Tenancy Tribunal Overturns Postal Vote Resolution Due to Procedural Issues

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[2025] NZTT 9062784

TENANCY TRIBUNAL AT TAURANGA | TE TARAIPIUNARA RETIHANGA KI TAURANGA MOANA

APPLICANT: [redacted] Owner of a principal unit

RESPONDENT: [redacted] [NAME]: Unit/[ADDRESS], [ADDRESS], Aongatete, Katikati, RD2, Western Bay of Plent 3178, [ADDRESS]

1. [NAME]’s resolution dated 20 December 2024 approving the removal and replacement of trees is set aside.

2. Within 30 days of the date of this order [NAME] must give notice of an extraordinary general meeting (EGM) to be held solely to consider the issue of whether trees should be removed and replaced.

3. [NAME] must provide a copy of this decision to all unit owners at the same time it gives notice of the EGM, or any time before then.

4. [NAME] 447921 to pay [NAME] $500.00 immediately being reimbursement of the filing fee on this application.

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Reasons:

1. Both parties attended the hearing. [NAME], the current chair, represented [NAME].

2. For some time now the vexed issue of the removal of Ash trees and their replacement with trees of another variety has troubled [NAME].

3. The issue went to a vote at an Annual General Meeting (AGM) on 6 December 2024. It was very narrowly defeated. Then, a postal vote was held, and the resolution passed by a slim majority.

4. Dissatisfied with the voting process, [NAME] has applied to the Tribunal for relief.

5. I heard evidence and submissions from the parties today. As well they each provided documentary evidence in support of their respective positions.

6. I need not record here the reasons for the removal of the trees which have changed over time. The Tribunal’s focus is on fair voting procedure.

Discussion

7. [NAME] wants the issue of tree removal/replacement put to the vote again because he claims procedural anomalies in the way the postal voting was conducted.

8. At the AGM on 3 December 2024, the resolution that the trees be removed and replaced was defeated (16 votes for, 17 votes against).

9. The chair at the time (who, together with the 4 committee members in place then, has since resigned) was advised by [NAME]’s manager ([NAME]) that there was an irregularity in the way in which the votes were counted.

10.Acting on advice from [NAME], a postal vote was quickly arranged. The results at the end of the voting period on 20 December 2024 were 19 for the resolution to remove and replace the trees, 16 against. 3 abstained. Had 3 not abstained, the vote might have been split.

11.Generally, a [NAME] is bound by a resolution passed by majority vote; that is the democratic nature how a [NAME] operates.

12.[NAME] said in hindsight she had some reservations about the process around the postal vote soon after the AGM resolution was voted on.

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13.[NAME]’s disquiet about the process is acknowledged. This is an important issue for [NAME] and both votes on the issue of tree removal, one against the removal, one for, have been very close.

14.The issue should be decided once and for all in a more transparent manner with all unit owners aware of the importance of participating in the process.

15.To achieve that, the Tribunal has set aside the resolution reached by postal vote and has directed that [NAME] arrange an EGM to consider the sole issue of the removal of the Ash trees and their replacement.

16.The Unit Titles Act 2010 (UTA) and the Unit Titles Regulations 2011 provide the process for electronic voting so that should facilitate the EGM vote on this issue.

17.[NAME] suggested that the 2 ‘factions’ meet so they can discuss their respective positions. That is not something for the Tribunal to direct. But it would be sensible for the unit owners to hear each other’s views either before the meeting, or by circulating a written statement of their positions beforehand. [NAME] as chair should be able to facilitate that.

18. I have directed that a copy of this decision be provided to all the unit owners before the EGM, so they are aware of the Tribunal’s stance on the application and the importance of them participating in the voting process. Hopefully, this vote will decide the matter with finality; the unit owners who are in the minority after the vote will need to accept that as the democratic outcome.

Is a special resolution required?

19.[NAME] submitted that the Tribunal should direct that a special resolution be required to decide the issue of the removal/replacement of the trees in question.

20.Special resolutions are reserved for what are usually considered decisions that have a significant impact on unit owners, most often financial decisions, such as borrowing money beyond the annual budget; selling or buying common property; significant alterations to the structure of the development; or where the UTA specifically requires one (for example, granting a lease over common property).

21.While the decision to remove trees has an emotional impact, and possibly some loss of amenity with (perhaps) a financial impact, it does not reach the threshold to be considered a decision that would require a special resolution to be passed.

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Result

22.The application is successful. The resolution reached following the December 2024 postal vote is set aside.

23.[NAME] must convene an EGM to vote on the issue of tree removal and replacement.

24.[NAME] must pay [NAME]’s Tribunal filing fee on the successful application – see section 102(4) Residential Tenancies Act 1986 and section 176 UTA.

J Greene 13 May 2025

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