What was the outcome of Tenancy Tribunal case 9060464?

The tribunal order states: The application for rehearing is dismissed.

How much money was awarded in case 9060464?

The reconciled net award was $9,157.83.

What type of tenancy dispute was case 9060464?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9060464?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13248511-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9060464?

The tribunal order states: The application for rehearing is dismissed.

How much money was awarded in case 9060464?

The reconciled net award was $9,157.83.

What type of tenancy dispute was case 9060464?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9060464?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13248511-Tribunal_Order.pdf.

Papatoetoe, Auckland Tenancy Tribunal Case 9060464 — Unit Titles

Order

The application for rehearing is dismissed.
The Order of 17 November 2025 stands and may be enforced accordingly.
Chandan Bahen, Rajendra Gosai must pay Arvina Sharma $3,874.30 immediately, being costs for the rehearing application.

Reasons

Both parties attended the hearing on 5 March 2026 to consider the rehearing application filed by the respondent Chandan Bahen and Rajendra Gosai.
On 17 November 2025 the Tribunal made these orders under the Unit Titles Act 2010:
That the respondents Chandan Bahen, Rajendra Gosai do not have authority to authorise use of the common property by tenants for carparking.
Unless authorised by the Body Corporate, the respondents Chandan Bahen, Rajendra Gosai must ensure that the occupiers of Unit C and/or Unit D and any invitees or guests of those occupiers comply with the body corporate operational rules, including observing all restrictions on the use of the common property for carparking.
Unless authorised by the Body Corporate, the respondents Chandan Bahen, Rajendra Gosai must take all reasonable steps to ensure that no occupier of Unit C and/or Unit D, and no invitee or guest of an occupier, parks, stands, or leaves any motor vehicle, motor scooter or similar items on the common property.
Unless authorised by the Body Corporate, the respondents Chandan Bahen, Rajendra Gosai must take all reasonable steps to ensure that the occupiers of Unit C and/or Unit D do not use the common property for gatherings, pyrotechnics, entertainment, or social events of any kind, other than lawful access and egress to the unit.
Unless authorised by the Body Corporate, the respondents Chandan Bahen, Rajendra Gosai must take all reasonable steps to ensure that no occupier of Unit C and/or Unit D, and no invitee or guest of an occupier, leaves or stores any work product, work equipment, work tool, industrial materials or similar items on the common property.
The respondents Chandan Bahen, Rajendra Gosai must take all necessary steps to give effect to the above orders, including issuing written directions to the occupiers of the unit, and taking enforcement action or Tenancy Tribunal proceedings against any occupier who refuses to comply.
The above orders remain in force for so long as the respondents Chandan Bahen, Rajendra Gosai remain the owner of Unit C and/or Unit D, or until varied or discharged by the Tribunal.
Chandan Bahen, Rajendra Gosai must pay Arvina Sharma $9,157.83 immediately, calculated as follows: DescriptionsApplicant Legal costs (calculated at two-thirds of $12,147.04)$8,098.02 Disbursements $559.81 Filing Fee$500.00 Total award$9,157.83 Total payable by Respondent to Applicant$9,157.83
The above orders had been made after the hearing on 30 and 31 October 2025 in which Mrs Arvina Sharma was represented by her daughter Kaveeta Sharma and counsel Iain Stephenson; Mr Rajendra Gosai attended in person together with his sister Vanita Gosai and Mr Gosai’s tenants.
On 12 January 2026, the respondent applied for a rehearing on grounds that there are two applicable bodies corporate with different bodies corporate numbers and for which they were not bound by the operational rules adduced by the applicant at the hearing purported to apply to their units. The respondent contend that the applicable body corporate rules did not prohibit common property car parking for their tenants.
On 14 January 2026, I directed that the order of 17 November 2025 is stayed pending consideration of the rehearing application.
I now issue my determination on the rehearing application. Legal principles on determination of an application for rehearing
Section 105(1) Residential Tenancies Act 1986 provides that the Tribunal has the power to order a rehearing where “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur”.
Usually the party applying for the rehearing must show that something went wrong with the Tribunal’s procedure, for example, that they did not receive notice of the hearing or they were not able to properly present their case. A rehearing may also be granted where there is new evidence that was not reasonably available at the first hearing, if it could have affected the outcome.
The District Court has held that if the Tribunal was simply wrong in its findings of fact, or its application of the law, this is not sufficient to establish a miscarriage of justice: a rehearing is not an alternative to an appeal. Furthermore, a rehearing will not be granted just because a party is unhappy with the decision, or to give them a second opportunity to present their case.
In Wellington City Council v McMillan [2003] DCR 50, Judge Tuohy considered the provision “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur” to be strong words which set a high standard and most obviously apply to cases of procedural error or discovery of new evidence.
Those words however cannot cover a complaint that Tenancy Tribunal was merely mistaken or wrong in its findings of fact or application of law. Where the grounds relied on in application for rehearing are complaints about legal correctness of decision they should have been dealt with by way of appeal. No distinction can be made between errors of law that are grave enough to constitute a substantial miscarriage of justice and those which are not.
More recently, in Scott v Sidhu [2024] NZDC 1549, Judge Harrop dealt with 2 appeals from the Tenancy Tribunal, one in respect of the substantive decision awarding, inter alia, general damages against the landlord and the other, the decision refusing the landlord’s application for rehearing.
Judge Harrop dealt with the landlord’s appeal against the refusal to grant her a rehearing first because if that appeal was upheld, the obvious remedy would be to grant the rehearing and the matter would be referred back to the Tribunal to be heard by a different adjudicator.
Considering the substantive points raised by the appellant on why her application for a rehearing should have been granted, Judge Harrop held at [25] that the Tribunal’s obvious focus under section 105(1) RTA is on the fairness of the hearing process and in respect of complaints about the substance of the Tribunal’s decision, as opposed to the process by which it was reached, there are, of course, appeal rights to address those.
Judge Harrop reiterated that the merits of the case are able to be and have been challenged by the landlord in her appeal against the substantive decision.
In dismissing the landlord’s rehearing appeal, Judge Harrop accepted the Tribunal’s assessment that many of the landlord’s criticisms relate to the merits of the case (rather than the process) which merits of the case were later considered by the learned judge under the appeal against the substantive decision.
On the appeal against the substantive decision, it is noteworthy that Judge Harrop ultimately found that the Tribunal was wrong to have awarded general damages of $500 for breach of section 38(2) against the landlord and allowed part of the landlord’s appeal against the substantive decision and quashed that award of general damages against the landlord accordingly.

Has a substantial wrong or miscarriage of justice occurred?

The respondent has failed to establish the grounds for a rehearing.
The respondent’s primary assertion that Body Corporate 75139 was subdivided in or about March 1991 and thereafter comprised only six (6) units is legally unsustainable under the Unit Titles Act 1972 (then in force) and the Land Transfer Act 1952.
The respondent’s reliant on minutes of an Annual General Meeting dated 11 March 1991, recording a resolution described as a decision “to separate the two Body Corporates” is incapable of altering the legal status of Body Corporate 75139 which consists of 14 units.
No deposited plan of redevelopment, no cancelled unit plan, no new unit plan, and no registered unit entitlement schedule has been produced.
The AGM minutes confirm there was only one body corporate.
The 11 March 1991 minutes record that the resolution to “separate the Body Corporate” was passed by “9 votes to 14”.
That voting record is decisive and demonstrates that: (a) There was a single body of owners voting as one body; and (b) There was therefore only one Body Corporate at that time.
The minutes therefore affirm, rather than contradict, the Tribunal’s finding that there was one body corporate comprising fourteen units.
That material resolution of the body corporate to “separate the Body Corporate” into two was not sufficient to legally and effectively separate the body corporate into two bodies corporate.
I acknowledge that the records indicate that an attempt was made by a majority of 9 votes (out of 14) to separate the body corporate.
Under the Unit Titles Act 1972 however, a body corporate could not subdivide itself by resolution.
The only lawful mechanism by which a unit development could be subdivided was redevelopment under section 44 of the Unit Titles Act 1972.
Section 44(4) of the Unit Titles Act 1972 provided that a plan of redevelopment could not be deposited unless: (a) The application was made by the proprietors of all units pursuant to a unanimous resolution; and (b) All registered mortgagees and relevant caveators consented in writing.
The 11 March 1991 resolution adduced by the respondent was not unanimous; it was merely a majority decision of 9 votes to 5 which by itself was incapable of authorising redevelopment as a matter of law.
Further, there is nothing before the Tribunal to indicate that registered mortgagees and relevant caveators consented to the attempt at redevelopment under s 44 of the Unit Titles Act 1972.
A non-unanimous resolution under the Unit Titles Act 1972 could not: (a) Cancel an existing unit plan; (b) Create a new unit plan; (c) Alter unit entitlements; or (d) Create a new body corporate.
Ultimately, mandatory redevelopment requirements were never met to split the body corporate into two.
Even if unanimity had existed (which it did not), section 44(2) Unit Titles Act 1972 required that a plan of redevelopment: (a) Define the boundaries of new or altered units; (b) Renumber units; (c) Specify principal and accessory units; and (d) Include a valuer-determined apportionment of unit entitlements.
There is no evidence of: (a) Cancellation of the original unit plan; (b) Deposit of a redevelopment plan; (c) Registration of new unit entitlements; or (d) Compliance with Land Transfer Act requirements.
In the absence of those steps, redevelopment did not and cannot occur.
The consequence of those Land Transfer Act provisions is that there is only the single body corporate (consisting of 14 units) that is in existence.
Bodies corporate exist only as statutory incidents of deposited unit plans.
Without cancellation of the original unit plan and deposit of new unit plans: (a) The original body corporate could not cease to exist; and (b) No new bodies corporate could come into existence.
No amount of internal administration, insurance arrangements, or historical practice can override the register.
The register continues to evidence one body corporate comprising fourteen units, with one set of unit entitlements for all 14 units.
Ultimately, there was still no new evidence or material being produced by the respondent that could likely have affected the outcome of the original hearing.
The 1991 minutes were always available and do not establish a lawful subdivision of bodies corporate.
At best, they show an ineffective historical attempt to do something the statute did not permit.
The respondent’s rehearing application is founded on a legal impossibility under the Unit Titles Act 1972.
The evidence relied upon confirms the continued existence of a single body corporate.
My determination that the unit title development at 99 Fitzroy Street comprises 14 units in a site between Fitzroy Road and Puhinui Road, set out in Supplementary Record Sheet NA30D/881 stands.
The development was created by a series of unit plans deposited in 1975.
At a date unknown, a wall was erected in the middle of the development.
Six single level units are located to the Fitzroy Road side of the wall, and are situated around a common property driveway, serving those six units. That includes the applicant’s unit and the respondents’ 2 units.
Eight other units are located to the Puhinui Road side of the wall.
I have already traversed the respondent Mr Gosai’s submission that he has no knowledge that those units form part of the unit title development and his insistence that the unit title development and relevant body corporate are only in respect of the six single level units located to the Fitzroy Road side of the wall.
A primary determination of which units form part of the unit title development must be based on the parties’ certificates of title and supplementary record sheet as recorded by the Registrar of Land.
I remain satisfied that the unit title development at 99 Fitzroy Street comprises 14 units in a site between Fitzroy Road and Puhinui Road, as set out in Supplementary Record Sheet NA30D/881. The parties’ certificates of title make it clear that the body corporate consists of 14 units, not 6 as contended by Mr Gosai.
The material aspects of the applicants’ claims in terms of whether the relevant body corporate operational rules have been breached by the respondents flow from that material finding of the 14 units forming part of the unit title development.
The respondent’s continued assertions and responses to the claim do not affect the original outcome of the hearing. Those defences have been argued at the initial hearing. No new evidence has been provided.
I have considered Mr Gosai’s evidence in support of the rehearing application.
There is no new evidence or material being supplied before the Tribunal which might affect the outcome of the original hearing.
On the contrary, Raj Gosai in his latest correspondence “To all owners” dated 20 March 2026 filed with the Tribunal conceded that “the legal position has now been made clear enough that it is better for all of us to deal with it directly and constructively”.
Mr Gosai set out the background of the dispute and issues as follows: A dispute arose between me and Mrs Sharma about the use of the area in front of a number of the Fitzroy Street units, including whether those areas could be used for parking and other day to day activities. That dispute eventually went to the Tenancy Tribunal for determination under the Unit Titles Act. The adjudicator decided that, in law, the development remains one 14-unit body corporate. The longstanding practical separation between the Fitzroy Street side and the Puhinui Road side does not change the legal position, even if that has been the way matters have operated in practice for many years. The adjudicator treated the parking areas in issue as common property, and held that they cannot be used for parking unless authorised by the body corporate. I have considered whether to take the matter further, but I have decided not to pursue a rehearing. I am disappointed by the result, but the legal position has now been made clear....
Mr Gosai went on to state “the legal position” thus: Whatever the historical practice may have been, the development remains, in law, one 14-unit body corporate. The informal separation in management and practice does not alter that position. The consequence is this. The areas in front of a number of the units that have been treated in practice as private parking areas are not, in law, private car parks simply because they have been used that way over time. Those areas are common property unless and until the legal position is formally changed. On the present legal position, there is no standing body corporate authority for those areas to be used as parking spaces as of right. I appreciate that this may be frustrating for many owners, particularly where the historical practice has existed for a long time and may have been treated as settled. However, I do not think it is sensible for any of us to continue relying on informal arrangements that do not match the actual legal structure of the development.
Mr Gosai concluded his 30 March 2026 letter as follows: I am not sending this letter to reopen old arguments or to create further division. I am sending it because the position is now clear enough that doing nothing is no longer a sensible option. If we leave things as they are, we will continue with a mismatch between the way the development is actually being used and the way it exists in law. In my view, that is not fair on current owners, future purchasers, tenants, or anyone else who has to make decisions about the property. I therefore suggest that a meeting of the body corporate be convened so that owners can consider the issue openly and decide whether:
the current parking arrangements should be formally authorised in some way within the existing body corporate structure; and/or
further advice should be obtained on whether a proper legal restructuring of the development is possible and worthwhile.
I take the above letter by Mr Gosai as a late withdrawal of the rehearing application as well as a concession that his original grounds argued in support of the rehearing application cannot be maintained.
For the above reasons, I hereby dismiss the rehearing application.
My focus on the respondent’s rehearing application under section 105(1) RTA is on the fairness of the hearing process, as opposed to the merits of my decision.
Merits of the case can only be challenged by the respondent by way of appeal (filed within time) against the substantive decision.
Because the respondent’s criticisms relate to the merits of the case (rather than the process) the rehearing application must fail.
Along with the dismissal of the rehearing application, I lift the stay on the enforcement of my 17 November 2025 order.
The applicant has been put to further costs because of this rehearing application by the respondent.
I agree with counsel for the applicant that the applicant is entitled to costs incurred in opposing the rehearing application, on an increased or indemnity basis, for the following reasons: (a) The respondent brought their application out of time, without good reason for the delay; (b) The respondent sought to relitigate the October hearing in their January 2026 application, and did so without good or proper legal grounds; (c) The respondent’s application lacked merit, hinging on an untenable position that there were 2 bodies corporate; (d) The applicant’s opposition to the rehearing application was only necessary because of the respondents’ unwavering insistence there were 2 bodies corporate despite such being untenable; and (e) It was only after the rehearing application was heard on 5 March 2026 that the respondent subsequently took legal advice and conceded the point about 2 bodies corporate.
The respondent also put the applicant to the cost of replying to further submissions and correspondence, and attendance at the 5 March 2026 hearing to consider the rehearing application.
I award the applicant costs in the sum of $3,874.30 (including GST) for counsel’s attendances as set out at [28] of Submissions of Applicant in Reply to Respondent Rehearing Application dated 27 March 2026.

Tenancy Tribunal case 9060464 — Unit Titles in Papatoetoe, Auckland

At a glance

Tenancy Tribunal case 9060464 — Unit Titles in Papatoetoe, Auckland

At a glance

Award balance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions