What is a "unit title dispute"?

The Court of Appeal's decision in Whai Rawa Railway Lands LP v Body Corporate 201036 [2024] NZCA 207 contains helpful guidance as to what is and what is not a "unit title dispute" under section 171 of the Unit Titles Act 2010 (UTA).

Key provisions of the UTA at issue were:

• section 5(1):

unit title development means the individual units and the common property comprising a stratum estate

• section 171:

(1) Except as provided in this section, a Tenancy Tribunal (a Tribunal) constituted under section 67 of the Residential Tenancies Act 1986 has jurisdiction to hear and determine all disputes arising between any persons of the kind listed in subsection (2) in relation to a unit title development (a unit title dispute).

...

(1A) To avoid doubt, an without limiting subsection (1), a unit title dispute may relate to a claim for unpaid levies.

(2) The persons mentioned in subsection (1) are-

(a) the owner of a principal unit or a former owner of

• section 176:

(1) Part 3 of the Residential Tenancies Act 1986 applies with all necessary modifications in respect of the hearing and determination of a unit title dispute by a Tenancy Tribunal except the following sections...

In short, the Court of Appeal held that a "unit title dispute" under section 171(1) of the UTA must be a dispute in relation to a "unit title development", where a unit title development (as per the definition in section 5) means the individual units and the common property comprising a stratum estate. So, a dispute that does not relate to the unit title development - that is, a dispute that is not about the individual units or the common property comprising the stratum estate (or a claim for unpaid levies), will not be a unit title dispute and will not be able to rely on the provisions of the Residential Tenancies Act 1986 (RTA) that apply to unit title disputes under section 176 of the UTA.

This decision also confirmed that there is no inherent or common law power permitting the courts to set aside or vary contracts on harsh or unconscionable grounds. While there are some statutory powers of that type conferred on courts in respect of certain types of contract, such as those in sections 139-140 of the UTA, each of those statutory powers reflects targeted intervention focused on consumer protection.

These findings meant that Body Corporate 201036's High Court claim seeking orders that the rental clause in the ground lease between Whai Rawa (landlord) and the Body Corporate (lessee) be set aside or varied on the grounds that it was harsh or unconscionable, or both, or that it had been exercised in a harsh or unconscionable manner was struck out because the Body Corporate was unable to rely on section 78(1)(f) of the RTA under section 176 of the UTA and there is no equivalent inherent or common law power.