Published tribunal order
Tenancy Tribunal case 9044704 — Tenancy dispute in St Lukes, Auckland
Decided 2 Oct 2023 · Published 2 Oct 2023 · Application 9044704
Landlord favoured
- Costs
- Unit Titles
Order
- Dongsheng Shi and Jingcai Shi must pay Body Corporate 401803 $64,623.45 immediately, calculated as follows: DescriptionsApplicantRespondent Levies$54,606.67 Costs: Legal and administration$5,751.31 Interest$3,765.47 Filing fee$500.00 Total payable by Respondent to Applicant $64,623.45
Reasons
- Both parties attended the hearing.
- The body corporate has applied for recovery of unpaid levies, interest, costs and the filing fee from the unit owner.
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 and ordered above.
- The unit owner does not challenge any of these costs but says that he has had no income coming in because all occupants were required to vacate the building for the remediation work. He says that to compound matters, the conclusion date for the remediation work has been moved out and that he and his wife have had a baby, which has affected their income.
- The body corporate sympathises with his position however, because it is required to be fair amongst all unit owners, it must therefore take steps to recover unpaid levies, where appropriate.
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, as ordered above.
Is the unit owner liable for costs?
- The Body Corporate claims the sums of $5,012.56 for legal costs, $508.75 for Body Corporate administration charges and $200 per hour plus GST for time spent in preparation for and in attending the hearing today. The unit owner does not challenge the quantum of these costs, but nevertheless the Tribunal must independently assess whether they are payable.
- 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 judgments (of the District Court and Court of Appeal respectively) in Body Corporate 162791 v Cheah 1 and Body Corporate 162791 v Gilbert, 2 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. 1 DC Auckland, CIV2014-004-0120, 24 June 2014. 2 [2015] NZCA 185.
- The assessment of reasonableness of costs in connection with a contractual indemnity for reasonable solicitor and client costs was recently discussed in Exuberant Ltd v Quinovic Management Limited 3 and, in the context, of s 124 of the UTA, in Body Corporate 45131 v 88 CHI Ltd, where the approach taken in Exuberant was adopted and applied. 4 As was stated in Body Corporate 45131 v 88 CHI Ltd, 5 ... the essential method is as follows: a) first, ask whether the work that was done was reasonably necessary; b) second, ask whether the amount charged for the reasonably necessary work was reasonable; c) in both instances the NZLS Rules and Rule 9 in particular are prime reference points when assessing reasonableness; d) third, test the analysis against other available reference points.
- District Court said that the basics of the relevant legal framework are: 6 a) the relevant test is as set out in section 124(2) of the Unit Titles Act – the body corporate is entitled to recover “any reasonable costs incurred in collecting the levy”; and b) solicitor and client costs are a category of costs that can be recovered under this provision; and c) the task is to assess the reasonableness of the solicitor and client costs that are claimed.
- Having set out that framework, the District Court then went on to review the relevant method to be applied in assessing the reasonableness of the solicitor client costs, concluding: 7 ... the essential method is as follows: a) first, ask whether the work that was done was reasonably necessary; b) second, ask whether the amount charged for the reasonably necessary work was reasonable; c) in both instances the NZLS Rules and Rule 9 in particular are prime reference points when assessing reasonableness; d) third, test the analysis against other available reference points.
- At para [8], the District Court stated: 8 3 [2021] NZ HC 3533. 4 CIV 2022 – 096 – 000494 [2023] NZDC 9036, at paragraph [5]. 5 At [6], citing Exuberant Ltd v Quinovic Property Management Limited [2021] NZHC 3533 and other authorities. 6 Body Corporate 45131 v 88 CHI Ltd CIV 2022 – 096 – 000494 [2023] NZDC 9036, at paragraph [5]. 7 At [6], citing Exuberant Ltd v Quinovic Property Management Limited [2021] NZHC 3533 and other authorities. 8 Footnotes from the quote omitted. I make the following observations from the discussions on the cases and having regard to the way in which the methodology has been applied in the cases: (a) the exercise the adjudicator or the judge is engaged in is an objective one. The adjudicator or the judge must make a principled assessment of reasonableness against stated criteria; (b) the adjudicator or the judge must do the work required by the methodology, and in particular grapple with the available information on the specific tasks that were undertaken by the lawyers, and the amounts that were charged for them; (c) when doing that, the adjudicator or the judge must test the work and the invoicing against the realities of the legal market that we have, not an idealised or hypothetical standard; (d) the Rule 9 considerations are helpful in providing some structure to this assessment. Time expended is one of these factors but it is not the only factor; (e) if an adjustment to actual solicitor client costs is made, this should be explained with some specificity by identifying tasks that were seen to be unnecessary, or the necessary steps that were seen to have been overcharged in some way. Analysis and application of the law
- Applying the methodology endorsed by the District Court and set out above, I have viewed the time records associated with the costs that are claimed.
- In relation to the legal fees, the Body Corporate has also submitted a copy of the relevant terms of engagement letter from its solicitors, which sets out the range of change out rates for those who would be working on the matter. The terms of engagement does not give an estimate of costs, which is perhaps unusual, given the solicitors would have a very good understanding of the sort of fee likely to be charged in this sort of application, at least on an undefended basis.
- I am satisfied that the material filed shows that: a) the work undertaken was likely similar to other applications of this nature, but still need to be checked and completed carefully, b) to save cost, various aspects of the work were undertaken and charged out by staff at lower charge out rates, d) there appeared to be no double up between staff, and e) there were no unnecessary attendances.
- Even although the work might be regarded as somewhat formulaic, consistent with similar applications of this nature made before the Tribunal, I am satisfied that all of these steps that were undertaken are required to ensure the information is correct and the relevant material completed correctly with respect to this particular case. Just because the application might be regarded as generic or similar to many other applications does not mean a rigorous approach should not be taken to ensuring that the documentation is completed correctly.
- I find that the billing records disclose no inefficiencies or any inappropriate recording of time.
- Whether or not there is a conditional fee agreement in place is a rule 9.1 consideration I am required to take into account. I consider that this entails assessing whether or not the Body Corporate will be required to pay the full amount of the invoice claimed, in the event the applicant is unsuccessful in claiming those costs today. In relation to the rule 9.1 factors, the Body Corporate says the invoice has only recently been invoiced and that there is no conditional fee agreement relating to its payment. The invoice will therefore be paid regardless of the outcome of this application.
- Taking a “standing back assessment”, I am of the view that the legal costs that have been charged would, in this case, be within the standard commercial range for this sort of work.
- For the foregoing reasons, I find that the actual solicitor and client costs are, in the circumstances of this case, reasonable costs incurred in collecting the levies and can therefore be recovered from the unit owner. I find that an additional fee of $200 plus GST should be allowed for time spent in preparing for and attending the hearing today.
- In relation to the Body Corporate charges of $508.75, the Body Corporate submits that it charges a set fee for every stage of the debt collection process, from monitoring compliance through to sending out reminders. These fees are all resolved in AGM minutes. I am satisfied, based on the submissions made, that they are reasonable and appropriate in the circumstances. Had payment been made following these reminders then it would have avoided the need to instruct solicitors.
- Because the Body Corporate has succeeded with the claim I have reimbursed the filing fee. Section 176(1) Unit Titles Act 2010 and section 102(4) Residential Tenancies Act 1986.