What was the outcome of Tenancy Tribunal case 9061404?

The tribunal order states: The Tribunal declares that Body Corporate 384983’s levies resolutions passed

How much money was awarded in case 9061404?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9061404?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9061404?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13206254-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9061404?

The tribunal order states: The Tribunal declares that Body Corporate 384983’s levies resolutions passed

How much money was awarded in case 9061404?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9061404?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9061404?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13206254-Tribunal_Order.pdf.

Newmarket, Auckland Tenancy Tribunal Case 9061404 — Unit Titles

Order

The Tribunal declares that Body Corporate 384983’s levies resolutions passed at the 23 January 2024 AGM, the 30 September 2024 EGM, and the 10 December 2024 EGM were made ultra vires and are void.
Body Corporate 384983 must determine and impose its levies from the 23 January 2024 AGM and subsequently in accordance with ss 121(1), (2), and 124(1) of the Unit Titles Act 2010 (UTA).
The Tribunal declares that Body Corporate 384983 breached the voting eligibility requirements for two units at its 23 January 2024 AGM.
This order does not affect any levies resolutions prior to the 23 January 2024 AGM.
The parties are to confer on costs and inform the Tribunal if they cannot agree and proposed next steps by 5.00 p.m. 27 March 2026.

Reasons

I heard this matter at the Auckland District Court on 25 and 26 February 2026.
Katerina Wendt appeared for Ms Tham.
Kathleen Morrison and Kai Ling Chiu appeared for the body corporate. Background
The development borders Newmarket Train Station. It is large complex by New Zealand standards. It dominates the northeastern corner of Broadway and Remuera Road in New Market. It comprises over 500 principal units. It is on about eight levels which include a basement carpark, retail and commercial office units at ground level, and hundreds of residential units in levels above.
L & Y Holdings (Holding) Limited developed the complex. It deposited the unit plan on 12 October 2007 and built the complex in stages over several years.
L & Y Holdings (Management) Limited, a company closely associated with the developer, is Body Corporate 384983’s body corporate manager. L & Y (Management) is not a specialist professional body corporate manager. This body corporate is its only client. Despite that, the complex apparently functioned smoothly until about 2022 when the body corporate moved to levy unit owners for the cost of replacing aluminium composite panels like those that contributed to the Grenfell Tower fire in London, UK in 2017. At the 23 January 2023 AGM, the body corporate levied the unit owners for the proposed work. However, Ms Tham and other unit owners were unhappy with the proportion of the levies imposed on them relative to others. Ms Tham’s claim challenges the body corporate’s method for calculating the levies, its governance, and approach to voting eligibility.
On 24 July 2025, the Tribunal decided Ms Tham’s original claim against the body corporate in her favour but dismissed her claim against L & Y for being incorrectly named as a party. 1 The body corporate appealed the Tribunal’s decision to the District Court. On 14 May 2025, the District Court remitted the matter back to the Tribunal for rehearing and directed it to hear full evidence. 2 Ms Tham lodged a further claim on 26 November 2024 to capture the body corporate’s continued similar conduct. The Tribunal has consolidated Ms Tham’s claims. 1 Tham v BC 384983 and L & Y Holdings (Management) Limited [2024] NZTT 9051364 (24 July 2024). 2 Body Corporate # 384983 v Jennifer Tham DC Auckland CIV-2024-004-001811, 14 May 2025.
I have approached the matter as raising the following issues: a. Did the body corporate’s determination and imposition of levies comply with the UTA? b. Did the body corporate comply with the UTA and its regulations for voting eligibility? Did the body corporate’s determination and imposition of levies comply with the UTA?
The body corporate has established body corporate rules for levying unit owners fairly by recognising that five distinct precincts of units within the development incur different costs to other precincts. Rule 2.3.12 states: [W]hen levying the Units in any precinct, exclude from such levy any costs and expenses which substantially or exclusively related to or benefit Units in other Precincts. The intention is that Units will only be liable to contribute to costs and expenses which substantially or exclusively benefit those Units or which are incurred by, or in relation to those Units. Such allocation of levies will be determined by the Committee, or failing determination by the Committee, by an independent registered valuer or other suitable qualified person appointed by the Secretary.
The five distinct precincts are: a. Queens Lodge Residential. b. Kings Square Residential. c. Commercial. d. Retail. e. Carpark (Accessory & public units)
The body corporate takes a two-step hybrid approach to calculate levies. First, it allocates what it decides is a fair proportion of the total budget for a particular item to each precinct. Secondly, for each precinct it applies each unit owner’s utility interest to determine their final levy. So, for 2023-2024 budget, for Insurance the total budget is $837,070.90 and the first allocation is: 3 a. Queens Lodge Residential: $472,426.81 (56 percent). b. Kings Square Residential: $230,621.12 (28 per cent). c. Commercial: $19,046.16 (2 per cent). 3 Respondent’s bundle p 676. d. Retail: $25,280.59 (3 percent). e. Carpark (Accessory & public units): $89,696.22 (11 percent).
Then second the body corporate applies the unit owner’s utility interest to determine the final levy. Presumably, the differential initial allocation reflects that different precincts cost more to insure.
The budget line for Pump maintenance allocates the total budget of $1,872.00 to the Commercial precinct (and no other precinct), presumably because the pump only serves the Commercial precinct.
Then again, the budget line for the Long-Term Maintenance Fund allocates 64 per cent of the $586,016.29 total budget cost to the Queens Lodge Residential precinct, 23 percent to Kings Square Residential, nothing at all to the Commercial precinct, 8 per cent to the Retail precinct, and 5 percent to the Carpark precinct. Possibly, that is because the Queens Lodge Residential precinct requires more recladding than other precincts and houses more unit owners. 4
The body corporate’s levies resolutions for 23 January 2024 and later have not set a fixed date for the payment of levies. Rather, they have “set” the date at 30 days after the levy invoice goes out, but without setting an invoice date either. Legal principles
Section 121(1) of the UTA gives the body corporate the powers to determine the money needed for each fund it maintains and to consequently impose levies on unit owners as required: 121 Contributions to be levied on unit owners (1) A body corporate may determine from time to time the amounts to be raised for each fund and impose levies on the owners of principal units to establish and maintain each fund.
Section 121(2) imposes duties on the body corporate for calculating the levies it imposes: (2) The levies must be calculated as follows: 4 Leaving aside the allegedly unlawfulness of the allocation, Ms Tham would dispute that the other unit owners do not all substantially benefit to a similar degree because the entire complex substantially benefits from improved fire protection and unit owners in all precincts will benefit from not having a reputation associated with the Grenfell disaster. (a) in the case of the operating account, long-term maintenance fund, and any contingency fund, in proportion to each unit owner’s utility interest; and (b) in the case of any capital improvement fund, in proportion to each unit owner’s ownership interest.
In summary, the body corporate may determine the funds it requires and impose levies in proportion to its unit owners’ utility interests or ownership interests. The section does not admit any factor other than utility or ownership interest. It follows, the body corporate must impose levies in proportion to utility or ownership uniformly to every unit owner without exception. As Associate Judge Smith observed in a summary judgement case, Body Corporate 85659 v Young. 5 [71] The key words “in proportion to”, which appear in both provisions, and the expressions “their respective units” (in the 1972 Act) and “each unit owner” (in the UTA), together imply that the Body Corporate is required to do more than just assess levies on the basis of an individual owner’s utility interest or unit entitlement. The costs are required to be shared amongst all unit owners, according to their unit entitlement or utility interest. Once that is appreciated, it does not matter that there may have been no error in the calculation of the Youngs’ liability for levies according to their unit entitlement, or utility interest; what matters is that there has arguably been an error in the overall exercise, in failing to include every unit owner in the levying exercise.
It is trite law that when striking levies, the body corporate must fix the date on or before which payments of levies are due. 6 Body corporates usually comply by including the due dates in the AGM levy resolutions. Discussion
I do not doubt that the body corporate’s approach at its inception was intended to ensure a fairer “user pays” outcome. The problem for the body corporate is that its approach - commendable or not - does not conform with s 121 of the UTA. The budget line examples above demonstrate that. Although well-intentioned, the body corporate’s methodology deprives s 121(2) of effect because the body corporate can entirely exempt one group of unit owners or place entire liability on another group as it sees fit before applying unit owners’ utility interest.
The body corporate relies on a District Court summary judgement case, Body Corporate v Gregan in which the learned Judge found that a unit owner might have an 5 Body Corporate 85659 v Young [2017] NZHC 312 at [71] 6 Unit Titles Act 2010 (UTA) s 124. arguable case of estoppel against the body corporate in respect to levies. In that case the unit was a stand-alone house some distance from the rest of the units located together in an apartment block. The body corporate had for many years treated the unit as entirely separate to the other units and did not levy the unit despite s 121. The unit owner separately insured and maintained that unit but did not contribute to levies raised to insure and maintain the other units. 7 Gregan is different to the current case. An argument of estoppel is not tenable in this case. If an estoppel could succeed in a conventional fact situation like this, a body corporate could circumvent any number of its UTA duties by relying on the fact that it had been in breach of them for so long any claim for breach must fail due to estoppel. 8
The body corporate emphasis the fairness of its approach. However, their system’s purported virtues are not relevant. Moreover, Parliament designed the UTA to achieve a fair and predictable allocation of expenses cooperatively between unit owners. That is what utility and ownership interests are for. There are other provisions that ensure fairness in this regard. For example, s 126 of the UTA empowers the body to recover the cost or repairs or work that benefits any unit by a “distinct and ascertainable” amount. So, where the body corporate must carry out repairs, it should levy all the unit owners as required. But after carrying out repairs, the body corporate can recover the costs from a unit owner if they substantially benefit only that unit owner’s unit.
Nor can a body corporate avoid s 121 by making up its own rules for cost allocation in breach of the UTA. As His Honour Asher J observed in the High Court in Wu: 9 While it has been observed that the body corporate model is essentially democratic, it would be wrong to regard the body corporate as the equivalent to the authorised Parliament of the proprietors. It does not have unbridled power. It has no general right to take such actions as it considers reasonable for the benefit of the proprietors as a whole. Its powers are limited by the Act and its lawful rules.
Importantly, in amending their rules body corporates must comply with s 106(2) and (4) of the UTA, which provide: 10 (2) No powers or duties may be conferred or imposed on the body corporate that are not incidental to the powers and duties conferred or imposed on the body corporate under this Act. (3) ... 7 [2019] NZDC 24174. 8 9 Chuan Wu v Body Corporate 366611 & Theta Management Ltd HC Auckland CIV-2009-404- 0005756, 30 May 2011 at [40]. 10 The rules were amended and lodged in 2011, so the 2010 Act applies. (4) Any amendment or addition that is inconsistent with any provision of this Act or any other enactment or rule of law is invalid.
If the existing ownership and utility interests result in unfairness, the body corporate can reassess them under s 41 of the UTA. Conclusion
The body corporate’s hybrid approach of allocating different amounts to each precinct and then assessing that precinct’s unit owners’ contributions by reference to their utility interests does not comply with s 121(2) of the UTA. The body corporate’s 23 January 2024 AGM levies resolutions and its subsequent levy resolutions were therefore made ultra vires and can have no effect.
The body corporate failed to “fix the date on or before which payments of levies are due” as required by s 124(1) of the UTA.
For remedy, the Tribunal declares that the body corporate’s levies resolutions were made ultra vies and have no effect; that the body corporate in future resolve levies in accordance with the UTA.

Did the body corporate breach proxy vote and representative vote requirements?

Ms Tham claims that the body corporate did not comply with s 96 of the UTA which deals with voting eligibility.
The determination of the previous (and in my view the principal) issue results in the body corporate having to revise its incorrectly calculated struck levies. The determination of this voting eligibility issue would not pragmatically advance the remedies already ordered. Ms Tham’s challenge to the body corporate’s meeting and voting procedures has had the desirable effect of emphasising to the body corporate that must the comply with the UTA and its regulations in respect to voting eligibility. That is sufficient in my view. During the hearing, I encouraged the parties to consider agreeing to a declaration to address Ms Tham’s concerns about voting and procedure for future meetings rather than expending hearing time critiquing past failings.
At the commencement of the second day of the hearing, the parties agreed to Order 3. I am satisfied that at the 23 January 2024 AGM, the body corporate accepted a purported representative’s votes for units K2E24 and Q5D05 despite the purported representative not being on the register of owners of principal units. Costs
The parties asked for two weeks after the decision to confer on costs to see if they can agree. The parties are to advise if they cannot agree.
The Tribunal must consider the parties’ costs from the earlier proceedings also. Ms Lim acted for the body corporate and L & Y initially. The body corporate withdrew its instructions two days before the original hearing leaving the body corporate unrepresented. Ms Lim may wish to separately break down her attendances for the body corporate and L & Y because the body corporate is unsuccessful in the proceedings, but the Tribunal removed L & Y as a party at the original hearing.

Tenancy Tribunal case 9061404 — Unit Titles in Newmarket, Auckland

At a glance

Tenancy Tribunal case 9061404 — Unit Titles in Newmarket, Auckland

At a glance

Claims & awards

Order

Reasons

Did the body corporate breach proxy vote and representative vote requirements?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Did the body corporate breach proxy vote and representative vote requirements?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions