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Unit Titles Act 2010
This advisory deals with allocation of responsibility for maintenance (and cost of maintenance) between a body corporate and unit owners.
Body corporate law in this area has been confused for a long time due to overlap and/or conflict between a number of sections in the Unit Titles Act 2010. However, there has now been a Court of Appeal decision, Body Corporate S73368 v Otway  NZCA 612, issued on 19 December 2018, which has provided a reasonably definitive interpretation of the competing sections and their relationship.
Allocation of Responsibility
- The key to this issue is the allocation of responsibility. A Body Corporate has responsibility for maintenance of common property, building elements and infrastructure, under section 138 of the Act. A unit owner has responsibility for maintenance of his or her unit – or, possibly more accurately as far as the legislation is concerned, maintenance of the unit per se is not the responsibility of the Body Corporate and, by default, falls to the owner.
- Historically, an issue has been responsibility for structural elements of the complex, from which all owners benefit but which may be part of or located within a unit: examples are structural elements such as floors, walls and roofs. Also, elements such as utility reticulation for the complex.
- Under the 2010 Act, responsibility for building elements and infrastructure – which includes pipes, water, sewerage drainage, gas electricity and other services or utilities – is the responsibility of the Body Corporate, but only if it serves or relates to more than one unit: section 138 (1).
Allocation of Cost
- As more fully explained below, the Body Corporate has the ability to recover any costs incurred that relate to repairs or maintenance of building elements and infrastructure contained in a principal unit, from the owner of that unit: section 138 (4).
- It also has the ability to recover costs which it occurs where it carries out work which a unit owner has wilfully or negligently failed to do: section 127.
- In addition, it has the ability to recover expenses on other than a utility interest basis where a unit, or more than one unit, benefits substantially more from work than other units: section 126.
Building Element or Infrastructure?
- Otway dealt with the relationship of these sections. Fundamental to this is the question what is a building element or infrastructure? The issue in this respect is that there is a point at which infrastructure (or building elements) become cables or pipes (or other items) which solely serve a particular unit – and responsibility changes – and finding that point has been the issue.
The cause of an issue is often not easily identified and, typically, it is claimed that responsibility lies with the body corporate. The body corporate investigates and incurs costs and it then becomes an issue as to who will meet those costs. The unit owner will be liable for those costs if work carried out by the body corporate is work on building elements or infrastructure “contained in a unit”.
- The interpretation of the Court of Appeal is that there may be items which appear to meet the definition of elements or infrastructure, but they are not building elements or infrastructure for which the body corporate has financial responsibility because they do not relate to or serve more than one unit. In that case the body corporate may apply the cost recovery mechanism under section 138 (4).
- It gave an example –
“A building element is something that is necessary to the structural integrity or external aesthetics of the building or the health and safety of occupiers and users of the building. The deck membrane here is only part of the overall storm water and weathertightness system necessary for the structural integrity of the building and the health and safety of owners and users. The building element here is the entire storm water system which has gone on to cause weathertightness issues. First, that system cannot be said to be “contained” only in the appellants’ units here as we outline above. And secondly and importantly, the storm water system repairs, being crucial to the integrity and value of the entire development, benefit all owners. For these reasons, s.138 (4) [allocation of cost to an individual owner/unit] does not apply here.”
- Where a body corporate carries out work which it is its responsibility to carry out, the usual rule is that cost is shared among owners in accordance with utility interest. Section 126 allows the body corporate to depart from that approach where there is disproportionate benefit to one or more owners. Again there has been some confusion as to the proper approach and different approaches adopted by the courts.
- According to the Court of Appeal, section 126 will apply where there is “a substantial benefit” to one or more units, or one or more units benefits substantially more than others. This is described as “the gateway test”.
- At that point, if the work benefits a unit “by a distinct and ascertainable amount”, the owner of the unit is liable for the cost. If that cannot be established, then cost can be apportioned among units that derive a substantial benefit from the work rateably according to the utility interest of those units, but a court has a discretion in that case to apportion as it thinks fit, having regard to relative benefit to those units.
- What is important to note at this point is the attitude of the Court of Appeal. Consistent with the view expressed above, it has taken the view that anything necessary to the structural integrity or external aesthetics of the building or the health and safety of occupiers and users of the building benefits all – or does not benefit the units on which work is carried out substantially more than it benefits others. In that case the gateway test is not satisfied, and it is not appropriate for a body corporate to consider whether a unit has benefited by a distinct and ascertainable amount or whether some units have benefited substantially more than others.
Default by Owner
- Where a body corporate carries out work that it is required or authorised to do and the work was rendered necessary by reason of any wilful or negligent act or omission on the part of, or any breach of the Act, the operational rules or any regulations by, a unit owner, section 127 authorises the body corporate to recover the cost from the owner concerned.
- Where issues tend to arise in this respect is that section 80(1)(g) of the Act places responsibility on the owner of a unit to repair and maintain the unit and keep it in good order to ensure that no damage or harm, 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. Where want of repair is identified in relation to a unit, it is common to hear argument that the responsibility for repair falls on the owner. Where the owner fails to do so, the body corporate carries out the work and relies on section 127 to recover the cost.
- Once again, the position adopted by the Court is that where the requirement for repair can fairly be said to lie within the responsibilities of the body corporate (structural integrity, etc) – or is due to design or construction defect – then costs are not recoverable under section 127.
- A requirement that is often overlooked is that the work must be work which the body corporate is required or authorised to do. If the only consequence of an owner failing to carry out work is that his or her unit becomes dilapidated, then the body corporate has no authority to act. As both section 127 and section 80(1)(g) make clear, there must be impact on the elements for which the body corporate has responsibility or on other units before the body corporate is authorised to step in. But, as the case law is also tending to make clear, there are likely to be few occasions where it cannot be argued that such impact does not exist. Examples might be –
- want of repair that creates a fire hazard;
- impact on infrastructure/services;
- want of repair that impacts on the aesthetics of the complex;
- want of repair that places the complex in breach of a resource consent or the Building Code.
Which Section Applies?
- A final question is the hierarchy of these sections. As the Court sees it, section 138(4) is subsidiary to sections 126 and 127, and not an alternative as other courts have previously suggested. It only applies to repair work done by the body corporate on elements within a unit that are not building elements or infrastructure or building elements where sections 126 or 127 do not apply, such as where the need for repair arises from default by the owner or the repair does not benefit any other owner. The view of the Court seems to be that where there is any suggestion of benefit to other owners, then section 138 (4) does not apply.
Korean Ambassador to New Zealand, HE Mr Seung-bae Yeo, presenting the Presidential Citation to NZ Korea Veterans’ Memorial Trust trustees, Michael Stephens and Chris Griggs.
The Korean Ambassador to New Zealand, HE Mr Seung-bae Yeo, on behalf of the President of the Republic of Korea, presented the New Zealand Korea Veterans’ Memorial Trust with a Presidential Citation on Monday, 29 July at a Concert for Peace held at the Wellington Cathedral. The Presidential Citation is in recognition of and appreciation for the outstanding contribution the Memorial Trust has made to commemorate the sacrifice and dedication of the Korean War veterans.
HE Mr Seung-bae Yeo said, “I am pleased to announce that the Korean Government has decided to present the Presidential Citation to the Memorial Trust on the occasion of the 66th Anniversary of the Korean Armistice Agreement. I hope the Trust will keep working to memorialize the services of the veterans and to strengthen the friendship between Korea and New Zealand.”
The Trust, which was established by the New Zealand Korea Veterans’ Association (NZKVA), has for the past 16 years provided scholarships to students at Gapyeong Buk Middle School in the Republic of Korea and contributed to the education of young Koreans. Gapyeong Buk Middle School is in a part of South Korea which served as a base of operations for Kayforce during the Korean War. The Trust also provides scholarships to young Koreans living on the island of Baengyeong Do Island, which was a regular port call for frigates of the Royal New Zealand Navy during the War.
