Published tribunal order
Tenancy Tribunal case 9050224 — Tenancy dispute in Grafton, Auckland
Decided 23 Sept 2024 · Published 23 Sept 2024 · Application 9050224
Landlord favoured
- Costs
- Interest
- Unit Titles
Order
- Ling Jean Jan must pay Body Corporate 182563 $8,033.82 immediately, calculated as follows: DescriptionsApplicantRespondent Body Corporate Manager's debt collection charges $1,090.20 Section 124 costs, including GST & disbursements $5,202.32 Appearance at hearing (1 hour at $270.00 per hour plus GST) $310.50 Filing fee$500.00 Interest as at 29 February 2024$930.80 Total payable by Respondent to Applicant $8,033.82
Reasons
- The Body Corporate’s representative attended the hearing, which was held by teleconference. The respondent did not attend the hearing but provided written submissions and supporting documents for the Tribunal to take into account.
- The Body Corporate has applied for recovery of unpaid levies, interest, costs and the filing fee from the unit owner. The application was filed on 19 January 2024.
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 prior to commencement of proceedings, the unit owner did not pay the levies by the due dates. See section 124(1) Unit Titles Act 2010. The Body Corporate has provided records to prove the amount claimed.
- The original outstanding levies when the application was filed were $17,648.52.
- That said, the outstanding levies have since been paid by the Unit Owner prior to the hearing.
- I have taken into account the unit owner’s submissions and the documents presented in support.
- The Unit Owner raised various matters including (but not limited to) the Cintra Apartment building remodelling, the remodelling fees were incorrectly calculated, and the hotel should share all remodelling fees of the common area. This and other matters do not raise any arguable defence.
- I understand that the Unit Owner is unhappy with the Body Corporate's decisions and the calculation of the remodelling fees. However, I cannot challenge the Body Corporate's decision-making. If the Unit Owner wishes to contest these matters, they can pursue internal processes or legal remedies, but those issues are outside the scope of this levy recovery claim.
- The Unit Owner expressed frustration at what she saw as deficiencies in the operation of the Body Corporate. That is not a defence to the Unit Owner’s obligation to pay the levies.
- There is no evidence before me that there was any lawful reason for the Unit Owner to resist payment of levies when due.
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.
- I find the Unit Owner’s defence (by way of written submissions and supporting evidence) are not capable of ousting the Body Corporate’s claim for recovery of collection costs and the filing fee from the Unit Owner.
- 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.
- I am satisfied that the costs ordered above are reasonable.
- As 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.