way of a mitigation strategy, in the event future flooding should occur. There is no provision within the UTA which requires a body corporate, or neighbour to undertake mitigation strategies. Certainly the body corporate has a duty to repair and maintain, but that would not extend to mitigation measures. Mr Turley would need to establish that the sealing work was necessary to address a breach of the body corporate duty around repairing and maintaining a building element or infrastructure, and he has not established that. Again, I have received no expert evidence which identifies that this work was required for that purpose. I agree with Ms Toan that the sealing work was most likely an improvement to PU 23.

SNL submit that it reasonably undertook the membrane work, because the body corporate was not responding with sufficient pace. Reference is made to Blumberg v Frucor Beverages Ltd [2018 NZHC 1876. However, that decision supports the conclusion that recovery of mitigation expenses are only available after liability and cause or loss is first established. That means, there first needs to be proven that either the body corporate, or PU1000B, were legally responsible for the underlying defect, and that the membrane work was a reasonable response to that breach, and for the above reasons, that has not been established.

Putting that to one side, on the basis of the information valuable, I have been unable to identify any particular defect with the building from which the other claimed work could be ordered. Undoubtedly flooding occurred with two events that were outside the control of the body corporate, that was a burst council water main, and an exceptional weather event. Buildings are not designed and constructed with an intention to avoid events like burst water mains. But buildings are designed to withstand weather events, however in this case I have not seen any evidence to show that there is a fundamental defect with the building, which would require repair or maintenance.

I note that from the weather event events in January and February 2023, a great many buildings around Auckland flooded, and many of those buildings met all of the necessary building standards.

I understand that water entered PU23 via a vent, which was presumably put into the wall at the time of construction, intentionally. Again, I have not received evidence to show that the vent was improperly installed, or designed, or that it was not doing what it was designed to do.

For those reasons alone, the claims cannot succeed. Rylands v Fletcher argument

In his written submissions, Mr Turley submits that the case of Rylands v Fletcher is authority for the proposition that a owner of land, is responsible for any harm arising from things that are brought onto the land.

Normally to found a strict liability claim using the rule of Rylands v Fletcher, it is necessary to established that: a. The respondent brought onto or accumulated something on its land for its own purposes; and b. The thing was likely to cause mischief if it escaped; and c. The respondent's use of the land was a non-natural or extraordinary use, involving a special use that brought with it an increased danger to others; and d. Thing escaped and caused the relevant damage; and. e. The type of damage suffered was reasonably foreseeable.

I cannot see that SNL have proven that PU1000B brought the stormwater or flood water onto its land, or accumulated it for its own purpose. I am also not persuaded that it could be said that PU1000B’s use of the land was extraordinary, unusual, or non-natural, and certainly I cannot see that is used the land in a way which brought with it an increased danger to others. Recovery of costs

Given my above finding, the claim cannot succeed. However, before I conclude I make the observation that even if SNL were successful in its claim, it may have ended up paying for the works undertaken inside PU23 in any event.

Relevantly, when a body corporate undertakes repairs or maintenance to a building element or infrastructure that is within a principal unit, which is the case here, then the body corporate can recover the cost for that work, from that unit owner. That is confirmed in the section 138(4) of the UTA, which relates to the body corporate duty of repair and maintenance: Any costs incurred by the body corporate that relate to repairs to or maintenance of building elements and infrastructure contained in a principal unit are recoverable by the body corporate from the owner of that unit as a debt due to the body corporate (less any amount already paid) by the person who was the unit owner at the time the expense was incurred or by the person Costs

If there are any issues around costs, then the parties should try to resolve that directly. In the event an order is needed, then the Body Corporate may file written submissions no longer that 4 pages and within 20 working days of the date of this order, and then SNL may provide a response submission, also no more than 4 pages in length, and within 10 working days, and I will address the matter on the papers following.