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Wheeldon v Body corporate 342525 [2016] NZCA 247 (7 June 2016)

Last Updated: 24 June 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellants
AND
 Respondent
Hearing:
12 November 2015
Court:
Winkelmann, Courtney and Clifford JJ
Counsel:
C Baker and B E Brill for Appellants T J G Allan and T J P Gavigan for Respondent
Judgment:


JUDGMENT OF THE COURT

A The application to adduce fresh evidence is declined.

B The appeal is dismissed.

  1. The appellants must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

[1] The Bridgewater Bay apartment complex in Paihia has weather-tightness issues. Its Body Corporate considers that they are significant and proposes substantial remedial work at an estimated cost of about $3,000,000. The owners[1] of five of the units do not accept that the water-tightness issues require this response. They say that targeted repairs at less cost would be sufficient. These unit owners applied unsuccessfully for declarations and injunctive relief to prevent the proposed work proceeding. They appeal against Muir J’s decision.[2]
[2] The appeal raises questions about the nature of the scheme provided under the Unit Titles Act 2010 (UTA 2010) for repairs and maintenance. Central to these issues is the interpretation of s 138(1)(d), which confers on bodies corporate the obligation to repair and maintain building elements that relate to more than one unit. The unit owners do not accept that s 138(1)(d) authorises the Body Corporate to undertake the work proposed to wall panel frames that form part of the northern façade of the building, or to the decks at levels two and three.[3] Their central proposition is that they have the primary obligation (and right) to repair and maintain their units, including building elements, such as decks, located within the units. On the appellants’ case, the Body Corporate’s obligation to repair and maintain building elements is limited to:
[3] The appellants say that if the Body Corporate is to act, it bears the onus of showing that the proposed work is necessary and that it falls within s 138(1)(d). This Body Corporate has failed to discharge that onus. They also say that the Body Corporate has not been properly authorised by the unit owners to undertake the work.
[4] The appellants say that the Judge erred in:[4]

Background to the proceedings

The building

[5] The apartment complex was built in 2003. At ground level, which is level one of the complex, there is a carpark that is common property. There are 10 units on level two, 10 on level three and two on level four. The complex is what is commonly known as a “wedding cake” style, with each floor set back from the one below; the decks of the level two apartments form the roof of the carpark, the decks of the level three apartments form the roofs of the level two apartments, and the decks of the level four apartments form the roofs of the level three apartments.
[6] The base of each level is constructed from a single concrete slab. These slabs extend for the whole length and width of the levels and form both the inside floor and the outside deck of each apartment. Each apartment has its own individual deck. The individual tiled decks are separated by vertically-placed concrete block dividing walls erected at intervals along the slab. The tiles were laid over an acoustic cork mat sandwiched between liquid membranes. The membrane did not extend up the inter-tenancy dividing walls. It now appears that the membrane may not have been waterproof, contrary to what was previously thought.
[7] The northern façade of the building at levels two and three is almost entirely glazed, save for timber framed “Titan board” panels in 16 of the 20 level two and three units.
[8] The storm water reticulation system is largely internal. The level two and three decks have drain holes which allow water to drain into pipes located in the intertenancy dividing walls at levels two and three. From there, the water moves to the underground storm water system at the ground level. The level four decks drain into pipes located in the level three ceiling cavity before joining the system common to the other levels.

Problems

[9] For some years prior to 2013 there were concerns about the weather-tightness of the level four apartments because of leaks into some level three apartments. However, because the level four apartments had a different drainage arrangement from the lower levels there was no concern that the problem might be more widespread. The possibility of weather-tightness problems beyond those directly associated with the level four units was first recognised in early 2013. The minutes for the annual general meeting (AGM) held on 26 January 2013 recorded a discussion about “the fact that some decks were experiencing problems with difficulties relating to deck falls, the ponding of water and the lifting of tiles”. It was resolved that the Body Corporate Committee would arrange a suitable consultant or contractor to investigate the affected decks with a view to identifying and recommending a repair process.
[10] A report was obtained from AA Home Inspections (2000) Ltd. It inspected the decks of five apartments (none of which belonged to the appellants), noting that there were cracked or loose tiles and cracked mortar joints with some ponding of water. It noted the step-down between the inside floor and tiled decks was approximately 60–70 mm but said that this would have been compliant with the Building Code at the time of installation. The report concluded that the lack of a flexible sealant joint around the perimeter of the decks and wall junctions had contributed to the cracking in the tile joints, loss of adhesion and cracking of tiles. The report stated further that the waterproof membrane was nearing the expiry of its 10-year warranty. It recommended that the tiling on all decks be removed, the screed be checked, any decks that did not have a positive fall to the outlets be re-screeded, the waterproof membrane be renewed and the decks be re-tiled.
[11] The AA Home Inspections report is now said by some of the unit owners to have been rather superficial. Within a few months there were complaints about further water ingress to certain level three apartments. AA Home Inspections provided a supplementary report which identified defects and considered that remediation work was required to ensure the weather-tightness of the building and compliance with the current Building Code.
[12] On 3 October 2013 the Body Corporate secretary, Mr Leishman, advised of:

... [T]he discovery of major issues on two decks and evidence of significant leaks ...

The forecast cost of repairs is not inconsequential (Estimate $30–40,000 per deck) to achieve a compliant solution. Whilst at this stage only two decks are leaking there is a potential other decks may share at least some of the defects.

[13] Mr Leishman also advised that the Body Corporate Committee had obtained legal advice and, acting on that advice, had filed proceedings against the Far North District Council (FNDC) and others to avoid limitation issues. The Committee also obtained a report from Andrew Gray of Origin Building Consultants Ltd (Origin) to identify any original construction and design defects. This report would be needed for the litigation. Mr Gray identified 14 separate defects in the building. These included insufficient cladding to deck clearance, no apparent waterproofing to the top of the deck parapet walls, unsealed gap between the deck outlets and the deck surface, failed deck membrane, insufficient fall to the deck surface, unsealed gap between the expressed joint cladding and the joinery jamb junction, deck grout incorrectly installed and probable failed internal UPVC pipe. It is not necessary to canvass the intricacies of these identified defects in detail.

EGM of 9 November 2013

[14] As a result of the Origin report, an EGM was convened on 9 November 2013. The Origin report was circulated with the agenda. Mr Gray addressed the meeting on the nature of the damage and the repair work he considered necessary. The minutes of the meeting recorded his advice about the general scope of the repair work to the decks, the walls inside the decks, the inter-tenancy walls between the decks and the ends of the building and hoppers at ground level.
[15] The members resolved that the Body Corporate would not lodge a claim with the Weathertight Homes Resolution Service (WHRS) but, instead, ratified the Committee’s appointment of solicitors to commence proceedings to recover the cost of repairs. The members further resolved that the Body Corporate Committee be delegated authority to investigate and appoint a lead consultant to manage the building remediation process. That resolution is now under challenge.

AGM of 25 January 2014

[16] An architectural firm, Resolution Architecture (Resolution), was engaged to provide the architectural services for the work Origin had identified. Resolution attended the AGM on 25 January 2014 to outline the work that was proposed. The meeting resolved to approve the design that included new aluminium weatherboarding, replacing the membrane and tiles on the decks and creating nibs where required to achieve a 100 mm step-down from apartments to the decks.

Cost estimates

[17] In November 2013 the estimated cost, based on the Origin report, was just under $1,700,000 (GST inclusive). By May 2014 the estimate was about $2,000,000. As already noted, the work is now expected to cost approximately $3,000,000.

Relevant provisions of the Unit Titles Act 2010

[18] The predecessor of the UTA 2010, the Unit Titles Act 1972 (UTA 1972), was introduced at a time when unit title developments were relatively small and simple. The UTA 2010 responded to long-standing concerns that the UTA 1972 was outmoded and inadequate for the larger, more complex unit title developments that had become more common. Although not the reason for the changes, the weathertightness problems being experienced by many unit title developments provided political momentum.
[19] Section 3 states the purpose of the UTA 2010 as being:

... to provide a legal framework for the ownership and management of land and associated buildings and facilities on a socially and economically sustainable basis by communities of individual owners and, in particular,—

...

(c) to establish a flexible and responsive regime for the governance of unit title developments; and

(d) to protect the integrity of the development as a whole.

[20] Subparts 12 and 13 of pt 2 address management structures and arrangements, and financial and property management respectively. Subpart 12 establishes bodies corporate (s 75) and goes on to legislate the rights and responsibilities of unit owners and the powers and duties of bodies corporate.
[21] Section 79 establishes the rights of unit owners, something not expressly addressed by the UTA 1972. It relevantly provides that:

An owner of a principal unit —

(a) has all the rights derived from being registered as the owner of the stratum estate in a unit under this Act:
(b) holds a share in the common property in accordance with section 54(2):
(c) is entitled as a body corporate member to exercise a vote in respect of his or her unit, subject to section 96 and any other requirements in the regulations:

(d) is entitled to have quiet enjoyment of his or her unit without interruption by other unit owners or occupiers, or the body corporate or its agents, except as authorised by this Act or the regulations:

(e) subject to section 80(1)(h) and (i), may make any alterations, additions, or improvements to his or her unit so long as these are within the unit boundary and do not materially affect any other unit or common property:

...

[22] Section 80(1) imposes the following obligations on unit owners:

(1) An owner of a principal unit—

(a) must permit the body corporate (or its agents) to enter the unit at any time in an emergency and at all reasonable hours, and after giving reasonable notice, for any of the following purposes:

(i) to view the condition of the unit for the purpose of ascertaining compliance with the principal unit owners’ or occupiers’ obligations under this Act:

(ii) to maintain, repair or renew any infrastructure for services and utilities that serve more than 1 unit and any building elements that affect more than 1 unit or the common property, or both:

(iii) to maintain, repair or renew any common property:
(iv) to ensure the body corporate operational rules are being complied with:

(b) must do all things necessary to give effect to decisions of the body corporate:

(c) must consult with his or her mortgagee, if required to do so, before exercising a vote under section 97 or 98:

(d) must comply with all laws and legal requirements relating to the use, occupation, or enjoyment of the unit:

(e) must carry out, without delay, all work that may be ordered by a territorial authority or public body in respect of the unit to the satisfaction of that authority or body:

(f) must pay all rates, taxes, charges, body corporate levies, and other outgoings that are from time to time payable in respect of the unit:

(g) must repair and maintain the unit and keep it in good order to ensure that no damage or harm, whether physical, economic or otherwise, is, or has the potential to be, caused to the common property, any building element, any infrastructure, or any other unit in the building:

(h) must notify the body corporate of his or her intention to carry out any additions or structural alterations before the commencement of any work:

(i) must not make any additions or structural alterations to the unit that materially affect any other unit or the common property without the written consent of the body corporate:

(j) must comply with the body corporate operational rules:

(k) must not do anything that breaches or in any way undermines any policy of insurance in the name of the body corporate.

(Emphasis added).

[23] Section 84(1) imposes obligations on bodies corporate as to repair and maintenance, which include:

...

(p) section 138 (which relates to repair and maintenance of the common property, assets designed for use in connection with the common property, infrastructure, and building elements and access for those purposes):

...

[24] Section 138 relevantly provides:

(1) The body corporate must repair and maintain—

(a) the common property; and

(b) any assets designed for use in connection with the common property; and

(c) any other assets owned by the body corporate; and

(d) any building elements and infrastructure that relate to or serve more than 1 unit.

...

(3) The body corporate may access at all reasonable hours any unit to enable it to carry out repairs and maintenance under this section.

(4) Any costs incurred by the body corporate that relate to repairs to or maintenance of building elements and infrastructure contained in a principal unit are recoverable by the body corporate from the owner of that unit as a debt due to the body corporate (less any amount already paid) by the person who was the unit owner at the time the expense was incurred or by the person who is the unit owner at the time the proceedings are instituted.

...

(Emphasis added).

[25] Central to these provisions are three terms defined in s 5(1): building elements, common property and infrastructure:

building elements includes the external and internal components of any part of a building or land on a unit plan that are necessary to the structural integrity of the building, the exterior aesthetics of the building, or the health and safety of persons who occupy or use the building and including, without limitation, the roof, balconies, decks, cladding systems, foundations systems (including all horizontal slab structures between adjoining units or underneath the lowest level of the building), retaining walls, and any other walls or other features for the support of the building

common property means —

(a) all the land and associated fixtures that are part of the unit title development but are not contained in a principal unit, accessory unit, or future development unit; and
(b) in the case of a subsidiary unit title development, means that part of the principal unit subdivided to create the subsidiary unit title development that is not contained in a principal unit, accessory unit, or future development

infrastructure includes pipes, wires, ducts, conduits, gutters, watercourses, cables, channels, flues, conducting, or transmission equipment necessary for the provision of water, sewerage, drainage, stormwater removal, gas, electricity, oil, shelter, protection from fire, security, rubbish collection, air, telephone connection, Internet access, radio reception, television reception, or any other services or utilities to or from a unit or to or from the common property

[26] Under these s 5 definitions, and for the purposes of this appeal, common property is all land and associated fixtures “not contained in a principal unit”. Conversely, building elements and infrastructure can form a part either of the common property or of an individual unit (that is, of any part of the unit title development).

First ground of appeal: who has the primary obligation for repairs and maintenance?

The first instance decision

[27] As noted, the appellants say that the Judge erred in finding that a body corporate’s duty to repair under s 138(1)(d) prevails over that of the unit owners under s 80(1)(g). Obviously, this ground of appeal concerns the proper interpretation of ss 80 and 138 of the UTA 2010. Mr Brill submitted in the High Court (and before us) that the scheme created by the UTA 2010 for repairs and maintenance to unit titled developments places the primary obligation for necessary work to individual units on the unit owner, including work required to those building elements lying within the confines of the individual units.[11] In short, s 80(1)(g) should be interpreted as prevailing over s 138(1)(d).
[28] Muir J rejected this argument. He held that s 138(1)(d) prevailed, having regard to the purposes of the UTA 2010 expressed in s 3:[12]

Recognition of flexibility and responsiveness, the requirement to manage buildings on an economically sustainable basis and the requirement to protect the integrity of the development as a whole all, in my view, point strongly to a more expansive interpretation of s 138 than the “default provision” for which the plaintiffs contend.

[29] Muir J referred approvingly to the approach suggested by the commentator, Thomas Gibbons, that if a building element or infrastructure serves more than one unit the body corporate has the obligation to repair it, if it is part of a unit but does not serve more than one unit then it is the owner’s responsibility to repair, and if it is common property it is the body corporate’s responsibility.[13]

The argument on appeal

[30] Mr Brill relied first on the common law rights of fee simple owners summarised in Fejo v Northern Territory of Australia:[14]

Subject to whatever qualification may be imposed by statute or the common law, or by reservation or grant, the holder of an estate in fee simple may use the land as he or she sees fit and may exclude any and everyone from access to the land.

[31] He submitted that s 79(d) (the right to quiet enjoyment) and s 79(e) (the right to make alterations to units) supported the application of the common law principle to the statutory scheme.
[32] He argued also that the scope of the obligation imposed by s 80(1)(g) is so wide (including the avoidance of harm to other units) that it comes close to an absolute obligation to protect the units. In comparison, the obligation imposed on the Body Corporate under s 138(1)(d) is relatively narrow. Mr Brill argued that interpreting s 138(1)(d) as coextensive with s 80(1)(g) would have the effect of transferring those obligations away from the unit owners to the Body Corporate, which would involve a much greater loss of sovereignty than the grant of the limited entry right his interpretation would allow. He relied on the principle of statutory interpretation that the construction of a statute should seek to minimise any loss of property rights, stated by Carter:[15]

[T]he courts will not adopt a construction that takes away existing property rights more than the Act and its purpose require. “[C]lear statutory language will be required before the court will permit property to be taken, especially without compensation.” The sanctity of private property has had a significant effect on the construction of Acts where official powers of entry into land are in question.

(Footnotes omitted).

[33] On this approach, although ss 80(1)(g) and 138(1)(d) would be complementary, s 138(1)(d) would merely deal with any “practical hiatus” arising when a unit owner fails to perform their primary obligation to repair, or cannot undertake the necessary work without access to another unit.
[34] Mr Brill submitted that Muir J’s interpretation makes no accommodation for s 80(1)(g) and effectively reads into the section the words “subject to s 138(1)(d)” so that, as a general rule, s 80(1)(g) would always be overridden by s 138(1)(d). He argued that this was impermissible as attempting to improve on the text of the legislation, which, correctly interpreted, placed the primary obligation for repairs and maintenance of units, and building elements within units, on unit owners.

Discussion

[35] The legislative history of the UTA 2010 as it appears from the Hansard debates shows that the concept of building elements was introduced to address the dilemma faced by the unit owners and bodies corporate of leaky apartment blocks where defects, which directly affected only some units, had the potential to affect the structural integrity of the development as a whole.[16] The scheme of the UTA 2010 is that the body corporate has the responsibility not only to repair and maintain common property (that is, property not within any unit) but also to repair and maintain:
[36] The rights of unit owners derive from the terms of the Act, and in particular those which provide for the stratum estate in a unit created under the Act. They do not arise by reference to, or in some way from the common law rights that are associated with the ownership of the fee simple in land; unit owners do not hold fee simple estate. The concept of quiet enjoyment referred to in s 79 is generally associated with the lesser rights of the holder of a leasehold estate. The aphorism “a man’s home is his castle” is therefore not applicable to a unit title development. Whilst unit owners enjoy some rights that are, as the Supreme Court described, so obvious they “go without saying”,[17] a right to undertake repairs and maintenance is not among them and the rights conferred by subss 79(d) and 79(e) are limited. The right of quiet enjoyment recognised by s 79(d) is only “except as authorized by this Act or the regulations”. If, as we consider to be the case, s 138(1)(d) empowers a body corporate to undertake the repairs and maintenance to building elements that relate to more than one unit, the right under s 79(d) will be circumscribed accordingly.
[37] The right under s 79(e) to make alterations or additions is also limited; it is subject to s 80(1)(h) (notification required to the body corporate) and s 80(1)(i) (prohibits additions or alteration to the unit “that materially affect any other unit or the common property without the written consent of the body corporate”). Taking the decks as an example, Mr Brill submitted that if unit owners were entitled (as he contended) to add, alter or improve a deck, it would seem strange if they were not also entitled to maintain and repair it. This submission is flawed because it assumes an unqualified right to undertake additions, alterations and improvements. If a building element relates to more than one unit it will, inevitably, materially affect those other units. It follows that the unqualified right to improve or alter components only exists in relation to those that do not fall within s 138(1)(d). In all other circumstances, s 79(e) effectively excludes any right for a unit owner to alter, add to or improve building elements other than those authorized by the body corporate.
[38] When the unit holder’s obligation under s 80(1)(g) is viewed in the light of the obligation imposed by s 80(1)(a)(ii), the limited scope of the former is clear. Section 80(1)(a)(ii) recognises that the unit owner is to grant access to the body corporate for the purpose of repairing building elements and that the only criteria are that the building element “affects”[18] more than one unit and that reasonable notice is given (save in an emergency). In comparison, the obligation imposed by s 80(1)(g) is to repair and maintain units so as to avoid damage to building elements, rather than to repair and maintain the building elements themselves.
[39] The appellants made much of the fact that the words of s 138(1)(d) did not exactly mirror the words in s 80(1)(a)(ii), asserting that it bolstered their argument that the sections did not create reciprocal rights and obligations, as the Body Corporate would have it. That does not, in our view, affect the correct interpretation of the Act, or the comprehensive repair and maintenance obligations the Act places on bodies corporate. The inconsistency is of no moment since the provisions perform different functions; the role of s 80(1)(a) is not to describe the body corporate’s responsibilities but, rather, the circumstances in which the owner of a principal unit must permit entry.

Alternative argument: joint maintenance obligations

[40] As an alternative submission to the proposition that s 80(1)(g) prevails over s 138(1)(d), Mr Brill argued that they should be regarded as overlapping so that the unit owners and body corporate prima facie have joint and several (but not coextensive) maintenance responsibilities. However, it was to be presumed that the primary responsibility was to rest with the unit owners where practical.
[41] Mr Brill acknowledged, however, that the situation that would be created by this construction would be impractical because there is no indication as to which party would have the obligation to initiate work and to plan and execute a workable maintenance or repair project.
[42] This argument must fail in any event because, for the reasons we come to later, we consider that the obligation on bodies corporate in relation to building elements that relate to more than one unit prevails and the obligation on unit owners is subordinate to it.

Uniformity of exterior aesthetics

[43] Mr Brill was also critical of the Judge’s reference to a duty on the Body Corporate to ensure that works are carried out to a uniform standard and with uniform aesthetic outcomes.[19] He submitted that in most cases maintenance of building elements and infrastructure would have no, or no discernible effect on the uniformity of a building’s existing aesthetics or quality. Mr Brill rejected what he perceived as the Judge’s emphasis on uniformity and consistency on the basis that these qualities are not synonymous with integrity and that owners are entitled under ss 79(e), 80(1)(h) and 80(1)(i) to make decisions affecting exterior aesthetics. Mr Brill says those rights are only conditional on the body corporate consenting in circumstances where other units are materially affected. Further, the body corporate must act reasonably in deciding whether to give its consent. Mr Brill submitted that many home owners “eschew uniformity, preferring the values of harmonised diversity, individuality and self-expression”.
[44] We agree that the Judge appears to have incorrectly linked “integrity” with “the exterior aesthetics of the building” in the definition of building elements. He said:[20]

“Integrity” in [the Act’s] sense is not simply structural but, by virtue of the expansive definition of “building elements”, aesthetic as well. Exterior components of the building, like decks and associated balustrading that relate in an aesthetic sense to other units ... properly, in my view, fall within the provisions of s 138.

Nevertheless, the Judge was entitled to regard the preservation of uniform aesthetics as a matter going to the integrity of the development as a whole for the purposes of s 3(d). In its ordinary use “integrity” may appropriately extend, in this context, to the overall appearance of the development. This is reinforced by r 14 of the Operational Rules of the Body Corporate, which emphases uniformity and precludes changes to the external appearance of units, changes to colour schemes and even to the placement of items other than outdoor furniture and plants on decks and balconies without the written consent of the Body Corporate. The fact that a body corporate must act reasonably in giving its consent does not diminish the obvious intention of r 14, which is to preserve overall visual uniformity. In any event, this argument does not advance the appellants’ case. The purpose of the proposed work is not related to the exterior aesthetics because it is the structural integrity of the building that is at stake. Mr Brill also argued that “integrity” in s 3(d) refers to the integration or harmonisation of all the individual and collective rights and duties conferred by the statutory scheme when applied to the specific development, and that any attempt to improve upon the allocation of the rights set out in the Act (as the Judge had done) would not promote that purpose. This submission was made in reliance on a paper by Liza Fry-Irvine and Tim Jones on body corporate governance.[21] However, the paper was concerned with governance issues, not physical aspects of a unit title development and, in any event, the submission did not exactly reflect the statement made in the paper, which said “[o]ne aspect of protecting the integrity of the development is to preserve and protect the governance regime for the benefit of all owners in the development.”[22]

[45] We do not accept that there is any basis for interpreting s 3(d) as excluding issues relating to the physical integrity of a development. The introduction of the concept of building elements, with its emphasis on structural integrity as shown in s 5, is consistent with a broad reading of s 3(d).

Second ground of appeal: Was the Judge wrong to read in additional words to s 138(1)(d)?

[46] In interpreting s 138(1)(d), Muir J read in the additional words “or common property or both” so that s 138(1)(d) exactly reflected the wording of s 80(1)(a)(ii).[23] The Judge read those words into the section to address the appellants’ argument, described above, based on an apparent inconsistency between s 138(1)(d) and s 80(1)(a)(ii). The Judge also read the words in to meet the argument that the Body Corporate had no authority to undertake work to the decks on level two as that work was to address water ingress onto the carpark, which was common property. The appellants submitted that work fell outside of the scope of s 138(1)(d) because there was no reference in the provision to the common property. On this argument the Body Corporate had no duty to repair or maintain a building element or infrastructure to prevent damage to common property. The appellants challenged Muir J’s interpretation as exceeding his power and as an unnecessary attempt to correct what the Judge (wrongly) perceived to be a legislative error.
[47] We have already addressed the general interpretation issue regarding the apparent mismatch between these provisions. However, with regard to the Judge’s “reading in” point, we consider that the provisions of s 138(1) give the necessary authority for the Body Corporate to undertake the work, as it is work necessary to maintain the “common property”. The work therefore falls within s 138(1)(a). It is not necessary to read any words into the provision to reach that point. It follows that although we agree the Judge need not have read words in, he was correct to hold that s 138 authorises the Body Corporate to undertake work on individual units where that work is necessary to maintain the common property.

Third ground of appeal: Was s 138(1)(d) engaged in relation to the panels and decks?

The meaning of “relate to”

[48] Mr Brill submitted that building elements only relate to more than one unit for the purposes of s 138(1)(d) when they cannot be maintained without involving at least two unit owners. He termed building elements that require the involvement of at least two unit owners to maintain as “related” and those that relate to, or serve only their “host” units as “autonomous”. Since the decks and the panels were located entirely within individual units and could be maintained by their respective unit owners he argued that they do not relate to, or serve more than one unit for the purposes of s 138(1)(d) and the section is, therefore, not engaged.
[49] In developing this proposition Mr Brill argued that whether a body corporate had the power and duty to repair a building element located within a particular unit depended on the nature of the relationship between the element and other units in the development. He presented this inquiry as one of remoteness and materiality:
[50] Mr Brill gave as an example the comparison between monolithic cladding and a window. In the case of the monolithic cladding, the relationship between the building element located within the unit (the cladding) and other units is highly relevant to repair and maintenance issues and so s 138(1)(d) would apply. In comparison, a window in a unit would have only a remote relationship with other units and therefore would not fall within s 138(1)(d). The former would be “related” and the latter “autonomous”. On this approach, the body corporate would not come under any obligation (or have any corresponding power) to determine what work is required to the “autonomous” building element.
[51] On the appellants’ view therefore, it is only where unit owners require access to other units or to common property to undertake the necessary work that a body corporate would need to become involved (such as the situation arising in Berachan Investments Ltd v Body Corporate 164205).[24] Otherwise the body corporate’s interest in ensuring maintenance and repair of building elements, including those located within the confines of individual units, is addressed by s 127(2), which entitles the body corporate to undertake the necessary work itself if the unit owner fails to fulfill his or her obligations under s 80(1)(g).
[52] These submissions were the foundation for the appellants’ general challenge to what they see as the incorrect “holistic” approach contended for by the Body Corporate. They perceived the Body Corporate’s position to be that every defective building element and infrastructure item in every unit is “related” (in the sense that the appellants mean) to all other units in the same development because every component in every unit is capable of contributing to the overall capital value and aesthetics of the whole structure. In fact, this is not the Body Corporate’s position. Mr Allan, for the Body Corporate, submitted that there is nothing in the UTA 2010 to suggest that any particular building element will necessarily affect more than one unit. Rather, it is a factual inquiry in each case.
[53] The ordinary meaning of “relate to” is “have reference to; concern”.[25] This ordinary meaning is reflected in Harrison J’s statement in Young v Body Corporate 120066 that “[s]omething is incidental if it naturally attaches or is causally relevant to something else. The phrase ‘relate to’ has a similar meaning of reference to or concern with.”[26]
[54] Although Young was decided under the different scheme of the UTA 1972, this statement is equally applicable in the present context. Muir J, correctly, drew on Harrison J’s statement to find that a building element or infrastructure relates to or serves more than one unit if it:[27]

In addition, Muir J considered that the inclusion of aesthetics in the definition of building elements and the emphasis on integrity of the development in s 3 means that the economic relationship should include those factors.[28]

[55] We consider that Muir J’s approach and conclusion were right. The engagement of s 138(1)(d) does not turn on questions of remoteness or materiality. Building elements, by definition, are necessary to the structural integrity of the building, its exterior aesthetics and the health and safety of its occupants.[29] But s 138(1)(d) is only engaged if the criteria set out there are met, namely that the building element or infrastructure relates to or serves more than one unit. There is no need for any gloss and no need to overlay s 138(1)(d) with new terminology. Whether a building element relates to or serves more than one unit is a question of fact.

The panels

[56] The cladding on the northern façade is predominantly glass. Sixteen of the apartments, however, also have a narrow opaque panel made of Titan board. The panels, less than one metre wide, sit on a timber base plate against a timber frame. Origin’s investigations disclosed high moisture readings in the base plates that were inspected.
[57] Based on the probable date of construction (by reference to the Code Compliance Certificate), Mr Gray considered that the base plates and timber framing were most likely built from untreated timber. There was evidence from a Mr Reed, who is a semi-retired building contractor. He inspected base plates in some of the appellants’ units and concluded that the wood used was treated. The Judge did not address this factual dispute. However, on cross-examination Mr Gray added that, treated or not, the elevated moisture readings he took indicated that even treated timber would produce toxigenic moulds.
[58] Mr Bullen-Smith, the architectural designer engaged following the Origin report, also gave unchallenged evidence that the timber framing of the panels had to be replaced because of high moisture readings in the base plates. Those readings indicated possible damage to the framing itself and, as a result, the panels themselves would need to be replaced.
[59] The appellants do not accept that the Body Corporate has the power to replace the panels because they are not, on their case, building elements that relate to more than one unit. As a result, replacement would be betterment.
[60] The Judge was somewhat cautious about whether the panels did relate to some other units but concluded that they did for reasons of aesthetics:[30]

They are discrete items within the boundary of each unit, effectively insulated from physical relationship with other units by glazing systems and/or the solid inter-tenancy walls. But they do relate aesthetically to the other units and, on the evidence of Mr Gray, are necessarily replaced as part of the exercise of establishing adequate falls on the decks.

[61] We can deal with this issue briefly. Mr Bullen-Smith gave evidence that the panels have a structural purpose, namely stability on the exposed north face of the building. He said that the panels were designed and should have been constructed to provide rigid or lateral structural support for the horizontal loads placed on the aluminium joinery by the wind loads in the area. Although a number of plaintiffs gave evidence as to their belief that the panels had no structural purpose, Mr BullenSmith’s evidence was not challenged. Clearly the panels are building elements because they are necessary to the structural integrity of the building and also because they contribute aesthetically to the development.
[62] In this regard, Mr Bullen-Smith noted that there is an obvious difference in the cladding on the panels, with the new cladding having a different colour, pattern and texture to that of the existing cladding. This evidence was not challenged. There was therefore a sound evidential foundation for the Judge’s finding that the panels were building elements and needed to be replaced. Colour, pattern and texture are all very relevant to the uniform appearance of a complex.

The level two decks

[63] The level two decks sit over the carpark, which is common property. The appellants say that as a result they do not relate to other units and therefore s 138(1)(d) is not engaged. Instead, regardless of whether they are to be viewed as building elements, the obligation to repair and maintain them falls on the unit owners, not the Body Corporate.
[64] Muir J held that the level two decks were building elements that relate to more than one unit for the purposes of s 138(1)(d).[31] One reason was the Judge’s interpretation (already discussed) that s 138(1)(d) encompasses building elements that relate to common property as well as other units. But he also relied on the evidence that each level two deck related to other units on level two as a result of the risk of water ingress from adjoining decks:[32]

I am therefore left in no doubt that all decks within the development constitute building elements relating to or serving more than one unit or the common property or both. That is the inevitable conclusion from the “wedding cake” design. Based on my construction of s 138(1)(d) (so as to include the additional words identified) the plaintiffs’ concession relating to the level 3 decks inevitably informs the level 2 position. And that conclusion is further fortified by the ability of water to track horizontally, as Mr Gray deposes, which means that the level 2 units relate inter se, satisfying the s 138(1)(d) criteria even without the additional words which I believe are appropriately imported.

[65] Mr Baker for the appellants dismissed Muir J’s conclusion with the submission that “[t]his universal property of water is unaffected by the state of repair of any of Bridgewater’s decks”. We take Mr Baker to mean that water does what water does, regardless of the state of repair of the decks. We do not accept this submission.
[66] In reaching his conclusion Muir J relied on the evidence of Mr Gray and Mr Bullen-Smith (the latter’s evidence being unchallenged). The effect of Mr Gray’s evidence was that the decks are required to shed water in such a way that water cannot (among other things) track through the deck membrane to the concrete structure below or track horizontally underneath inter-tenancy walls.[33] Mr Gray’s evidence was supported by Mr Bullen-Smith’s evidence, as summarised by the Judge, that:[34]

Absent a properly constituted envelope water can migrate vertically and horizontally through a building structure, as concrete is porous.

There is no design detail in the consent documents reviewed by [Mr BullenSmith] which ensures that water cannot track horizontally from one deck to another through the intervening walls.

...

The decks were not compliant with Acceptable Solutions at the time the building was originally constructed.

[67] There was no challenge to the Judge’s acceptance of this evidence and nor could there be. The effect of the evidence, from two qualified and experienced consultants, was that the single slab structure and porous nature of concrete meant that without an adequate waterproofing membrane the decks were vulnerable to water penetration from adjoining units. Whilst the decks may appear separate as a result of the inter-tenancy walls, water is able to track beneath them and, in the event of cracked or broken tiles, make its way to the concrete substrate and along microcracks. The reality is that all of the adjoining decks relate to one another in this way. The Judge was therefore right to conclude that every deck affected more than just the unit of which it formed a direct part, thereby bringing the decks within the scope of s 138(1)(d).
[68] The decks, including on level three, either create, or are very likely to create a risk of water ingress into adjoining units. Muir J was satisfied that all the decks required repairing and that this would require significant work in terms of recladding to create a sufficient fall and to apply a suitable waterproof membrane on the substrate of the decks before re-tiling.[35] It is not realistic to suggest that such work be left to unit owners to arrange individually. Building-wide repairs that have implications for the structural integrity and aesthetics of the development require coordinated and professional management, which cannot be achieved if unit owners seek to arrange the work themselves.

The level three decks

[69] The appellants accept that the level three decks, which serve as cladding for the concrete slab that forms the roof of the level two units, “serve a purpose that may be relevant to two units”.[36] However, Mr Baker submitted that there was not a sufficient relationship to engage s 138(1)(d) and thus impose a maintenance obligation. This is, he says, because unit owners can easily undertake any necessary repairs themselves, without needing access to other units or the consent of any other unit owner.
[70] This argument depended on the argument that we have already rejected. The level three decks do relate to the other units on that level and on level two in a way that falls within s 138(1)(d) and requires a cohesive response that is within the sphere of the Body Corporate’s obligation to repair.

Collateral damage to sound items

[71] Finally, Mr Brill advanced an argument that he said had been made in the High Court but was not dealt with in the judgment. He argued that the Body Corporate’s proposed works would see all decks repaired whether or not they were in breach of the New Zealand Building Code. This would result in collateral damage to sound and severable items. Mr Brill submitted that s 138(1)(d) did not confer authority on a body corporate to do so, saying that s 138(1)(d) is restricted to repairing items which actually need to be repaired.
[72] This argument is flawed because it fails to recognise that a purpose of s 138(1)(d) is to protect the integrity of the development as a whole[37] and that the power expressly includes a duty to “renew where necessary”.[38] If, in undertaking work needed to protect the integrity of the development as a whole, some items that are not actually damaged will be replaced or renewed along with items that are damaged, that is within the contemplation of s 138(1)(d).

Fourth ground of appeal: the onus of proving that s 138(1)(d) is engaged

The decision in the High Court

[73] In the High Court the unit owners argued that it was for the Body Corporate to satisfy the Court that the criteria in s 138(1)(d) had been established, namely that repair, maintenance or renewal was necessary in respect of building elements or infrastructure that relate to or serve more than one unit. The Body Corporate argued that its only obligation was to act on expert advice so that, even if contrary views were tenable, its decision to act could not be challenged.
[74] Muir J rejected both arguments. Subject to the question of the procedural regularity of the Body Corporate’s decision, he considered that:

[72] ... once a decision has been taken by a body corporate to discharge its duties under s 138(1)(d) the onus is on any party (here the plaintiffs) to prove, on the balance of probabilities, that the jurisdictional requirements of the section are not satisfied. In so far as those jurisdictional requirements are concerned, however, I do not regard as a complete answer the fact that the Body Corporate has acted on expert advice with “some material” to justify its decision. I accept in that sense the plaintiffs’ reference to “jurisdictional facts”. If the plaintiffs are able to demonstrate on the balance of probabilities that the various criteria of s 138(1)(d) are not engaged, then there can be no duty to undertake repairs within unit property and the proprietor’s entitlement to quiet enjoyment, under s 79(d), must prevail ...

...

[74] I accept therefore the defendant’s submission that, provided the Body Corporate has acted on expert advice, that the expert engaged was suitably qualified, and that the advice was given in good faith, how the Body Corporate chooses to act, whether by way of the “holistic” solution proposed by the defendant or the targeted repairs for which the plaintiffs vigorously contend, is a matter for the Body Corporate and its decision should, ordinarily, be respected even if contrary views are tenable. However that position assumes vires.

...

[146] The plaintiffs, in my view, fell a long way short of discharging the onus of establishing that repair and maintenance of the decks is not required.

[75] Although not mentioned in the notice of appeal, the Judge’s conclusion as to onus was tied into an oral ruling excluding expert evidence tendered by the appellants as reply evidence.[39] The proposed evidence came, first, from Mr Maiden, a director of Prendos NZ Ltd, who proposed to annex a report from another Prendos consultant and to make observations of his own regarding moisture levels in the timber base plates of the panels and (unsuccessful) attempts to undertake destructive testing. The second prospective witness was Mr Greenall, the managing director of a company which manufactures waterproofing membranes, about the nature and typical performance of the waterproofing system installed at the Bridgewater Apartments.
[76] The oral ruling was given on 3 March 2015, ahead of the commencement of the trial on 6 March 2015:[40]

In my view the evidence is not to be properly regarded as reply evidence ... if the plaintiffs’ case depended on attacking the assumptions and methodology underpinning the Origin report, that, in my view, should have been done in primary affidavits.

Appeal

[77] Mr Allan, for the Body Corporate, opposed any consideration of the oral ruling on the basis that it should have been the subject of a separate appeal. However, he did not assert any specific prejudice and we give leave to amend the notice of appeal to include this ruling.[41]
[78] The approach to be taken to the burden of proof in applications for declaratory judgments was considered in Bergman v Bergman: a plaintiff must prove the cause of action and show that the position is as they assert in order to obtain the relief sought.[42] The basis on which the claim was put and argued will therefore be relevant. Moreover, as Bergman demonstrates, a plaintiff may sometimes be required to prove a negative.[43]
[79] Mr Baker, for the appellants, submitted that the appellants’ claim was for declarations upholding their common law sovereignty in relation to their respective properties and their rights to quiet enjoyment under s 79(d). He argued that no additional ingredients were required to maintain those claims and, in particular, the appellants did not need to attack the Origin report to disprove that repairs were required. He characterised the Body Corporate’s position as not challenging the appellants’ sovereignty rights but as affirmative defences to those sovereign rights, asserting its own rights to remedy original design and construction defects that breached the Building Code. As a result, the burden of proving that fact lay with the Body Corporate.
[80] Mr Baker’s characterisation of the appellants’ claim does not reflect the statement of claim. The pleading specifically identified aspects of the proposed work, including to the decks and panels, as being work that the Body Corporate did not have the authority to undertake. The declarations that were sought did not mention sovereignty rights or the right of quiet enjoyment. Rather, the appellants sought declarations that the Body Corporate did not have the power to undertake the work, or that the work proposed in the Origin repair plan was not warranted. The appellants also sought an injunction prohibiting the Body Corporate from undertaking the work without the unit owners’ consent, together with other declarations relating to the allocation of cost. There is no reference in the pleading at all to s 79. There is, however, a clear, albeit implicit, reference to s 138(1)(d) in the pleading. The appellants pleaded the panels and level two decks did not relate to or serve any other unit and that the Origin repair plan was outside the Body Corporate’s powers and responsibilities.
[81] We are satisfied that the case in the High Court was put on the basis that s 138(1)(d) was not engaged. It was for the appellant to ensure that their evidencein-chief provided the necessary basis for a finding on that issue. This ground of appeal therefore fails.

Fifth ground of appeal: Was the Body Corporate Committee authorised to undertake the proposed repairs?

The background to this issue

[82] Prior to the EGM on 9 November 2013 the agenda, nomination and proxy postal forms were circulated together with the Origin report. The agenda included the following:

A recent investigation in to leaks from the fourth floor penthouses into units below identified some construction and design failings with the decks. Initial investigations suggest the cost of repair was likely to be significant (in the order of $100,000) ...

Persistent enquiry from the FNDC revealed the BC was just in time to file before Council’s final inspection. To protect the BC’s position proceedings have been issued and the limitation period has therefore stopped.

The experts report was commissioned from Mr Andrew Gray of Origin Building Consultants Limited to identify the extent of Council liability. A copy of the main report is now attached ...

Unfortunately the report suggests that a complete re-cladding of the northern face of the building is necessary along with re-working of all of the deck areas to create proper falls and a weathertight solution ...

The Committee believes it is important that an extraordinary general meeting be held to discuss the report and to enable owners to address any question they may have to Mr Gray or Grimshaw’s ...

Repair management

It will be necessary for the Body Corporate to engage an appropriate lead consultant to manage the repair process. This will either be an architect or consultant familiar with remedial works arising from design and construction failings. The role of the architect will be to design a remediation solution, prepare plans and specifications sufficient for tendering and building consent, manage the tendering of the works and oversee the remediation.

Motion:

“The Committee be delegated authority to investigate and appoint a lead consultant to manage the building remediation process.”

(Emphasis added).

[83] Mr Gray spoke at the meeting. The minutes recorded a discussion regarding the possibility of registration with the WHRS and that discussion resulted in the resolution that the Body Corporate would not lodge a claim with WHRS. The minutes then recorded:

The next agenda item contemplated the Committee being delegated authority to appoint a lead consultant. The need for the Committee to be empowered reflected a timeline which would see building works complete by December 2014. For this to be achievable it would be necessary for the consultant to be appointed prior to Christmas and the preliminary work undertaken for presentation to the Body Corporate AGM in late January.

(Emphasis added).

[84] At the EGM the following resolution was passed:

That the Committee be delegated authority to investigate and appoint a lead consultant to manage the building remediation process.

[85] At the next AGM on 25 January 2014 a motion was passed that:

The Committee is delegated the full powers and authority of the Body Corporate, subject to any prior direction given at any General Meeting of the Body Corporate or prohibition as contained in Section 108(2) of the Act.

[86] The appellants maintain that the resolution passed at the EGM constituted an invalid delegation of a power to the Committee that resulted in the lead consultant making decisions about the remedial work.

Muir J’s interpretation of the resolution

[87] Muir J approached the task of interpreting the resolution “mindful ... of the demonstrated wishes of the clear majority of owners” and rejected any “pedantic or overly critical analysis” on the ground that allowance should be made for the fact that bodies corporate are often comprised of non-professional people and committees constituted of volunteers.[44] Although the Judge said that he was not bound by the usual rules of contractual interpretation, he nevertheless accepted the Body Corporate’s approach, which essentially placed the resolution against the background of events that both preceded and followed the EGM:[45]

... the test should be whether, having regard to the full context in which resolutions occur, it can be safely concluded that the Body Corporate has indeed committed itself to the Origin Repair Plan ...

... Although I do not regard the present case as governed by the rules of contractual interpretation, I am guided by what the cases in that context say about subsequent conduct as a guide to interpretation, namely that the focus should be on actions which shed light on the shared intention of the parties rather than the meaning intended or understood by one party only.

[88] Muir J concluded that the resolution recorded a decision to undertake remedial work in accordance with the Origin repair plan and instructed the Committee to appoint a consultant to manage that process:[46]

Essentially the Body Corporate invites a construction of the resolution in terms “We have decided to do the job generally in accordance with the Origin Repair Plan. You, the Committee, are now instructed to get on with the job, first by investigating options for the appointment of a consultant and then appointing such consultant to manage the process”.

I have come to the conclusion that this is the correct construction of the resolution while acknowledging that it could, of course, have been more fulsomely expressed.

... I also accept Mr Allan’s submission that the resolution was in fact in the nature of an instruction rather than a delegation ...

I consider myself supported in this construction of the resolution by the subsequent conduct of the parties.

[89] Despite challenge as to their accuracy, the Judge treated the minutes of the meeting as fairly reflecting the discussion. Having reviewed the evidence of Mr Gray and Mr Leishman, we are satisfied that he was right to do so. The minutes recorded Mr Gray’s address to the meeting, including his confirmation that:

Targeted repairs are generally not permitted under the current Building Act ...

To achieve appropriate minimum falls the decks will need to be taken up and re-screeded. Nibs will need to be created on which the cut down joinery will be reinstalled.

[90] The Judge identified four subsequent acts that he considered showed the character of the resolution.[47] These were that between January and May 2014 the Body Corporate Committee approved Resolution Architecture’s detailed design for the purposes of preparing a building consent, approved a structural design quote, approved the engagement of a fire consultant to provide fire engineering consultant services and confirmed an ongoing consultancy arrangement with Veron Ltd (previously Origin).

Is the resolution valid?

[91] The appellants’ argument came down to four main points. First, that the Judge was wrong to take into account the background knowledge of those to whom the agenda was circulated, evidence of the personal impressions of some recipients as to the intention behind the motion, and the subsequent conduct of the parties (including the minutes of the subsequent Body Corporate meetings). Secondly, that the interpretation articulated by the unit owners and accepted by Muir J lacked objectivity and imputed to the words of the motion a meaning they could not reasonably bear. Thirdly, that the Judge failed to take into account the failure of the EGM or the Origin plan to consider the scope of the Body Corporate’s powers to undertake the proposed work. Fourthly, that if the resolution did have the meaning accorded to it by the Judge, it was contrary to s 109(2) of the UTA 2010.
[92] Although not a contract, the delegation of authority by a body corporate to a body corporate committee is amenable to the accepted principles of contractual interpretation. The application of these principles to instruments beyond a typical contract was recognised by the Privy Council in Attorney General of Belize v Belize Telecom Ltd:[48]

The court has no power to improve upon the instrument which it is called upon to construe, whether it be a contract, a statute or articles of association. It cannot introduce terms to make it fairer or more reasonable. It is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended. It is the meaning which the instrument would convey to a reasonable person having all the background knowledge which would reasonably be available to the audience to whom the instrument is addressed: see Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] UKHL 28; [1998] 1 WLR 896, 912–913. It is this objective meaning which is conveniently called the intention of the parties, or the intention of Parliament, or the intention of whatever person or body was or is deemed to have been the author of the instrument.

[93] The interpretation of the resolution was, therefore, to be approached on the basis of the well-settled principles summarised by the Supreme Court in Firm PI 1 Ltd v Zurich Australian Insurance Ltd:[49]

It is sufficient to say that the proper approach is an objective one, the aim being to ascertain “the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract”. This objective meaning is taken to be that which the parties intended. While there is no conceptual limit on what can be regarded as “background”, it has to be background that a reasonable person would regard as relevant. Accordingly, the context provided by the contract as a whole and any relevant background informs meaning.

The requirement that the reasonable person have all the background knowledge known or reasonably available to the parties is a reflection of the fact that contractual language, like all language, must be interpreted within its overall context, broadly viewed. Contextual interpretation of contract has a significant history in New Zealand, although for many years it was restricted to situations of ambiguity. More recently, however, it has been confirmed that a purposive or contextual interpretation is not dependent on there being an ambiguity in the contractual language.

(Footnotes omitted).

[94] Muir J was entitled to take into account the background information that could reasonably have been expected to have been known to those entitled to vote on the resolution that had been signaled in the agenda. This information includes the discussions at the EGM of 9 November 2013, as evidenced by the minutes of that meeting.
[95] In considering the admissibility of subsequent conduct, Muir J appears to have relied on Tipping J’s statement in Gibbons, which indicated that only mutual conduct should be admitted for this purpose.[50] In comparison, Thomas J appears to have considered that the admissibility of subsequent conduct should not be limited in that way.[51] However, Tipping J’s subsequent comments in Vector Gas Ltd v Bay of Plenty Energy Ltd suggest an acknowledgement that mutuality may not be required.[52] Whether subsequent conduct needs to be mutual therefore remains an open question. It is not, however, one that we need to consider because the meaning of the resolution was clear even without taking subsequent conduct into account.
[96] The resolution was passed following the provision of further advice to the meeting by Mr Gray and discussion between those who had attended. Even if the resolution were viewed as at the date of the agenda, it would still need to be viewed against the contents of the Origin report. It is clear that the scope of work being proposed is that described in the report. In these circumstances, there can be no conclusion other than that the intention and the effect of the resolution was to authorise the Committee to proceed with the remediation work outlined in the Origin report.
[97] Nor do we consider that the interpretation articulated by the Body Corporate and accepted by Muir J lacked objectivity and imputed to the words of the motion a meaning they could not reasonably bear. The paraphrasing of the resolution recorded at [181.6] of Muir J’s judgment is expressed in the vernacular and Muir J specifically notes that his paraphrasing could have been worded better. Nevertheless, we agree that the meaning of the resolution is captured adequately. The informal expression does not reflect any lack of objectivity in the Judge’s interpretation.
[98] The third argument advanced for the appellants was that, in interpreting the resolution, the Judge should have taken into account the failure of the EGM or the Origin plan itself to consider the scope of the Body Corporate’s powers to undertake the proposed work. We do not see any substance in this argument. Self-evidently, if the Body Corporate lacked the power to undertake the work which was the subject of the resolution, the resolution would be invalid on that ground. But, as we have already concluded, s 138(1)(d) empowered the Body Corporate to undertake this work. As a result, the failure of the EGM or the Origin plan to consider that aspect specifically does not undermine the validity of the resolution.
[99] Finally, Mr Baker submitted that if the resolution had the meaning contended for by the Body Corporate, then it is subject to the restriction imposed by s 109(2), which precludes delegation by a body corporate committee of its delegated duties or powers. The appellants say further that although the motion refers to delegation, the requirements for delegation under ss 108 and 109 were not complied with. Conversely, the Body Corporate characterises the resolution as an instruction to the Committee to investigate and appoint a manager.
[100] The restrictions on delegation of body corporate powers are limited by ss 108 and 109 of the UTA 2010 and reg 22 of the Unit Titles Regulations 2011. Under s 108(1) a body corporate may (subject to exceptions that are not relevant for present purposes) delegate any of its duties or powers to the body corporate committee by special resolution and written notice. The contents of the written notice are specified in reg 22 and require such a notice to contain the specified information, which includes a description of the duty or power being delegated. Under s 109(2) the body corporate committee must not delegate any of its delegated duties or powers.
[101] Mr Baker submitted that the resolution amounted to a delegation by the Body Corporate Committee of its delegated powers because it purported to delegate to a lead consultant the decision making in relation to the remedial work. Although Mr Baker said that this point had been argued but not addressed by the Judge, the Judge did allude to it:[53]

I also accept Mr Allan’s submission that the resolution was in fact in the nature of an instruction rather than a delegation. Certainly the requirements of reg 22 of the Unit Titles Regulations 2011 sit uncomfortably with the content of the resolution.

[102] Notwithstanding the reference to delegation, we do not consider that the appointment by the Body Corporate Committee of a lead consultant to manage the building process amounted to a delegation of the Committee’s powers. The nature of building work of this scale is such that it would be unusual and indeed unwise for any body corporate committee to actually manage the building process. The power delegated to the Committee was one to engage the consultant. A consultant does not exercise the Committee’s delegated powers. Rather, it undertakes the professional tasks involved in the day-to-day management of the building process, which is quite different from the Committee’s role in making decisions and instructing the consultants.

Sixth ground of appeal: Betterment/the application to adduce further evidence

The issue

[103] In the High Court the appellants argued that aspects of the proposed repairs constituted betterment, for which they could not be required to pay. It was acknowledged by the Body Corporate that some minor aspects such as the installation of double glazing did fall into this category. But most of the work was regarded by the Body Corporate, and accepted by the Judge, as necessary in order to obtain a Code Compliance Certificate.[54] On appeal the focus was the proposed upgrade of all decks in the complex to meet the current New Zealand Building Code, which requires “adequate resistance to penetration by, and the accumulating of, moisture from the outside”. The particular aspect of compliance in issue is the creation of falls of at least 150 mm. This would require changes to all decks to increase the step-down between the interior floor level and the deck from its current 60–70 mm. This, in turn, would require replacement of existing joinery. The appellants’ position is that their decks have never leaked and already comply with the Building Code so that no work is required on them. To the extent the proposed work was necessary it constituted betterment, for which the appellants were not liable.
[104] The Judge accepted Mr Gray’s evidence that the repairs to the deck tiles and membranes were required by cl 1 of sch 1 to the Building Act 2004 to have a building consent.[55] Mr Gray considered that the ponding on many decks and the lack of any or adequate membranes meant that the decks did not comply with Code requirements when originally constructed and any building consent obtained now would require upgrade to current Code requirements.
[105] The Judge held that:[56]

... the scope of work set out in the Origin Report does not constitute betterment and is thus authorised in terms of s 138. I exclude some of the improvements (such as double glazing, addition of ranch sliders to bedroom suites etc) which have been mooted in some of the defendant’s discussions.

...

I caveat the judgment also with the observation that, were there to be a lawful basis on which the relevant territorial authority issued a building consent for a reduced scope of works than that contemplated in the Origin Report, then the Body Corporate would necessarily need to consider its position further. As desirable as the objective of ensuring the building meets 2015 standards may seem to the defendant and the majority of its members, this judgment is premised on that being a necessary incident of required repair and maintenance and not a lawful objective in itself.

(Emphasis added).

[106] In response to the Judge’s caveat the appellants sought leave to adduce further evidence from one of their number, Anthony Butcher. The purpose of the proposed evidence was to show that the local authority would grant a building consent for a scope of works that was more limited than the Body Corporate had planned.
[107] Following the delivery of Muir J’s decision on 30 April 2015, Mr Butcher obtained a building consent from the Far North District Council (FNDC) to re-tile the deck of his apartment. He wished to produce that consent together with communications between him and the FNDC to show that limited remedial work that did not include any change to the 60 mm step-down between the deck and the internal floor would receive a building consent. He claimed that this evidence would show that the proposed extensive upgrade of the decks was not necessary.

The application to adduce the further evidence

[108] Further evidence will be allowed on an appeal in very limited circumstances; the proposed evidence must be fresh, credible and cogent.[57] The mere fact that evidence comes into existence after the judgment under challenge has been delivered does not make it fresh; this Court made it clear in Rae v International Insurance Brokers (Nelson Marlborough) Ltd that evidence was not to be regarded as fresh if it could, with reasonable diligence, have been produced at the trial.[58]
[109] Mr Baker argued that Mr Butcher’s evidence was fresh because it concerned matters that occurred after Muir J’s decision had been delivered and, to some extent, arose from that judgment. In response to the respondent’s criticism that the building consent could have been obtained before the trial Mr Butcher said that he contemplated re-tiling the deck but was warned by the Body Corporate’s secretary, Mr Leishman,[59] that the Committee would not permit Mr Butcher to undertake any repair works to the deck even if he obtained a building consent. In these circumstances the Body Corporate’s assertion that the evidence is not fresh is not especially compelling.
[110] However, we are not satisfied that the evidence is sufficiently credible to justify admission. In an affidavit in opposition to the application to adduce further evidence Mr Gray identified what he regards as deficiencies in the building consent documentation approved by the FNDC. For example, we consider the drawings to be deficient or inadequate in many aspects, including showing a step-down of 60 mm whereas Mr Gray’s own investigation showed the step-down to be only 30–40 mm. Further, many details ordinarily required for compliance with the Building Code are absent, no acoustic mat is shown and the nominated exterior waterproofing system is one for which there is, apparently, no current appraisal certificate, meaning it would not be an “acceptable solution” for the purposes of the Building Code. Overall, Mr Gray considered that there was insufficient detail for a builder to be able to carry out the work without making assumptions or speculating.
[111] Nor is the proposed evidence sufficiently cogent because it is directed towards only one very specific aspect, whereas the proposed work is intended to rectify several design and construction defects that affect or are likely to affect the building in a significant way. Mr Gray’s evidence, which Muir J accepted, was that the need for repair work is related to a number of defects, including the ponding of water on many of the decks, the lack of any or adequate membranes beneath the tiles on many decks and the minimal falls on most of the decks.
[112] Mr Gray considered that the work would require a building consent and that it was highly unlikely that a building consent would permit the decks to be remediated not only to the standard required by the building code at the time of construction but, rather, to the standard of the 2014 Building Code. Muir J found that this evidence, supported by the evidence of Mr Bullen-Smith, was not materially undermined on cross-examination and was not the subject of contrary evidence from the plaintiffs.[60]
[113] In these circumstances it is not realistic to suggest that evidence of a building consent allowing the replacement of membrane and tiles on one particular deck could assist in determining the correct approach to the building-wide repair works needed to address all the identified defects.
[114] For these reasons the application to adduce further evidence is dismissed. Since the issue of betterment as a ground of appeal depended on the application being granted there is no need to address it further.

Result

[115] The application to adduce fresh evidence is declined. The appeal is dismissed. The appellants must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.







Solicitors:
BE Brill Ltd, Paihia for Appellants
Grove Darlow & Partners, Auckland for Respondent

[1] The first and second named appellants, Mr and Mrs Wheeldon, have sold their unit to Ms Stent, who has taken their rights of action by assignment.

[2] Wheeldon v Body Corporate 342525 [2015] NZHC 884 [HC decision].

[3] Although the case in the High Court involved all of the proposed work, the appeal focused on the proposed repairs to the panels forming part of the façade and the decks at levels two and three.

[4] We deal with the grounds of appeal in a slightly different order to the order in which they were presented in argument.

[5] HC decision, above n 2, at [53] and [54].

[6] At [60] and [85].

[7] At [96] and [97].

[8] At [72].

[9] At [182].

[10] At [165].

[11] As noted, under s 5 building elements can form a part of individual units or common property.

[12] HC decision, above n 2, at [41].

[13] At [47].

[14] Fejo v Northern Territory of Australia [1998] HCA 58, (1998) 195 CLR 96 at [47].

[15] RI Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 338.

[16] (5 March 2009) 652 NZPD 1713.

[17] Wu v Body Corporate 366611 [2014] NZSC 137, [2015] 1 NZLR 215 at [98].

[18] It was not suggested that there was any practical difference between “affect” as used in s 80(1)(a)(ii) and “relate” as used in s 138(1)(d).

[19] HC decision, above n 2, at [48].

[20] At [48].

[21] Liza Fry-Irvine and Tim Jones “Body Corporate Governance – Knowledge is Power” (paper presented to New Zealand Law Society Unit Titles Intensive Conference, April 2013) 3.

[22] At 4.

[23] HC decision, above n 2, at [60].

[24] Berachan Investments Ltd v Body Corporate 164205 [2012] NZCA 256, [2012] 3 NZLR 72.

[25] Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2005) at 948.

[26] Young v Body Corporate 120066 [2007] NZHC 1401; (2007) 8 NZCPR 932 (HC) at [30].

[27] HC decision, above n 2, at [85].

[28] At [86].

[29] Section 5.

[30] HC decision, above n 2, at [97].

[31] At [96].

[32] At [96].

[33] At [92].

[34] At [95].

[35] See the Judge’s conclusion at [146] and preceding discussion.

[36] This was the extent of the concession made in submissions.

[37] Section 3(d).

[38] Section 138(5)(c).

[39] Wheeldon v Body Corporate 342525 [2015] NZHC 336.

[40] At [27].

[41] Judicature Act 1908, s 66; and Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [31]–[32].

[42] Bergman v Bergman [2015] NZCA 278, [2015] NZCCLR 16 at [16].

[43] See [16]–[18].

[44] HC decision, above n 2, at [170].

[45] At [170] and [184]. The Judge referred to Wholesale Distributors Ltd v Gibbons Holdings Ltd [2007] NZSC 37, [2008] 1 NZLR 277.

[46] At [181.6]–[184].

[47] At [185].

[48] Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10, [2009] 1 WLR 1988 at [16] applied in Body Corporate 198900 v Bhana Investments Ltd [2015] NZHC 1620 at [39] in relation to a body corporate’s rules and resolutions passed pursuant to those rules.

[49] Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432 at [60]–[61].

[50] Wholesale Distributors Ltd v Gibbons Holdings Ltd, above n 45, at [52]–[53].

[51] See [122].

[52] Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 44 at [30]–[31].

[53] HC decision, above n 2, at [183].

[54] At [161].

[55] At [158].

[56] At [165]–[166].

[57] Paper Reclaim Ltd v Aotearoa International Ltd (Further evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [6]; and Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192.

[58] At 192.

[59] Mr Leishman provided management and secretarial services through Boutique Body Corporates Ltd, which was appointed secretary/manager of the Body Corporate in February 2011.

[60] HC decision, above n 2, at [158].

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