What was the outcome of Tenancy Tribunal case 9035461?

The tribunal order states: The claims are dismissed.

How much money was awarded in case 9035461?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9035461?

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

Where can I read the official tribunal order for case 9035461?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13117755-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9035461?

The tribunal order states: The claims are dismissed.

How much money was awarded in case 9035461?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9035461?

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

Where can I read the official tribunal order for case 9035461?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13117755-Tribunal_Order.pdf.

Mount Eden, Auckland Tenancy Tribunal Case 9035461 — Mould

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Reasons

Mr Hill attended with his counsel, Iain Stephenson at the scheduled time of 9.30am. 1

Ms Newkirk did not attend until after 12.00pm. 2 Summary

Ms Newkirk’s unit has suffered from weathertightness problems for many years. In this claim she attempted to sheet home liability for the weathertightness issues to Mr Hill. However, the duties of repairing and maintaining the complex against weathertightness issues are primarily the body corporate’s duties, not Mr Hill’s. Mr Hill’s repair duties and maintenance duties as a unit owner are not engaged by the weathertightness issues.

Ms Newkirk also claims that Mr Hills contractor entered her unit in about February 2019 without her consent and burnt a hole in her couch. Ms Newkirk’s evidence does not prove these claims on the balance of probabilities. 1 I heard this matter at the Auckland District Court on 24 April 2026. 2 Ms Newkirk emailed the Tribunal’s UTA Registry at 9.28am she would, “Be there before 10”. However, she did not arrive until after 12.00pm.

It became clear to me early in the hearing that Ms Newkirk’s claims must be dismissed. I curtailed the length of the hearing mainly to reduce Ms Newkirk’s exposure to costs.

Below, I explain the Tribunal’s reasons more fully. Background

In an email to the Tribunal dated 26 January 2026, Ms Newkirk summarised her case as follows: 3 Auckland Council identified illegal, non-compliant work to the roof and inter-tenancy elements of Unit 9A in March 2017. That work was never remedied. Stephen Hill was on the Owners Committee at the time. He recommended delay. After that, water entered my unit. Tenants left. The damage continued for years. Stephen Hill denies there was ever a leak. However, Auckland Council, the Building Manager, independent inspectors, and my tenants all confirm otherwise. The defects were known. They were not repaired. The damage continued. That is the breach.

She also states: Stephen Hill arranged for a builder to enter my apartment without my consent. There was no emergency. No notice was given. No Body Corporate authorisation was obtained.

Ms Newkirk applied to Tenancy Services on 12 May 2022. Prolonged efforts to mediate the application failed.

Ms Newkirk’s unit is on the ground floor. Mr Hill’s unit is immediately above Ms Newkirk’s unit. The units are part of a mews of about 31 tiny two-storeyed terraced units built in a “townhouse” style (if 9A and 9B were one unit they would form a two- storeyed terraced townhouse). The mews are built above a carpark/storage area, cloistered away from the development’s commercial and retail units below it and to its west, which front onto Mt Eden Road.

The development was first created in about 1993. The construction is basic but solid. Major construction materials include concrete and block. The units have aluminium and steel joinery. The rooves are steel. The rooves appear to be mainly sloped and to have 3 Ms Newkirk’s email was filed on the body corporate’s unrelated levies claim file 9070484 because Ms Newkirk used that file number. Mr Stephenson forwarded the email to the Tribunal at the hearing while the Tribunal awaited Ms Newkirk’s attendance. internal guttering. Ms Newkirk and Mr Hill’s units are end units making them more exposed to the weather than other units.

Under the Unit Titles Act 2010 (UTA), body corporates must maintain and repair complexes’ building elements (such a rooves and cladding) and infrastructure (such as pipes and gutters) that relate to or serve more than one unit. 4 So, for instance in an apartment complex, if the complex’s rooves and external cladding are leaking the body corporate must repair the leaks. Also, under the UTA, unit owners must maintain and repair their units so that they do not harm the infrastructure or any other unit. So, for instance, in an apartment complex, if a unit owner’s shower is leaking through to a unit below, the unit owner must repair the leak from their shower.

Over the years, the body corporate (as it should) carried out maintenance and repairs to the complex’s exterior building elements and infrastructure, including the rooves, rain heads, internal gutters, cladding, and flashings.

In about 2016, the body corporate sought retrospective approval of repair and maintenance work by way of a Certificate of Acceptance. However, on 13 March 2017, David Gillott from Auckland Council’s Building Control Teams emailed the body corporate that it had insufficient information for Council to be satisfied that the unconsented works complied with the NZ Building Code. Further Mr Gillott identified other work needing acceptance, including: •Re-clad / replace roofing iron. •Re-clad of walls. •Create new internal gutters. •Reinstall / create fire separation to inter-tenancy walls and ceilings. •Timber replacement.

On 30 August 2018, during a heavy rain event, Ms Newkirk’s unit’s bedroom, leaked profusely. Ms Newkirk was living in Wellington at the time and was renting the unit out. Her tenants moved out on 13 September 2028 due to the leaking. The tenants brought a claim against Ms Newkirk in the Tribunal. The Tribunal ordered Ms Newkirk to refund the tenants 75 percent of their weekly rent from 30 August to 13 September 2018 ($609.11) because, “The loss by the tenants of the proper or full use of the bedroom in the unit”. 5 4 Unit Titles Act 2010 (UTA) s 138(1)(d). 5 Smith & Chu v Newkirk [2018] NZTT Auckland 4156340 at [8].

Unit 9A and 9B’s external block walls or the bedroom’s window flashing are probably sources of the leak. However, during the investigations into the leak the then building manager, Mark Gladwin, and Ms Newkirk’s building surveyor, Mark Paterson of North Star Inspections, observed moisture was on the underside of 9A’s particle floor flooring immediately below Mr Hill’s shower and immediately above Ms Newkirk’s living/dining/kitchen area (not above the leaking bedroom). As a result, Mr Hill comprehensively renovated his bathroom taking particular care to eliminate any possibility of leaks, at a total cost of about $16,000.00. Mr Hill also paid his contractor to remove a non-compliant ceiling hatch and repaint Ms Newkirk’s unit’s living room ceiling at a cost of $517.50. This work was completed by about 1 March 2019.

A report dated November 2023 prepared by a building surveyor, ASJ Property Consultancy, jointly commissioned by Ms Newkirk and Mr Hill, did not find any indications of active water ingress into Ms Newkirk’s unit. ASJ recommended Ms Newkirk install a shower dome to reduce moisture damage in her unit’s bathroom and that Mr Hill cover the cost of repainting the bathroom’s ceiling due to historic water ingress.

The issues that arise for decision are: a. Is Mr Hill liable for the unconsented building works or weathertightness issues pursuant to s 80(1)(g) of the UTA? b. Did Mr Hill authorise his contractor to enter Ms Newkirk’s unit without permission and did the contractor damage Ms Newkirk’s couch? Is Mr Hill liable for Ms Newkirk’s unit’s weathertightness issues?

Mr Hill has a duty to repair and maintain his unit to ensure it does not harm the common property or other units. Section 80(1)(g) of the UTA relevantly provides: 80 Responsibilities of owners of principal units (1) An owner of a principal unit— ... (g) must repair and maintain the unit and keep it in good order to ensure that no damage or harm, whether physical, economic, or otherwise, is, or has the potential to be, caused to the common property, any building element, any infrastructure, or any other unit in the building...

However, s 80(1)(g) is trumped by s 138(1)(d), which relevantly provides: 138 Body corporate duties of repair and maintenance (1) The body corporate must repair and maintain— ... (d) any building elements and infrastructure that relate to or serve more than 1 unit.

New Zealand Land Law Westlaw online 12.7.02(5) noted that the High Court in Wheeldon 6 found: The Court decided that the owners’ obligations under s 80(1)(g) only arise when s 138(1)(d) does not apply.

That applies even if the building elements or infrastructure are within a unit’s legal boundary. In Wheeldon Muir J approves of academic expert, Thomas Gibbons analysis of the interplay between ss 80 and 138 which emphasises “private” property is subject to the body corporate’s duties: [45] Academic commentators likewise have emphasised the point. Mr Gibbons in his NZLS Unit Titles Intensive 2012 notes: s 138 further undermines [the “bright line” between unit property and common property] by giving the body corporate responsibilities over building elements and infrastructure, whether they are common property or unit property. This can be seen to have implications for the property rights of unit owners, as it allows a degree of intrusion by the Body Corporate into their property; this intrusion is amplified by combining the responsibility with the right of access. Fundamentally, a wall or balcony might be “private” property but it is still subject to the Body Corporate right of access, and limited sovereignty in respect of maintenance. However, while this affects individual property rights it ensures the buildings can be properly maintained for the benefit of all unit owners as a group.

Later in his decision His Honour approves of Thomas Gibbons’ diagram presented at a seminar (a modified version of which is set out in Mr Gibbons’ textbook on unit titles law): 7 [47] In a flow chart attached to that paper Mr Gibbons identifies the first question that requires determination where a building element or infrastructure may require repair as being whether the particular building element or infrastructure serves more than one unit. In the event that question is answered in the affirmative, Mr Gibbons identifies an obligation upon the Body Corporate to repair that building element or infrastructure. If in the negative, then the unit plan is to be checked to identify whether the building element or infrastructure is part of a unit or common property. If the former, then it is the unit owner’s responsibility to repair, and if the latter, the Body Corporate’s. 6 Wheeldon v Body Corporate 342525 NZHC 884 [30 April 2015]. Footnotes omitted. 7 Ibid at [47]. His Honour refers to Thomas Gibbons Maintenance (New Zealand Law Society Unit Titles Intensive) 2012 at 66. The modified version is in Thomas Gibbons Unit Titles Law and Practice (2 nd ed, Lexis Nexis, Wellington, 20215) at 87.

Thus, Ms Newkirk’s claim cannot succeed because Mr Hill’s duty to maintain his unit is trumped by the body corporate’s duty to maintain under s 138(1)(d). The body corporate correctly took ownership of the repair work. It does not matter that some or all the building elements or infrastructure in need of repair or maintenance was within Mr Hills unit property.

Mr Hill understandably focussed his case on the possible shower leak from his unit, but that is not the case that Ms Newkirk argued. I accept, however, if she had argued her case that way, she would not have succeeded either. It is unclear whether the shower was leaking, it does not appear any internal leak significantly impacted Ms Newkirk’s unit, and Mr Hill promptly thoroughly addressed the possible leak in early 2028.

This claim is dismissed. Is Mr Hill liable for damage to Ms Newkirk’s couch?

Ms Newkirk says that Mr Hill’s contractor who carried out ceiling remediation work in about February 2018 entered her unit without her permission and burnt a cigarette hole in her newly acquired couch.

Ms Newkirk says she was away in Wellington at the time the entry and damage occurred, but she is confident that the only person who accessed the unit was Mr Hill’s contractor, so it must be him who damaged the couch.

However, this claim relates to events more than eight years ago. The contemporaneous emails suggest that Ms Newkirk did give permission for the contractor to enter the unit to repair the ceiling at about the time of the repair. The evidence does not establish on the balance of probabilities that only Mr Hill’s contractor had access to the unit while Ms Newkirk was absent. At the hearing, the building manager said that the unit’s door was wide open when Mr Hill’s contractor entered to do the work.

Mr Hill says he made enquiries with his contractor at the time and that he denied damaging the couch and told him he did not smoke. Nor is it likely that a contractor would behave as unprofessionally in the manner alleged.

The elapse of time has reduced the reliability of witnesses’ memory of events and the contemporaneous evidence does not much assist. I cannot be confident on the balance of probabilities that Ms Newkirk’s claims are correct.

This claim is dismissed. Costs

The parties may wish to confer on costs.

If parties cannot agree costs, they may seek an order from the Tribunal and costs, which may be decided on the papers.

Reasons

Mr Hill attended with his counsel, Iain Stephenson at the scheduled time of 9.30am. 1

Ms Newkirk did not attend until after 12.00pm. 2 Summary

It became clear to me early in the hearing that Ms Newkirk’s claims must be dismissed. I curtailed the length of the hearing mainly to reduce Ms Newkirk’s exposure to costs.

Below, I explain the Tribunal’s reasons more fully. Background

She also states: Stephen Hill arranged for a builder to enter my apartment without my consent. There was no emergency. No notice was given. No Body Corporate authorisation was obtained.

Ms Newkirk applied to Tenancy Services on 12 May 2022. Prolonged efforts to mediate the application failed.

This claim is dismissed. Is Mr Hill liable for damage to Ms Newkirk’s couch?

This claim is dismissed. Costs

The parties may wish to confer on costs.

If parties cannot agree costs, they may seek an order from the Tribunal and costs, which may be decided on the papers.

Tenancy Tribunal case 9035461 — Mould in Mount Eden, Auckland

At a glance

Tenancy Tribunal case 9035461 — Mould in Mount Eden, Auckland

At a glance

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Order

Reasons

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Key findings

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Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions