What was the outcome of Tenancy Tribunal case 9055644?

The tribunal order states: The application is dismissed for want of jurisdiction

How much money was awarded in case 9055644?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9055644?

The primary dispute was Cleanliness. Related themes: Unit Titles.

Where can I read the official tribunal order for case 9055644?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10733392-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9055644?

The tribunal order states: The application is dismissed for want of jurisdiction

How much money was awarded in case 9055644?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9055644?

The primary dispute was Cleanliness. Related themes: Unit Titles.

Where can I read the official tribunal order for case 9055644?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10733392-UTA_Tribunal_Order.pdf.

Auckland Central, Auckland Tenancy Tribunal Case 9055644 — Cleanliness

Order

The application is dismissed for want of jurisdiction

Reasons

The hearing was conducted on Microsoft Teams by video link.
Craig Leishman of Boutique Body Corporates attended the hearing for the body corporate.
Chenliang Qian attended for Build Power.
The matter was before me solely for determining whether the Tribunal has jurisdiction to hear the application.
The body corporate’s substantive application is for the recovery of money from a bond held by Build Power’s solicitors.
The bond is for a licence Build Power gave the body corporate to access Build Power’s premises, located next door to the body corporate’s building. The body corporate needed the licence needed the licence for access for contactors to do refurbishment work to the body corporate’s building.
The main dispute seems to be the duration of the licence. The body corporate says it must pay licence fees only to 15 September 2023, which is the date on which contractors removed scaffolding. Build Power says the body corporate continued to access its premises under the licence agreement until the end of November, so it must pay until then and must also reimburse it for lost income. The issue
The licence relevantly states:
The licensee understands the current lease of 141 Hobson St is ending on the 28 th February 2023 and the licensor using the best endeavour to secure a tenant. However, if the building at 141Hobson St remains vacant after the end of the lease on the 28 March 2023 (or earlier), the licensee will pay $9,000per month to the licensor, apportioned if not a complete month, until all works within the site is finished.
The Licensor grants to the Licensee the non-exclusive and non-transferable right to use and occupy the Property for the Permitted Use only and for no other purpose unless expressly consented to in writing by the Licensor. The permitted use is to erect a scaffold and gantry to the south wall of 135 Hobson St for the purpose of carrying out structural repairs and re-painting the said wall upon completion.
The licence does not state any term. The licensor can end the licence if the licensee breaches the terms of the licence.
The issue of jurisdiction turns on whether Build Power is a “service contractor”. Under s 5 of the Unit Titles Act 2010, service contract and service contractor are defined as follows: service contract means a contract between a body corporate and another person (the service contractor) engaging the service contractor (other than as an employee of the body corporate) for a term of at least 1 year to supply services to the body corporate or to the unit owners... Legal principles
The critical words “a service contractor” are from s 171(2)(h) of the UTA, the part of the Act setting out the Tribunal’s jurisdiction. I quote the relevant parts of the section to give context: Part 4 Disputes, cancellation, and conversion Subpart 1—Disputes 171 Jurisdiction of Tenancy Tribunals (1) Except as provided in this section, a Tenancy Tribunal (a Tribunal) constituted under section 67 of the Residential Tenancies Act 1986 has jurisdiction to hear and determine all disputes arising between any persons of the kind listed in subsection (2) in relation to a unit title development (a unit title dispute). (2) The persons mentioned in subsection (1) are— (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.
Section 10(1) of the Legislation Act 2019 provides: How to ascertain meaning of legislation (1) The meaning of legislation must be ascertained from its text and in the light of its purpose and its context. Submissions
The Tribunal gave the parties three working days to file submissions on this legal issue at the applicant’s request. Both parties have filed submissions.
Very briefly (I do not attempt to recount the parties’ submissions here), the body corporate submits the Build Power is a service contractor under the licence agreement and therefore the Tribunal does have jurisdiction:
The licence is quite transparent. It states the respondent will provide access to enable works to be carried out. The provisioning of access to permit remedial work is clearly a service. Why would the provision of access under a licence be treated any differently, say from a security firm who unlocks each morning and then locks down a building under a contract with the building owner even if the contract is headed up "Security Contract"?
The respondent submits it is not a service contractor and the Tribunal does not have jurisdiction: The arrangement in question involved a license granted by Build Power Limited to Body Corporate 348047, permitting the latter to access Build Power's land to install and remove scaffolding as part of their building remediation efforts. This license agreement was for access purposes only and did not include any provision of ongoing services, maintenance, or other activities typical of a service contract. The text
I begin with “text” as referred to ins s 10(1) of the Legislation Act 2019. “Text” is the provision’s words themselves and the immediate text that bears directly on the words. Parliament uses language in the form of words to communicate its purpose. Thus, one needs to look to the meaning of the words.
The New Oxford Dictionary of English (1998) 1 definition of “service contract” is: 1 a contract of employment 2 a business agreement between a contractor and customer covering the maintenance and servicing of equipment over a specified period.
That dictionary’s definition of “contract”, includes: A written or spoken agreement, especially one concerning employment, sales, or tenancy, that is intended to be enforceable by law...
The definition of “service” includes: The action of helping or doing work for someone: millions are involved in voluntary service.
The definition of “supply” includes: Make (something needed or wanted) available to someone: the farm supplies apples to cider makers.
The New Oxford’s interpretation of “service contract” is inconsistent with the body corporate’s contended definition of a service contract because a licence is not akin to a contract of employment or an agreement for maintenance and servicing.
On the other hand, “service” can be the action of “helping someone”. It is arguable the licence helped the body corporate. 1 The New Oxford Dictionary of English (Clarendon Press, Oxford, 1998). Purpose and context
I turn to “purpose” and “context”. The purpose of s 171 is to delineate the Tribunal’s jurisdiction. It gives the Tribunal jurisdiction to determine disputes between “any persons of the kind listed in subsection (2) in relation to a unit title development”.
The entities listed in subsection (2) exist within the body corporate community itself (such as the body corporate, owners, and occupiers) or are of a kind that would commonly engage with the body corporate community (such as body corporate managers, and registered valuers).
The named entities are a closed list. There is no catch-all general word at the end of the list. Thus not every interaction of, say, a body corporate will invoke the Tribunal’s jurisdiction. The body corporate’s day-to-day purchases from an entity would not qualify for instance. If the body corporate contracted a service contractor for services, and the term of the service contract was at least a year, the service contractor would be an included entity.
I apprehend the purpose of s 171 is to include within the Tribunal’s jurisdiction unit title disputes where the provisions of UTA are likely to be more apposite to the dispute than the general law. Thus, where a unit title dispute occurs between any of the named entities, the UTA applies, and the Tribunal has jurisdiction. The common proximity of the listed entities to unit development affairs serves as a means to define jurisdiction. Discussion
Against this background, I return to the central issue.
The operative term of the licence agreement is term 4, which states:
The Licensor grants to the Licensee the non-exclusive and non-transferable right to use and occupy the Property for the Permitted Use only and for no other purpose unless expressly consented to in writing by the Licensor. The permitted use is to erect a scaffold and gantry to the south wall of 135 Hobson St for the purpose of carrying out structural repairs and re-painting the said wall upon completion.
The body corporate could not provide any authority for its case but submitted that absence was “a red hearing”. It should be noted here that, nor did Build Power cite authority going the other way.
The body corporate relied on the meaning given to “services” under the Goods and Services Act 1985 (GSTA). Under that Act, “services” is defined as “anything which is not goods or money or cryptocurrency”.
The GSTA purposes in the use of the word “service” are distinctly different from the UTA. The purpose in the GSTA is to ensure that the Revenue captures all conceivable income, and the definition deems all manner of things to be “services” even if they might not be regarded to be services in ordinary parlance.
It is true that “service” under s 171 of the UTA could include all manner of things, but the word is used in conjunction with “contract”. Certainly if the Build Power were in the business of providing licences, that could be a service. Of course, pursuant to the GSTA, Build Power has to attribute the GST component of the contract fee to its income for GST purposes, but that does not mean that Build Power’s grant of a licence was a “service” in terms of s 171.
The body corporate submits, “The provisioning of access to permit remedial work is clearly a service”. However, I am not sure that is so self-evident. Build Power’s role is simply to allow its land to be used. It is permitting the body corporate to occupy its land for a specific purpose only in consideration of a sum. Build power is not required to do anything or provide anything in substance; it is simply required to allow the body corporate to access and occupy its land for a limited purpose.
It is true that the Build Power’s granting of the licence benefits or assists the body corporate but one would not usually describe the grant of a licence as providing a service.
The New Oxford’s 2 definition of “service contract” highlights that the Tribunal’s task is to understand the meaning of the words “service contractor” together in the context of the UTA rather than in isolation.
Putting aside that dictionary definition and considering the generally understood meaning in this context: people familiar with body corporate matters would generally understand a service contractor as being contractor that provides regular services (typically to the body corporate) for services such as cleaning, rubbish removal, day-to-day repairs and the like. Body corporates commonly enter into contracts with such service providers to continue to provide those services over an extended period.
It is likely, in my view, that the drafters this generally understood meaning had in mind when drafting s 171.
I have reflected on the purpose of s 171 of bestowing jurisdiction for unit title disputes where the UTA provisions are more apposite than the general law. The provisions of the UTA are not particularly apposite to Build Power’s licence in favour of the body corporate. 2 The New Oxford Dictionary of English (Clarendon Press, Oxford, 1998).
Licence issues may arise in unit title disputes (for example a unit owner granting a licence to another entity to use its carparks) 3 but this dispute does call for the UTA to be considered in any substance (bar deciding jurisdiction). Conclusion
Build Power is not a service contractor for the purposes of s 171(2)(h) of the UTA.
The body corporate’s claim therefore does not raise a dispute “between any persons of the kind listed in subsection (2) in relation to a unit title development”.
It follows, the Tribunal does not have jurisdiction to hear the claim.

Tenancy Tribunal case 9055644 — Cleanliness in Auckland Central, Auckland

At a glance

Tenancy Tribunal case 9055644 — Cleanliness 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