Published tribunal order
Tenancy Tribunal case 9049544 — Tenancy dispute in Auckland Central, Auckland
Decided 30 Apr 2024 · Published 30 Apr 2024 · Application 9049544
Landlord favoured
- Unit Titles
Order
- Old Coach Limited must pay Body Corporate 199011 $86,819.70 immediately, calculated as follows: DescriptionsApplicantRespondent Unit C Levy due 9.11.22 Unit C Levy due 7.2.23 Unit C Levy due 1.5.23 Unit C Levy due 21.9.23 Unit C Levy due 1.12.23 Unit C Levy due 1.4.24 Unit D Levy due 9.11.22 Unit D Levy due 7.2.23 Unit D Levy due 1.5.23 Unit D Levy due 21.9.23 Unit D Levy due 1.12.23 Unit D Levy due 1.4.24 BC Collection costs Unit C BC collection costs Unit D Legal fees Legal fees (Tribunal appearance) Filing fee Interest $4,786.40 $4,786.41 $4,786.41 $5,338.68 $5,338.68 $5,338.68 $7,043.11 $7,043.13 $7,043.13 $7,855.79 $7,855.79 $7,855.79 $902.50 $902.50 $3,528.49 $115.00 $500.00 $5,799.21 Total award$86,819.70 Total payable by Respondent to Applicant $86,819.70
Reasons
- The Body Corporate attended the hearing through counsel. The Unit owner did not attend.
- 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.
- The respondent became the registered proprietor of Units C and D on 4 October 2022. The previous owner was DZM Holdings Limited.
- The Body Corporate was not notified of the change of ownership as required by s.85 UTA. In the first instance the levy invoices were sent to DZM Holdings Limited. The respondent has been notified of the outstanding levy amounts.
- The levy invoices issued for each of Units C and D dated 20 October 2022 are for the period 1 June 2022 to 30 September 2022, before the respondent became registered owner of those units.
- Nevertheless, s.124(2) UTA, provides that “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.”
- Those levies are accordingly recoverable from the respondent.
- In terms of s.85(3), if DZM Holdings Limited failed to notify the Body Corporate of the transfer, it too remains liable.
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 10.00% 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 Court of Appeal and District Court respectively) in Body Corporate 162791 v Gilbert [2015] NZCA 185 and Body Corporate 346799 v Gueirard & Vu [2023] NZDC 19645, 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.