What was the outcome of Tenancy Tribunal case 9041524?

The tribunal order states: The Tribunal declares that the correct location of carpark AU 7 at the

How much money was awarded in case 9041524?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9041524?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9041524?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9298315-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9041524?

The tribunal order states: The Tribunal declares that the correct location of carpark AU 7 at the

How much money was awarded in case 9041524?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9041524?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9041524?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9298315-UTA_Tribunal_Order.pdf.

Avondale, Auckland Tenancy Tribunal Case 9041524 — Unit Titles

Order

The Tribunal declares that the correct location of carpark AU 7 at the premises, is that shown on the deposited plan.
All other applications are dismissed.

Reasons

The Tribunal has before it a further application filed by unit owners Mr and Mrs Pang, against the neighbouring unit owner Chhiv & Chea Limited 1 . The applicants seek orders in relation to carparking and common property.
It is important to recognise that the applicants have not filed an application against the Body Corporate, only the neighbouring unit owner. That is relevant because it is a limitation on what orders the Tribunal can make. 1 The application was filed against Phalkun Chhiv personally, but the correct respondent is the company, Chhiv & Chea Limited.

BACKGROUND

There is an extensive background to this dispute, including a previous Tribunal order, under application 9030261.
The premises are a commercial unit titled complex located in Avondale, Auckland. The premises comprise four principal units, that is units A, B, C and D.
The Applicant’s (Mr and Mrs Pang) are the owners of Unit C, and accessory unit 7 (AU 7). The Applicants operate a lunch bar from these premises.
AU 7 is a carpark, and located immediately and wholly in front of the neighbouring Unit D. There is a dispute between the parties about the correct location of AU 7, and that is a matter to be determined in this decision.
Unit D is owned by Chhiv & Chea Limited, the respondents, and that unit is leased to another business which operates from that unit.
The Applicants say that the correct position of AU 7 is that shown in the plans filed with the Tribunal, carrying a 1979 date stamp (the day and month is difficult to read), I understand this plan was lodged with the council prior to the complex being built. The Applicants say that the correct location of AU 7 is to the east of the dividing wall, or to put that another way, further to the centre line of the neighbouring Unit D. That plan records:
The respondent says that the correct position is that shown in the deposited plan from 1979 which shows the respective units, including the carpark AU 7, which has the end of the carpark in line with the dividing wall for Units C and D, as follows:
The owners of Units C and D fell into dispute. My impression is that the dispute was principally about the location of the AU 7 carpark, and also a roller door in Unit D, which the Unit C owners consider was installed without the necessary consent. At some point in time the Pang’s repainted the carparking lines, so that they were more or less consistent with the council plans above. The end result was that the marked carpark was located over more than half of the disputed Unit D roller door. This meant any car parked within the marked lines of AU 7 would block entry and exit to Unit D via the disputed roller door. That I accept has caused considerable stress and inconvenience to the operators of the business operating from Unit D. Previous application and decision
On 9 June 2021 the Applicants filed an application with the Tribunal seeking to have the Unit D owners remove the roller door.
A pre-hearing conference was convened before Adjudicator Mr Greene. Mr Greene provided a minute of 3 February 2022, and states in part: The correct applicant in this case should be the Body Corporate. I explained to the parties that it was essential that the correct parties be identified as that is directly relevant to any orders the Tribunal makes. It should not fall to the owners of Unit C in the first instance to seeks the orders sought. If there is any breach by the owners of Unit D in respect of unauthorised alterations to the Unit Plan, or a failure to implement a resolution passed by the Body Corporate, that is for the Body Corporate to prosecute. The Tribunal cannot presume the Body Corporate’s position. For example, it might not want to take any action against the owner of Unit D. That would leave Ms Pang and her husband in conflict with the Body Corporate in the first instance, so the proceedings would be between them principally, in which case there would be two respondent parties. I have therefore added the Body Corporate as an applicant party. Should it not wish to be involved as an applicant party and seek orders against the owner of Unit D, Ms Pang and her husband can apply to have the Body Corporate noted as a respondent party. Either way, the Tribunal must hear from the Body Corporate either as an applicant or as a respondent.
A hearing for that previous application was convened in Waitakere on 22 July 2022. At the July 2022 hearing, the Pang’s were clear that they did not wish the Tribunal to issue a decision on the carparking dispute, they only sought orders in relation to the roller door in Unit D.
I issued a decision in relation to the Pang’s original application also on 22 July 2022. The application was dismissed. I determined that the Pang’s had not established any breach on the part of the Unit D owners, or any obligation they had to remove the roller door. In the order I noted that:
When I step back and consider this application, I must conclude that it is misdirected. Taking into account the issues raised by the Applicants, those are issues that should have been directed to the Body Corporate, via the usual body corporate processes. That was the point made earlier by Adjudicator Mr Greene. If the owners of Unit D were to be pursued for any breaches as it relates to the roller door, then that would be for the Body Corporate to firstly decide whether there had been a breach, and then to address the breach as the Body Corporate deemed appropriate, if at all. Current application
On 15 March 2023 the Pang’s filed this further application with the Tribunal, again only in relation to the Unit D owners. I will set out the orders requested more fully below, but in short, the application seeks: a. A declaration as to the rights in relation to the current carpark location for AU 7. b. Work orders against the Unit D owners. c. A declaration that bollards installed by the Pang’s on common property in front of their unit should remain; and d. An order that a cross application from the Unit D owner be dismissed.
A hearing was convened in Waitakere on 28 June 2023. In attendance was Mr and Mrs Pang, and representing the Unit D owners was Ms Menzies. An interpreter attended to assist as required.
At the commencement of the hearing, I asked the Pang’s why they did not file an application against the Body Corporate? The Pang’s advised that the Body Corporate is a ‘middle person’, and it is overly influenced by one of the unit owners. Mrs Pang advised that it was the Unit D owners that started the dispute by challenging the car parks. The Pang’s do not consider that the Body Corporate listens to them, even with the “new body corporate” coming into being.

RELEVANT LEGAL CONSIDERATIONS

With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means it is for the party bringing the application (in this case, Mr and Mrs Pang) to establish their claims on the balance of probabilities. That means they must establish that what they are claiming is more likely than not. This is referred to as the burden of proof.
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. APPLICANT’S CLAIMS
I will now proceed to consider the four claims advanced at the hearing. Declaration that Unit C has the rights to the current markings and location for its accessory unit car park.
The Pang’s submit that the location of AU 7 in the council consent plan PN29449 differs from the location of the car park shown in the deposited plan, but the council document should prevail.
In their submissions, the Pangs carefully referred to the respective provisions of the Unit Titles Act 1972 (UTA 1972), given the complex was built in 1979, that being the relevant law at that time. The Pang’s consider an easement was granted in relation to the carpark, and that easement prevails over the deposited plan.
In response Ms Menzies submitted that the title does not show an easement. Ms Menzies stated that the plan referred to by the Pang’s appeared no more than an architect’s plan, and the deposited plan is in fact the operative plan showing the correct location of the car parks.
The Pang’s dispute that the council plan is no more than an ‘architects plan’, submitting it was the plan submitted for the consent process. It was submitted that the plan is of such importance that without it, the building could not be built. Analysis
It is well settled law in New Zealand, that the boundaries of land is that as set out in a deposited plan. In this case the deposited plan does not support the location of the car park as the Pang’s propose it to be. The deposited plan shows that the correct location should be that the carpark commences in like with the dividing wall of the units C and D.
Following the previous hearing, the Body Corporate sensibly sought advice from a surveyor to settle the dispute over the location of various parks on the complex. Surveyor Mr Wood provided a clear opinion in an email dated 30 August 2022, stating: Please find attached a copy of the unit title plan, DP 90428, as well as an aerial printout of the site. The unit plan was deposited in 1979 and back then the accessory units (AU) were drawn as lines on a plan. The only way to replicate their location now would be to scale off the plan. This is normal for a unit plan. You can see from the unit plan that AU’s 4, 5 and 6 are intended to be an extension of the internal fire rated wall between principal units (PU), PU B & PU C. Likewise, AU 7, is an extension of the internal fire rated wall between PU C and PU D. The nominal width of the AU’s would follow on from this with AU’s 4, 5 & 7 being coincident with the building that makes up the PU’s. AU 6 is coincident with AU 5. A cursory glance at the aerial map is indicative of the following:
There is an additional carpark in amongst the mix of AU’s 4, 5 & 6 that was not created on the unit title plan.
The bollards, directly outside Unit C, are located within the common property.
AU 7 appears to have been painted incorrectly. The south-western end should be inline with the projection of the internal fire rated wall between PU’s C & D. This would bring it back to being next to the north-eastern most bollard. Hopefully, this clarifies the existing situation for you. Should your discussions lead to the result of needing the carparks to be marked out on site, then we would simply be scaling the distances off the plan and coming off the internal firewalls. The owners could even do this themselves. ...
In my assessment Mr Woods’ opinion is based on a correct understanding of the law.
The Pang’s position is that section 7(1) of the UTA 1972 applies, as she submits that there was an easement granted in relation to AU 7 which now prevails. I note however that Ms Pang did not refer subsection 2 of that provision, but in whole that provision holds: Existing easements affecting land (1)The deposit of a unit plan shall have no effect on any easement or restriction as to user to which the land to which the plan relates is subject or on any easement or restriction as to user which is appurtenant to the land to which the plan relates. (2)Notwithstanding section 67 of the Land Transfer Act 1952, the Registrar shall require all such easements and restrictions as to user to be recorded (by diagram, words, or otherwise) on the unit plan, and shall not note them on any certificate of title issued under section 8.
As I indicated to the Pang’s at the hearing, I cannot see that there is an easement applying in this case, and the fact that there was no easement noted on the unit plan as required by subsection 2, supports that to be the case.
The fact of lodging a plan with the council in the development of a complex does not create an easement. The fact of the later different deposited plan casts infers that the location of the carparks changed.
The effect of section 7(1) is that if there has been an easement granted on the land, then that trumps the deposited unit plan, if the easement is not recorded on that plan. Nevertheless section 7 requires that the easement be indicated on that plan.
The Pang’s also referred me to section 9 of the UTA 1972, submitting that this provision would have allowed the developer to have granted an easement, given the developer would have owned all of the land. Section 9 holds: Common property (1)The common property shall be held by the proprietors of all the units as tenants in common in shares proportional to the unit entitlement in respect of their respective units: provided that nothing in this subsection shall affect the interests among themselves of the proprietors of a stratum estate in an individual unit. (2)While the same person is proprietor of all the units, subsection (1) shall apply as if there were different proprietors for each of the units. (3)The proprietors of all the units may sell or lease part of the common property or may grant an easement over the whole or any part of it.
I am not convinced this provision is relevant, because it relates to the situation were there has already been the creation of common property, and then an owner or owners grant an easement over it. That said, there is no doubt that the developers could have granted an easement, I accept that is the case. But the real question is whether the developers did grant and easement as it relate to AU 7.
Ultimately I have seen no evidence to support that an easement has been created as it relates to AU 7 as would be contemplated under the Land Transfer Act 1952. Again the fact of the location of AU 7 being indicated on a plan submitted to the council, is not proof that an easement has been granted, and certainly the submitting of a plan with the council does not create an easement.
The end result is that the Pang’s have not proven that there is an easement over AU 7, and therefore I have no reason to depart from the usual position, meaning that the location of AU 7 is as shown on the deposited plan. The Tribunal makes the declaration to that extent, given this application does materially affect the Unit D owners. Work order that Unit D undertake remedial structural alterations
The Pang’s seek work orders in relation to two matters, that is an order to remove and reinstate the wall where the roller door is located, and carparking Wall reinstatement
The Pang’s presented extensive submissions seeking a work order that the Unit D owners remediate the wall in which the disputed roller door is located. To put that another way, the Pang’s want the Tribunal to order that the roller door is removed, and the 2 metre high wall made good, that is returned to how it was before the roller door was installed. A range of submissions were presented including that the Tribunal’s earlier finding was wrong, the door was installed without proper authority, and that the Tribunal had been misled at the earlier hearing.
I raised with the Pang’s that I could not now consider further submissions around the roller door, because that dispute was the subject of the prior decision in July 2022, which was unsuccessful for the Pangs. I noted that the Pang’s would need to prove to me that I had jurisdiction to consider that claim again, and even if I did have jurisdiction, what legal obligation the Unit D owners would have to the Pang’s from which I could make such an order.
Mrs Pang provided a range of submissions around her view of the legality of the roller door. Further Mrs Pang submitted that the previous order should not limit the Tribunal’s consideration of this current application for reinstatement of the wall. Mrs Pang submitted that the owners of Unit D had got experts to manipulate the evidence in support of their defence of the claim. Mrs Pang submitted that an issue estoppel would not apply here. Analysis
At the hearing I confirmed to the parties that I could not consider this claim, and these are the reasons why.
The issue which was determined at the last hearing, was an application that the Tribunal order the Unit D owners to remove the disputed roller door. It is manifest that if I were to order that the roller door be removed, then the result must be that the Unit D owners would then need to remediate the gap left from the roller door. What the Pang’s are now seeking is in effect the same end result, only the claim has been packaged differently.
The Pang’s submitted that an issue estoppel would not apply, I disagree.
The concept of finality of litigation is a fundamental expectation in our legal system. If there is no finality, then there could be a neverending procession of proceedings on effectively the same point, only dressed differently. As explained by Lord Denning MR in Fidelitas Shipping Co Ltd v V/O Exportchleb: 2 ... within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again.
As noted by the Court of Appeal in OY v Complaints Hearing Committee [2013] NZCA 103: 2 Fidelitas Shipping Co Ltd v V/O Exportchleb [1965] 2 All ER 4. [26] An issue estoppel arises where an issue between the parties has already been determined by a competent tribunal — in which case the parties are barred from raising the issue for determination again. This Court described the nature of issue estoppel in Joseph Lynch Land Co Ltd v Lynch as follows: The concept of res judicata is often applied to both cause of action estoppel and issue estoppel. Traditionally its use was confined to the former. Cause of action estoppel is different from issue estoppel which can arise where a plea of res judicata in the strict sense is not open because the causes of action are not the same ... Issue estoppel is concerned with the prior resolution of issues rather than causes of action ... issue estoppel precludes a party from contending the contrary of any precise point which, having once been distinctly put in issue, has been solemnly and with certainty determined against him.
In this case I am satisfied that the issue has been determined. The parties are the same, notwithstanding that the Tribunal ordered that the Body Corporate be joined in the first application. The matter in dispute is the same, the removal of the roller door, however framed. If the Applicants considered that earlier decision was wrong, they could have applied for an appeal of that decision in the District Court.
I find the Applicants are estopped from advancing this claim again. An issue estoppel applies.
I record for completeness, that even if I had not found that an estoppel applied, I would have dismissed this application, for the same reasons set out in the Tribunals July 2022 decision. If there was a breach of some obligation on the part of the Unit D owners, then that would be for the Body Corporate to pursue. I cannot see what legal obligation the Unit D owners would have to the Unit C owners so as to be the basis for the Tribunal to make the order the Pang’s seek. Additional car parking
The Pang’s submit that the Unit D owners have improperly created further parking on the end of their unit, and also made changes to another area which was otherwise meant to be a garden. It was submitted that because Unit D did not obtain consent from the body corporate, they have breached the rules.
Ms Menzies submitted that when her clients purchased the premises, these claimed changes had been made. Ms Menzies submitted that this would be a matter for the Pang’s should talk to the body corporate about.
In response the Pangs stated that it is not relevant which Unit D owner made the changes, they are nevertheless in breach of the Body Corporate Operational Rules. It was submitted the new Unit D owners should have checked on this before the property was purchased. Analysis
The Pang’s seek an order that the Unit D owners remove two areas of car parking or other structures from what is otherwise common property. For brevity I will refer to those changes as ‘carparking’.
I express no view as to the lawfulness of the carparking, because I find that this application should be dismissed, because the Pang’s do not have sufficient interest in this matter. The claim is to the effect that the carparking has been created on common property. If that is the case, then that would be a breach against the Body Corporate, because it is the Body Corporate that owns and maintains the common property. In effect the Pangs are claiming a breach in relation to property they do not own - the property is owned by the Body Corporate. Any application in the Tribunal needs to be by the Body Corporate.
If the Pang’s wanted to dispute the use of common property as they have done, then there are processes in the UTA 2010 that allows them to do this, and processes that the Pangs can apply to challenge decisions of the Body Corporate if they disagree with them. But this must first be a matter raised with the body corporate, who is not a respondent in this case.
For those reasons this application is dismissed. Declaration that Unit C has the right to maintain bollards on common property
The Pang’s have installed bollards on common property in or around 2014, immediately in front of their unit. Those are the bollards referred to by the surveyor in the email mentioned above. The Pang’s advised they have been victims of ram raids in the past, and seek to protect their store accordingly. The Pang’s seek a declaration that these bollards are lawfully located, and therefore they have a right to retain them there.
The Pang’s submitted that previously Unit D owners have not taken issue with the bollards, until the relationship between the owners has deteriorated more recently.
Mrs Pang states that they obtained verbal approval from at least two other unit owners to have the bollards installed, but fairly confirmed that she could not recall if that verbal permission was given before or after the bollards were installed. Mrs Pang submitted that the bollards had been installed in a location that would only impact their unit.
Ms Menzies submitted that there is a protocol under the UTA to be followed for approval of work such as the installation of bollards on common property. Ms Menzies advised that her understanding is that the Body Corporate does have an issue with the bollards given the impact to parking, and this is a matter that should be address by the Body Corporate not theF Tribunal .
Ms Menzies submitted that because of where the Pang’s have positioned the bollards, it effects how vehicles parked in AU 7can enter and exit that carpark, and presents a health and safety issue.
Mrs Pang submitted there was an easement granted by the body corporate, and that an easement does not need to be registered. Further if an easement was to be removed it would require 75% approval of the body corporate.
Mrs Pang submitted that she has gone to the body corporate to get this sorted out but they have declined to do so. Analysis
The Pang’s seek a declaration that the bollards they have installed on common property can remain.
This claim falls to be determined under the UTA 2010.
It was submitted by the Pang’s that an easement arose in relation to the bollards, on the basis that oral permission had been given for the bollards to be installed, even if that was retrospective. The problem for the Pang’s with this submission, is section 62 of the UTA 2010, which relates to the powers of the body corporate in relation to easements involving common property. That holds: 62 Powers of body corporate in respect of easements and covenants over or for benefit of common property (1) The body corporate may, after a special resolution to do so, grant an easement or enter into a covenant over the whole or any part of the common property. (2) ... (5) Sections 212 to 216 (which provide for an objection process) apply to a resolution under this section. (6) In addition to the matters required to be included in the certificate referred to in section 216, the certificate must also certify that the consents required under subsection (4) have been given. (7) ...
The problem for the Pangs is it not simply a matter of obtaining verbal consent from other unit owners, even the majority of unit owners. In order to create a legal easement, there are defined processes needed centring around a special resolution.
Section 5 (the interpretation section) of the UTA, defines a special resolution as meaning a resolution that complies with section 98(4), which requires at least 75% of eligible voters to agree on the resolution, but that would need to occur at a general meeting of the Body Corporate, but could be passed without a general meeting under section 104, but would require notice to be given as required by the regulations, and the resolution to be signed by 75% of the Body Corporate. There is no evidence that any of those processes have taken place.
It is also relevant to note the Pang’s obligations under section 80 of the UTA, which relates to the responsibility of unit owners. Section 80(1)(i) is relevant and confirms that an owner of a principal unit: must not make any additions or structural alterations to the unit that materially affect the use, enjoyment, or ownership interest of any other unit or the common property without the written consent of the body corporate:
In short, section 80 would restrict the Pang’s from making alterations to common property, such as installing bollards, without the written consent of the Body Corporate.
The Pang’s have not established that they have the necessary consent of the Body Corporate for the bollards to have been installed, and therefore the Tribunal declines to make a declaration that those items can remain on common property. Whether the bollards can remain will be a matter for the Body Corporate to determined.
Finally the Pang’s submitted that they had a right to security of their unit found in section 73(1)(a). That provision sets out ‘incidental rights’ and includes: 73 Incidental rights (1) The common property and each unit on a unit plan has appurtenant to it the following rights over the land to the extent necessary for the reasonable use and enjoyment of the common property or unit: (a) rights of support, shelter, and protection; and (b) ...
The Pangs argument as I understand it, is that they had an incidental right to protection found in that provision, which they consider means the right to install the bollards for security (protection) of their unit. I will express no view on whether that provision could be interpreted in support of the Pang’s position, because that would be a matter for the Body Corporate to respond to, and in this case the Body Corporate are not respondents. I cannot see how that provision would be relevant as far as rights and obligations with the Unit D owners are concerned. Order the dismissal of application 9036984
The Pang’s sought an order that the Tribunal dismiss a pending application from the Unit D owners. It is the case that the filing fee in relation to the application from the Unit D owners had only been paid within a day or so of the 28 June 2023 hearing, and that application has not yet been scheduled for a hearing.
Any application to dismiss the neighbours application is of course premature. The Tribunal has not considered the Unit D owners application, and when it is set for a hearing, at that point the Pang’s can make any submissions they deem necessary.
This application is dismissed.

Tenancy Tribunal case 9041524 — Unit Titles in Avondale, Auckland

At a glance

Tenancy Tribunal case 9041524 — Unit Titles in Avondale, Auckland

At a glance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions