Published tribunal order
Tenancy Tribunal case 9045544 — Tenancy dispute in Mt Albert, Auckland
Decided 20 Dec 2023 · Published 20 Dec 2023 · Application 9045544
Landlord favoured
- Unit Titles
Order
- Multitrack Projects Limited must pay Body Corporate 189252 $9,722.99 immediately, calculated as follows: DescriptionsApplicantRespondent Refund over paid invoices for management fees $8,222.49 Costs: preparing and lodging application$776.25 Costs: Appearance fee$224.25 Filing Fee$500.00 Total award$9,722.99 Total payable by Respondent to Applicant $9,722.99
Reasons
- Ms Sinnecker from Boutique Body Corporates Ltd (BBCL) represented the body corporate. The other party did not attend the hearing. Adjournment request
- This morning I received an email request for an adjournment by Ms Rivers, the sole director of the respondent company. The application is based on health grounds.
- The medical evidence in support of the application is dated 29 and 30 November 2023, which is 3 weeks ago.
- The respondent previously requested, and was granted, an adjournment, so this was the second request.
- An adjournment made so close in time to the hearing, based on medical evidence that was provided 3 weeks ago, is unlikely to be granted. The respondent has had plenty of time to arrange to be represented or to request a telephone attendance.
- The applicant opposed the application for an adjournment.
- I declined the adjournment application. The application
- The body corporate has applied for recovery of overpaid management fees, costs and the filing fee. Background
- Under a contract for service, the respondent provides building management services to the body corporate.
- Due to an administrative error, three of the respondent’s invoices for February 2022 and for November and December 2021 were paid when payments had already been made by automatic payment.
- The error within the BBCL system was quickly identified and the respondent was notified on 23 February 2022. BBCL requested a refund.
- Despite numerous requests the respondent has failed to pay back the money paid to it in error. Issues
- The issues before the Tribunal are these: • Was an overpayment made to the respondent and if so, how much was wrongly paid? • Should the respondent be required to repay the amount wrongly paid to it? • Is the respondent liable for costs. Was an overpayment made to the respondent and if so, how much was wrongly paid?
- The body corporate has proved that the applicant, through a systems administrative error by BBCL, overpaid the respondent for three invoices for management fees.
- The amount of the over payment is proved - $8,222.49.
Should the respondent be required to repay the amount wrongly paid to it?
- The respondent must pay back the money paid to it in error.
- In the adjournment application, Ms Rivers refers to other amounts owing to the respondent company. Ms Sinnecker said there were no details in BBCL’s system of any amounts owed to the respondent.
- Even if the body corporate/ BBCL owes the respondent funds, that is not an issue before the Tribunal. The respondent has not filed any cross application so there can be no set off by way of counter claim.
- The respondent has not provided any evidence to show that the amount claimed, and proved, by the body corporate should not be paid.
- The respondent must pay the body corporate the invoice amounts wrongly paid. The respondent had already been paid for the amounts invoiced. It cannot retain funds later paid in error.
Is the respondent liable for costs?
- The respondent is liable for the body corporate’s costs (BBCL’s costs) for having to file and prepare the claim and appear on it. The costs sought are objectively reasonable.
- Because the body corporate has succeeded with the claim, I have reimbursed the filing fee – see section 176(1) Unit Titles Act 2010 and section 102(4) Residential Tenancies Act 1986.