Published tribunal order
Tenancy Tribunal case 9045204 — Tenancy dispute in Wellington CBD, Wellington
Decided 13 Nov 2023 · Published 13 Nov 2023 · Application 9045204
Landlord favoured
- Costs
- Interest
- Unit Titles
Order
- Richard Marsh must pay Body Corporate 332880 $39,947.04 immediately, calculated as follows: DescriptionsApplicantRespondent Costs: Overdue levies: Unit E$12,158.48 Costs: Overdue levies: Unit H$11,868.13 Costs: Special Levy: 1 Oct 2023 Unit E$6,243.65 Costs: Special Levy: 1 Oct 2023 Unit H$2,741.11 Interest: Unit E$1,561.35 Interest: Unit H$3,149.32 Costs: Counsel$1,725.00 Filing Fee$500.00 Total award$39,947.04 Total interest Total award with interest$39,947.04 Total payable by Respondent to Applicant $39,947.04
Reasons
- Both parties attended the hearing, conducted via teleconference.
- The applicant sought to vary the final levies amount, but the supporting evidence was not at hand. It was appropriate to adjourn this matter open for the final summary, with any supporting evidence, to be provided. This has now been received by the Tribunal and the tenant.
- The respondent does not dispute liability, but the final quantum was yet to be resolved.
- The application was made against Unit E but all submissions and evidence have been provided for both units (E and H) with this owner. I am satisfied the owner accepted both at the first hearing and this is a drafting error. It is in best interests of the owner as requiring a separate application for Unit H would only add further costs to him.
- 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.
- A special levy was applied to all owners, effective 1 October 2023.
- 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. This resolution was passed 10 September 2022 and interest has only been calculated on levies owing from that 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 reimbursed the filing fee. Section 176(1) Unit Titles Act 2010 and section 102(4) Residential Tenancies Act 1986.