What was the outcome of Tenancy Tribunal case 9052544?

The tribunal order states: The application against both Elite Management Limited, and Kirstin Celia

How much money was awarded in case 9052544?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9052544?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9052544?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10781901-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9052544?

The tribunal order states: The application against both Elite Management Limited, and Kirstin Celia

How much money was awarded in case 9052544?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9052544?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9052544?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10781901-Tribunal_Order.pdf.

Frankton, Queenstown Tenancy Tribunal Case 9052544 — Unit Titles

Order

The application against both Elite Management Limited, and Kirstin Celia Mtichell are dismissed.

Reasons

The Tribunal has received an application filed by a Unit Owner against a Body Corporate Manager and an employee / officer of the Manager. The matter to be determined is whether the application can be considered by the Tribunal.

BACKGROUND

Mr Li is an owner of a principal unit in a unit titled development.
Mr Li is dissatisified with various matters arising at the complex.
On 20 April 2024 Mr Li filed an application with the Tribunal, naming Elite Management Limited and Ms Mitchell as the respondents. For brevity, in this decision I will refer to Elite Management Limited as Elite. In summary Mr Li states that there had been serious irregularities with voting, and seeking to have various meetings or resolutions declared invalid. Mr Li considers that Elite and Ms Mitchell are to blame. Mr Li also considers Elite has overcharged him for pre-sale disclosure reports, and breached its Code of Conduct obligations.
On 27 June 2024 I convened a pre-hearing case conference. In attendance was Mr Li and Ms Mitchell. In my subsequent minute I recorded the following:
I raised that I had concerns as to whether the applicant (Mr Li) was able to bring a claim against the body corporate manager and also an employee / officer of the body corporate manager company. Mr Li advised that he is a former body corporate committee member and bringing on that basis. I noted that there is no ability for a committee member to bring a claim under the Unit Titles Act 2010 as a committee member. Certainly Mr Li can bring a claim in his capacity as a private unit owner, and the Body Corporate can bring a claim, but not the committee (see Unit Titles Act 2010, section 171).
Ms Mitchell states that as the manager they don’t make decisions, and therefore Mr Li would need to bring his claim against the body corporate.
I raised with Mr Li that my preliminary view was that he could not succeed with this claim against either the Body Corporate Manager or its employee / officer, and that the correct respondent would be the Body Corporate, but Mr Li maintained his claim was against Elite Management Limited AND Ms Mitchell.
The question of whether a claim can be considered against Elite Management Limited and Ms Mitchell will need to be determined at a hearing. The parties agree to a telephone hearing for that. If the Tribunal confirms that a claim can advance against Elite Management Limited and / or Ms Mitchell, a further hearing will be scheduled at a later date to hear the claim.
A hearing to consider whether the claim against the Elite and Ms Mitchell could be considered was convened on 2 September 2024. This was also by telephone. The Tribunal was assisted by an interpreter again. Mr Li and Ms Mitchell both attended.

PARTIES CASE

Applicants case

Mr Li filed a detailed written submission in advance of the hearing setting out his positions in this case. Those are fairly comprehensive, and while I will not record them in detail, they have been considered.
It is disputed that there is no right of the Manager to make decisions. Respondents case
Ms Mitchell submitted that her role is to work within the Body Corporate community, she does not make any decisions, and she cannot overrule any decisions the Body Corporate make.

ANALYSIS

As I indicated in my case conference minute, there are issues as to whether Mr Li is bringing the application against the correct party.
In short, what Mr Li’s concerns relate to, are decisions the body corporate manager has made, or actions the manager has taken within the context of its contract with the Body Corporate. When the body corporate manager makes any decisions or takes any actions, they are doing that as an agent of the body corporate. The things that Mr Li takes issue with (as summarised above) are matters that fall within the statutory responsibility of the Body Corporate, not the Body Corporate manager.
I am entirely satisfied that Mr Li has brought the application against the wrong party, if he wants to proceed with any application regarding the disputed matters, then he needs to file an application against the Body Corporate.
Mr Li refers correctly refers to section 171 of the Unit Titles Act 2010. That provision sets out the jurisdiction of the Tenancy Tribunal and confirms that applications can be made for and against any party listed in subsection 2, those are as follows: (a) the owner of a principal unit or a former owner of a principal unit: (b) a future development unit owner: (c) an occupier of a future development unit: (d) a body corporate: (da) a body corporate manager: (e) an administrator: (f) a registered valuer: (g) an occupier of a principal unit: (h) a service contractor: (ha) a party to a signage agreement: (i) a prospective buyer of a principal unit: (j) an original owner: (k) a lessor of base land: (l) the chief executive.
Mr Li is an owner of a principal unit, so he can be a party to an application in the Tribunal, that is not in doubt. Elite Management Limited could also be a party because they would fall into the category of 2(da) as a body corporate manager. However Mitchell personally does not fall into any of those criteria, so plainly an application against Ms Mitchell cannot be brought, so the application against Ms Mitchell is dismissed on that basis. Incase Mr Li is uncertain, Ms Mitchell would not be a service contractor, because she does not have a contract to deliver services to the Body Corporate in her personal capacity. She may have a contract with Elite, but she does not with the Body Corporate or Mr Li that I have seen.
While in theory an application could be brought by Mr Li against Elite Management Limited, that does not mean it could succeed. In order to establish his claim, Mr Li would also need to establish that Elite had breached some legal obligation it had to him, and he has not done so. That is because the obligations Elite have is are with the Body Corporate, not each unit owner individually. The contract arising is between Elite and the Body Corporate, and it is under that the contractual and statutory obligations arise.
I note the High Court decision of Singh v Boutique Body Corporates Limited and Others [2019] NZHC 1707. In that case, Ms Singh who was a unit owner, like Mr Li, brought an application under the UTA against the body corporate manager Boutique Body Corporate Ltd (and committee members). The Court confirmed that there was no duty arising between the body corporate manager and individual unit owners, rather the duty existed between the body corporate manager and body corporate. The Court held: [22] The question here is whether Boutique Body Corporates Ltd owes Ms Singh a duty of care in addition to any duties it owes the body corporate.... [23] It does not follow that because Boutique Body Corporates Ltd owes a duty of care to the body corporate, it also owes a duty of care to its members, the unit owners. ... [26] .... In general, the [body corporate manager] assumes a duty of care only to the body corporate, not to individual owners. That means that the body corporate can hold the professional to account. Any decision to do so will be made by the body corporate in a general meeting or by those acting with delegated authority of the body corporate. ... [27] A policy reason supports this approach. By confining the body corporate secretary’s duty of care in tort to the body corporate, the risks of conflicting duties are reduced. Differences among members of a body corporate are common. There may be legitimate differences of opinion on many matters in the administration of a body corporate. A body corporate secretary can hardly be expected to cater for every point of view. The provisions in the Unit Titles Act for decision-making by the body corporate – by resolution in general meeting or by chairpersons or committees with delegated authority - mean that instructions and authority to the body corporate are fixed by what the body corporate as a whole decides, not by the wishes of individual members. Correspondingly the secretary assumes responsibility to the body corporate as a whole, not to individual members, and the scope of the duty is determined by the instructions and authority given to it by the body corporate as a whole.
What this means is that if there has been any failure of an obligation by Elite, it is for the Body Corporate to pursue that, which could include in the Tenancy Tribunal, but it is not a matter for an individual owner. But it further means that if there is any breach to the unit owners interests from the body corporate manager, then the unit owner can pursue that with the principal – the Body Corporate.
I therefore dismiss the application against Elite and Ms Mitchell.

Tenancy Tribunal case 9052544 — Unit Titles in Frankton, Queenstown

At a glance

Tenancy Tribunal case 9052544 — Unit Titles in Frankton, Queenstown

At a glance

Claims & awards

Order

Reasons

BACKGROUND

PARTIES CASE

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

PARTIES CASE

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions