What was the outcome of Tenancy Tribunal case 9045244?

The tribunal order states: The Body Corporate’s application for an order that Bernie Trustee Company

How much money was awarded in case 9045244?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9045244?

The primary dispute was State of repair. Related themes: Unit Titles.

Where can I read the official tribunal order for case 9045244?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11351022-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9045244?

The tribunal order states: The Body Corporate’s application for an order that Bernie Trustee Company

How much money was awarded in case 9045244?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9045244?

The primary dispute was State of repair. Related themes: Unit Titles.

Where can I read the official tribunal order for case 9045244?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11351022-Tribunal_Order.pdf.

Rosedale, Auckland Tenancy Tribunal Case 9045244 — State of repair

Order

The Body Corporate’s application for an order that Bernie Trustee Company Limited remove its signage is dismissed.
The Tribunal declares that the Body Corporate’s resolution dated 6 May 2024 purporting to decline its consent to Bernie Trustee Company Limited’s signage is invalid and of no effect.

Reasons

Craig Leishman of Boutique Body Corporate & Community Managers (BBC), the Body Corporate’s manager, attended the hearing for the Body Corporate.
Joanna Pidgeon of Pidgeon Judd lawyers appeared for the unit owner Bernie Trustee Company Limited (“Bernie Trustee”). Ajay Kumar 1 attended as the unit owner’s authorised person.
The Body Corporate seeks an order that Bernie Trustee remove signage from its unit and costs. The main issue with the signage is that it is attached to the development’s roof and so that it juts out above the façade’s profile, whereas none of the other units do. 1 Mr Kumar’s full legal name is Ajay Kumar Agarwal. However, I shall use Ajay Kumar because that is the name that appears in communications between the parties.
This matter had previously been consolidated with the unit owner’s collateral claim targeting the Body Corporate’s processes and actions involving the unit owner. 2 However, at the hearing, I decided to proceed with this claim separately. 3 Background
The unit is one of one of seven commercial/office units on Apollo Drive. Five of the units, including the unit at issue, are on one level. Two have two levels, but they are only slightly taller than the one-level units. The units are built in the same style. They share an adjacent driveway and car park which conveniently provide parking for the units’ occupants and its customers.
Bernie Trustee operates a business called Global Finance from the unit. Other units also have businesses operating from them.
The development is a typical commercial/office set-up for commercial areas like this. As to be expected, all the units have signage. The signage identifies the particular business to its customers and probably serves to promote the business’s image.
Bernie Trustee purchased the unit on about 18 August 2022. The same day, Mr Kumar emailed the Body Corporate’s manager, BBC, to ask, “Do you have any policy related to sign board which each unit holder can follow?”
On 22 August 2022, Jayde Morris of BBC responded: I have attached a copy of the Body Corporate Operational Rules for your reference which has a rule relating to signage at the property as per below.
Signs and notices An Owner must not, without the written consent of the Body Corporate place or paint any signs or notices of any kind on to the common property or external part of a unit. Only two signs or notices per Unit will be permissible by the Body Corporate. If you wish to change any signage a request would need to be sent to the Body Corporate for approval. It is beneficial to provide the design and measurement details along with information of the location in order for the owners to be able to make an informed decision. 2 Bernie Trustee Company Limited v Body Corporate 178494 NZTT 9059084. 3 The parties had not filed documents in advance of the hearing as directed. The Body Corporate sought an adjournment of the other matter due to receiving the documents only the day before the hearing. The other claim is about the Body Corporate’s management in general, as well as Bernie Trustee’s grievances against the Body Corporate’s management of the signage issue. The interface between the claims is not straightforward. Neither claim is determinative of the other. The claims can most expediently be dealt with separately.
BBC’s email clearly states that any proposed signage required body corporate approval. Notwithstanding the email, Bernie Trustee installed prominent signage without seeking body corporate approval in November 2022.
On 13 November 2022, one of the unit owners alerted BBC of the signage, complaining, “I was not consulted on this issue and am vehemently opposed to the sign on the roof”.
The signage comprises two signs. The more prominent sign is 6 metres wide and 1.2 metres high. The sign has a smartly-designed “GF” logo and the words “global finance” and “your best interest since 1999”. The sign is brightly coloured in green, purple, and white. While the sign is large it is in proportion with the unit’s size and is comparable in size to some other units’ signs.
The distinguishing feature of the sign is that it is mounted on the roof. It juts out above the development’s façade’s profile. All of the other units’ signs are attached to the unit walls and are do not protrude over the roofline.
On 14 November 2022, BBC emailed Bernie Trustee asking it to remove the signage and make a formal request for permission for the signage in accordance with the rules.
Bernie Trustee did not comply.
On 5 December 2022, BBC issued a breach notice to Bernie Trustee for the signage. The breach notice was supported by the other unit owners.
The parties continued to disagree on the matter.
On 19 July 2023, the Body Corporate filed its claim seeking, inter alia, an order that Bernie Trustee remove its signage.
On 27 March 2024, Bernie Trustee sought retrospective consent for the signage.
On about 6 May 2024, a proposed postal resolution without a general meeting adopted by the other unit owners refused Bernie Trustee’s application. 4 Were the Body Corporate’s rules validly amended?
This litigation led to Bernie Trustee finding evidence that the Body Corporate’s amended rules, which include the signage rule, were not validly registered. 5 4 Bernie Trustee claims the purported resolution is invalid. 5 Witness statement of a former owner and committee member, Jessica Cooper dated 22 January 2025.
The Notice of Change to Body Corporate Rules notice records Jessica Cooper as the Body Corporate’s chairperson. However, she was not the chairperson. The notice refers to the modified rules having been modified by an ordinary resolution at a general meeting held on 24 July 2012. However, no general meeting was held on that date. Nor does it appear that the Body Corporate ever passed such a resolution. 6
Just recently, on about 6 May 2024, the Body Corporate passed a resolution without a general meeting by email or post to ratify the rules or reregister them. The wording of the resolution is: Following a challenge to the validity of the Body Corporate rues currently registered with LINZ and to avoid any uncertainty the Body Corporate hereby ratifies and re-adopts the rules that were already adopted and registered and agrees to be bound by them, and the Body Corporate shall, if necessary proceed to reregistration of the rules adopted.
Since the purported rules were not validly registered, the Body Corporate cannot simply ratify them.
The Body Corporate can re-register the rules as they stand. However, they may wish to amend the signage rule to ensure that it is intra vires. Ms Pidgeon’s submissions that the old “rule” was ultra vires would be a sensible starting point. If an amended signage rule included objective guidelines as to size and placement (for instance) as opposed to a bare Body Corporate right of refusal, the rule is more likely to be intra vires.
At the hearing, Mr Leishman did not seriously pursue the claim under the purported rules. He submitted it was otiose to do so because s 80 of the Unit Titles Act 2010 applies:
Whilst any technical issues with the registration is regretted there was no prejudice to any party and the matter is otiose as Sections 80(1)(h) & (i) engage.
Consequently, the majority of the hearing was spent on the next issue.

Does the signage breach s 80 of the UTA?

Section 80 of the UTA sets out unit owner’s duties. It relevantly provides, inter alia: 80 Responsibilities of owners of principal units (1) An owner of a principal unit— ... 6 Ibid. (h) must notify the body corporate of his or her intention to carry out any additions or structural alterations before the commencement of any work: (i) 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: (j) must comply with the body corporate operational rules... Meaning of “any additions or structural alterations”
Mr Leishman submitted that BTCL’s signage is an addition or structural alteration under s 80(1)(i) of the UTA.
Ms Pidgeon submitted the signage was an “installation”. I accept that “installation” aptly describes the signage. It is something that is “installed”. The word could equally be applied to items as aerials.
I considered whether if the signage is merely an “installation”, it suggests that the signage might not amount to an addition or structural alteration under s 80(1)(i).
Section 10(1) of the Legislation Act 2019 provides: How to ascertain meaning of legislation The meaning of legislation must be ascertained from its text and in the light of its purpose and its context.
The leading text on statutory interpretation in New Zealand Stature Law in New Zealand comments: 7 Central to the understanding of any statute is its purpose. If the purpose of an Act is clear, its text should if possible be interpreted so as to give effect to that purpose. In New Zealand, there has for over a century been a legislative direction that the purposive approach to interpretation should be used.
There are two broad meanings of “additions” applicable here: one that is specific to buildings; and one that is more general.
The meaning of “additions” specific to buildings is the adding to an existing building of a built structure such as an additional room, or a deck. The more general meaning of “additions” is the adding of some item of an unspecified kind. The former meaning would be more likely to result in “additions” not capture the signage. The latter would. 7 JF Burrows Statue Law in New Zealand (6 th ed, LexisNexis, Wellington, 2021) at 289. Footnotes omitted.
The UTA also refers to “additions” in a similar sense to s 80 at ss 79(e) and
Section 79(e) gives unit owners the right to make alterations, additions, or improvements subject to s 80(1)(h) and (i), and that do not material affect other units or common property: 79 Rights of owners of principal units An owner of a principal unit— ... (e) subject to section 80(1)(h) and (i), may make any alterations, additions, or improvements to his or her unit so long as these are within the unit boundary and do not materially affect the use, enjoyment, or ownership interest of any other unit or common property:
Section 82 also uses the term. That provision requires subsidiary body corporates to obtain unit owners and the body corporate’s consent for additions or structural alterations that materially affect the body corporate’s units or common property: 82 Requirements relating to consent by subsidiary body corporate to additions or structural alterations (1) The subsidiary body corporate may only consent to additions or structural alterations under section 80(1)(i) to any principal unit in the subsidiary unit title development that materially affect any other unit in the parent unit title development or the common property of its parent unit title development if the subsidiary body corporate has obtained the written consent of...
I find that the purpose of s 80(1)(h) and (i) is to regulate unit owners’ ability to make enduring additions or changes to their unit that substantially affect other unit owners.
Something that is an “installation” might be enduring and have the quality of substantially affecting other unit owners or the common property.
I renounce my initial attraction to the idea that an installation could not be “additions” under s 80(1)(h).
In this case, I prefer to take the view that the word “additions” in s 80(1)(h) and (i) can apply to signage.
It follows that the signage engages s 80(1)(h) and (i). The Tribunal must therefore proceed to consider the relevant facts and evaluate whether the signage breaches those provisions. Did Bernie Trustee breach s 80(1)(h)?
The Body Corporate had clearly advised Bernie Trustee that it needed to notify it about the signage (albeit it relied on the invalid amended rules).
I accept Mr Leishman’s submission that even absent the “rules”, Bernie Trustee had a duty under s 80(1)(h) to notify the body corporate of its “intention to carry out any additions” before installing the signage.
What then is the consequence of Bernie Trustee’s breach?
The Tribunal dealt recently dealt with this issue in found in similar case. In that case the respondent installed a pergola in their back garden without seeking the body corporate’s consent. The Tribunal found that (assuming only for argument’s sake that the pergola was “an addition”) the respondent’s failure to notify the body corporate of its installation does not carry any consequence. The Tribunal stated: 8
It is important to recognise that section 80 is not a provision that the Body Corporate can use in order to refuse consent for works, it is a provision which does no more than set out the “responsibilities” or expectations on a unit owner.
In terms of sub-subsection (h), assuming that building a pergola was an addition to the unit, then I would agree that Ms Simons should have notified the Body Corporate of her intention to do that work. But this provision does not carry any consequence should the unit owner not notify their body corporate. Certainly you could say there has been a technical breach, but that would be as far as the Body Corporate could take it.
I concur with that reasoning. Bernie Trustee breached s 80(1)(h). However, no order of the Tribunal is called for. Does the signage “materially affect” other unit owners?
Having found that the signage is an addition, the Tribunal must decide whether the signage would “materially affect the use, enjoyment, or ownership interest of any other unit or the common property”.
In the just-mentioned “Pergola” case, The Tribunal discussed how “materially” in s 80(1)(i) should be interpreted: 9
The term ‘materially’ is not defined in the UTA, so it must be given its plain English meaning. The Oxford English Dictionary (on-line version) defines the word ‘materially’ as follows: To a material or important extent; significantly, substantially, considerably
The Tribunal went on to find that the pergola would not have materially impacted the other unit owners: 10 8 Simons v Body Corporate 326889 & Boutique Body Corporate Limited [2024] NZTT 9050924 at paras 40 and 41. 9 Ibid para 35. 10 Ibid para 36.
Having considered the photographs presented, including the photographs from the neighbour’s properties, I do not consider that any reasonable committee could reach a conclusion that the unit 7 pergola would result in an impact on the neighbours in their use or enjoyment of their property that was important, significant, substantial or considerable. Certainly, there could be a minor (probably very minor) impact, but that would not be close to the necessary standard of being a material impact.
I concur with the Tribunal’s approach in Simons.
I have viewed the photographs of the signage and carried out an informal scene visit (with the parties’ consent).
The development building is a continuous structure. The building is a commercial/office-type structure. Its design is simple, modern, and unpretentious. It has a functional design similar to many commercial developments built in Auckland this century.
Importantly, this is a commercial development, not a residential one. If a unit owner put up signage like this on their residential unit when other units did not have any signage, the Tribunal might be inclined to find there was material impact on other units. In this commercial development, all the units have broadly comparable signage.
Mr Leishman submits the other unit owners are unhappy with Bernie Trustee’s signage. In his submission that unhappiness is well-founded because the sign as inconsistent in appearance with the rest of the complex. He describes the signage as grandiose and reflective only of Mr Kumar’s ego. The signage is bigger than anyone else’s in addition to being placed in a visually discordant way that breaks up the profile of the building. The sign is so large and dominating, it suggests Bernie Trustee has a dominant proprietorial interest in the development by. The Body Corporate’s purported resolution refusing consent drafted by BBC and carried by a majority states: The Body corporate declines a retrospective application for the roof signage by unit C on the basis, it is excessive in size, dominates the roof-line, is a branding operation which detracts from the complex, impacts on ownership interests, and it materially affects other unit owners within the complex, in detracting from the complex aesthetics, and amenities...
Mr Leishman relied on s 3 of the UTA, which set out the purposes of the Act, and especially the purpose, “to protect the integrity of the development as a whole”. He emphasised that unit title developments should be run democratically, and Bernie Trustee’s signage was plainly against the will of the majority of owners, comprising every single other owner. He says Muir J encapsulated this point when he said: “If you want your home as your castle don’t buy into a Body Corporate”. 11
Mr Leishman also emphasised that the complex’s uniformity of exterior aesthetics goes to the integrity of the development as a whole. He relied on the Court of Appeal’s dicta in Wheeldon, a case involving the body corporate’s duty to maintain the premises under s 138(1)(d) of the UTA and that section’s interplay with the unit owner’s duty to maintain under s 80(1)(g). The Court observed of Muir J’s judgment in the High Court: 12 Nevertheless, the Judge was entitled to regard the preservation of uniform aesthetics as a matter going to the integrity of the development as a whole for the purposes of s 3(d).
In the High Court Muir J received evidence from a valuer who had told the Court: 13 The concept of economic and aesthetic elements are interrelated in that the value of the units or their economic wellbeing is obliviously tied to the maker’s perception of the overall development’s structural, aesthetic and watertight integrity.
Muir J observed: 14 Mr Taylor was not cross-examined and the plaintiffs called no expert evidence to challenge his conclusions. In my view his opinions reinforce in a practical way why maintenance of the integrity of the development as a whole is an essential purpose of the Act. Only by doing so is it possible to manage the building on a socially and economically sustainable basis, as s 3 itself recognises.
I accept that s 3(d) can inform the Tribunal’s approach to assessing whether Bernie Trustee’s signage breaches s 80(1)(i). It is a matter of assessing the evidence against the paragraph in light of that principle.
One of the unit owners emailed that: The Body Corp rules were created to ensure that our building would not be denigrated by large and obvious signage and so I am very much in favour of BBC issuing a formal breach notice.
Another unit owner was more concerned with the fact that Bernie Trustee had not followed due process: The body corporate are there to control what happens on the site. If someone is in breach then they need to be held to account. 11 Paragraph 19 of the Body Corporate’s submissions. 12 Wheeldon and others v Body Corporate 342525 [2016] NZCA 247 at [44]. 13 Wheeldon and others v Body Corporate 342525 and Stent [2015] NZHC 884 at [50]. 14 Ibid at [51].
Ms Pidgeon submitted a letter from Simon Lee, the occupier of Unit B, the neighbouring unit, saying he is untroubled by the signage. He wrote a letter “to whom it may concern” on 10 October 2024, saying: The signage, located on the roof above their entrance door, has not caused any disturbance or inconvenience to me or my business. I believe it makes easier for visitors to find the right unit. I have no objection to Global Finance’s request to retain the signage and believe it contributes positively to the identification of their business.
Unlike Wheeldon, I have not heard any expert evidence on the impact of the signage. I must proceed on the factual evidence, including the photographs and my scene visit.
The signage cannot dominate the complex from the street-front, as it is not visible from the adjacent street-front. The signage may be visible from further down the street, but I have not seen images demonstrating that.
The signage itself is generally consistent with the other units’ signage. It is inconsistent with the other unit owners signage only in that the main sign hovers over the roofline by its full width of 1.2m.
The signage is clearly visible upon entering the main carpark area of the complex. I doubt an objective bystander would be perturbed by the aesthetic dissonance of the sign jutting up above the development’s profile. They probably wouldn’t much notice. It is just a commercial sign in a line of commercial units
On the other hand, I could not say the signage positively adds to the development’s aesthetics.
Perhaps Bernie Trustee could have achieved its signage goals of identifying the business’s location and projected an equally positive message if the main sign had been positioned on the façade. If it had done so, Bernie Trustee probably would not have fallen into dispute with the other unit owners. However, that hypothetical is not central to this assessment.
The sign does is not very tall at 1.2m high. Although 6m wide, at its widest it is still well inside the side-boundaries of the unit. It is unlikely that any other unit would suffer shadowing or a sense of dominance. Nor has the Body Corporate produced expert evidence to suggest otherwise.
In my assessment, the signage does not detract from any of the other units. The signage could be described as bold as compared to more subtle signage at the development but does not “bring down the tone of the neighbourhood”. The signage is bright, confident, and commercially vital. However, it is clearly just the expression of the particular unit that the signage relates to.
If a building resource consent-like process were followed, one could be confident that an objective assessor would find any effects on other owners would be less than minor.
I do not lose sight of the concept that “the preservation of uniform aesthetics as a matter going to the integrity of the development as a whole for the purposes of s 3(d)”. If the signage materially affected the uniform aesthetics in a way that harmed the integrity of the development as a whole, the signage would probably breach s 80(1)(i).
That might well be the case if a unit owner in a residential development installed similar signage. However, this is a commercial development. I am not persuaded that the signage materially affects the integrity of the development as a whole.
The Body Corporate has not proven that the other unit owners or the common property are relevantly affected by the signage to “a material or important extent; significantly, substantially, considerably”. 15
I am not satisfied that the signage materially affects the use, enjoyment, or ownership interest of any other unit or the common property. Conclusion
The Body Corporate has not proven that the signage offends against s 80(1)(i).
The Body Corporate’s application for an order that Bernie Trustee removes the signage is dismissed. Status of the purported 6 May 2024 resolution refusing consent
Ms Pidgeon has asked the Tribunal to make a declaration as to the validity of the Body Corporate’s 6 May resolution declining Bernie Trustee’s retrospective application for consent.
The Body Corporate’s consent to the signage was not required. Even if the resolution were properly passed (Bernie Trustee submits it is invalid for process reasons anyway) it would be invalid for being in breach of the unit owners rights under s 79(e) of the UTA.
The purported resolution is invalid and void. The Tribunal will make a declaration to that effect. 15 Above, n 9. Costs reserved
The issue of costs is reserved pending resolution of Bernie Trustee Company Limited v Body Corporate 178494 NZTT 9059084.

Tenancy Tribunal case 9045244 — State of repair in Rosedale, Auckland

At a glance

Tenancy Tribunal case 9045244 — State of repair in Rosedale, Auckland

At a glance

Claims & awards

Order

Reasons

Does the signage breach s 80 of the UTA?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Does the signage breach s 80 of the UTA?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions