Body Corporate 324525 v Stent
[2016] NZHC 2442
•14 October 2016
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV-2016-488-94 [2016] NZHC 2442
IN THE MATTER OF the BRIDGEWATER BAY
APARTMENTS at Paihia
BETWEEN
BODY CORPORATE 324525
PlaintiffAND
ROBYN CATHLEEN STENT First Defendant
LARRY LAWRENCE SMALL and
K M TRUSTEE SERVICES LIMITED Second Defendant
ANTHONY JOHN BUTCHER and
RUTH BARBARA ROGERS Third Defendants
IVOR ANTHONY MILLINGTON Fourth Defendant
NEVILLE EADE Fifth Defendant
Hearing: 10 October 2016 Appearances:
T J G Allan for Plaintiff
B E Brill for DefendantsJudgment:
14 October 2016
JUDGMENT OF ASSOCIATE JUDGE R M BELL
This judgment was delivered by me on 14 October 2016 at 2:00pm
pursuant to Rule 11.5 of the High Court Rules
…………………………………………………….
Registrar/Deputy Registrar
Solicitors:
Grove Darlow, Auckland, for Plaintiff
Barry E Brill Limited, Paihia, for Defendants
BODY CORPORATE 324525 v STENT [2016] NZHC 2442 [13 October 2016]
[1] The defendants have protested this court’s jurisdiction to hear this case. They say that most of the claims in this proceeding should be heard in the Tenancy Tribunal, established under the Residential Tenancies Act 1986, and the rest in the District Court.
[2] The plaintiff is the body corporate for the unit title development at Paihia known as Bridgewater Bay Apartments. There are 22 apartments. The defendants own five of them. The body corporate sues them for unpaid levies, interest at 10 per cent under s 128 of the Unit Titles Act 2010, and for reasonable costs of collection
under s 124. The body corporate claims levies totalling:
First defendant, owner of apartment 204 $188,375.73 Second defendants, owners of apartment 206 $107,910.85 Third defendants, owners of apartment 301 $213,854.53 Fourth defendant, owner of apartment 307 $207,851.14 Fifth defendant, owner of apartment 310 $208,724.25
[3] The levies were imposed at various times between July 2014 and June 2016. They consist of construction levies, litigation levies, mixed levies, other claims, loan fees and costs. Among the claims is a building levy imposed in October 2015. The amount payable by each defendant for that levy is over $50,000. All the other levies and claims are less than $50,000.
[4] The body corporate has applied for summary judgment. Instead of filing a notice of opposition, the defendants filed an appearance objecting to jurisdiction. They say that all the body corporate’s causes of action are unit title disputes under s 171 of the Unit Titles Act, the causes of action for less than $50,000 are within the exclusive jurisdiction of the Tenancy Tribunal and the remaining ones are within the jurisdiction of the District Court. They also complain that the body corporate is suing them for levies which it has also claimed against them in other proceedings. Here, I deal only with the question of jurisdiction. For that, it is not necessary to decide whether the matters in this proceeding overlap with claims made in other proceedings between the parties.
[5] The Bridgewater Bay Apartments suffered water ingress problems. The way to address the problem has divided the owners. The majority favours undertaking extensive repairs, costing over $3,000,000. Owners have been levied for the costs of repairs. The minority, the defendants in this case, disagree on many aspects of the course taken by the majority. The body corporate and all the owners have started a negligence proceeding against the local authority, but they have divided representation, with one firm of lawyers representing the body corporate and the majority, and the minority represented by Mr Brill.
[6] The minority has brought proceedings in this court, challenging the course taken by the body corporate and the majority: the Wheeldon proceeding1 and the Butcher proceeding.2 In both proceedings the minority has sought declarations that certain levies of the body corporate are invalid and not payable (as well as other unrelated relief). In those proceedings the amounts in issue for each owner are less
than $50,000 and within the monetary jurisdiction of the Tenancy Tribunal. Neither side has suggested in those proceedings that this court cannot decide the claims made by the minority. The defendants have contested this court’s jurisdiction only when the body corporate sued them in this proceeding.
[7] Muir J gave an interim decision in the Wheeldon proceeding on other causes of action by the minority. He found for the body corporate.3 The minority appealed unsuccessfully to the Court of Appeal4 and were refused leave to appeal to the Supreme Court.5 So far there has been no decision in this court on the minority’s challenges to the levies in the Wheeldon and Butcher proceedings.
[8] The body corporate also began a proceeding in the Tenancy Tribunal, seeking recovery of levies (for amounts within the Tenancy Tribunal’s monetary jurisdiction). That proceeding is apparently on hold while other issues are
determined in this court in the Wheeldon and Butcher proceedings.
1 Wheeldon v Body Corporate 324525 CIV-2014-488-122.
2 Butcher v Body Corporate 324525 CIV-2014-488-86.
3 Wheeldon v Body Corporate 342525 [2015] NZHC 884, (2015) 16 NZCPR 929.
4 Wheeldon v Body Corporate 342525 [2016] NZCA 247.
5 Wheeldon v Body Corporate 342525 [2016] NZSC 125.
[9] When considering the jurisdiction of this court to hear and determine a proceeding the starting point is the inherent jurisdiction under s 16 of the Judicature Act 1908:
General jurisdiction
The court shall continue to have all the jurisdiction which it had on the coming into operation of this Act and all judicial jurisdiction which may be necessary to administer the laws of New Zealand.
[10] The common law became part of New Zealand law in 1840. The powers of the English superior courts have devolved in New Zealand on this Court through the Supreme Court Ordinances of 1841 and 1844, the Supreme Court Acts of 1860 and
1882, and s 16 of the Judicature Act 1908. The court’s power is an independent common law jurisdiction, rather than an incidental power ancillary to some other jurisdiction. This inherent jurisdiction is substantive as well as procedural. The inherent jurisdiction can be displaced by legislation, either expressly provision or by necessary implication. Usually express language is used, such as reference to some
other court or tribunal having exclusive jurisdiction.6 Conferring jurisdiction on
another court or tribunal to decide a matter that also falls within the inherent jurisdiction of this court does not by itself displace this court’s jurisdiction. For example, Part 3 of the District Courts Act 1947 confers a civil jurisdiction on the District Courts, but that does not cut away this court’s jurisdiction to hear the same matters. Concurrent and overlapping jurisdictions are common. A useful aspect of concurrent jurisdiction is the reduced opportunities for jurisdictional challenges such as the one in this case. This suggests that the courts should not too readily find that
this court’s inherent jurisdiction has been cut back by implication.7 Subject to any
contrary legislative provision this case is within the court’s inherent jurisdiction.
6 E.g. Property (Relationships) Act 1976, s 22(1), and Employment Relations Act 2000, s 161(1)
and (3).
7 See Zaoui v Attorney-General [2005] 1 NZLR 577 (SC) as illustrating this court’s common law bail jurisdiction and the effect of legislation. Similarly the court’s power to deal with contempt is a matter of inherent jurisdiction, even though there are statutory provisions that cover some of the same subject matter.
[11] The Unit Titles Act 2010 repealed the Unit Titles Act 1972. The earlier act did not provide for any specialist dispute resolution forum. That led to many disputes, even minor ones, being heard in this court in its inherent jurisdiction. A famous example is a dispute whether a Rhodesian ridgeback dog was a “small
domestic pet”.8 Within the limits under Part 3 of the District Courts Act, District
Courts could hear unit title disputes. As an example under the 1972 Act, Wu v Body Corporate 366611,9 in which an injunction was sought, was started in the District Court.10 That was later abandoned and a proceeding was started in this court, claiming damages above the monetary limit of the District Court’s jurisdiction.
[12] Part 4 subpart 1 of the Unit Titles Act 2010 allocates jurisdiction for unit title disputes. The key provisions are ss 171, 172 and 173:
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).
(1A) To avoid doubt, and without limiting subsection (1), a unit title dispute may relate to a claim for unpaid levies.
(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:
(e) an administrator:
(f) a registered valuer:
8 Godoy v Body Corporate No 164980 HC Auckland M1906/98, 14 June 1999.
9 Wu v Body Corporate 366611 [2011] 2 NZLR 837 (HC); Body Corporate 366611 v Wu [2012] NZCA 614, [2013] 3 NZLR 522; and Wu v Body Corporate 366611 [2014] NZSC 137, [2015] 1 NZLR 215.
10 Mai v Body Corporate 366611 DC Auckland CIV-2008-004-14.
(g) an occupier of a principal unit: (h) a service contractor:
(i) a prospective buyer of a principal unit: (j) an original owner:
(k) a lessor of base land: (l) the chief executive.
(3) Any person listed in subsection (2) may, by notice in writing to the Tribunal, appoint an agent to act on his or her or its behalf in relation to a dispute.
(3A) Without limiting the provisions of the Residential Tenancies Act
1986 that apply to a Tenancy Tribunal by virtue of section 176 of this Act, a
Tenancy Tribunal may, in relation to a unit title dispute within its jurisdiction under this section, do any of the following:
(a) order any party to do anything necessary to remedy a breach by that party of an obligation arising under this Act, the body corporate operational rules, or any agreement that is binding on the party and relevant to the unit title dispute:
(b) order any party to refrain from doing anything that would constitute a breach of an obligation arising under this Act, the body corporate operational rules, or any agreement that is binding on the party and relevant to the unit title dispute:
(c) make any supplementary orders of a consequential or ancillary nature necessary to exercise or perfect the exercise of any of its jurisdiction.
(4) The Tribunal does not have jurisdiction—
(a) to make an order requiring any person or body to pay any sum, or to do any work to a value, or otherwise incur expenditure, in excess of $50,000; or
(b) to hear a dispute relating to the application of insurance money under section 136(4); or
(c) to hear any dispute relating to the title of land.
(5) Without limiting subsection (4)(c), a dispute relating to the title of land includes—
(a) a redevelopment:
(b) cancellation of a unit plan:
(c) conversion under subpart 3 of this Part.
(6) An order of the Tribunal that exceeds any restriction specified in subsection (4) is of no effect.
(7) Subsection (4)(a) does not prevent a party to a unit title dispute from abandoning as much of the claim as exceeds $50,000 in order to bring the claim within the jurisdiction of the Tribunal; and in any such case, an order of the Tribunal in relation to the claim operates to discharge any person against whom the claim is made and the subsequent order made from liability in respect of the amount abandoned.
(8) The Tribunal has jurisdiction to hear and determine any claim arising under any unit title dispute that is a claim for the balance, not exceeding
$50,000, after a set-off or any counterclaim made by the other party to the dispute against the claimant arising out of the same dispute, being a
counterclaim admitted by the claimant.
(9) A cause of action must not be divided into 2 or more claims for the purpose of bringing it within the jurisdiction of the Tribunal.
172 Jurisdiction of District Courts
(1) A District Court has jurisdiction to hear and determine a unit title dispute if the order sought requires any person or body to pay any sum, or to do any work to a value, or otherwise incur expenditure, in excess of $50,000 but not more than $200,000.
(2) In addition to the jurisdiction conferred under subsection (1), a District Court also has jurisdiction to hear and determine a unit title dispute relating to the application of insurance money under section 136(4) for amounts up to and including $50,000.
(3) A District Court does not have jurisdiction to hear any dispute relating to the title of land.
(4) Any provision of any agreement that purports to exclude or limit the jurisdiction of the District Court is of no effect.
173 Jurisdiction of High Court
(1) The High Court has jurisdiction to hear and determine any unit title dispute if—
(a) the order sought requires any person or body to pay any sum, or to do any work to a value, or otherwise incur expenditure, in excess of $200,000; or
(b) the dispute relates to the title of land.
(1A) In addition to the jurisdiction conferred under subsection (1), the
High Court also has jurisdiction to hear and determine a unit title dispute
relating to the application of insurance money under section 136(4) for amounts in excess of $50,000.
(2) Any provision of any agreement that purports to exclude or limit the jurisdiction of the High Court is of no effect.
[13] Broadly, the Tenancy Tribunal, established under the Residential Tenancies Act 1986, may hear claims for up to $50,000. The District Court may hear claims between $50,000 and $200,000 and this court hears claims over $200,000 or that relate to the title of land. As a claim for unpaid levies is a unit title dispute under s
171(1A), this case is a unit title dispute.
[14] There are differences in procedure among the decision-makers in ss 171-173. For claims in the Tenancy Tribunal, s 85 of the Residential Tenancies Act provides:
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.
[15] Under s 93 there are restrictions on parties being represented by counsel. Corporations may be represented by an officer, employee or member. Procedure in the Tribunal is less formal than in courts.
[16] The District Court Rules 2014 set the procedure for proceedings for unit title disputes in the District Court. They are modelled on the High Court Rules. A party in a unit title dispute in the District Court may appear in person or through a lawyer, but a corporation may appear by any officer, attorney or agent.11
[17] The High Court Rules govern procedure for unit title disputes in this court. The rule in G J Mannix Ltd prevents corporations (including a body corporate under
the Unit Titles Act) from being represented by anyone other than a lawyer. 12
11 District Courts Act, s 57.
12 Re GJ Mannix Ltd [1984] 1 NZLR 309 (CA).
[18] As they are for more than $200,000, the claims against the third, fourth and fifth defendants are easily outside the jurisdiction of the Tenancy Tribunal under s
171 and the District Courts under s 172. This court’s jurisdiction under s 173 to hear claims for more than $200,000 is concurrent with its inherent jurisdiction to hear claims for any monetary amount. The claim against the first defendant for
$188,375.73 for unpaid levies may also come within s 173, because once interest at
10 per cent under s 128 of the Unit Titles Act and costs of collection under s 124 are added on, the value of the claim may total more than $200,000 (I have not done the calculations). The only issue therefore appears to be with the claim against the second defendants for $107,910.85. That is within the District Court’s jurisdiction under s 172. That requires a decision whether the jurisdiction provisions in the Unit Titles Act by implication have cut back this court’s inherent jurisdiction to hear the body corporate’s claim against the second defendants.
[19] The argument that this court cannot hear a claim for a unit title dispute for less than $200,000 runs as follows. The Unit Titles Act allocates jurisdiction among the Tenancy Tribunal, the District Court and the High Court so that each decision- maker has exclusive jurisdiction as provided in ss 171-173. There is no concurrent jurisdiction under which the High Court can hear a claim if the amount of the claim is within the jurisdiction of the Tenancy Tribunal (under s 171) or the District Courts (under s 172). To allow the High Court to hear claims for less than $200,000 would make s 173 redundant.
[20] While the Unit Titles Act 2010 enacts significant provisions for a framework for the ownership and management of land and buildings on a unit title basis, it is not a code. The general law applies as well - as illustrated by Wu v Body Corporate
366611 where claims were made in tort.13 While that was under the Unit Titles Act
1972, that case would be a unit title dispute under the 2010 Act.14 As the Unit Titles
Act is not a code, it should not be read on the basis that it alone applies comprehensively to all matters concerning unit title developments.
13 Wu v Body Corporate 366611, above n 9.
14 Similarly, while the Residential Tenancies Act has significant provisions as to residential tenancies, it is not a code; see for example the Holler v Osaki litigation discussed further below.
[21] None of ss 171-173 contain express exclusive jurisdiction provisions. Any question of exclusive jurisdiction is a matter of implication.
[22] Sections 171, 172 and 173 each use the formula: “has jurisdiction to hear and determine”. In s 171 “has jurisdiction to hear and determine” confers a jurisdiction which the Tenancy Tribunal did not have before. By itself, the conferral of that jurisdiction, without any accompanying exclusive jurisdiction provision, does not oust this court’s inherent jurisdiction. It is consistent with s 171 that the High Court may have concurrent jurisdiction with the Tenancy Tribunal.
[23] The District Courts, like the Tenancy Tribunal, are creatures of statute. They do not have an inherent jurisdiction (as opposed to inherent powers) in the same way as the High Court. Before the Unit Titles Act 2010, the District Courts had their normal civil jurisdiction under Part 3 of the District Courts Act 1947, that is, with a monetary limit of $200,000. Under s 172(1) the District Courts have jurisdiction for unit title disputes for claims between $50,000 and $200,000. Just as the conferral of a civil jurisdiction on the District Courts to hear claims for up to $200,000 under the District Courts Act creates a concurrent jurisdiction with the High Court’s, the District Courts’ jurisdiction under s 172 to hear unit title disputes between $50,000 and $200,000 does not by itself take away the High Court’s inherent jurisdiction to hear money claims for any sum.
[24] Because the High Court has an inherent jurisdiction under s 16 of the Judicature Act, s 173 does not confer any jurisdiction on the High Court. It describes a jurisdiction which the High Court already has. The jurisdiction described in s 171 falls inside this court’s inherent jurisdiction to hear a claim for any amount.
[25] The argument that the High Court’s jurisdiction to hear unit titles disputes is limited to those for claims over $200,000 relies on an implication in the legislation that the court cannot hear claims for less than $200,000. In my judgment, such an implication is not available and is not necessary. The role of s 173 is to indicate where claimants should file claims for over $200,000. But it does not follow that this court’s inherent jurisdiction to hear claims for any amount is excluded. The allocation of jurisdiction to the Tenancy Tribunal and the District Court, both
creatures of statute, is not enough to exclude this court’s inherent jurisdiction. An analogy may help: rugs on a floor. The court’s inherent jurisdiction is the floor. Section 173 is a rug that covers part of the floor. Sections 171 and 172 are rugs that cover other parts of the floor. The fact that a rug covers part of the floor does not mean that the floor has gone away. The specific statutory overlay does not displace the wider underlying inherent jurisdiction. Section 173 does not limit the jurisdiction of this court to hear unit title disputes for less than $200,000.
Defendants’ cause of action argument
[26] As the total amounts of the claims against each of the defendants are for more than $50,000, none of the claims are within the jurisdiction of the Tenancy Tribunal. The defendants contend otherwise. They say that the body corporate’s claims against the defendants comprise a number of causes of action. None of the causes of action are for more than $200,000. Only one cause of action against each defendant is for more than $50,000 and all the rest are for less than $50,000. They say that the bulk of the claims should be heard in the Tenancy Tribunal with the claims for the building levy of more than $50,000 to be heard in the District Court.
[27] That is not the way the values of claims are calculated to establish jurisdiction under ss 171, 172 and 173. No matter how many causes of action there may be in a proceeding, the result will be a single judgment or order. It is the amount of the judgment or order sought by the plaintiff that sets the value of the claim to establish jurisdiction under ss 171 and 172. This follows the approach taken
in establishing the jurisdiction of the District Court in its civil jurisdiction.15
[28] This approach makes for convenience. It is easier for claimants, the Tribunal and the District Courts to work out jurisdiction by the total value of a claim, rather than analysing to establish how many causes of action are in a particular claim and the value of each individual cause of action. Such an analysis may not always be
straightforward. For example, is a claim for interest under s 128 of the Unit Titles
15 Gurden v Murfitt [1984] 2 DCR 421; and Black v Huffman HC Dunedin AP54/89, 22 November
1990 at 14-17.
Act distinct from the claim for an unpaid levy imposed under s 121? And is the liability for actual costs of collection under s 124 another cause of action?
Tenancy Tribunal jurisdiction under s 171(4)
[29] The defendants argue that the Tenancy Tribunal has an originating jurisdiction for a claim of more than $50,000, so long as the Tribunal does not actually order payment for more than $50,000. They refer to s 171(4). Whereas sub- paragraphs (b) and (c) refer to hearing disputes, they submit that the monetary limit under (a) applies only to making an order, not to hearing the claim. That is nonsense. It makes no sense at all that the Tenancy Tribunal should be able to receive and hear a proceeding in a unit title dispute where the sums in issue are more than $50,000 and that the limits on its jurisdiction should apply only when it comes to making an order. Clearly, if the tribunal does not have jurisdiction to make an order for payment of more than $50,000, then it should not accept such a proceeding for filing or hear it. The power under s 175 to transfer proceedings to the District Court or the High Court when the Tribunal does not have jurisdiction provides a remedy when a proceeding has started by mistake in the Tribunal. It does not give ground for the Tribunal to receive and hear a claim for more than $50,000. That argument does not establish any jurisdiction of the Tenancy Tribunal in this matter.
Sued for the same matter in other proceedings
[30] The defendants submit that the body corporate’s claims against them are all for less than $200,000, because some of the body corporate’s claims overlap with other claims made by the body corporate in other proceedings. The difficulties with that submission are:
[a] Jurisdiction is decided at the outset by assessing the plaintiff’s claim as set out in its pleading. To establish jurisdiction the court does not consider the merits of the plaintiff’s claim.16 The court can deal with the merits of a proceeding only after jurisdiction has first been
established. Allegations that the same claims are before another court
16 Advanced Cardiovascular Systems Inc v Universal Specialities Ltd [1997] 1 NZLR 186 (CA).
go to abuse of process, not a matter of jurisdiction. Jurisdiction goes to whether the court can hear a case: abuse of process goes to whether the court ought to hear it.
[b] The defendants did not provide any materials on which I could decide whether the claims in this proceeding overlap with claims made in other proceedings.
[c] Even if claims of being sued for the same matter in another proceeding could reduce the amount of the body corporate’s claims below $200,000, that would not take the case outside the court’s inherent jurisdiction.
Section 82 of the Residential Tenancies Act 1986
[31] The defendants submit that there is an exclusive jurisdiction provision they can rely on - s 82(1) of the Residential Tenancies Act 1986:
82 Exclusion of other jurisdictions
(1) Notwithstanding any other enactment or rule of law to the contrary, no court or other body shall have originating jurisdiction in respect of any matter that is within the jurisdiction of the Tribunal unless—
(a) proceedings in respect of that matter were commenced before that court or other body before the commencement of this Act; or
(b) an order is made under section 83(2).
[32] Section 82 is in Part 3 of the Residential Tenancies Act which establishes the Tenancy Tribunal and provides for its jurisdiction and procedures under that Act. The defendants say that s 82 applies because of s 176 of the Unit Titles Act 2010:
176 Certain provisions of Residential Tenancies Act 1986 to apply
(1) Part 3 of the Residential Tenancies Act 1986 applies with all necessary modifications in respect of the hearing and determination of a unit title dispute by a Tenancy Tribunal except the following sections:
(a) section 77 (which relates to the Tribunal’s jurisdiction):
(b) section 106 (which relates to the enforcement of possession orders):
(c) section 109 (which relates to unlawful acts and claims for exemplary damages).
(2) Without limiting subsection (1), every reference in Part 3 of the Residential Tenancies Act 1986 to “this Act” is to be read as a reference to “the Unit Titles Act 2010”.
[33] The Unit Titles Act has its own provisions for jurisdiction for unit titles disputes.17. If the Tenancy Tribunal has jurisdiction under s 171, s 176 requires the Tenancy Tribunal to hear and determine unit title disputes in accordance with Part 3 of the Residential Tenancies Act. Section 176 refers to the “hearing and determination” provisions of Part 3 of the Residential Tenancies Act. It is not a reference to s 82, a jurisdiction provision. Because the Unit Titles Act has its own
provisions allocating jurisdiction for unit titles disputes, it is unnecessary to apply the separate jurisdiction provisions in the Residential Tenancies Act dealing with residential tenancy disputes.18
[34] Besides, the argument relying on s 82 of the Residential Tenancies Act is misconceived, because the claims in this case fall outside the jurisdiction of the Tenancy Tribunal under s 171 of the Unit Titles Act.
Requiring preliminary issues to be decided in the Tenancy Tribunal
[35] The defendants submit that the body corporate’s claims should be divided up so that some parts of the body corporate’s causes of action should be heard in the Tenancy Tribunal while the proceeding in this court is stayed. This court would resume, once the Tenancy Tribunal has made findings on the preliminary issues. For
that, the defendants rely on Holler v Osaki,19 and Auckland City Apartments Ltd v
Stars and Stripes 2000 Ltd.20 They do not identify the preliminary issues.
17 Unit Titles Act 2010, ss 171-175.
18 Residential Tenancies Act 1986, s 77.
19 Holler v Osaki [2012] NZHC 939.
20 Auckland City Apartments Ltd v Stars and Stripes 2000 Ltd HC Auckland CP429/99,
9 November 1999.
[36] Generally when a court or tribunal has jurisdiction to determine a proceeding before it, it may determine all issues in that proceeding, including the law, matters to be proved by plaintiffs and any defences raised by defendants. In a unit title dispute claiming unpaid levies, the decision-maker (either the Tenancy Tribunal, District Court or the High Court) decides all matters in issue, which non-exhaustively may include:
(a) whether the levies were ultra vires;
(b)whether resolutions imposing the levies were validly and effectively made;
(c) whether the levies had been correctly calculated; and
(d) whether payment has been made.
[37] Sometimes a particular decision-maker cannot decide everything in issue. That happened in Auckland City Apartments Ltd v Stars and Stripes 2000 Ltd.21 A landlord sued for unpaid rent for leased premises. In defence, the defendant said that the lease was a residential tenancy under the Residential Tenancies Act. It said that in the circumstances of the case the term of the tenancy should be reduced or terminated under s 66 of the Residential Tenancies Act. That section provides that the Tenancy Tribunal may make an order reducing or varying the term of a fixed term tenancy. No other body is given that power. Because of the exclusion of other
jurisdictions under s 82 of the Residential Tenancies Act, the matter could be heard only in the Tenancy Tribunal. Accordingly the proceeding in this court was stayed until the tribunal decided the application under s 66.
[38] In Holler v Osaki, landlords under a residential tenancy sued their tenant and his wife for fire damage alleged to have been caused by the wife’s negligence. They applied for summary judgment for the cost of repairs. In opposition, the defendants invoked ss 268 and 269 of the Property Law Act 2007. They also protested the
court’s jurisdiction to decide that defence, even though the claim against them was
21 Above n 20.
for more than $200,000 and outside the jurisdiction of the Tenancy Tribunal under the Residential Tenancies Act. The claim in this court was stayed until the defence under ss 268 and 269 of the Property Law Act was first determined in the Tenancy Tribunal. That was then heard in the Tenancy Tribunal, the District Court, the High Court and the Court of Appeal.22
[39] With great respect, I doubt that the initial stay decision was correct. As the substantive claim was for more than the Tenancy Tribunal’s monetary ceiling of
$50,000,23 the entire proceeding was outside the Tenancy Tribunal’s jurisdiction and
the Property Law Act defence was not within the Tribunal’s exclusive jurisdiction.
[40] Dicta in later decisions in this court and the Court of Appeal in that litigation appear to take the same view. In the High Court, Keane J said:
[26] The claim is, however, beyond the jurisdiction of the Tribunal because, as s 77(5) says, ‘the Tribunal does not have jurisdiction to require any party to pay any sum, or to do any work to a value, or otherwise incur any expenditure, in excess of $50,000’. That being so, s 82(1), which confers on the Tribunal exclusive originating jurisdiction for claims within its capacity, cannot apply. As to claims exceeding $50,000, the District Court and this Court have originating jurisdiction.
And the Court of Appeal said:
[21] The RTA establishes the Tribunal as the body with exclusive jurisdiction to determine disputes within its monetary jurisdiction between landlord and tenant, or which concern a residential tenancy. …
[22] As noted, the RTA establishes the Tribunal as the body with exclusive jurisdiction to determine disputes within its monetary jurisdiction between landlord and tenant, or which concern a residential tenancy.
[41] The defendants’ argument is an attempt to split a claim into discrete issues and to have some issues decided in the Tenancy Tribunal and some issues decided in this court, even though all issues are within the jurisdiction of this court. Such a course is obviously inefficient and will prolong the dispute. The argument offends
against the general principle that the court should decide all matters in issue when
22 Holler v Osaki [2014] NZHC 1977, [2014] 3 NZLR 791, Holler v Osaki [2016] NZCA 130, [2016] 2 NZLR 811.
23 Residential Tenancies Act 1986, s 77(5).
those issues are within its jurisdiction. Further, the defendants’ argument runs counter to s 171(9) of the Unit Titles Act:
(9) A cause of action must not be divided into 2 or more claims for the purpose of bringing it within the jurisdiction of the Tribunal.
Outcome
[42] I am accordingly satisfied that the body corporate’s claims against all the defendants are within the jurisdiction of this court. The claims for over $200,000 are not within the jurisdiction of the Tenancy Tribunal under s 171 of the Unit Titles Act or the District Courts under s 172. Those claims that are for less than $200,000 but more than $50,000 are also within the jurisdiction of District Court. That is concurrent with this court’s inherent jurisdiction under s 16 of the Judicature Act
1908. Given that there are common issues in the claims against all defendants, the body corporate was obviously sensible to bring the claims for less than $200,000 in this court so that all matters could be heard together in one proceeding.
[43] I have not decided whether the claims for some of the levies in this proceeding overlap with claims made in other proceedings. The defendants may raise that at a later stage. This decision establishes only that this court has jurisdiction for this proceeding.
[44] I direct the defendants to file and serve any notices of opposition and affidavits in opposition by 10 November 2016. I take into account that Mr Brill will be unavailable until 27 October 2016.
[45] There will be a telephone case management conference on 16 November
2016 at 9.00 am. The purpose of the conference will be to give directions on the body corporate’s summary judgment application. That will include directions for filing any evidence in reply and fixing a hearing date.
[46] At the plaintiff’s request, costs on the jurisdiction question are reserved and
may be decided in the decision on the summary judgment application.
…………………………………
Associate Judge R M Bell
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