What was the outcome of Tenancy Tribunal case 9047004?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9047004?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9047004?

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

Where can I read the official tribunal order for case 9047004?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10456034-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9047004?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9047004?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9047004?

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

Where can I read the official tribunal order for case 9047004?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10456034-Tribunal_Order.pdf.

Half Moon Bay, Auckland Tenancy Tribunal Case 9047004 — Mould & damp

Order

The application is dismissed.

Reasons

Both parties attended the hearings on 21 February and 20 May 2024.
This matter originally involves an application by Mr Tirmizi and a cross application by Mr Wong. Mr Wong’s crossclaim under application 9047784 was withdrawn prior to the hearing on 20 May 2024.
There are only two members of Body Corporate 81545, being the applicant and the respondent. Mr Wong has, for a number of years, been the body corporate secretary but he resigned on 15 August 2023. The claims essentially arise out of Mr Tirmizi’s proposed development of his unit and Mr Wong’s proposed sale of his unit.
The claims made by Mr Tirmizi are: (a) $100,000 against Mr Wong as a consequence of additional expense incurred in attempting to obtain Mr Wong’s consent to his proposed development of his unit, part of which extends underneath Mr Wong’s unit. Mr Tirimizi says there are no body corporate rules relating to this body corporate and that there was no legal requirement on him to obtain Mr Wong’s consent, however, he was advised by his builder that it was always best to obtain the consent of an adjoining neighbour. He claims that he has undertaken additional expense, for example, soundproofing, to satisfy Mr Wong’s many requests but that consent has still not been forthcoming. He says that the development has still not been completed because he is waiting for Mr Wong’s consent. Further, he claims that the estimated cost of the renovation has increased from $300,000-$500,000 in the meantime. (b) Mr Tirmizi wants an order from the Tribunal directing Mr Wong to accept responsibility for arranging the relevant insurance and attending to other body corporate matters. He claims that there are two insurance policies from AMI relating to the premises but that they come under the one umbrella and that AMI will not make any adjustments to the policy unless Mr Wong approves. He also claims that Mr Wong, when he was the body corporate secretary, agreed to find an alternate insurer to make a comparison but that he subsequently failed to do so and as a result Mr Tirmizi was bound to proceed with the AMI insurance, which he says is more expensive. This claim appears to relate to an allegation that Mr Wong has failed in his obligations as a body corporate secretary.
At the first substantive hearing before me on 21 February 2024, I directed both parties to file a statement of claim and a statement of defence to their respective applications.
In his application submitted to the Tribunal on 17 September 2023, Mr Tirmizi appears to be claiming only a monetary order for payment of $491.99 for this stated reason: Earlier this year, there was a significant drainage problem that caused flooding in my bathroom. I reached out to Mr. Wong for assistance given his role at the time, but I found little support from him. The issue was resolved at my initiative, and there's an outstanding invoice related to this.
At my behest at the 21 February 2024 hearing to settle the drainage/plumber’s invoice, I directed Mr Wong to pay half of the claimed amount of $246.00 which both parties accept as a fair and equitable resolution of the dispute relating to the claim for a monetary order for payment of $491.99.
Mr Wong paid the $246.00 on 20 May 2024, albeit with some reluctance. I consider this payment to be in full and final settlement of Mr Tirmizi’s claim for $491.99 accordingly in respect of the drainage invoice.
Coming back to the 21 February 2024 hearing, Mr Tirmizi articulated other claims and/or problems that he has encountered with Mr Wong.
Mr Tirmizi stated on paragraph 4A of the application form that “being the secretary Mr. Wong did not fulfil his duties and did not own up to his responsibilities, instead he made situations complex and communicated negatively and aggressively with us. The auction date for the property is 14 October 23, I hope you will go through all the matters and take action before then. Mr. Wong still has not signed the consent form, even though I have given him all the documents he required with all other concerns. Now he is selling his property and leaving me in the worst possible situation. If Mr. Wong doesn’t sign the consent papers then I want to claim for $100,000 for all my money and resources that have been wasted since his first approval on 26 July 2022.”
The Tribunal’s jurisdiction under the Residential Tenancies Act 1986 (‘RTA’) and Unit Titles Act 2010 (‘UTA’) is operated on an adversarial forum; claimants should adequately set out their claims against the other party properly so that the other party is sufficiently informed on the case before the Tribunal and all orders sought against the other party, whether for a work order, a declaration and/or monetary order, and if so, how much.
I also considered it paramount that the causes of action are sufficiently pleaded, failing which the party to whom a monetary order, work order or to whom an order for declaration is sought, will be left in the dark without having prepared sufficiently to answer them at the hearing.
Consequently, I directed Mr Tirmizi to prepare and file and serve on Mr Wong a statement of claim setting out each and every aspect of his claims against Mr Wong, including the respective causes of action under the UTA.
I also made similar directions on filing of pleadings regarding Mr Wong’s crossclaim. Given that Mr Wong had withdrawn his crossclaim prior to the substantive hearing on 20 May, I will say no further on this crossclaim.
Specifically, I also made the following direction 8: If it becomes apparent during the preparation and filing of the above pleadings that Body Corporate 81545 ought to be joined as a party to the proceedings, the applicant must seek leave from the Tribunal in writing on or before 13 March 2024.
Mr Tirmizi never joined Body Corporate 81545 to the proceedings and he never sought leave from the Tribunal to do so until the 20 May 2024 hearing. For reasons which I will set out further below, I decline leave for Mr Tirmizi to join Body Corporate 81545 to the proceedings at that late juncture.
Mr Tirmizi’s claims remained against Mr Wong and Mr Wong alone.
From Mr Tirmizi’s statement of claim filed, which he expanded at the substantive hearing on 20 May 2024, Mr Tirmizi’s claims against Mr Wong are couched as follows: a. Based on section 80 (1) (e) of the Unit Title Act 2010; must carry out, without delay, all work that may be ordered by a territorial authority or public body in respect of the unit to the satisfaction of that authority or body; In his resignation, he clearly stated that no construction should begin without his permission. He warned me, his lawyer would seek a court order to halt any construction not approved by him. He cautioned me against starting my project and referred to the Unit Title Act. After receiving his threatening letter, I filed a case with the tribunal to seek justice. Attachment 03- threatening letter DO NOT START any construction court order to STOP. b. As per section 80 (1) (i) of the Unit Title Act 2010; 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: According to this rule, I couldn't change anything until I got written permission from the body corporate. However, the problem was that he owned Unit 1 (above the basement that I plan to renovate) and was also the secretary of the body corporate. I think he abused his authority by not giving me the written permission from the body corporate. c. As per section 89 (3) of the Unit Title Act 2010; Subsequent annual general meetings must be held once every calendar year and not later than 15 months after the previous annual general meeting; Unfortunately, he hasn't set up any meetings, despite my request in an email dated July 5, 2023. In that email, I emphasized the importance of following the rules and addressing the issues. However, I didn’t receive response like previous times. Attachment 05- correspondence with Secretary of Body Corporate & conflict of interest. d. According to the Section 79 (d) of the Unit Title Act 2010: is entitled to have quiet enjoyment without interruption by other unit owners or occupiers; we were unable to have this as when he was selling his property, we had to deal with a lot of interruptions and disturbances because of his listing. People have been coming to our home, invading our privacy without permission, and entering our property to bother us. Even though the official viewing hours for Unit 1 are from 2:00 to 2:30 pm, visitors were showing up unannounced at Unit 2 at different times. See attached document for more details: Attachment 01- Experiencing significant disturbances due to the listing of unit 1, 7 proteus pl. e. According to section 34 Pre-settlement disclosure statement in Unit Title Regulations 2011. (g) whether a levy, or part of a levy, due to the body corporate is unpaid and, if so, the amount of the unpaid levy; and (h) whether legal proceedings have been instituted in relation to any unpaid levy; and (l) whether there are any proceedings pending against the body corporate in any court or tribunal; and; I'm curious whether the owner of unit 1 and their representative shared any current legal issues or unpaid bills in the paperwork before finalizing the agreement. Also, it's unclear who signed the pre-settlement disclosure statement if the secretary wasn't available. I'll request both documents from the court to keep in the body corporate records and for your 1 permission, I'll ask for appropriate measures to be taken against them. Attachment 06- correspondence with owner unit 1 and his agent after advice from unit title services.
It is apparent from Mr Tirmizi’s claims against Mr Wong that he has misunderstood the obligations and duties that the body corporate hold pursuant to the UTA and conflated them against rights and responsibilities that individual owners and members of the body corporate such as Mr Wong and Mr Tirmizi hold.
The fact that Mr Wong is only one of two members of the body corporate, and prior to his resignation, Mr Wong was the body corporate secretary, do not elevate his involvement in the body corporate as a mere member of the body corporate and unit owner only. Body Corporate 81545 is a separate legal entity constituted under the UTA; Mr Wong is not the body corporate!
It must be noted from the onset that a large part of Mr Tirmizi’s claims are really directed against the body corporate who apparently failed to provide him with the necessary consent for his carrying out of his proposed alteration and renovation to his unit, which Mr Tirmizi concedes are structural and requires the consent of the body corporate under section 80(1)(i) UTA before he carries them out.
Section 80(1)(i) UTA states that a unit owner (ie., Mr Tirmizi in this case) 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. According to this rule, Mr Tirmizi required written permission from the body corporate, not Mr Wong.
Even when Mr Wong was the body corporate secretary, Mr Wong’s role is as agent, office bearer and committee member of the body corporate which is an entirely separate legal entity to Mr Wong as unit owner and member of Body Corporate 81545. To be clear, Mr Wong is a unit owner and member of Body Corporate 81545 in the same manner that Mr Tirmizi is a unit owner and member of the same body corporate.
Any failure or dereliction of duty by Mr Wong as body corporate secretary is owed only to Body Corporate 81545 who is the only legal entity/party who Mr Wong is accountable for.
Mr Wong also has individual rights as a unit owner and interested member of the body corporate. His own and individual preference that Mr Tirmizi should not be permitted to carry out the substantial renovation and structural alteration to his unit is not subject to review. In other words, Mr Wong has a right to simply say no to Mr Tirmizi’s request for his consent to the alteration.
I recognise that in practical terms, Mr Wong’s refusal of consent simply means that if a vote at the body corporate meeting is carried out, Mr Tirmizi’s “yes” vote (to the proposed structural renovation at his unit) will be defeated by Mr Wong’s “no” vote. In a body corporate where there are only 2 members, Mr Tirmizi’s 50% yes vote will never be enough to give himself the required consent to carry out the structural alteration that he has sought on his unit.
Against that backdrop, there is nothing that Mr Tirmizi can do legally against Mr Wong. No amount of threats or legal wrangling can rescue Mr Tirmizi from the position of deadlock that Body Corporate 81545 faces unless he calls upon a judicial forum such as the High Court or the Tenancy Tribunal for an order that Body Corporate 81545 grants the consent under section 80(1)(i) UTA that he has sought and refused by the body corporate.
It is unnecessary for the Tribunal to go into Mr Tirmizi’s request for consent because he has not sought the same against Body Corporate 81545 nor is the body corporate a party to this proceeding. Here, Mr Tirmizi’s quarrel is solely and squarely against Mr Wong, as articulated in this statement of claim and submissions made at the 21 May 2024 hearing.
As against Mr Tirmizi, Mr Wong owes no duty to act in the best interest of Mr Tirmizi in any manner whatsoever. I reiterate that any duty to grant consent or to act on his consent request owed to Mr Tirmizi is only owed to him by Body Corporate 81545, not Mr Wong; this point must be made abundantly clear.
As for the calling of meetings, it remains the right of the members of the body corporate to invoke the meeting provisions of the UTA to call for a meeting to obtain the required vote. Any failure by Mr Wong to call a meeting to discuss the issue can be rectified by Mr Tirmizi calling for a similar meeting. But the reality remains in such a situation of deadlock that Mr Tirmizi will not be able to get past 50% to get the consent that he requires. His only remedy in such a situation appears to be a plea to a judicial forum to adjudicate on his request whereby his best case/outcome is for the judicial forum to consider that his request for structural alteration is wholly reasonable and the body corporate’s refusal to grant him the consent is not.
However, even if a judicial forum entertains Mr Tirmizi’s request for consent, the judicial forum must also consider whether it is appropriate for it to override the body corporate decision to refuse consent. In other words, should there be judicial intervention on a decision that is under the purview of the body corporate under section 80(1)(i) UTA?
In short, Mr Tirmizi still faces an uphill battle for the consent that he is after.
The predicament that Mr Tirmizi has faced (and is still facing) is perhaps best understood by reference to the facts and decision of the High Court in Singh v Boutique Body Corporates Ltd [2019] NZHC 1707.
In Singh, Associate Judge RM Bell struck out various causes of action filed by the unit owner against committee members of the body corporate for breach of duty of care in administering a repair scheme for weathertightness issues at the complex.
Ms Singh pleaded causes of action against the body corporate committee members included an allegation of gross negligence or wilful misconduct by the committee members in administering the repair scheme.
In granting the strike out applications, Associate Judge Bell held that in general, the professional assumed a duty of care only to the body corporate, not to individual owners. That meant that the body corporate could hold the professional to account and any decision to do so would be made by the body corporate in a general meeting or by those acting with delegated authority of the body corporate.
The rule against derivative claims applied to bodies corporate under the Unit Titles Act as well other incorporated entities. The secretary assumed responsibility to the body corporate as a whole, not to individual members, and the scope of the duty was determined by the instructions and authority given to it by the body corporate as a whole.
Given the strong policy of not interfering with the exercise of voting powers so long as jurisdiction and eligibility requirements were met and the case was not within s 210 of the Unit Titles Act, there was no basis for holding that one owner owed a duty of care to other owners when voting in a general meeting. The consequence was that the owners generally must take the consequences of decisions in general meeting for better or worse.
If the body corporate made a botch of matters, the owners might be worse off and might face increased levies to put matters right, but they would not have recourse against the body corporate or each other. So the High Court found that Ms Singh could have no claim against the body corporate or her fellow owners for their decisions in general meeting, including any major decisions under the scheme which included decisions to raise scheme levies.
Notably in Singh at [48], AJ Bell held that ordinarily committee members did not owe a duty of care to individual owners. They were appointed by the body corporate as a whole and were its agents. They answered to it. It could approve their decisions by authorisation, ratification, affirmation and adoption. The approval was a decision of the majority in a general meeting. An individual owner could hardly take the committee to task for a decision approved by the body corporate. That would subvert the vote of the majority in general meeting. Accordingly, an individual owner’s claim could be available only in circumstances where the body corporate’s approval was irrelevant. In a case alleging breach of a duty of care, that could only be if, putting aside its obligations to the body corporate as a whole, the committee assumed responsibility to particular owners.
Here, there is nothing to suggest that Mr Wong had assumed responsibility to Mr Tirmizi at all, and following Singh, there is no duty owed by Mr Wong to Mr Tirmizi in the circumstances.
Mr Wong is not obliged to give Mr Tirmizi his consent or his vote on behalf of the body corporate to consent to Mr Tirmizi’s proposed alterations to his unit. There is no arguable claim for Mr Wong to answer on Mr Tirmizi’s allegation that “he abused his authority by not giving him the written permission from the body corporate”.
For those reasons, Mr Tirmizi’s claim against Mr Wong for substantial damages for his failure to consent to his proposed building works must fail.
I take a similar approach in relation to the other claims articulated by Mr Tirmizi.
Any failure by the body corporate to hold meetings under section 89(3) UTA can be rectified by the body corporate member calling for meetings accordingly. Any failure by the body corporate secretary to hold meetings is a matter for the body corporate to take the secretary to task. The office bearer is answerable only to the body corporate, not to other individual unit owners. Mr Tirmizi therefore has no legal standing to pursue a claim against Mr Wong for the alleged failures of Mr Wong when acting as body corporate secretary.
Mr Tirmizi’s pleaded cause of action under section 80(1)(e) UTA against Mr Wong is misconceived. No territorial authority/council has issued any order to Mr Wong to carry out work in respect of his unit to the satisfaction of that authority or body. The fact that Mr Tirmizi has a building consent for alternations to his unit does not bring section 80(1)((e) to the fore. He may be consented to carry out proposed building works but he is not obligated to do so! Section 80(1)(e) only requires a unit owner to carry out, without delay, all work that may be ordered by a territorial authority or public body in respect of the unit to the satisfaction of that authority or body; Mr Tirmizi’s Auckland Council building consent is irrelevant to other unit owner Mr Wong. The building consent is not a notice to breach/fix issued by Auckland Council to Mr Wong!
As for Mr Tirmizi’s claim that Mr Wong was in breach of his pre-settlement disclosures under section 34 Unit Titles Regulations 2011 (‘UTR’), the duty to provide the stipulated information prescribed is to the buyer of Mr Wong’s unit, not to Mr Tirmizi. For the purposes of section 147(3)(a) UTA the seller must provide a disclosure statement (a pre-settlement disclosure statement) to the buyer. Unless Mr Tirmizi is the buyer of Mr Wong’s unit, Mr Tirmizi has no legal standing to bring a claim against Mr Wong for alleged breaches of section 34 UTR and section 147 UTA.
Only the claim against Mr Wong made under section 79 (d) UTA is capable of being advanced by Mr Tirmizi in any meaningful degree. Under that section, unit owners are entitled to have quiet enjoyment without interruption by other unit owners or occupiers. However, I prefer Mr Wong’s evidence that as seller of his unit, he has not personally caused the interruption to Mr Tirmizi’s quiet enjoyment as complained. Mr Wong is not responsible for prospective purchasers and visitors misidentifying Mr Tirmizi’s unit for Mr Wong’s unit during the sale process. Any invasion of Mr Tirmizi’s privacy by third parties and strangers are not Mr Wong’s doing. Mr Wong is not in control of visitors showing up unannounced to his place in as much as Mr Tirmizi himself! Consequently, I do not consider that Mr Wong has breached section 79(d) UTA and the claim for general damages against him by Mr Tirmizi also fails.
Lastly I have not acceded to Mr Tirmizi’s late request to join Body Corporate 81545 to the proceedings during the 20 May 2024 hearing. In his application form filed herein, Mr Tirmizi described Mr Wong as “Body Corporate Manager” which he is not; Mr Wong is a unit owner and body corporate member. At best, Mr Wong is the former body corporate secretary only.
The causes of action that Mr Tirmizi has set out were made against Mr Wong personally rather than as an agent of the body corporate. Even if Mr Tirmizi’s claim is viewed as a claim against the agent of the body corporate, only Body Corporate 81545 can decide and only Body Corporate 81545 can make such a claim against its office bearer and agent – see the decision of AJ Bell in Singh above. Any prospective action by Body Corporate 81545 must be made by the body corporate in a general meeting or by those acting with delegated authority of the body corporate. The rule against derivative claims applied to bodies corporate under the Unit Titles Act and this includes Mr Tirmizi’s claim.
Mr Wong has since disposed off his unit to a third party who is now the other body corporate member. There nothing to indicate that Body Corporate 81545 as a whole and the other unit owner/body corporate member is aware of prospective proceedings against the body corporate.
In the event Mr Tirmizi is minded to recommence proceedings against Body Corporate 81545, he must do so formally by way of separate proceedings. In such a case, it is expected that Body Corporate 81545 will formally meet to discuss and approve in a general meeting on how to respond to such a claim. Naturally, Mr Tirmizi himself is entitled to vote in the meeting on how his body corporate, ie., Body Corporate 81545, should respond to his claim filed in his capacity as unit owner. Any liability by Body Corporate 81545 must then be satisfied by Body Corporate 81545 after raising appropriate levies on its members to meet costs and judgment against the body corporate.
I have clearly and specifically foreshadowed in my 21 February 2024 order that if it becomes apparent during the preparation and filing of pleadings that Body Corporate 81545 ought to be joined as a party to the proceedings, the applicant must seek leave from the Tribunal in writing on or before 13 March 2024.
Mr Tirmizi never joined Body Corporate 81545 to the proceedings and never sought leave from the Tribunal to do so until the 20 May 2024 hearing. There was also nothing pleaded by Mr Tirmizi in his statement of claim against Body Corporate 81545. Bearing in mind the legal position of the respective parties as set out in AJ Bell’s judgment in Singh, the prospect of Mr Tirmizi’s claims being successful against the body corporate is equally bleak. For those reasons, I decline leave for Mr Tirmizi to join Body Corporate 81545 late into the proceedings.
Apart from the claim for reimbursement of the plumber’s drainage invoice (which was settled by agreement at the hearing on 21 February 2024), none of the other pleaded causes of action by Mr Tirmizi is successful.
I therefore dismiss the remainder of Mr Tirmizi’s application for the above reasons.

Tenancy Tribunal case 9047004 — Mould & damp in Half Moon Bay, Auckland

At a glance

Tenancy Tribunal case 9047004 — Mould & damp in Half Moon Bay, Auckland

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions