Body Corporate 355492 v Chief Executive of the Ministry of Business, Innovation and Employment
[2025] NZCA 431
•28 August 2025 at 10 am
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA367/2024
[2025] NZCA 431
BETWEEN BODY CORPORATE 355492 Appellant AND CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent
| Hearing: | 8 October 2024 |
| Court: | Palmer, Grice and Gault JJ |
| Counsel: | G B Lewis and N Prachankhet for Appellant |
| A J Wicks and R M McConnell for Respondent |
Hīkina Whakatutuki (MBIE) (the Chief Executive). In 2016, the Chief Executive
determined the Body Corporate’s claim was eligible for services regarding leaks under
the Weathertight Homes Resolution Services Act 2006 (the Act), except in relation to
block 4 of the MUC. Around $12 million worth of repairs is at issue. The
determination also had implications for a publicly funded financial assistance package
(FA package) that the Body Corporate could pursue. The parties disagreed as to
whether the Chief Executive could lawfully exclude block 4 of the MUC from the
decision, and whether she did so. The Body Corporate did not appeal the decision,
but applied for a declaratory judgment and judicial review which O’Gorman J, in
the High Court at Wellington, declined.[1] The Body Corporate now appeals that
[1] Body Corporate 355492 v Chief Executive of the Ministry of Business, Innovation and
decision. The Chief Executive supports the decision, except in respect of one
conclusion regarding carparks, which this judgment discusses.
Each of the four grounds of appeal fails, and we dismiss the appeal, because:
(a) The text and context of the Act both indicate that core to the effect and stated purpose of the Act is its concern to facilitate and help fund the
repair of leaky dwellinghouses, which are defined by their principal use
being occupation as a private residence. There is no indication in the
scheme, text or history of the Act that Parliament intended commercial
premises that happen to be in the same MUC as residential units to be
eligible for such services. Particular dwellinghouses in a MUC may be
eligible while other units are not.
(b) The delegated decision was as the High Court found it to be: the claim for the Oaks Shores MUC was eligible under the Act, but the units and
common areas in block 4 were not, because they did not meet the
statutory criteria. That decision was communicated to the
Body Corporate.
(c) The Chief Executive did not take irrelevant considerations into account and did not fail to give reasons. But a purposive interpretation of the Act would consider carparks in block 4, that are associated with
residential apartments in block 3, to be included in the definition of
“dwellinghouse”.
Issue 1: Does the Act require a single eligibility decision for a MUC or can a MUC
be partially eligible?
The Body Corporate submits that the Act requires there to be a single eligibility
decision by the Chief Executive for a MUC, as if it were a dwellinghouse.
The Chief Executive submits the Act contemplates that an eligibility decision about a
MUC can relate only to specific parts of the MUC, rather than the MUC in its entirety.
The Weathertight Homes Resolution Service Act 2006
The Act was originally passed in 2002 to provide mediation or adjudication of
leaky building claims (the 2002 Act).[2] It was repealed and replaced in 2006, with
[2] Weathertight Homes Resolution Services Act 2002.
effect from 2007.[3] In 2011, the Act was further amended to provide for financial
[3] Weathertight Homes Resolution Services Act 2006 [2006 Act], ss 2 and 126.
assistance to qualifying claimants to facilitate repairs.[4]
[4] Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011,
Section 3 provides the purpose of the Act is:
(a) to provide owners of dwellinghouses that are leaky buildings with access to speedy, flexible, and cost-effective procedures for the
assessment and resolution of claims relating to those buildings; and
(b) to provide for certain matters relating to the provision of a package of financial assistance measures to facilitate the repair of those
buildings.
Section 8 provides relevant definitions, “unless the context otherwise
requires”, which are traversed further below. Most significantly:
dwellinghouse—
(a) means a building, or an apartment, flat, or unit within a building, that is intended to have as its principal use occupation as a private
residence; and
(b) in the case of a dwellinghouse that is a building, includes a gate, garage, shed, or other structure that is an integral part of the building;
and
(c) in the case of a dwellinghouse that is an apartment, flat, or unit within a building, includes a door, gate, garage, shed, or other structure
that—
(i) is an integral part of the building; and (ii) is intended for the exclusive use of an owner or occupier of the dwellinghouse; but
(d) does not include a hospital, hostel, hotel, motel, rest home, or other institution
… multi-unit complex means a complex (which may, but need not, be a
stand-alone complex) that—
(a) contains 2 or more dwellinghouses; and (b) contains 1 or more, or no, common areas; and (c) is a company-share complex, cross-lease complex, or unit title complex
Subpart 2 of pt 1 of the Act provides for eligibility for mediation and
adjudication services under the Act. Sections 14–18 provide the eligibility criteria for
different sorts of claims, including eligibility for a MUC claim under s 16:
16 Multi-unit complex claim
The criteria are that the claimant is the representative of the owners
of the dwellinghouses in the multi-unit complex to which the claim
relates; and—
(a) the complex was built (or alterations giving rise to the claim were made to it) before 1 January 2012 and within the period
of 10 years immediately before the day on which the claim is
brought; and
(b) water has penetrated the complex because of some aspect of its design, construction, or alteration, or of materials used in
its construction or alteration; and
(c) the penetration of water has caused damage to the complex.
[8] Sections 14–15 and 17–18 are phrased similarly, though each is careful to state what buildings or parts of buildings fall under each claim and where the penetration of water has or has not caused damage. Further, ss 14–15 start by saying “the claimant
owns the dwellinghouse to which the claim relates”. Section 15 provides eligibility
criteria where an individual dwellinghouse which is part of a MUC (that is not a stand-
alone complex) is the only one damaged. This was referred to by departmental
officials as one of three “exceptions” to the “whole of complex” approach, along with
claims for damage to dwellinghouses in stand-alone complexes (s 18) and claims for
damage to common areas only (s 17).[5]
[5] Department of Building and Housing | Te Tari Kaupapa Whare Background report to the Social
Subpart 3 of pt 1 of the Act provides for the procedure for types of
representative claims in respect of MUCs. Relevantly, ss 19 and 30 provide for
representative claims for MUCs:
19 Representative claims in respect of dwellinghouses in multi-unit
complexes
The representative of some or all of the owners of dwellinghouses in
a multi-unit complex may bring a claim under this Act in respect of
those dwellinghouses, and any common areas, as if those
dwellinghouses and areas were a single dwellinghouse, and as if the
representative were its owner, if—
(a) each owner has given the representative a written notice— (i) authorising the representative to bring and resolve a
claim; and
(ii) authorising invasive testing by an assessor relating to
the owner’s dwellinghouse; and
(b) the owners together own at least 75% of the dwellinghouses in the complex; and
(c) subsection (1), (2), or (3) (as the case requires) of section 22 has been complied with; and
(d) the representative (or, if the representative is a body corporate, an officer or member of the representative)
attaches to the application for an assessor’s report—
(i) a written notice authorising invasive testing by an assessor relating to any common areas in the
complex; and
(ii) a statutory declaration that paragraphs (a) and (b), and
subsection (1), (2), or (3) (as the case requires)
of section 22, have been complied with.
…
30 Application of Act to representative claims in respect of multi-
unit complexes or stand-alone complexes
For the purposes of a claim under section 19 … this Act applies,
unless the context otherwise requires, as if—
(a) every reference in it to a dwellinghouse included a reference to the multi-unit complex or stand-alone complex concerned;
and
(b) every reference in it to the owner of a dwellinghouse included a reference to the representative of the owners of the
dwellinghouses in the multi-unit complex or stand-alone
complex concerned; and
(c) every reference in it to a party or parties included a reference to the representative of the owners of the dwellinghouses in
the multi-unit complex or stand-alone complex concerned.
Section 7(6) similarly provides, relevantly:
(6) Under section 30, for the purposes of representative claims in respect of a multi-unit complex, this Act applies, unless the context otherwise
requires, as if—
(a) every reference in it to a dwellinghouse included a reference to the multi-unit complex or stand-alone complex concerned;
and
(b) every reference in it to the owner of a dwellinghouse included a reference to the representative of the owners of the
dwellinghouses in the multi-unit complex or stand-alone
complex concerned; and
(c) every reference in it to a party or parties included a reference to the representative of the owners of the dwellinghouses in
the multi-unit complex or stand-alone complex concerned.
Subpart 4 of pt 1 provides for, among other matters, the assessment and
evaluation of claims. Under s 32(1), a prospective claimant who wishes to bring a
claim may apply to the chief executive to have an assessor’s report prepared.[6] Under s 32(2)–(3), if, on an initial assessment, the chief executive considers the claim meets
or is capable of meeting the eligibility criteria, they must arrange for an assessor’s
report to be prepared. If the assessor’s report states the claim does not meet the
eligibility criteria, the claimant has 20 working days to make a submission to the
chief executive, under s 45.
[6] The chief executive is defined in s 8 to be the “chief executive of the department of State that …
Section 48 provides:
48 Chief executive to evaluate assessor’s reports (1) The chief executive must evaluate every assessor’s report (other than a full assessor’s report made in respect of a claim that was held to
meet the eligibility criteria when an eligibility assessor’s report was
evaluated), and decide whether the claim to which it relates meets the
eligibility criteria.
(2) In evaluating the report, the chief executive must consider only the report itself and any submission made by the claimant under section 45. (3) The chief executive must give the claimant written notice stating—
(a) the chief executive’s decision as to whether or not the claim meets the eligibility criteria; and
(b) if the chief executive has decided that the claim does not meet those criteria, his or her reasons for that decision.
Diagrammatic overviews of the types of claims under the Act by owners of
dwellinghouses and representatives of MUCs are set out respectively in schs 1 and 2.
We reproduce them here to aid comprehension of the processes.
Schedule 1
Overview of types of claims by owners of dwellinghouses
Schedule 2
Overview of types of claims by representatives of multi-unit complexes
If a claim is eligible, a claimant can apply for the Weathertight Homes Tribunal
(the Tribunal) to adjudicate the claim or access mediation services with the consent of
the Tribunal.[7] They are also eligible for a FA package from the central government,
[7] 2006 Act, ss 60 and 80.
and may be eligible for financial assistance from local government, in accordance with
pt 1A of the Act.[8] In this case, only central government financial assistance was
[8] Section 125BB.
available, as the Queenstown Lakes District Council did not participate in the
FA package scheme. Relevantly, s 125BA of the Act provides:
125BA Meaning of qualifying claimant
(1) In this Part, qualifying claimant means a claimant who has an eligible claim in respect of a dwellinghouse and who—
(a) meets—
(i) the contribution criteria specified by the chief executive in either clause 1 of the 2011 Gazette
notice (as amended by the Weathertight Homes
Resolution Services Amendment Act 2016) or any
other notice in the Gazette that the chief executive
has issued for the purposes of setting contribution
criteria; and
(ii) the contribution criteria specified in subsection (2); or
(b) in the chief executive’s opinion, is taking all reasonable steps to meet the contribution criteria described in paragraph (a).
(2) The contribution criteria referred to in subsection (1)(a)(ii) are as follows: …
(b) if the claimant has applied for or is involved in any other civil proceedings relating to the weathertightness of the
dwellinghouse to which the relevant participating territorial
authority is named as a party, or has been joined as a party,—
(i) the participating territorial authority must agree to the
claimant receiving a financial contribution under the
package of financial assistance measures; and
(ii) the claimant must discontinue the civil proceedings
entirely; and
(iii) if the claimant has applied for mediation or
adjudication under the Act in respect of the same
dwellinghouse, the claimant must also comply with
paragraph (a)(ii).
…
Judgment under appeal
After traversing the legislative history, the Judge held:[9]
[9] Judgment under appeal, above n 1 (footnotes omitted).
[28] There is nothing to suggest that this class action solution was intended to change any underlying entitlements. Claimable damages remained a matter
to be resolved during the [Weathertight Homes Resolution Service] resolution
process. The main purpose was to enable a “class action approach” as far as
possible, but the assessment for each individual unit and the common areas
was still to be undertaken separately.
The Judge held that, under the Act, “[t]he central requirement of an eligible
claim is that it must be brought under s 9 in respect of a ‘dwellinghouse’”.[10] A claim
[10] At [70].
“cannot include principal units that are not dwellinghouses”.[11] The reasoning appears
[11] At [70].
to be:[12]
[12] Footnotes omitted.
[70] … The central requirement of an eligible claim is that it must be
brought under s 9 in respect of a “dwellinghouse”. This in turn requires that
a unit within a building is “intended to have as its principal use occupation as
a private residence”. The reference to, and requirement of, the dwellinghouses
is repeated in: the eligibility criteria in s 16; the stipulations of who has the
ability to apply for an assessor’s report under s 32; the purpose of pt 1A being
to facilitate the repair of “leaky buildings” in s 125A, which are in turn defined
as a “dwellinghouse” into which water has penetrated in s 8; and in the
definition of “qualifying claimant” in s 125BA. This makes it clear a claim
cannot include principal units that are not dwellinghouses.
…[77] … As a matter of law, it is not within the discretion of the decision
maker to override the “dwellinghouse” requirements, and this is not what she
purported to do. There is no overarching ability to treat non-residential
principal units as dwellinghouses. For example, level 3 consists of a
restaurant, a reception, staff quarters, and other conference facilities. The
layout of that level is simply inconsistent with that principal unit being used
for the principal use of a private residence.
[78] … Once the representative requirements are satisfied (with at least 75
per cent of the residential unit owners giving authorisation), then separate
owners cannot take their own separate conflicting positions. This was
designed to address the problem of “holdout”. Accordingly, the single claim
brought by the applicant in this case is properly classified as “eligible”, to the
extent noted in the documents. This does not equate with all the units in the
complex being classified as “eligible”. On the single application advanced by
the representative, the claim is held to be eligible for the complex as a whole,
but only in respect of units that are dwellinghouses. …
[79] For the same reasons, I reject the applicant’s interpretation argument
in the second cause of action that s 125BA does not empower MBIE or the
Chief Executive to determine that a claimant is a qualifying claimant in
respect of parts of an eligible claim only.
Submissions
Mr Lewis, for the Body Corporate, submits the High Court misconstrued the
scheme of the Act in finding that a MUC claim is brought in respect of units
specifically identified as meeting the definition of “dwellinghouse” (and associated
common areas) and not in respect of the MUC as a whole. The claim relates to the
MUC, not the dwellinghouses. This is consistent with the obligations of bodies
corporate to repair and maintain, under s 138 of the Unit Titles Act 2010. Orally,
however, we understood Mr Lewis to accept that if there was an extreme situation
where dwellinghouses were a tiny minority of a MUC, there would need to be an
adjustment in interpretation to give effect to the scheme of the Act. The procedural
provisions of the Act do not define the nature and scope of the MUC claim. The
substantive provisions of the Act require a MUC to be dealt with as a single claim.
The MUC is either all eligible or all ineligible. The scheme of the Act does not allow
the chief executive to engage in a precision exercise, with regards to collateral benefit
to a commercial part of a MUC, in making an eligibility decision.
[18] Mr Wicks, for the Chief Executive, submits the Body Corporate’s
interpretation is not consistent with the text, scheme and purpose of the procedural
provisions of the Act, or relevant authority. The purpose of the Act is to provide
assistance in respect of residential dwellings and their associated common areas, not
commercial premises and commercial common areas. The procedural provisions
mean that any part of the complex being dealt with under the Act needs to be part of a
single claim to avoid problems of multiple claims. They do not mean the claim applies
to the whole complex or that the Chief Executive must determine that parts of a MUC
that have commercial purposes are part of an eligible MUC claim. That would lead to
perverse results where a small number of residential units in a MUC would make any
number of commercial units in the same MUC, such as shops on ground floors, eligible
under the Act. It would be surprising if the Act enabled determinations by the Tribunal
in relation to units intended for commercial use, despite the common law not having
recognised causes of action in relation to commercial properties. Nothing in the
legislative history of the Act suggests Parliament intended such a change to a claim’s
scope and purpose.
MUC eligibility
The meaning of the statute must be ascertained from its text and in the light of
its purpose and context, as required by s 10 of the Legislation Act 2019 and
the Supreme Court’s interpretive approach in Commerce Commission v Fonterra
Co-operative Group Ltd:[13]
[13] Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767
Even if the meaning of the text may appear plain in isolation of purpose, that
meaning should always be cross-checked against purpose in order to observe
the dual requirements of [what is materially now s 10]. In determining
purpose, the Court must obviously have regard to both the immediate and the
general legislative context. Of relevance too may be the social, commercial
or other objective of the enactment.
Read as a whole, the text of the Act is consistently oriented around residential,
not commercial, “dwellinghouses”:
(a) As s 3 specifies, the Act is concerned with claims relating to “dwellinghouses that are leaky buildings”.
(b) The term “claim” is defined as “a claim by the owner of a dwellinghouse” in s 8. The definition of “eligible claim” is also tied to
“the owner of a dwellinghouse” that is eligible under ss 48 or 49.
(c) The definition of “dwellinghouse” in s 8 makes it clear that this “means a building, or an apartment, flat or unit within a building, that is
intended to have as its principal use occupation as a private residence”.
(d) The definition of “dwellinghouse” also provides that, for a unit within a building, it includes a garage or other structure that is an integral part
of the building and “is intended for the exclusive use of an owner or
occupier of the dwellinghouse”. That does not detract from the unit
having, as its principal use, “occupation as a private residence”. The
definition also explicitly provides that “dwellinghouse” does not extend
to “a hospital, hostel, hotel, motel, rest home, or other institution”.
That is also so for the text of the Act in relation to MUCs which makes clear
that claims relate to individual dwellinghouses:
(a) In general terms, in relation to MUCs, s 4(c) describes subpt 3 of pt 1 of the Act as providing for “the bringing of claims in relation to
multi-unit dwellinghouse complexes”.
(b) The definition of MUC in s 8 is tied to it containing two or more dwellinghouses.
(c) Each of the eligibility sections start with the claimant being the owner, or representative of the owners, of dwellinghouses. The eligibility
criteria for MUCs in s 16 are tied to “dwellinghouses in the [MUC] to which the claim relates”. The associated definition of “representative”
in s 8 relates to “the owners of dwellinghouses in a unit title complex”.
(d) Significantly, in relation to “[r]epresentative claims in respect of dwellinghouses in [MUCs]”, s 19 entitles “[t]he representative of some
or all of the owners of dwellinghouses” to bring a claim “in respect of
those dwellinghouses, and any common areas, as if those
dwellinghouses and areas were a single dwellinghouse”.[14] It requires
[14] Emphasis added.
each such owner to give written notice. That reinforces that an eligible
MUC claim relates to dwellinghouses, as defined in s 8, and common
areas. It also makes clear that a claim in a MUC may relate to only
those dwellinghouses.
(e) Sections 26–28, which enable further owners of dwellinghouses to be added to or removed from MUC claims, also envisage a MUC claim
relating to particular dwellinghouses. So does s 52, which provides that
claims originally brought under ss 15, 17 and 18 in respect of a
dwellinghouse in a multi-unit complex, that have been terminated
because of another claim brought in respect of another dwellinghouse
or common areas in the complex, may be pursued under s 19 or added
to another claim under s 26.
(f) Section 42(3)(b) requires that a full assessor’s report, in relation to a claim that the report states meets the criteria in s 16, provides a view of
the nature and extent of damage “not including damage to parts of the
complex that are neither a dwellinghouse nor a common area”.
[22] Sections 7(6) and 30, which are the best textual support for the
Body Corporate’s submission, must be read in light of the text and scheme of the
sections referred to above. They explain that the Act applies to representative claims
in relation to MUCs as if “every reference in it to a dwellinghouse included a reference
to the [MUC] … concerned”. Like s 8, but unlike all the other sections cited above,
ss 7(6) and 30 bear the qualification “unless the context otherwise requires”. Read in the context of the scheme of the Act and the text of the sections referred to above,
which indicate the opposite, these words are not sufficient basis to import into all the
other sections the proposition that the MUC as a whole must be eligible for mediation
and adjudication services and therefore to pursue financial assistance under the Act.
The context of the text of the Act otherwise requires.
The context of the legislative history of the Act also reinforces that
interpretation. The stated purpose of the Act in s 3, the definition of “dwellinghouse”
in s 5 and the orientation of claims to dwellinghouses in s 7(1)(a) of the 2002 Act did
not materially change when its scope was expanded in 2006 to include MUCs.[15] The
[15] See 2006 Act, ss 3(a) and 8.
explanatory note to the Weathertight Homes Resolution Services Amendment Bill
2006 (the Bill), which became the Act, contains multiple references to
“homeowners”.[16]
[16] Weathertight Homes Resolution Services Amendment Bill 2006 (75-1) (explanatory note).
The select committee’s report on the Bill in 2006 indicates it was intended to
apply to MUCs due to the procedural difficulties they faced under the 2002 Act.[17] As
[17] Weathertight Homes Resolution Services Amendment Bill 2006 (75-2) (select committee report)
this Court stated in Auckland Council v Weathertight Homes Tribunal in relation to the
purpose of the Act:[18]
[18] Auckland Council v Weathertight Homes Tribunal [2016] NZCA 256 (footnote omitted).
[14] … One of the significant changes introduced by the 2006 Act was the
shift to a whole of building or whole of complex approach. Broadly, the
conception is that a single claim should be filed in relation to a multi-unit
complex rather than a series of individual claims relating to individual units
within the complex in order that the complex can be made weathertight.
The select committee report contained no indication of any intention to shift
the scope of the Act other than to include residential dwellinghouses in MUCs. Rather,
it talked of “homeowners” and “residential units”:[19]
[19] Select committee report, above n 17, at 4 (emphasis added).
Multi-unit claims
Although we are not making substantial recommendations for amendments to
the bill as introduced, we believe that the provisions in respect of multi-unit
claims are significant. Under the existing Act there are barriers to owners of
units within multi-unit apartment complexes registering claims and resolving their disputes. As a result, at present the [Weathertight Homes Resolution
Service] does not offer these homeowners a more accessible, faster, and less
costly way to resolve disputes than is available to them through the court
system. This is a serious concern because around 70 percent of all claims that
have been registered to date are from owners of such units.
The bill allows a class action to be taken for multi-unit buildings and makes
the [Weathertight Homes Resolution Service] more accessible to this type of
claim. The main purposes of the multi-unit amendments are to ensure that as
far as possible a “whole of complex” approach can be taken to these leaky
buildings, and to enable bodies corporate and other groups to bring claims to
the [Weathertight Homes Resolution Service]. With a few exceptions, single
residential unit owners will not be able to bring separate claims. Instead, a
representative will bring a claim for all weathertightness damage to common
areas and residential units in a multi-unit complex.
The representative will be able to bring a claim only where the owners in the
complex agree to it. For those decisions, if a representative’s body corporate
rules, constitution, or lease require more than 80 percent of owners to agree,
the bill allows that no more than 80 percent of owners entitled to vote will
need to agree. In bringing a claim, the representative will need to provide a
statutory declaration that at least 75 percent of residential unit owners in the
complex have authorised the representative to bring and resolve claims in
respect of their dwellinghouses. Both provisions are a balance between a
“whole of complex” approach and allowing some leeway for the possibility
that some owners may “hold out”, and not agree to a claim being brought.
The same assumption that the dwellinghouses were “leaky homes” is also
present in the legislative history that led to the 2011 amendments.[20] If there had been
[20] Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Bill 2010
any parliamentary intention for the Bill to take the significant policy step of extending
the regime to commercial premises or to all units within a MUC that did not meet the
existing definition of “dwellinghouse”, that could be expected to have been discussed.
We agree with the High Court Judge that there is nothing to suggest that the new
procedures adopted in the Act in 2006 were intended to change any underlying
entitlements.[21] The perverse results of commercial units being eligible if they are part
[21] Judgment under appeal, above n 1, at [28].
of a MUC containing residential units, but not otherwise, do not arise on this
interpretation.
[27] Overall, the text and context of the Act indicate that core to the effect and stated purpose of the Act is its concern to facilitate and help fund the repair of leaky dwellinghouses which are defined by their principal use being occupation as a private
residence. There is no indication in the scheme, text or history of the Act that
Parliament intended commercial premises that happen to be in the same MUC as a
dwellinghouse to be eligible. This aligns with a previous High Court authority which
held a unit intended to have a commercial use is excluded from a claim in the Tribunal
because it is not a dwellinghouse.[22] Particular dwellinghouses in a MUC may be
[22] Body Corporate 85978 v Wellington City Council [2013] NZHC 2852 at [66].
eligible while other units are not. It is not all or nothing as Mr Lewis submits.
It follows that common areas associated with units that are principally private
residences are correspondingly intended to be eligible, while those that are not, are
not. We agree with the High Court that the context requires the focus to be on that
which reflects “damage/repair requirements and the beneficial interests of the eligible
dwellinghouse claims”.[23] This is clear from the way common areas are associated
[23] Judgment under appeal, above n 1, at [122].
with dwellinghouses in ss 19 and 42(3)(b), and in the legislative history.
This ground of appeal fails.
Issue 2: What was the decision?
The Body Corporate submits that the decision made by the Technical Services
Manager (the Manager) in MBIE was that Oaks Shores was eligible in its entirety for
mediation and adjudication services, which has implications for funding.[24] The
[24] The Chief Executive is responsible for making the decision under s 48 of the 2006 Act. There was
Chief Executive submits the decision was that Oaks Shores was generally eligible but
block 4 was not eligible. She also submits that the carparks in block 4, that are
associated with units in block 3, were not part of the eligible claim, which is discussed
below from [54].
What happened?
The High Court Judge summarised the relevant background:[25]
[25] Footnote omitted.
[2] The subject matter of the dispute is a unit title complex … known as “[Oaks] Shores”. That complex has 84 principal units, together with
accessory units and common areas, in four blocks. The disputed issues in this
proceeding concern eligibility for funding of weathertightness repairs to
block 4, which has seven principal units and common property. Unit 311 in
block 4 has descriptions on the floor plan including “function toilets”,
“staff room”, “office”, “meeting room”, “bar”, “breakfast/dining room”,
“lounge” and “kitchen”. The estimated repair cost for block 4 is about
$12 million. An eligible person who qualifies for a [FA package] to fund
weathertightness repairs would be entitled to a 25 per cent contribution (i.e.,
approximately $3 million for block 4).
A stylised picture of the complex, including block 4, is reproduced below.
On 20 May 2013, the Body Corporate applied to MBIE for an assessor’s report
on Oaks Shores.[26] On 17 June 2013, MBIE advised the application was accepted. The
[26] At [33].
report was completed on 29 August 2014. On 20 January 2015, the assessor’s full
report was provided to the Body Corporate.[27] The assessor’s opinion was that the claim met the eligibility criteria. MBIE advised that the Chief Executive “will now
[27] At [35].
make a decision on the eligibility of your claim”.
On 18 February 2015, for the purposes of the Manager’s consideration of
eligibility to access the Tribunal and FA package, a claims advisor for
Weathertight Services at MBIE asked the Body Corporate to confirm that the units in
the claim were all dwellinghouses, noting, relevantly:
In particular the following units may not be dwellinghouses
• Units built as stage 4 of the development under building consent 040010 do not meet the definition of dwellinghouse as the building
consent was issued for ‘commercial’ building. I believe these are the
units called Block B4 in the documents as those documents contained
in the assessment report are stamped as BC 04010.
… • Units in block 3 levels 6, 7 and 8 and the carpark under for which a certificate for public use applied.
From 2015–2016, there was correspondence between the parties, including by
the Body Corporate’s solicitors, Grimshaw & Co, disagreeing about whether units
needed to have as the intended use of being a private residence at the time of
construction.
On 16 February 2016, in filling out a form entitled “WHRS STAND ALONE
COMPLEX / MULTI – ELIGIBILITY DECISION CHECK FORM” (the Eligibility
Form), the Manager stated:
…
To make an eligibility decision I need to know
• which units are dwellinghouses, and • that the dwellinghouse units in this claim represent at least 75% of the dwellinghouse owners in the complex.
100% of unit owners have joined the claim currently which therefore includes
100% of dwellinghouse owners.
In considering the intended use at the time of building consent, the following
units are not considered to be dwellinghouses
• Units built as stage 4 of the development under building consent 040010 do not meet the definition of dwellinghouse as the building
consent was issued for ‘commercial’ building. I believe these are
the units called Block B4 in the documents as those documents
contained in the assessment report are stamped as BC 04010.
…
Information from Assessor report
…
Comments [The] following units may not meet the definition of dwellinghouse
• Units built as stage 4 of the development under building consent 040010 do not meet the definition of dwellinghouse as the building consent was issued for ‘commercial’ building. I
believe these are the units called Block B4 in the documents as those documents contained in the assessment report are stamped as BC 040010.
… •
Units in block 3 levels 6, 7 and 8 and the carpark under for which a certificate for public use applied.
…
The units built as stage 4 (block B4) under a
commercial building consent are not
dwellinghouses.
…
…
Conclusion:
The eligibility decision relates to the complex as a whole. In my opinion,
formed pursuant to Section 13 of the Weathertight Homes Resolution Service
Act 2006 (WHRS Act), the claim is:
Eligible
…
In filling out the FA package qualification decision form, the statement “[t]he
claim is a multi with unit variations (Refer to comments section below)” was marked
“[y]es”. The comment was:
…
The following units are not considered to be dwellinghouses
• Units built as stage 4 of the development under building consent 040010 do not meet the definition of dwellinghouse
as the building consent was issued for “commercial”
building. I believe these are the units called Block B4 in the
documents as those documents contained in the assessment
report are stamped as BC 040010.
Only dwellinghouse units can receive [FA package] contributions
On 18 February 2016, the claims advisor wrote to the representative of the
Body Corporate (the Decision Notification) stating, relevantly:
…
The Chief Executive has found your claim eligible to use the resolution
process under the Weathertight Homes Resolution Services Act 2006. This
email provides confirmation of this eligibility decision. …
You may pursue the [FA package] if you provisionally qualify for a government contribution. An initial evaluation of your claim indicates that some of the units within your complex may qualify for a 25% contribution from the government towards repairs necessary to fix your weathertightness problems as part of the [FA package]. A summary of the initial qualifying statuses of the units is listed at the end of this email as Appendix 1.
…
APPENDIX 1
…
The following units are not considered to be dwellinghouses
• Units built as stage 4 of the development under building consent 040010 do not meet the definition of dwellinghouse as the building consent was issued for ‘commercial’ building.
I believe these are the units called Block B4 in the documents as those documents contained in the assessment report are stamped as BC 040010.
Only dwellinghouse units can receive [FA package] contributions
Between 2016 and 2019, the parties corresponded regarding how to navigate
the FA package scheme and use it for the repairs. Remedial work commenced about
June 2019.[28] On 14 May 2021, MBIE advised that block 4 was “mostly non-
[28] At [40].
residential, excluded from contributions, except for four residential units, two each on
Levels 2 & 4”.[29] On 16 February 2023, MBIE advised the Body Corporate that
[29] At [42].
block 4 was not eligible for FA package payments.[30] Since then, the parties have been
[30] At [45].
in dispute about the issue.[31] These proceedings were filed on 18 August 2023.
[31] At [46].
Judgment under appeal
The High Court Judge stated, of the Manager’s February 2016 eligibility
decision under review:
(a) The standard approach to interpreting public documents is appropriate “the decision must be construed fairly, as a whole and in context”.[32]
[32] At [50]. Public document in this context means a document “that falls [within] that definition in
(b) It is not a fair reading of the decision that the complex as a whole was assessed as eligible, without any different classification for the units in
block 4.[33] The decision-maker did not purport to override the statutory
[33] At [76]–[77].
“dwellinghouse” requirements.[34] It is adequately clear from the
[34] At [77].
Eligibility Form that the single claim brought by the applicant is
properly classified for the complex as a whole, but only in respect of
units that are dwellinghouses.[35]
[35] At [78].
(c) The Decision Notification is not fairly read without regard to the unequivocal statements in appendix 1, excluding block 4.[36] That is
[36] At [90].
“even clearer when considered in the context of the 2015 correspondence in which the Body Corporate was given the opportunity
to make submissions about the definitional issues”.[37]
[37] At [93].
(d) The reference to “common areas” in s 19 of the Act, should be interpreted purposively to focus on eligible dwellinghouses and
corresponding common areas.[38] There is no basis to believe Parliament
[38] At [122].
intended an expanded entitlement to funding assistance for all
commercial common areas in a mixed-use MUC.[39] It was open to the
[39] At [122].
Manager to conclude that “all of the principal units and the common
areas in block 4 were principally intended for
commercial/non-residential purposes and therefore ineligible”.[40] She
[40] At [123].
did not fail to consider common areas.[41]
[41] At [124].
(e) The Judge held: [97] Accordingly, I find that the decision of the [Manager]
(as recorded in the Eligibility Form) and the notification of it
to the Body Corporate (the Decision Notification), were both
consistent and lawful in terms of the statutory provisions. In
terms of the issues listed in para [4](a) above:
(a) The decision made by the [Manager] on 16 February 2006 recorded in the Eligibility
Form was that the units in block 4 (and
corresponding common areas) were
ineligible because they did not constitute
dwellinghouses, given the building consent
for block 4 recorded an intended use of
commercial.
(b) The decision as communicated in the Decision Notification provided to the Body
Corporate on 18 February 2016 was to the
same effect.
(c) There was no discrepancy between the two.
(f) In summary, she stated: [129] Reading the documents fairly, as a whole, and in
context, I find the decision in the Eligibility Form and the
[FA package] Form and conveyed to the Body Corporate on
18 February 2016 in the Decision Notification was that:
(a) the Body Corporate had an eligible claim for dwellinghouses in the [Oaks] Shores
complex, which was for the units in blocks
1, 2 and 3 (including accessory units and
common areas); and
(b) the units and common areas in block 4 were ineligible because that block was intended to
be used for non-residential purposes and
therefore did not meet the “dwellinghouse”
requirement of having its principal use as
occupation as a private residence.
Submissions
Mr Lewis submits the Decision Notification was straightforward in deciding
the claim is eligible. The contextual interpretation by the High Court effectively recast
the decision. It involves a very strained reading of MBIE documents and assumptions
about the Chief Executive’s understanding of the Act, both of which are incorrect and
none of which would be apparent to an ordinary reader. There is no sound basis to
depart from the plain wording of the eligibility decision, which makes no exclusion
for block 4, including “common areas”.[42] Declarations should be made accordingly.
[42] The argument on appeal about the common areas is included in the Body Corporate’s submissions
Mr Wicks submits the Manager decided block 4 was not part of the eligible
claim and that was communicated to the Body Corporate. If it was not, the appropriate
relief is only that it should be communicated. The High Court was also correct that
eligible “common areas” are those for residential purposes and the decision dealt with
block 4 as a whole.
The decision
The Judge was correct to construe the decision fairly, as a whole and in context.
It is entirely clear from the contemporaneous documents that the Manager’s decision
was as the High Court found it to be: the claim for the Oaks Shore MUC was eligible
insofar as it related to dwellinghouses in blocks 1 – 3; the units and common areas in
block 4 were ineligible because they did not meet the statutory criteria traversed in
issue 1.[43] This was what MBIE communicated in February 2015, a year before the
[43] At [97] and [129].
decision was made. It occasioned the lawyers’ letters that ensued over the course of
that year and into 2016. The Body Corporate was told three times — on
18 February 2015, 25 February 2015 and 1 October 2015 — before the decision was
made, that MBIE considered units were required to meet the definition of
dwellinghouse, implying that block 4 was likely not to be eligible. It is explicit in the
Eligibility Form and FA package qualification decision form that the Manager filled
out on 16 February 2016. It was communicated clearly across the text and appendix
of the Decision Notification. The lawyers for the Body Corporate understood this to
be the meaning of the decision, as illustrated by their email of 4 March 2016 referring
to the eligibility of “(some of)” the units.
Neither is there anything in the Body Corporate’s submission that, because the
decision did not explicitly exclude the common areas of block 4, they are not excluded
from eligibility. In referring to the excluded units as “Block B4” in the appendix, the
decision included the common areas in block 4 that are associated with those units.
Even if it did not, it follows as a matter of law, as explained in issue 1, that common
areas associated with units that do not have a primarily private residential purpose are
excluded. The High Court did not err in this regard either.
This ground of appeal fails.
Issue 3: Judicial review of the decision
[46] In the event the High Court decided the Manager did exclude block 4 from eligibility, as it did, the Body Corporate sought review of the decision on two primary grounds,[44] pleading the decision should be set aside and remitted to the
[44] The other ground, as discussed above, is answered by [44].
Chief Executive for reconsideration. The High Court concluded:
[130] … The decision maker properly took into account the mandatory
relevant consideration of the assessor’s report, she gave reasons for her
decision in respect of block 4 (the building consent), and she did not purport
to exclude accessory units (parking) for principal units in block 3.
The Body Corporate appeals on each ground of review, which we treat in turn.
We also consider the Chief Executive’s understanding that the decision excluded the
carparks in Building 3.
Failure to take into account relevant considerations
The Judge held there is no basis for alleging that mandatory relevant
considerations regarding the configuration of units in block 4 were disregarded.[45] The
[45] At [106].
building consent notes that there was a different intended use for the block 4 units
which was the factual basis for the Manager’s decision.[46] That was open to the
[46] At [106].
Manager.[47] It was not necessary for the Manager to refer to other material which did
[47] At [109].
not disclose “whether the intended use was short term accommodation or longer term
private residential use”.[48]
[48] At [115].
Mr Lewis submits that the Eligibility Form indicates the Manager failed to take
into account relevant considerations with respect to block 4. In particular, the Manager
should have taken into account consented design plans that were reproduced in the
assessor’s report. The consistency across the consented design plans was their
provision of facilities and rooms for long-term accommodation, which implies
residential use. Only part of block 4 was non-residential. The Eligibility Form
indicates the consented design plans were not taken into account. In addition, the use
of the word “residential” on the consent for block 4, in conjunction with a 2015 letter
sent by the Body Corporate’s lawyers in response to a request for confirmation as to
whether particular units were dwellinghouses, was not taken into account. Neither were the assessor’s description of the block 4 units as “apartments”, and the common
areas. The Court conflated this issue with assessing the merits of the decision.
Mr Wicks submits there was no failure to take into account mandatory relevant
considerations. The letter from the Body Corporate’s lawyers was sent in 2015 prior
to the decision and cannot be taken into account, given the argument was not advanced
in the High Court.
The Judge did not err. The Manager was not required to refer to the designs
included in the assessor’s report, which were included alongside other information.
Section 48(2) requires that, “[i]n evaluating the report, the chief executive must
consider only the report itself and any submission made by the claimant”.[49] That does
[49] Emphasis added.
not include the letter relied upon by Mr Lewis. The letter is not a mandatory relevant
consideration, was not required to be taken into account separately from the assessor’s
report, and was not pleaded. The High Court expressly declined to consider it, and
other correspondence between the parties from 2015, on the basis that “[n]either party
[alleged] that the 2015 correspondence was ultimately taken into account for the
challenged decision, nor that it should have been”.[50] The respondent is correct that
[50] At [64].
this issue should not be raised for the first time on appeal.
Reasons
The Judge held that the Eligibility Form and Decision Notification contained
reasons for the decision.[51] Mr Lewis submits the Manager gave no reasons, as required
[51] At [114].
by s 48, for excluding block 4, which is an error of law. Mr Wicks submits the
Manager did not fail to give reasons.
We consider that the Eligibility Form and the Decision Notification were clear
that the reason for excluding block 4 was that it was not eligible at law due to its
intended use. On the basis of the information before the Manager, as we held above,
that was correct. There was no failure to give reasons.
Carparks in block 4
There are carparks in block 4 of Oaks Shores that belong to, and are allocated
for use with a principal apartment unit in block 3. The High Court Judge held that
those carparks are eligible under the Manager’s decision, because of the definition of
accessory unit, including carparks, in the Unit Titles Act.[52]
[52] At [118].
Mr Lewis submits the Judge was correct in that finding but erred in declining
declaratory relief. The definition of dwellinghouse in s 8 includes a garage which is
integral to the building. That must be read as including a MUC, according to the
requirement in s 30(a) of the Act.
Mr Wicks submits that the Judge erred in relying on the Unit Titles Act and did
not take into account the definition of dwellinghouse in s 8 of the Act, which excludes
accessory structures that are not “an integral part of the building”. As a result, she
found the Manager determined the carparks in block 4 to be eligible. If the High Court
judgment is upheld, he advises that the Chief Executive would take that as
confirmation that the carparks are eligible. She did not appeal because there was no
relevant order to appeal against, but formally supports the decision on other grounds.
However, if this Court indicates a different view, the Chief Executive would act in
accordance with the judgment.
The definition of “dwellinghouse” in s 8 of the Act includes, relevantly:
(c) in the case of a dwellinghouse that is an apartment, flat, or unit within a building, includes a door, gate, garage, shed, or other structure
that—
(i) is an integral part of the building; and
(ii) is intended for the exclusive use of an owner or occupier of
the dwellinghouse;
As we hold in relation to issue 1, and as the chief executive submits, a
purposive reading of the Act is that units are eligible under the Act if their principal
use is occupation as private residences. We understand that is the case with the
relevant apartments in block 3 to which these carparks are allocated. The definition of dwellinghouse in s 8 must be read in light of the purpose of the Act, including in
light of s 30(a), which requires that every reference to a dwellinghouse includes a
reference to a MUC, unless the context otherwise requires. The context does not
otherwise require here. Accordingly, the block 4 carparks allocated for the exclusive
use of block 3 residential apartments should be included within the definition and
would be potentially eligible. We do not consider the definition of “accessory unit” in
the separate Unit Titles Act assists with interpretation. This issue is not strictly before
us on appeal but we have indicated our view in summary to assist the parties.
Conclusion
These two judicial review grounds of appeal also fail. Given that, there is no
need to consider the issues raised about relief, with which the High Court did not need
to deal either.
Admissibility of evidence
The Chief Executive filed in the High Court an affidavit of Ms Rachel Singers,
an MBIE employee, affirmed on 7 March 2024. Ms Singers described the MBIE
processes and forms, and provided an explanation of a letter sent by MBIE to
the Body Corporate concerning eligibility. We received the affidavit provisionally in
order to determine its admissibility under the Evidence Act 2006. Mr Lewis objected
to its admissibility on the basis the decision notification stood on its own and recourse
could not be had to this extrinsic material to explain it. The Body Corporate did not
have access to that material at the time. It was generated after the decision under
challenge and does not assist in resolving the issues regarding the decision. The
affidavit is not admissible under s 7 of the Evidence Act.
Result
The appeal is dismissed.
The appellant must pay the respondent costs for a standard appeal on a band A
basis, together with usual disbursements.
Solicitors:
Grimshaw & Co, Auckland for Appellant
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
| Judgment: | 28 August 2025 at 10 am |
JUDGMENT OF THE COURT
| A | The appeal is dismissed. |
| B | The appellant must pay the respondent costs for a standard appeal on a |
| band A basis, together with usual disbursements. |
____________________________________________________________________
REASONS OF THE COURT
(Given by Palmer J)
Summary
The appellant is Body Corporate 355492 (the Body Corporate), which owns a
four block multi-unit complex (MUC), Oaks Shores, in Queenstown. The respondent
is the Chief Executive of the Ministry of Business, Innovation and Employment |
BODY CORPORATE 355492 v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION
AND EMPLOYMENT [2025] NZCA 431 [28 August 2025]
Employment [2024] NZHC 1422, [2024] 3 NZLR 84 [judgment under appeal].
s 7.
Services Select Committee on the Weathertight Homes Resolution Services Amendment Bill
(September 2006) at [22]–[31]. The report explains that, with regards to the “whole of complex”
approach, damage is generally suffered across a whole complex and it is “more effective, practical,
and efficient for all claims relating to the same complex to be dealt with together as if they were
one claim”: at [12].
is for the time being responsible for the administration of this Act (except any justice provisions)”.
At all relevant times that was the Chief Executive of MBIE.
at [22] (footnote omitted).
[select committee report] at 4.
(258-1) (explanatory note) at 1; and Department of Building and Housing | Te Tari Kaupapa Whare
Regulatory Impact Statement: Agency Disclosure Statement (23 November 2010) at [17]–[18] and
[22].
no dispute that the decision was validly delegated to the Manager: at [67]. For that reason, in the
rest of the judgment we refer to the Manager’s decision when discussing the relevant decision.
s 4 of the Evidence Act 2006”: at [47], n 38.
under the heading “Chief Executive’s decision” which is why it is treated here, even though it
appears to be primarily a matter of interpretation of the Act. The issue also arises briefly in the
Body Corporate’s submissions under issue 3. The answer given here answers that too.
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