What was the outcome of Tenancy Tribunal case 9059664?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9059664?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9059664?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9059664?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11524578-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9059664?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9059664?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9059664?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9059664?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11524578-UTA_Tribunal_Order.pdf.

Paraparaumu Beach, Paraparaumu Tenancy Tribunal Case 9059664 — Unit Titles

Order

The application is dismissed.

Reasons

The Tribunal must consider an application filed by a unit owner, against two other unit owners. The dispute relates to the markings of carparks in a unit titled complex.
All parties appeared at the hearing today in Porirua, as did a witness who had been summoned to give evidence.
For the reasons I will explain further below, the Tribunal cannot adjudicate this further claim, because it has been the subject of an earlier application and decision of the Tribunal. Nevertheless, the dispute remains, and I have recorded the evidence and the position of the parties for the record, but the Tribunal can go no further than that.

BACKGROUND

The premises are a sizeable unit title complex, and the carparks on the complex are, in the usual way, accessory units as set out on the unit plan.
The applicant is Mr Mitchell, and his accessory unit carpark is AU 25.
The respondents are two other unit owners, the Williams’ own AU 24, and Mr Lee’s parents own AU 23 – also carparks.
The relevant portion of the unit plan is as follows:
Importantly, between AU 25 and AU 26 is a concrete column, which is indicated on the unit plan above by the solid ‘dot’ between those units.
The painted line between AU 25 and AU 26 runs in effect through the centre of the column.
Taking the measurements between the front of the carparks, AU 25 is 2.3 m wide from the above-mentioned painted line through the column, AU 24 is also 2.3 m, but AU 23 is 2.6 m.
The issue taken by Mr Mitchell, is that while his car park is the allocated 2.3 metre width, because of the column it is difficult to open the doors of his car. A photograph has been provided on file, it shows that a car can be parked within the lines at AU 25, but I accept that it would be very difficult to open a door with the column and its location.
The issue Mr Mitchell takes, is that the lines are painted in the wrong location. Mr Mitchell’s position is that the line should be painted when measured from the western concrete block wall, meaning that his park would end 6.9 metres from that wall (2.3 metres for AU 23, 2.3 metres for AU 24 and 2.3 metres for AU 25). If the lines were painted in that way, then he would not have any of the concrete column, in his car park.
Bearing in mind that the body corporate is not a respondent in this case, and I have not heard from the body corporate, I note my understanding is that the body corporate consider the lines are correctly painted, and that the centre of the line is as shown on the unit title plan, running through the middle of the concrete pillar. Earlier Tribunal order
Mr Mitchell filed a virtually identical claim which was the subject of a decision from the Tribunal dated 18 March 2022. That was a decision of Mr Henwood. That was Mitchell v Lee [2022] NZTT 9033861.
In his order Mr Henwood noted that the Mitchells were seeking a declaration and order that the lines of the carparks be re-painted to 2.3 m each, but he noted that practical difficulties arose with that, including that there would be an additional 0.35m left (currently used by AU 23), and then the question would be who to allocate that land to.
Mr Henwood identified a number of practical difficulties with making the order Mr Mitchell seeks, including that there were jurisdictional issues if an amendment to the title was required, because the Tenancy Tribunal cannot consider that. Mr Henwood states:
In either case not the least of these problems is that the Mitchells are effectively seeking to redefine the boundaries of the carparks. This constitutes a redevelopment within the meaning of s.65 of the Act. In turn, if agreement between the parties cannot be reached, any dispute is, by virtue of s171(5) of the Act, a dispute relating to the title of land. By virtue of s171(4), the Tribunal does not have jurisdiction to hear or determine such a dispute, that jurisdiction being reserved to the High Court by s.173.
For that reason the application is dismissed.
If agreement can be reached then there is a process under s.65 to be followed, involving resurvey and amendment of the unit plan and requiring the consent of the Body Corporate. It does not require an order of the Tribunal - or the High Court.
I conclude by noting two points, neither of which form part of the reasons for decision but may be helpful to the parties going forward.
First, the evidence raises real doubts as to whether the measurements shown on the plan are in fact correct. The obvious step is to engage a registered surveyor to check the accuracy. If Mr Mitchell’s calculations are correct and the distance between pillars is
84m [arguably within the margin of error of the indicated 6.9m (2.3m x 3)], it may be reasonable to deduce that the intent was that the width of carparks be calculated by reference to the distance between pillars But that is disputed at the moment.
Second, it was apparently the intent that the carparks be equal in size. The issue is how that can be achieved taking into account such factors as pillars. If it is agreed that practical size is the objective, i,e each carpark should be for practical purposes the same width, this may mean, taking into account such factors as pillars, that for survey/boundary definition purposes each of the carparks would be of differing width (and not necessarily 2.3m). But this needs to be agreed – or, failing agreement, will require reference to the High Court. S.65 would also need to be complied with.
Mr Henwood’s decision carried a right of appeal to the District Court if any party disagreed with it, but no appeal was filed.

JURISDICTION TO HEAR THIS MATTER

At the start of the hearing today, I raised with the parties that there was a significant issue that Mr Mitchell faced, which was that the Tribunal did not seem to have any ability to adjudicate this matter again.
As I noted, decisions that are issued by courts and Tribunals are normally binding on the parties. There is invariably a right of appeal if there was disagreement with Mr Henwood’s order, but it is not open to the applicant to simply bring a further application, seeking the same sort of orders, based on the same facts.
Well it is the case that Mr Mitchell and the other unit owners have received other professional advice, that does not change the situation, the claim has been previously decided, and that is final of the dispute at the Tribunal. There is no reason that the further professional advice such as that for Ms Todd could not have been obtained before Mr Henwood’s hearing, it does not change the situation to provide the Tribunal with a renewed jurisdiction to hear the dispute again.
As I noted, if it were not for this restriction, then parties could potentially bring endless claims against one another, and the law does not allow that.
However, Ms Todd had been summoned to the hearing to give evidence, and I determine it would be reasonable for that evidence to be given, so that the record can be held off that, and perhaps it would assist the parties in moving forward with the dispute, even if it was not evidence that I could consider further.

MS TODDS EVIDENCE

Ms Todd is a surveyor engaged by Mr Mitchell.
Ms Todd advised that she attended the premises to undertake a re-survey, and confirmed that the distance between the concrete block walls on that line of carparks, was 14.4 m, as shown on the unit plan above.
Ms Todd confirms that in round numbers, the front of the car park for AU 25 was 2.3 m as required on the unit plan, and that is the same situation for AU
However AU 23 is wider, at 2.6 m (where the plan records it should be
3 m).
Ms Todd considered that the technically correct way to determine where the line should go, would be to mark them based on measurements from the block walls, however Ms Todd accepted that the unit plan shows the pillar in the centre of the line between AU 25 and AU 26 nevertheless.
Ms Todd accepted that council bylaws would apply, meaning that additional space would be required for AU 23 for car door opening, as it was against a solid block wall.

MR MITCHELLS POSITION

Mr Mitchell’s position is that the car park has not been marked in accordance with the legal title, and he submits that it should be marked correctly. Mr Mitchell submits that the legal title should prevail.

MR AND MRS WILLIAMS POSITION

The Williams’ position, based on their legal advice, is that the carparks are correctly marked. Mr Williams referred to the unit plan, which clearly shows the line in the middle of the pillar, so the parks are correct to that extent.

MR LEES POSITION

Mr Lee submits that the carparks are correctly marked in the right location. That also matches the survey report obtained by Mr Lee. Mr Lee also refers to the council bylaw which says that to facilitate door opening, there must be another 300mm, so if the AU 23 carpark was reduced in size, then that would mean they would no longer comply with that council bylaw.

DECISION

At the hearing I advised what the outcome from this application would be, that is that the Tribunal has no jurisdiction to adjudicate the dispute, because it has been the subject of an earlier decision on the same grounds. The legal term for this is res judicata.
Res judicata has been defined by Spencer Bower, Turner and Handley in Res Judicata (3rd ed, 1996, Butterworths) as follows: In English law a res judicata is a decision pronounced by a judicial tribunal having jurisdiction over the case and the parties which disposes once and for all of the matters decided, so that except on appeal, they cannot afterwards be relitigated between the same parties or their privies.
The authors of LexisNexis’ District Court Practise (Civil) said at DCR209.8 stated that “It is an abuse of process where a matter has already been litigated to conclusion, and a disgruntled party to that litigation seeks to resurrect it in some other form”.
It is not at all uncommon that a party who has been unsuccessful in proceedings in a court or Tribunal, reflects on matters and considers there are other arguments they could have made, or further evidence they could have produced. But that is not enough. A noted by Justice Fogarty in Shepherd v Disputes Tribunal [2004] NZAR 19 at paras [35] – [36]: Whenever a party against whom a judgment has been made has failed to raise some question he or she could have raised, the judgment includes a decision on the omitted question. This is because the law imposes a positive obligation on litigants to bring forward their whole case. The law will not hear a litigant to argue later that they have not argued their case carefully or inadvertently or by accident omitted part of their case. This has been the law for a considerable period of time and dates back to the leading case of Henderson (1843) 3 Hare 100 at 114-115.
This may seem hard on litigants. But the reason for the law taking this approach is that there is a greater public interest in decisions being final. If that were not the case, then litigation could go on and on and on. See Hoystead v Federal Taxation Commissioner [1926] AC 155, 165-166 (PC).
The rule in Henderson v Henderson (1843) 3 Hare 100 was restated by Sir Thomas Bingham MR, as he then was in Barrow v Bankside Members Agency Limited [1996] 1 WLR 257 at 260: The rule in Henderson v Henderson (1843) 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.
I note one final point. While this is a claim that falls within the Unit Titles Act 2010 (UTA), the UTA confirms that the provisions of the Residential Tenancies Act 1986 apply as it relates to dispute resolution and the operation of the Tenancy Tribunal, when hearing Unit Title claims. Section 85 is relevant, that sets out how the Tribunal is to approach disputes: 85 Manner in which jurisdiction is to be exercised (1) Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies. (2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
It is even more critical that the principles of res judicata are applied to the present proceedings given that the purpose of the Act is to provide for the fair and expeditious resolution of disputes between landlords and tenants (or in this case a unit title dispute). It was simply not Parliament’s intention for matters to be continuously re-ligitated. Unfortunately for Mr Mitchell, the law requires that I stringently applies the principles of res judicata, and for that reason his application must be dismissed.
I also record for completeness, that if Mr Mitchell is seeking to engage further around the position of the lines, it is the body corporate he should be engaging with, not his neighbours. Ultimately the responsibility around repainting the lines would sit with the body corporate, and if there was any desire to amend the title, then only the body corporate can do that.

Tenancy Tribunal case 9059664 — Unit Titles in Paraparaumu Beach, Paraparaumu

At a glance

Tenancy Tribunal case 9059664 — Unit Titles in Paraparaumu Beach, Paraparaumu

At a glance

Claims & awards

Order

Reasons

BACKGROUND

JURISDICTION TO HEAR THIS MATTER

MS TODDS EVIDENCE

MR MITCHELLS POSITION

MR AND MRS WILLIAMS POSITION

MR LEES POSITION

DECISION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

JURISDICTION TO HEAR THIS MATTER

MS TODDS EVIDENCE

MR MITCHELLS POSITION

MR AND MRS WILLIAMS POSITION

MR LEES POSITION

DECISION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions