What was the outcome of Tenancy Tribunal case 9051664?

The tribunal order states: ON COSTS

How much money was awarded in case 9051664?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9051664?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9051664?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12021817-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9051664?

The tribunal order states: ON COSTS

How much money was awarded in case 9051664?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9051664?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9051664?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12021817-Tribunal_Order.pdf.

Parnell, Auckland Tenancy Tribunal Case 9051664 — Unit Titles

Order

ON COSTS

Michael Privett Reed, Nicola Jane Mathers, Neil Richard Cullimore, Glenys Cullimore and Armiston Holdings Limited must pay costs of $18,027.70 to Body Corporate 337924 immediately.

Reasons

After the substantive hearing on 23 October 2024, I ruled in favour of the body corporate and dismissed the applicant’s claims.
Both parties were represented by counsel.
On dismissal of the application for reasons set out in my order of 14 January 2025, 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 of $18,209, being 70% of its actual fees of $26,014 (excluding GST) together with a disbursement of $67.86 (excluding GST).
In response, counsel for the applicants accepts the body corporate incurred actual fees of $26,014.00 (excluding GST) together with disbursements. Counsel also accepts the body corporate’s averment as to the typical range of costs awards of between 40% and 70% of actual costs incurred.
The applicants submit that there is no reason to order other than 50% of actual costs incurred in the circumstances.
The general principle is costs follow the event.
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, counsel for the body corporate says that it is appropriate in the circumstances of this case that costs at the upper end of the usual percentage contribution range are awarded against the applicants, because of these factors: a. The application was poorly presented. b. Following receipt of the Tenancy Tribunal application, on 30 August 2024 the Body Corporate’s lawyer sent a letter that identified the legal problems with the orders sought in the application and invited the applicants to withdraw the application. No response to this letter was ever received. c. The Applicants increased the Body Corporate’s costs by failing to follow the process that legally represented parties will typically adopt in the Tenancy Tribunal. The applicants did not file any witness statements or affidavits in advance of the hearing. d. Applicant submissions were filed on 22 October 2024 which addressed both factual and legal matters, just a day before the hearing and only after the respondent Body Corporate’s submissions were filed first on 21 October 2024. e. The applicants’ submissions filed on 22 October raised new factual and legal issues and sought a new order (4), which necessitated urgent additional hearing preparation. Some of the new allegations were made without evidence (e.g. an allegation that the 2007/2008 work resulted in expansion of the ground floor unit area and into common property). Additional preparation included drafting a witness statement from Maurice Crosby to correct factual inaccuracies in the applicants’ submissions, which was handed up at the hearing. f. The application raised plainly unmeritorious arguments. For example, order 1 concerned a motion that would have failed on the voting irrespective if it was put as a special or ordinary resolution. g. Orders were sought that concerned title, which the Tribunal does not have jurisdiction to determine. h. The submissions raised new matters irrelevant to the orders sought, for example regarding committee minutes.
Counsel for the applicants rejects the allegation of “poor presentation” on part of the applicants. The applicants’ submissions were, though not accepted, presented coherently and logically; I accept that this is the case here.
I prefer the applicants’ submission that the parties had different legal advice and that this ultimately is a case of an application being made but being unsuccessful.
Counsel for the applicants is also correct that there is no breach of a “typical” process absent timetabling directions in this case to prepare affidavits or witness statements in advance of a hearing. No case management conference had been convened in this case beforehand directing those steps.
I consider the argument that additional hearing preparation caused by new matters allegedly irrelevant to the order sought being raised late in the piece is already reflected in the body corporate’s costs total of $26,014, and it is inappropriate to award costs at the uppermost of the usual band for that reason.
That said, I consider that an award of 60% of the actual costs incurred (regarded as an average figure by Holden) appropriate here.
Following Holden, I consider an award of costs of $15,608.40 (being 60% of its actual fees of $26,014.00 (excluding GST) together with disbursements of $67.86 (excluding GST) appropriate and reasonable in the circumstances.
$15,608.40 plus GST total $17,949.66 and $67.86 plus GST total $78.04.
I therefore make an order for the applicants to pay costs of $18,027.70 (GST inclusive) to the body corporate.

Order

ON COSTS

Michael Privett Reed, Nicola Jane Mathers, Neil Richard Cullimore, Glenys Cullimore and Armiston Holdings Limited must pay costs of $18,027.70 to Body Corporate 337924 immediately.

Reasons

After the substantive hearing on 23 October 2024, I ruled in favour of the body corporate and dismissed the applicant’s claims.
Both parties were represented by counsel.
On dismissal of the application for reasons set out in my order of 14 January 2025, 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 of $18,209, being 70% of its actual fees of $26,014 (excluding GST) together with a disbursement of $67.86 (excluding GST).
In response, counsel for the applicants accepts the body corporate incurred actual fees of $26,014.00 (excluding GST) together with disbursements. Counsel also accepts the body corporate’s averment as to the typical range of costs awards of between 40% and 70% of actual costs incurred.
The applicants submit that there is no reason to order other than 50% of actual costs incurred in the circumstances.
The general principle is costs follow the event.
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, counsel for the body corporate says that it is appropriate in the circumstances of this case that costs at the upper end of the usual percentage contribution range are awarded against the applicants, because of these factors: a. The application was poorly presented. b. Following receipt of the Tenancy Tribunal application, on 30 August 2024 the Body Corporate’s lawyer sent a letter that identified the legal problems with the orders sought in the application and invited the applicants to withdraw the application. No response to this letter was ever received. c. The Applicants increased the Body Corporate’s costs by failing to follow the process that legally represented parties will typically adopt in the Tenancy Tribunal. The applicants did not file any witness statements or affidavits in advance of the hearing. d. Applicant submissions were filed on 22 October 2024 which addressed both factual and legal matters, just a day before the hearing and only after the respondent Body Corporate’s submissions were filed first on 21 October 2024. e. The applicants’ submissions filed on 22 October raised new factual and legal issues and sought a new order (4), which necessitated urgent additional hearing preparation. Some of the new allegations were made without evidence (e.g. an allegation that the 2007/2008 work resulted in expansion of the ground floor unit area and into common property). Additional preparation included drafting a witness statement from Maurice Crosby to correct factual inaccuracies in the applicants’ submissions, which was handed up at the hearing. f. The application raised plainly unmeritorious arguments. For example, order 1 concerned a motion that would have failed on the voting irrespective if it was put as a special or ordinary resolution. g. Orders were sought that concerned title, which the Tribunal does not have jurisdiction to determine. h. The submissions raised new matters irrelevant to the orders sought, for example regarding committee minutes.
Counsel for the applicants rejects the allegation of “poor presentation” on part of the applicants. The applicants’ submissions were, though not accepted, presented coherently and logically; I accept that this is the case here.
I prefer the applicants’ submission that the parties had different legal advice and that this ultimately is a case of an application being made but being unsuccessful.
Counsel for the applicants is also correct that there is no breach of a “typical” process absent timetabling directions in this case to prepare affidavits or witness statements in advance of a hearing. No case management conference had been convened in this case beforehand directing those steps.
I consider the argument that additional hearing preparation caused by new matters allegedly irrelevant to the order sought being raised late in the piece is already reflected in the body corporate’s costs total of $26,014, and it is inappropriate to award costs at the uppermost of the usual band for that reason.
That said, I consider that an award of 60% of the actual costs incurred (regarded as an average figure by Holden) appropriate here.
Following Holden, I consider an award of costs of $15,608.40 (being 60% of its actual fees of $26,014.00 (excluding GST) together with disbursements of $67.86 (excluding GST) appropriate and reasonable in the circumstances.
$15,608.40 plus GST total $17,949.66 and $67.86 plus GST total $78.04.
I therefore make an order for the applicants to pay costs of $18,027.70 (GST inclusive) to the body corporate.

Tenancy Tribunal case 9051664 — Unit Titles in Parnell, Auckland

At a glance

Tenancy Tribunal case 9051664 — Unit Titles in Parnell, Auckland

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