How much money was awarded in case 9046064?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 9046064?

The primary dispute was Unit Titles. Related themes: Ordinary Levy, Remedial Levy, Costs, Interest.

Where can I read the official tribunal order for case 9046064?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10217218-Tribunal_Order.pdf.

How much money was awarded in case 9046064?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 9046064?

The primary dispute was Unit Titles. Related themes: Ordinary Levy, Remedial Levy, Costs, Interest.

Where can I read the official tribunal order for case 9046064?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10217218-Tribunal_Order.pdf.

St Lukes, Auckland Tenancy Tribunal Case 9046064 — Unit Titles

Q: What was the outcome of Tenancy Tribunal case 9046064?

The tribunal order states: Xin Yan must pay Body Corporate 401803 $79,115.57 immediately, calculated as

Order

Xin Yan must pay Body Corporate 401803 $79,115.57 immediately, calculated as follows: Ordinary Levy: outstanding administration levies for period 01/06/2022 to 31/05/2024 $4,851.62 Remedial Levy: outstanding remedial levies pursuant to 30/08/2022 EGM $60,671.42 Costs: reasonable body corporate debt collection charges $350.00 Costs: legal collection fees$6,395.44 Costs: 2 hours counsel attendance at remote hearing $460.00 Interest: to 17 April 2024$5,887.09 Filing Fee$500.00 Total award$79,115.57

Reasons

Both parties attended the hearing conducted remotely by phone/video conference. The body corporate is represented by counsel. The respondent/unit owner attended with the assistance of a Mandarin interpreter who also attended remotely.
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 amounts 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.
More recently, the District Court in Body Corporate 85928 v Sherry [2022] NZDC 11535, Body Corporate 45131 v 88 Chi Limited [2023] NZDC 9036 and Body Corporate 346799 v Gueirard & Vu [2023] NZDC 19645 endorsed the body corporate’s recovery of full solicitor/client costs under section 124 UTA.
I am satisfied that the collection costs ordered above including for counsel’s attendance at the hearing, solicitor/client costs and body corporate debt collection charges 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.
The unit owner’s following responses are not capable of ousting the body corporate’s claim for recovery of unpaid levies, interest, collection costs and the filing fee from the unit owner: a. Legal costs are not payable by the unit owner because she is already liable to pay for administration charges/levies. b. The argument that as the unit owner is part of the body corporate, she should not be sued personally. c. Legal action had been unfairly taken against the unit owner very promptly following threats of legal proceedings. d. The unit owner did not get the law firm’s account numbers to remit payment. e. The remedial works initially budgeted at 17 million dollars has now ballooned to 34 million with an estimated 18 months’ completion date which, after 3 years, is still uncompleted/unremediated. f. The unit owner simply cannot afford the high levies as she has a mortgage to service, apart from living expenses. The unit owner borrowed money and has been forced me to leave her job in New Zealand and return to China to survive. g. Property management fees are already charged by the body corporate so no further legal or collection costs accrue. h. Owners pay for services of a building manager but burglaries still occurred where money and building materials are needlessly lost. i. Experiences of alleged racism within the body corporate decision making processes where people’s opinions are being ignored. j. Unit owner suffering from lost rent. k. The interest charged by the body corporate at 10% per annum is too high/exorbitant. l. It is the body corporate’s responsibility to bear legal collection fees incurred. m. The unit owner offered to pay remediation levies by instalments only if the body corporate can guarantee actual remediation completion dates. n. The unit owner’s general plea for not only legal and procedural justice, but also moral and humane considerations.
Pursuant to section 124 Unit Titles Act 2010 (‘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 defaulting unit owner to the body corporate.
Section 124 UTA states: Recovery of levy (1) A body corporate must fix the date on or before which payments of levies are due. (2) The amount of any unpaid levy, together with any reasonable costs incurred in collecting the levy, is recoverable as a debt due to the body corporate by the person who was the unit owner at the time the levy became payable or by the person who is the unit owner at the time the proceedings are instituted.
Section 128 UTA provides: Interest on money owing to body corporate (1) If a unit owner owes money to the body corporate under section 121, 124, 125, 126, or 127, interest accrues in respect of so much of the debt as remains unpaid. (2) The amount of interest charged by a body corporate in relation to any unpaid debt must not exceed 10% per annum.
As the unit owner failed to pay the outstanding levies at the time they fell due, the outstanding levies together with interest and collection costs are recoverable as a debt due to the body corporate.
Following the judgments of the District Court and Court of Appeal set out above, the Tribunal must order that the reasonable costs incurred by the body corporate in recovering the levies be paid by a defaulting unit owner.
It is reasonable to expect full and timely compliance by all unit owners on the levies payable when they fall due otherwise a burden is carried disproportionately by those who have paid the levies on time.
In Gilbert v Body Corporate 162791 [2016] NZSC 61, the Supreme Court affirmed the judgment of the Court of Appeal and held at [57] that section 124 is of considerable relevance in that “it indicates that those who default in the payment of levies are responsible for the costs of collection. The alternative would be to impose some or all of those costs on the other unit owners.”
The Court of Appeal judgment in Gilbert emphasised at [78] that “section 124(2) of the Unit Titles Act provides that the amount of any unpaid levy, together with any reasonable costs incurred in collecting that levy, is recoverable as a debt due to the body corporate. The use of the words “reasonable costs” does not compel the conclusion that solicitor/client costs cannot be recovered. Rather it compels the conclusion that it is only reasonable solicitor/client costs, objectively assessed, that can be recovered.”
In York Trustees Limited v Body Corporate Number 166208 [2017] NZDC 7961 the District Court, dealing with a cross-appeal on costs from the Tenancy Tribunal, quashed the Tribunal decision awarding only a contribution of 60 percent of the total legal costs claimed by the body corporate. DCJ Sharp held that the Tribunal misdirected itself as to the legal position in respect of reasonable solicitor/client costs and the Tribunal should have determined that the body corporate was entitled to its actual reasonable costs (on a solicitor/client basis) of $32,563.05. Notably at [22], Judge Sharp stressed that the Court of Appeal judgment in Gilbert is binding on the Tribunal (and on the District Court) in that “there is no discretion” available to the Tribunal to award anything less than the full reasonable legal costs charged by the solicitor to its client, the body corporate, when it comes to the concept of “reasonable costs incurred in collecting that levy” under section 124 UTA.
Having been satisfied that the costs charged by counsel for the body corporate and the body corporate secretary are reasonable and actually incurred in collecting the unpaid levy, I do not have any discretion to waive any of those costs in favour of defaulting unit owners no matter how hard they are struggling or suffering financially.
In the upshot, section 124 UTA prescribes a statutory debt in favour of the body corporate once levies are properly raised and payable; equally, legal and collection costs and interest become a statutory debt which accords no discretion on the Tribunal to waive or discount, despite the Tribunal exercising a substantial merits and justice jurisdiction pursuant to section 85 of the Residential Tenancies Act 1986 (‘RTA’).
On the contrary, under section 85 RTA, the Tribunal is mandated to determine each dispute according to the general principles of the law relating to the matter, including those principles of law set out above.
I therefore award the body corporate costs totalling $79,115.57 which includes legal costs, hearing attendance, debt collection charges, interest and the Tribunal filing fee, as set out in the table above.

Tenancy Tribunal case 9046064 — Unit Titles in St Lukes, Auckland

Tenancy Tribunal case 9046064 — Unit Titles in St Lukes, Auckland

Order

Reasons

Does the Unit Owner owe the levies claimed?

Is the Unit owner liable for interest?

Is the Unit owner liable for costs?

Order

Reasons

Does the Unit Owner owe the levies claimed?

Is the Unit owner liable for interest?

Is the Unit owner liable for costs?