What was the outcome of Tenancy Tribunal case 9048224?

The tribunal order states: ON COSTS

How much money was awarded in case 9048224?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9048224?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9048224?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10714079-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9048224?

The tribunal order states: ON COSTS

How much money was awarded in case 9048224?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9048224?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9048224?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10714079-Tribunal_Order.pdf.

Queenstown, Queenstown Tenancy Tribunal Case 9048224 — Unit Titles

Order

ON COSTS

Body Corporate 499066 must pay costs of $7,722.63 to Lake Vista Limited immediately.

Reasons

Both parties attended the hearing on 31 May 2024.
The respondent was represented by counsel. The body corporate was represented by its chairperson and committee members.
At the hearing on 31 May, I acceded to the body corporate’s request for an adjournment to allow them to adduce further evidence to support its claim for an order requiring the respondent to remove a hot tub on the rear of their unit which the applicant claims is in breach of section 80(1)(i) Unit Titles Act 2010 (‘UTA’) and its amended body corporate operational rules prohibiting the placement of the hot tub without the body corporate’s written consent.
While counsel for the respondent opposes the adjournment of proceedings, I found that the body corporate should be accorded one final opportunity to adduce relevant evidence to satisfy the Tribunal that the placement and operation of the hot tub on the respondent’s property constitutes addition or structural alteration to the premises which materially affects other units or common property which determination of both the nature of the alteration and effects of the same (ie., whether it materially affects other units) must be measured on an objective basis.
I consider that the prejudice to the respondent in acceding to the adjournment request can be addressed by an appropriate award of costs in the respondent’s favour in the event the respondent is successful in the proceedings ultimately. The Tenancy Tribunal is a lay forum which litigants may be unrepresented as is the case with the committee members of the body corporate here. Given the nature of the subject matter, the dispute clearly involves a value in excess of $6,000 and parties are generally entitled to be represented by an agent who may be a lawyer in unit titles proceedings.
On 19 July 2024 body corporate chairperson Mr Malcolm Pearse formally requested for the application to be withdrawn and dismissed with each party bearing its own costs.
On withdrawal of the application, I reserved the issue of costs for the proceedings and invited both parties to file written submissions, which have been duly filed.
The respondent’s counsel filed submissions seeking costs; the body corporate opposes the respondent’s claim for an order for costs.
I now issue my decision on costs, on the papers, as follows.
The general principle is costs follow the event.
I do not agree with the body corporate’s submission that costs should lie where they fall because the body corporate was forced to request that the respondent’s hot tub be removed and, because the dispute continued, to list the dispute with the Tenancy Tribunal for adjudication.
It is incumbent on the party bringing proceedings in an adversarial forum, which includes the tenancy tribunal, to be able to prove its case brought before the court or adjudication forum.
It is clear from the parties’ communication prior to the claim being filed and even at the first hearing of the application on 31 May 2024 that the body corporate was not prepared to engage in any resolution proposals which would allow the respondent’s hot tub to remain in place. I agree with counsel for the respondent that the body corporate has taken a hard-line approach that the hot tub had to go which approach I consider unreasonable and unjustified.
The body corporate’s application for the unit owner’s removal of a chattel placed within its own unit boundary justified counsel’s involvement in representing the unit owner to defend the body corporate’s claim.
Section 79(e) UTA makes it clear that a unit owner has the right to make any alterations, additions, or improvements to his or her unit so long as these are within the unit boundary and do not materially affect the use, enjoyment, or ownership interest of any other unit or common property:
I do not consider that the placement of a hot tub constitutes such addition or structural alteration to the unit that materially affects the reasonable use, enjoyment, or ownership interest of any other unit or the common property which requires the consent of the body corporate.
In exercising their right to withdraw the matter prior to an adverse determination against the body corporate, I consider that the body corporate has been unsuccessful in their claim. Because the respondent/unit owner has incurred legal costs, the unit owner is entitled to an order for the body corporate to pay costs.
Sections 102(2) and 102(3)(b) of the Residential Tenancies Act 1986 (RTA) provides that the Tribunal can order the unsuccessful party to pay reasonable costs to the other party in connection with the proceedings where parties are represented by counsel.
The issue is what are ‘reasonable costs’ in the circumstances.
In the Tenancy Tribunal there is no schedule as to costs and so the Tribunal traditionally relies on common law case authorities that outline the principles as to awards of costs.
Prior to the introduction of schedules the District Court and High Court the courts awarded a reasonable contribution to costs based on a “shopping list” of factors – for example the length of the hearing, the amount involved, the importance of the issues, legal and factual complexity, urgency, preparation time, any unnecessary steps, arguments lacking substance, unnecessarily technical points taken, degree of success and conduct of the parties – see Holden Architectural Finishes Ltd [1997] 3 NZLR at 148-149.
In Holden the court stated “...a court [or Tribunal] should not forget the ultimate question or overlook the principles which underlie. There is wood as well as the trees. The ultimate question always remains: What is a reasonable contribution in these particular circumstances?”
The leading text by Grinlinton Residential Tenancies (4 th edition, 2012) at para
3.5 states: The Tribunal may also order a party to pay the reasonable costs of any other party to the proceedings ... The general principles that are applied by the courts on the quantum of costs, may also be applied by the Tribunal referring to the factors set out in Holden v Architectural Finishes Ltd [1997] 3 NZLR 143 at 148 – 149. What is considered “reasonable contribution” to a successful party’s costs will depend on many factors, but there is authority that a figure of 60 percent is regarded as the average, with most awards falling within the range of 40-70 per cent of actual costs (Holden v Architectural Finishes Ltd at 149-150).
In this case, the unit owner incurred legal costs of $12,871.05 which its counsel seeks a sum of $7,722.63 representing 60% of actual costs incurred in relation to these proceedings.
Following Holden, I find an award of costs of $7,722.63 appropriate and reasonable in the circumstances. Even with 60% of legal costs awarded in favour of the unit owner, the respondent still carries the remaining 40% costs which were necessitated by the body corporate bringing the proceedings in the first place.
I therefore make an order for the body corporate to pay costs of $7,722.63 to the respondent.

Order

ON COSTS

Body Corporate 499066 must pay costs of $7,722.63 to Lake Vista Limited immediately.

Reasons

Both parties attended the hearing on 31 May 2024.
The respondent was represented by counsel. The body corporate was represented by its chairperson and committee members.
At the hearing on 31 May, I acceded to the body corporate’s request for an adjournment to allow them to adduce further evidence to support its claim for an order requiring the respondent to remove a hot tub on the rear of their unit which the applicant claims is in breach of section 80(1)(i) Unit Titles Act 2010 (‘UTA’) and its amended body corporate operational rules prohibiting the placement of the hot tub without the body corporate’s written consent.
While counsel for the respondent opposes the adjournment of proceedings, I found that the body corporate should be accorded one final opportunity to adduce relevant evidence to satisfy the Tribunal that the placement and operation of the hot tub on the respondent’s property constitutes addition or structural alteration to the premises which materially affects other units or common property which determination of both the nature of the alteration and effects of the same (ie., whether it materially affects other units) must be measured on an objective basis.
I consider that the prejudice to the respondent in acceding to the adjournment request can be addressed by an appropriate award of costs in the respondent’s favour in the event the respondent is successful in the proceedings ultimately. The Tenancy Tribunal is a lay forum which litigants may be unrepresented as is the case with the committee members of the body corporate here. Given the nature of the subject matter, the dispute clearly involves a value in excess of $6,000 and parties are generally entitled to be represented by an agent who may be a lawyer in unit titles proceedings.
On 19 July 2024 body corporate chairperson Mr Malcolm Pearse formally requested for the application to be withdrawn and dismissed with each party bearing its own costs.
On withdrawal of the application, I reserved the issue of costs for the proceedings and invited both parties to file written submissions, which have been duly filed.
The respondent’s counsel filed submissions seeking costs; the body corporate opposes the respondent’s claim for an order for costs.
I now issue my decision on costs, on the papers, as follows.
The general principle is costs follow the event.
I do not agree with the body corporate’s submission that costs should lie where they fall because the body corporate was forced to request that the respondent’s hot tub be removed and, because the dispute continued, to list the dispute with the Tenancy Tribunal for adjudication.
It is incumbent on the party bringing proceedings in an adversarial forum, which includes the tenancy tribunal, to be able to prove its case brought before the court or adjudication forum.
It is clear from the parties’ communication prior to the claim being filed and even at the first hearing of the application on 31 May 2024 that the body corporate was not prepared to engage in any resolution proposals which would allow the respondent’s hot tub to remain in place. I agree with counsel for the respondent that the body corporate has taken a hard-line approach that the hot tub had to go which approach I consider unreasonable and unjustified.
The body corporate’s application for the unit owner’s removal of a chattel placed within its own unit boundary justified counsel’s involvement in representing the unit owner to defend the body corporate’s claim.
Section 79(e) UTA makes it clear that a unit owner has the right to make any alterations, additions, or improvements to his or her unit so long as these are within the unit boundary and do not materially affect the use, enjoyment, or ownership interest of any other unit or common property:
I do not consider that the placement of a hot tub constitutes such addition or structural alteration to the unit that materially affects the reasonable use, enjoyment, or ownership interest of any other unit or the common property which requires the consent of the body corporate.
In exercising their right to withdraw the matter prior to an adverse determination against the body corporate, I consider that the body corporate has been unsuccessful in their claim. Because the respondent/unit owner has incurred legal costs, the unit owner is entitled to an order for the body corporate to pay costs.
Sections 102(2) and 102(3)(b) of the Residential Tenancies Act 1986 (RTA) provides that the Tribunal can order the unsuccessful party to pay reasonable costs to the other party in connection with the proceedings where parties are represented by counsel.
The issue is what are ‘reasonable costs’ in the circumstances.
In the Tenancy Tribunal there is no schedule as to costs and so the Tribunal traditionally relies on common law case authorities that outline the principles as to awards of costs.
Prior to the introduction of schedules the District Court and High Court the courts awarded a reasonable contribution to costs based on a “shopping list” of factors – for example the length of the hearing, the amount involved, the importance of the issues, legal and factual complexity, urgency, preparation time, any unnecessary steps, arguments lacking substance, unnecessarily technical points taken, degree of success and conduct of the parties – see Holden Architectural Finishes Ltd [1997] 3 NZLR at 148-149.
In Holden the court stated “...a court [or Tribunal] should not forget the ultimate question or overlook the principles which underlie. There is wood as well as the trees. The ultimate question always remains: What is a reasonable contribution in these particular circumstances?”
The leading text by Grinlinton Residential Tenancies (4 th edition, 2012) at para
3.5 states: The Tribunal may also order a party to pay the reasonable costs of any other party to the proceedings ... The general principles that are applied by the courts on the quantum of costs, may also be applied by the Tribunal referring to the factors set out in Holden v Architectural Finishes Ltd [1997] 3 NZLR 143 at 148 – 149. What is considered “reasonable contribution” to a successful party’s costs will depend on many factors, but there is authority that a figure of 60 percent is regarded as the average, with most awards falling within the range of 40-70 per cent of actual costs (Holden v Architectural Finishes Ltd at 149-150).
In this case, the unit owner incurred legal costs of $12,871.05 which its counsel seeks a sum of $7,722.63 representing 60% of actual costs incurred in relation to these proceedings.
Following Holden, I find an award of costs of $7,722.63 appropriate and reasonable in the circumstances. Even with 60% of legal costs awarded in favour of the unit owner, the respondent still carries the remaining 40% costs which were necessitated by the body corporate bringing the proceedings in the first place.
I therefore make an order for the body corporate to pay costs of $7,722.63 to the respondent.

Tenancy Tribunal case 9048224 — Unit Titles in Queenstown, Queenstown

At a glance

Tenancy Tribunal case 9048224 — Unit Titles in Queenstown, Queenstown

At a glance

Claims & awards

Order

ON COSTS

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

ON COSTS

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions