What was the outcome of Tenancy Tribunal case 9052164?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9052164?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9052164?

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

Where can I read the official tribunal order for case 9052164?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10797558-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9052164?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9052164?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9052164?

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

Where can I read the official tribunal order for case 9052164?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10797558-UTA_Tribunal_Order.pdf.

Auckland Central, Auckland Tenancy Tribunal Case 9052164 — Mould & damp

Order

The application is dismissed.

Reasons

Roger Levie represented the respondent/body corporate.
Brian Hudson purported to represent the applicant/unit owner 201 Limited (‘the applicant company’). Mr Hudson also indicated that he is the beneficial owner or otherwise beneficially interested in unit 201 at the unit title development at 23 Hargreaves Street, Auckland Central, Auckland 1011 (‘the Ridge Apartments’).
Mr Hudson occupied unit 201 before he was allegedly “forced out”. Mr Hudson calls on the Tribunal to remove the current body corporate committee because it has had such an extraordinarily unsuccessful reign; Mr Hudson also sought an order for the body corporate to re-install the previous committee.
First and foremost, issue arises as to whether the proceedings filed herein can continue to be advanced since the applicant company has been removed from the companies’ register on 24 May 2024.
Mr Hudson is one of two directors of the applicant company.
However, the applicant company is a separate legal entity to its directors and shareholders.
Having been removed as a corporate entity, the applicant company is no longer able to prosecute and maintain the claims filed (prior to its removal from the companies’ register). For this reason alone, the application must be dismissed.
Notwithstanding removal of the applicant company, Mr Hudson sought, in the alternative, to prosecute the claim in his personal capacity as an “occupier” or former occupier of unit 201.
In this sense, the Tribunal appears to have prima facie jurisdiction to consider Mr Hudson’s claim under section 171(1) Unit Titles Act 2010 which unit title dispute is between an occupier of a principal unit and a body corporate.
However, none of his pleaded and argued claims are to do with his occupation of the principal unit whether on perceived breaches of his right as an occupier by the body corporate or breaches of the body corporate of their responsibilities to the occupier of the principal unit.
The application seeks the removal of the body corporate committee on grounds that it is dysfunctional. Mr Hudson pleads res ipsa loquitur in that management of a unit title complex initially valued at $35 million being reduced to mere $5 million clearly indicates incompetence in the highest order. He says that he has personally advised the committee for years on how to fix matters, but they chose to do the opposite which has now resulted in the worst outcome for everyone. Finally, Mr Hudson maintains that the body corporate committee has destroyed a very good building due to obvious mental health issues.
Mr Hudson’s claims are to do with alleged encroachments by the body corporate of the unit owner’s property interest in unit 201 and the unit title complex. Principal unit 201 is owned by the applicant company, not Mr Hudson. So only the applicant company has locus standi to pursue the above claims.
On this alternative ground to advance the claim, I also conclude that the Tribunal has no jurisdiction to entertain Mr Hudson’s claim purported to be under section section 171(1) Unit Titles Act 2010.
For the sake of completeness, I set out the material factual matrix of this matter as follows.
The decision to now sell the building was not made by the body corporate committee as claimed by Mr Hudson. The decision was made by resolution passed at an extraordinary general meeting of the body corporate held on 14 February 2023.
Lang J’s judgment of 9 January 2019 in May v Body Corporate 329331 and Ors [2019] NZHC 3 aptly summarised the problems faced by this apartment complex situated in St Mary’s Bay known as the Ridge Apartments.
The complex consists of 33 residential units constructed on six levels. Like many other apartment complexes in the Auckland area, the Ridge Apartments has had longstanding weathertightness issues. Since 2010 the body corporate has been the subject of a notice issued by the Auckland Council to rectify various issues. The High Court on 3 February 2010 granted an order sanctioning a scheme of arrangement under section 48 of the Unit Titles Act 1972 pursuant to an application by the body corporate. This empowered the body corporate to undertake the remedial work required to make the complex watertight and code compliant. The complex has never had a code compliance since it was built in 2004 and 2005.
Lang J at [34] does not consider that he can determine the applications on the basis of any alleged dysfunction within the body corporate, acknowledging there is certainly a sharp division between unit owners as to which repair option should be adopted.
At [35] Lang J agreed with counsel for the body corporate of the need for the Court to pay due regard to the democratic processes by which the affairs of a body corporate are managed. These recognise that individual unit owners, who inevitably have disparate interests, abilities and aspirations, may not be able to reach unanimous agreement regarding the governance and management of the body corporate. The ability of the body corporate to make decisions by way of majority resolution ensures the views of the majority are not thwarted by those of the minority.
At [36] Lang J agreed that it is not for the Court to impose its will on unit owners who have made decisions for themselves using the prescribed processes. Furthermore, the Court accepts that there is nothing to prevent unit owners from rescinding an earlier decision where they consider circumstances have changed to the point where the original decision is no longer appropriate. Lang J accepted the unit owners have the power by majority resolution to terminate a building contract even though that may result in financial consequences for unit owners as a whole. The Court accept that such a decision is likely to be regarded as reasonable if it results in significant overall savings for unit owners as a whole.
Guidance can also be found in the facts and decision of the High Court in Singh v Boutique Body Corporates Ltd [2019] NZHC 1707 on addressing Mr Hudson’s complaints.
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 the body corporate committee had assumed responsibility to the applicant company or to Mr Hudson at all, and following Singh, there is no duty owed by the committee to Mr Hudson or the applicant company in the circumstances.
For those reasons, the applicant company’s and Mr Hudson’s claims against the body corporate must fail.

Tenancy Tribunal case 9052164 — Mould & damp in Auckland Central, Auckland

At a glance

Tenancy Tribunal case 9052164 — Mould & damp in Auckland Central, Auckland

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions