Tenantcheck Insights
Tenantcheck Insights · Case study
Decided 15 Jul 2026 · Published 15 Jul 2026 · Application 9073624
Key facts from the published tribunal order.
Location
Wellington
Tribunal region
Adjudicator
R Woodhouse
What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.
Tenantcheck Insights · Case study
Decided 15 Jul 2026 · Published 15 Jul 2026 · Application 9073624
Key facts from the published tribunal order.
Location
Wellington
Tribunal region
Adjudicator
R Woodhouse
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.
[19] This leaves the question whether the defence of the legal proceedings was rendered necessary by the wilful act of Ms Hart. This depends on whether “wilful” means simply any deliberate act or whether it carries a connotation of fault. Mr Allan submits that in this context, the word simply means any deliberate act. He says that the purpose of s 34 is to ensure that unit holders meet costs connected with their units rather than unfairly burdening other unit holders. Therefore, the phrase “wilful or negligent” must have been intended to capture as wide a range of activity as possible and it would be inapt to construe it so as to import an overtone of fault. [20] Mr Darby says that s 34 should be construed in light of its heading “Recovery of money expended where person at fault” and that “wilful” means conduct that is wrongful in some way. He says that Ms Hart has done nothing wrong, as she was entitled to exercise her right to seek relief under s 43.
[21] I accept that I am able to take the heading of s 34 into account by virtue of s 5 Interpretation Act 1999, though it would not override a plain meaning appearing from the section itself read in its proper context. [22] The Oxford English Dictionary gives several meanings for “wilful”. The most apt for present purposes is the following: 5 Done on purpose or wittingly; purposed, deliberate, intentional; not accidental or casual. Chiefly, now always, in bad sense, of an action either evil in itself or blameworthy in the particular case; often, with colour of sense (1) implying “perverse, obstinate”. Also transf of the agent, as wilful murderer, one who commits wilful murder [23] The cases in which “wilful” and “wilful act” have been considered vary as to whether they carry a negative connotation. Overall however, I think that the position is fairly represented by the statement in Wheeler v New Merton Board Mills [1933] 2 KB 669. The case involved a claim under the Workman’s Compensation Act 1925 and the meaning of “wilful act”. In considering whether the provision of a dangerous machine for use by employees was a wilful act Talbot J said: “Wilful act” is plain English, and I can entertain no doubt that the installing of this machine without guard or fence for use in a factory was a wilful act by someone. It was an act, and it was intentional. It is true that though “wilful” and “intentional” are synonymous... “wilful” is more commonly used in modern speech of bad conduct or actions than of good, though it does not necessarily connote blame...(emphasis added) [24] I think that in current use “wilful” does carry a connotation of bad rather than good conduct. Interpreting “wilful” in this way would be consistent with the section and with other parts of the Act. While the heading is not decisive by any means, it is a helpful indicator and does not contradict anything in the wording of the section itself. Secondly, if Parliament had intended to capture all conduct, whether wrongful or innocent, it could simply have omitted the words “wilful or negligent” leaving only “act or omission”. The decision to qualify “act or omission” is consistent with the heading and indicates an intention to capture particular types of conduct rather than all conduct. [25] Finally, the likely intention is illuminated by s 33, which opens with identical words and specifically provides for the unequal
imposition of expenditure where one unit benefits more than the others. This is the very objective that Mr Allan asserts s 34 is intended to achieve. Had Parliament intended to treat both innocent and wrongful conduct in the same way then s 33 alone would have been adequate. There is no apparent reason to add s 34 unless it was intended to make different provision for proprietors who acted wrongfully vis-à-vis their fellow unit holders. [26] I further consider that in order to constitute a wilful act the deliberateness of the act must be directed towards the harm complained of (Daniel v Accident Insurance Mutual Holdings (1996) 9 ANZ Insurance Cases 61-297 at 76,338). In this case, it would mean that Ms Hart must have intended that the Body Corporate would be put to cost through her application. I do not consider the fact that cost to the Body Corporate was an inevitable consequence of her bringing the application was sufficient to render it wilful for the purposes of s 34.
Topics are dispute themes across the order (not the same as claim-type money lines).
s0800, s1, s10, s102, s126, s127, s135, s14, s17, s33, s34, s41, s43, s5, s61, s7
Common questions about this Tenancy Tribunal case.
The tribunal order states: The Tribunal declares that there is no lawful basis to raise the mediation on-charge,
Verified claim lines are listed on this page.
The primary dispute was Unit Titles.
The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13900679-UTA_Tribunal_Order.pdf.
No individual claim amounts were reconciled for this order. View the official Ministry of Justice PDF for full detail.
[19] This leaves the question whether the defence of the legal proceedings was rendered necessary by the wilful act of Ms Hart. This depends on whether “wilful” means simply any deliberate act or whether it carries a connotation of fault. Mr Allan submits that in this context, the word simply means any deliberate act. He says that the purpose of s 34 is to ensure that unit holders meet costs connected with their units rather than unfairly burdening other unit holders. Therefore, the phrase “wilful or negligent” must have been intended to capture as wide a range of activity as possible and it would be inapt to construe it so as to import an overtone of fault. [20] Mr Darby says that s 34 should be construed in light of its heading “Recovery of money expended where person at fault” and that “wilful” means conduct that is wrongful in some way. He says that Ms Hart has done nothing wrong, as she was entitled to exercise her right to seek relief under s 43.
[21] I accept that I am able to take the heading of s 34 into account by virtue of s 5 Interpretation Act 1999, though it would not override a plain meaning appearing from the section itself read in its proper context. [22] The Oxford English Dictionary gives several meanings for “wilful”. The most apt for present purposes is the following: 5 Done on purpose or wittingly; purposed, deliberate, intentional; not accidental or casual. Chiefly, now always, in bad sense, of an action either evil in itself or blameworthy in the particular case; often, with colour of sense (1) implying “perverse, obstinate”. Also transf of the agent, as wilful murderer, one who commits wilful murder [23] The cases in which “wilful” and “wilful act” have been considered vary as to whether they carry a negative connotation. Overall however, I think that the position is fairly represented by the statement in Wheeler v New Merton Board Mills [1933] 2 KB 669. The case involved a claim under the Workman’s Compensation Act 1925 and the meaning of “wilful act”. In considering whether the provision of a dangerous machine for use by employees was a wilful act Talbot J said: “Wilful act” is plain English, and I can entertain no doubt that the installing of this machine without guard or fence for use in a factory was a wilful act by someone. It was an act, and it was intentional. It is true that though “wilful” and “intentional” are synonymous... “wilful” is more commonly used in modern speech of bad conduct or actions than of good, though it does not necessarily connote blame...(emphasis added) [24] I think that in current use “wilful” does carry a connotation of bad rather than good conduct. Interpreting “wilful” in this way would be consistent with the section and with other parts of the Act. While the heading is not decisive by any means, it is a helpful indicator and does not contradict anything in the wording of the section itself. Secondly, if Parliament had intended to capture all conduct, whether wrongful or innocent, it could simply have omitted the words “wilful or negligent” leaving only “act or omission”. The decision to qualify “act or omission” is consistent with the heading and indicates an intention to capture particular types of conduct rather than all conduct. [25] Finally, the likely intention is illuminated by s 33, which opens with identical words and specifically provides for the unequal
imposition of expenditure where one unit benefits more than the others. This is the very objective that Mr Allan asserts s 34 is intended to achieve. Had Parliament intended to treat both innocent and wrongful conduct in the same way then s 33 alone would have been adequate. There is no apparent reason to add s 34 unless it was intended to make different provision for proprietors who acted wrongfully vis-à-vis their fellow unit holders. [26] I further consider that in order to constitute a wilful act the deliberateness of the act must be directed towards the harm complained of (Daniel v Accident Insurance Mutual Holdings (1996) 9 ANZ Insurance Cases 61-297 at 76,338). In this case, it would mean that Ms Hart must have intended that the Body Corporate would be put to cost through her application. I do not consider the fact that cost to the Body Corporate was an inevitable consequence of her bringing the application was sufficient to render it wilful for the purposes of s 34.
Topics are dispute themes across the order (not the same as claim-type money lines).
s0800, s1, s10, s102, s126, s127, s135, s14, s17, s33, s34, s41, s43, s5, s61, s7
Common questions about this Tenancy Tribunal case.
The tribunal order states: The Tribunal declares that there is no lawful basis to raise the mediation on-charge,
Verified claim lines are listed on this page.
The primary dispute was Unit Titles.
The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13900679-UTA_Tribunal_Order.pdf.
