Published tribunal order
Tenancy Tribunal case 9041284 — Tenancy dispute in Auckland Central, Auckland
Decided 19 Jul 2023 · Published 19 Jul 2023 · Application 9041284
Landlord favoured
- Unit Titles
Order
- Oxana BUBNOVA must pay Body Corporate 351599 $20,414.26 immediately, calculated as follows: DescriptionsApplicant Ordinary Levy$7,695.60 Interest$831.31 Costs$11,037.35 Filing Fee$850.00 Total payable by Respondent to Applicant $20,414.26
Reasons
- Only the Body Corporate (“BC”) attended the hearing.
- The body corporate has applied for recovery of unpaid levies, interest, costs and the filing fee from the unit owner. Was the application properly served
- The application was sent to the unit owner via email and also via email to a lawyer previously acting for the unit owner.
- The BC’s position is that the lawyer served with the application previously acted for the unit owner in this dispute, particularly during discussions about the unpaid levies, and in efforts to resolve the dispute without application to the Tribunal. Accordingly, having not been advised otherwise, it believed him to still be acting at the time the application was filed.
- The lawyer involved only advised the Tribunal and the BC that he was not instructed to accept service, or to appear at the hearing, 2 days ago. The application was file on 14 April 2023. No explanation for this delay was received.
- I consider the BC’s belief that the lawyer was acting in this dispute to be reasonable. Much earlier notice that he was no longer instructed would have been preferable.
- Further, section 176 of the Unit Titles Act 2010 (“UTA”) incorporates part 3 of the Residential Tenancies Act (RTA) into the UTA with necessary modifications and some exceptions. Relevantly, the service provisions of the RTA are incorporated via s 176 of the UTA. Section 91A(1)(e) provides for service by email. This application was served on the unit owner by email.
- Accordingly, I am satisfied that this application and notice of hearing have been properly served.
Does the Unit Owner owe the levies claimed?
- A unit owner must pay all body corporate levies and outgoings payable for the unit. See sections 80(1)(f) and 121(1) Unit Titles Act 2010.
- The body corporate has determined the levies payable and unit owner's share has been calculated according to their utility interest.
- The body corporate has fixed the due date for the levies to be paid, and the unit owner has not paid the levies by that date. See section 124(1) Unit Titles Act 2010. The body corporate has provided records to prove the amount claimed.
Is the Unit owner liable for interest?
- If a unit owner fails to pay levies by the due date, interest accrues on the unpaid balance. A body corporate may charge interest up to 10% per annum. See section 128 Unit Titles Act 2010.
- The body corporate has resolved to charge interest at 10% per annum on unpaid levies. The Body Corporate has proved the amount of interest owing from the due date to the hearing date.
Is the Unit owner liable for costs?
- Pursuant to section 124 UTA, and as resolved at meetings of the Body Corporate, the Body Corporate is entitled to recover any reasonable costs incurred by it in collecting unpaid levies as a debt due by the owner to the Body Corporate. In accordance with the judgments (of the District Court and Court of Appeal respectively) in Body Corporate 162791 v Cheah DC Auckland, CIV2014-004- 0120, 24 June 2014 and Body Corporate 162791 v Gilbert [2015] NZCA 185, the Tribunal must order that the reasonable costs incurred by the Body Corporate in recovering the levies, objectively assessed, be paid by a defaulting unit owner. I am satisfied that the costs ordered above are reasonable.
- Because the body corporate has succeeded with the claim, I have ordered reimbursement of the filing fee. Section 176(1) Unit Titles Act 2010 and section 102(4) Residential Tenancies Act 1986.