Trustee Chris Griggs said, “The Trust is also a lasting memorial to the New Zealand veterans who served in the Korean War and who originally established the Trust to provide support for the education of young Koreans.”
Chris Griggs will visit the high school on Baengyeong Do Island on 20 September 2019 to present scholarships to the students there.
Trustees of the New Zealand Korea Veterans’ Memorial Trust include Colonel (Retired) Harry Cockburn, a former New Zealand Army Officer who served as New Zealand Defence Attaché in Seoul; Commander Chris Griggs, Royal New Zealand Naval Reserve who previously served in the regular Navy for 25 years; and Wellington Lawyer Michael Stephens, who has close business links to the Republic of Korea.
Wellington media and commercial lawyer, Michael Stephens has accepted an invitation to join the board of The Urban Art Foundation Limited.
The Foundation, operating as The Urban Art Agency is a not-for-profit company committed to making art accessible on streets and in public gateways to enrich New Zealander’s experience of their urban environment.
The Urban Art Agency takes art created by New Zealand artists out of archives and displays it in contemporary easily accessible, outdoor digital media sites – street furniture – for people to view as a source of enjoyment and education.
Michael Stephens said, “The Urban Art Agency is well-known to Wellingtonians through three sites that showcase the best of New Zealand art on Lambton Quay and has more recently begun to extend its presence to other cities.
“I look forward to working with the directors and Urban Art team, to assist them to expand the reach of their exhibitions through additional sites in new centres and to create more public engagement opportunities.
The Urban Art Agency was created in 2016 by Andrew Hagen with assistance from the Wellington City Council, the Ministry for Culture and Heritage and oOH!Media, an Australian outdoor media company. It works in conjunction with artists, art and education experts, government and commercial gallery curators, outdoor media companies and Government departments.
“New Zealand is the only country to present its cultural heritage in this manner on a permanent basis. We are a world leader and it’s estimated that more than one million pedestrians have had the opportunity to view these screenings since Urban Art’s inception,” Michael Stephens said.
Michael joins directors Andrew Hagen (Board Chair) Roland (Rocky) Douché and Sam Jackman on the Urban Art Foundation Limited board.
The Government has announced that it plans to update legislation relating to Incorporated Societies, having now signed off changes to a draft Incorporated Societies Bill.
The Bill which is expected to be introduced to Parliament later this year will apply to the more than 23,000 incorporated societies that operate in New Zealand.
For more information see http://www.scoop.co.nz/stories/BU1906/S00662/incorporated-societies-bill-closer-to-introduction.htm and https://www.mbie.govt.nz/business-and-employment/business/regulating-entities/incorporated-societies-act-review/
If you have any questions relating to the proposed Bill and how it may impact your Society, please contact Stephens Lawyers.
A touching film about grief created by a 14-year-old boy is the Standout Winner of the annual film competition, the Someday Challenge.
Luka Wolfgram’s Dear Grief is a beautiful and poetic reflection of his relationship with grief following the loss of his younger brother Kosta to cancer. Luka’s previous film about Kosta, Our Superheroes, was a winning film in the Someday Challenge 2016.
Judges commended Luka’s courage in sharing a deeply personal journey and praised his storytelling talent. They observed that as a film-maker he had grown enormously during the two years since he last entered.
“It’s all for my brother, Kosta,” says Luka. “It’s my way of keeping his spirit and story alive.”
Luka also took out the Māori Television Whakatipuranga Award for a second entry, What Matters Is, a drama about the importance of staying connected to our culture and of enjoying the simple things in life.
“Recently I’ve been wanting to connect more with my Māori roots and I’ve also been wanting to work on myself by focusing on the simple things like being kind and giving back to others. My way of expressing this was to make What Matters Is.
“It’s my first drama so it was quite a challenge organising the script, the actors, locations and shooting schedule, but it worked out pretty well.
“Film-making is my passion and I just love being able to make a difference and raise issues that aren’t talked about enough.”
Other awards were made to entrants from Southland, Canterbury, Wellington, Manawatu, Waikato, the Bay of Plenty and Auckland.
South Auckland was especially strongly represented with awards going to students at Manurewa Intermediate, Manurewa High, Alfriston College and Mission Heights High, as well as Papatoetoe sister and brother Irava and Makea Upu.
All winners were honoured this Thursday, 6 December 6, at a ceremony at St Matthew-in-the-City in Auckland.
The Someday Challenge calls for rangatahi up to age 24 to make change with film by creating a short film on a theme of sustainability.
This year’s 133 entries map the concerns of the youth of Aotearoa with topics such as screen addiction, mental wellbeing, sexual assault, dementia, cultural identity and environmental issues.
A wide range of genres was represented including documentary, drama, claymation and spoken word.
Judges included past Someday Challenge winners Isaiah Tour and Ruby Harris, as well as representatives from Stuff, New Zealand Film Commission, Māori Television, Department of Conservation, Ministry of Youth Development, Auckland Council, the Health Promotion Agency and the Vista Foundation.
You can watch the winning films on The Outlook for Someday
Vista Foundation Media Empowerment Award
Dear Grief is a beautiful and poetic reflection on the film-maker’s relationship with grief following the loss of his younger brother to cancer.
This film was created by Luka Wolfgram, 14, a student at ACG Strathallan College, South Auckland. Rated PG.
Luka’s other entry, What Matters Is, won the Māori Television Whakatipuranga Award
What Matters Is
Māori Television Whakatipuranga Award
Teenage Ana is not very impressed when her mum instructs her to deliver food to the marae but once there, she makes an unexpected and exciting discovery – her past.
This drama, What Matters Is, was created by Luka Wolfgram, 14, from Auckland. It has a G rating. Luka’s other entry, Dear Grief, is the Standout Winner.
STUFF AUDIENCE CHOICE AWARD
Heihei Primary/Intermediate School Performance Award
We hear so much about the problems of waste that it can feel hard to know what to do. However, this recycling squad has a plan of attack…
A Difference was created by students and a teacher from Maeroa Intermediate School; Poppy Peate, Claire Cruse, Kaitlin Hay, Weiyi Jiang, Liam Parry, Alysha Watene, and Yubin Han. It has a G rating.
A Conversation About The Weather
Photogear Cinematography Award
A Conversation About The Weather is a touching slice-of-life documentary about a young man’s relationship with his grandmother who is affected by dementia.
This film has been created by Auckland student Hunter Williams, 19 and is rated PG.
All for One Lockers Project
Karma Cola People and Planet Award
The All For One Lockers Project tracks the work of a group of teenagers who built lockers where local homeless people could store their possessions.
This film was made by and features the work of students at Manurewa High School in South Auckland; Yashna Kumar and Shaylah Castle-Mokaraka, 15, and Shanelle McKinny, 10. Rated PG.
Stephens Lawyers Young Voices For Change Award
Someone at school has written a note about feeling sad and lonely. Who could it be? Two students appoint themselves detectives on the case to find out…
Anyone is a drama created by students from Craighead Diocesan School in South Canterbury; Pieta Prouting, Heidi Vogel, Emma Miron, Georgia Lowe and Libby Geary.
Are You Up For The Fight To End Sexual Assault?
Villainesse Young Women Film-makers Award
What is consent? In a world where confusion abounds, this edgy drama explores the issue and importance of personal responsibility.
Are You Up For The Fight To End Sexual Assault? was created by Emma Brown, 16, and Emma Coleman, 17, from Wellington. It has an M rating.
The Lowdown Award
Ari is a Māori boy cast adrift in a Pākehā world. When he wants to anchor, he turns to his imaginary friend Bob for advice.
Ari’s World was created by sister and brother duo Irava, 14, and Makea Upu, 12, from Papatoetoe, Auckland. It has a G rating.
Auckland Council Film-maker Award
What happens when you get so involved that the game is playing you?
This film, Gaming Addiction, was created by a team from Mission Heights Junior College in Auckland; Raiyan Khan, Andrew Ma and Farhaan Mohammed.Rated G.
New Zealand Film Commission Film-making Achievement Award
What can you do to reach a goal that seems unattainable? In this pacy doco-drama, a young explorer pushes himself to the limit to find the answer.
This film, GRIT, was created by Elim College student Geoff Chen, 16, from Auckland. It has a G rating.
Weta Digital Media Award
In this adorable claymation pic, Jimmy learns about the beauty and simplicity of permaculture.
Jimmy’s Garden was created by Sam and Sarah Ridsdale, 14 and 17, from Palmerston North. It has a G rating.
Keep the Faith
The Coconet.tv Pasifika Award
Celebration of cultural identity is key to well-being for the students of Alfriston College in South Auckland, most of whom identify as Māori or Pasifika.
Keep The Faith is an uplifting documentary about staying connected and was created by Terry Cheng, 16. It has a G rating.
Enviroschools Sustainable Future Award
How do we sustain our culture in another land? Through our language, our music, our arts and crafts.
This film, MI Culture, was created by Likisone Likisone, 12, and Jonathan Funaki, 13, students at Manurewa Intermediate School, South Auckland. It has a G rating.
Nature In Trouble
Red Carpet TV Secondary School Film-makers Award
Two habitats, separated by only 75km, yet one is thriving and the other is in trouble. This documentary questions how we can better nurture the bush in our cities.
Nature In Trouble was made by Martin and Jeremy Cole, 18, and Daniel Cocker, 17, students at Southland Boys’ High School, Invercargill. It has a G rating.
Rockstock Sustainable Lifestyle Award
A fun and quirky take on rethinking our daily coffee drinking habits.
This film, Single Use, was created by Mika Zollner, 22, and Zavier Warne, 23, from Victoria University, Wellington. It has a G rating.
Stuart the Penguin
Department of Conservation Big Picture Award
Stuart is a tawaki, a Fiordland crested penguin whose life is under threat from rodents. Then he gets a call from the Prime Minister with exciting news…
Stuart the Penguin was created by Timothy Wallace, 11, from Owairoa School in Auckland. It has G rating.
Sustainable People on Banks Peninsula
What Now Primary/Intermediate School Film-makers Award
Documentary-maker Marco Varray explores the ways that locals preserve the stunning beauty of Banks Peninsula.
Sustainable People on Banks Peninsula has a G rating.
Te Riri o Mataaho
Upstart Magazine Storytelling Award
A delightful re-telling of the Māori legend, Te Riri o Mataaho, about an Auckland volcano.This film, Te Riri o Mataaho, was created by a team from Long Bay Primary School, Auckland; Joshua Lynch, Scott Mesman, Dylan Caldwell and Olivia Manu. It has a G rating.
The Beach Restoration Day!
Ministry of Youth Development Community Participation Award
A documentary exploring how the simple action of planting a small tree can contribute to positive change in our environment.
The Beach Restoration Day! was created by a team from Waikouaiti Primary School in Dunedin; Neve Curtis, Anamika Jones and Addisyn Lawrence. Rated G.
Tearaway Secondary School Performance Award
A sobering reflection on the consequences of our disposable habits and the impact this may have for future generations.
Time Capsule was created by Jessica Arlund, 13, a student at Papamoa College in Tauranga. It has a G rating.
South Korea and New Zealand’s film connections have come a long way since the Korean Cinerama Trust was set up in 2004. Current chair Michael Stephens and deputy chair Melissa Lee talk about the Trust’s beginnings, and how film partnerships have blossomed over the years.
Michael Stephens and Melissa Lee (Photo: Facebook/Korean Cinerama Trust)
It was around 2002 when a group of Korean film buffs got together to set up an initiative that could bring Korean films to New Zealand.
It was rare then to see any Korean stories or Korean talent on New Zealand screens.
So Michael Stephens, MP Melissa Lee, Michael Tai Yang Park, Josephine Kim and Richard Duncan established the Korean Cinerama Trust (KCT) to promote Korean film and Korea-New Zealand film links.
This year, New Zealand’s Show Me Shorts film festival features a Korean focus, with seven short films exploring South Korean culture – including its myths, legends, fears, dreams and history. The films span various genres from comedy to drama and animation.
Short film Red Bean Soup will make its world premiere during Show Me Shorts, supported by the Korean Embassy.
The 17 October Wellington premiere of the Korean short films will be attended by the Korean Ambassador to New Zealand HE Yeo Seung-bae, who says 2018 is seeing the most vibrant level of Korea-New Zealand film exchanges since the KCT was established.
Okja was screened in New Zealand cinemas in 2017
Current chair Michael Stephens says the KCT also tries to improve access for New Zealanders to enjoy quality Korean movies.
“Because of issues relating to the size of box office for foreign films, it’s difficult for foreign films to play in New Zealand,” says Stephens.
“There have been, in recent times, films that were quite successful in Auckland – for example, the Korean zombie horror Train to Busan – but outside the Auckland area, it’s difficult [for the public to access screenings].
“In 2017, we had the acclaimed film Okja (Bong Joon Ho), commissioned by Netflix, and this was the only opportunity to see the film on a big screen in this country.”
The action-adventure film Okja stars South Korean child actress Ahn Seo-hyun alongside Hollywood actors Tilda Swinton, Jake Gyllenhaal, Steven Yeun and Paul Dano, and it competed for the Palme d’Or in the 2017 Cannes Film Festival.
The KCT also ensures the range of films are pertinent and topical.
“We’ve been privileged to curate a diversity of films, including a range suitable for children,” says Stephens. “We like to have films that deal with relevant social issues.”
Taika Waititi’s Tama Tū was screened at a film festival in South Korea
New Zealand films have also appeared at South Korean film festivals.
“In 2017, Gina Dellabarca, festival director of Show Me Shorts, curated a New Zealand showcase at the 35th Busan International Short Film Festival.
“In April this year she presented, in conjunction with the support of the Korean Embassy, a selection of 17 short films from New Zealand, including Tama Tū by Taika Waititi and we’re returning the favour.
“It’s a meaningful cultural exchange,” says Stephens.
“Having been involved in the local independent film sector, I see a lot of similarities with Korea. They’re very strong on original content in South Korea. We’ve been able to bring Korean and New Zealand filmmakers together to see whether we can create content together.”
Animated children’s TV show Nori Roller Coaster Boy. (Photo: Screengrab/YouTube)
Co-production between South Korea and New Zealand is fruitful.
Kiwi producer Catherine Fitzgerald and writer Michael Bennett are currently developing a Korea-New Zealand wartime story, The Love Song, with a Korean producer and with support from the NZ Film Commission.
POW Studios recently produced a 52-episode animated show, Nori Roller Coaster Boy, in collaboration with South Korean producer Xris Sohn and Chinese studio Henan York.
Wellington producer Michelle Turner and writer Nick Ward have just visited Seoul for their collaborative science-fiction TV series, in a programme run through the Seoul Film Commission.
“We try to facilitate ongoing screen links, and we try to bring the best Korean films to New Zealand and vice versa,” says Stephens.
“We openly collaborate and partner with the Korean Embassy in Wellington, the Korean Consulate in Auckland, and a range of organisations including the New Zealand Asia Institute, New Zealand Film Commission, Screen Wellington, Screen Auckland and the Asia New Zealand Foundation.”
The joint efforts also include facilitating the necessary face-to-face contact between New Zealand and South Korean filmmakers to enable screen projects to be developed and produced, Stephens added.
The KCT has in the past facilitated red carpet events, as well as collaborations between film industry creatives like WETA Workshop’s Richard Taylor and acclaimed South Korean director Bong Joon-ho.
Asia Media Centre