Published tribunal order
Tenancy Tribunal case 9065044 — Tenancy dispute in Christchurch Central, Christchurch
Decided 9 Jun 2025 · Published 9 Jun 2025 · Application 9065044
Landlord favoured
- Costs
- Interest
- Unit Titles
Order
- Vivienne Lois Strangman must pay Body Corporate 57116 $8,617.16 immediately, calculated as follows: DescriptionsApplicantRespondent Levy$1,562.75 Costs: Body Corp debt collection charges$287.50 Costs: s.124 Solicitor's charges$5,892.50 Interest: to 6 June 2025$86.91 Costs: Solicitor's appearance fee$287.50 Filing Fee$500.00 Total award$8,617.16 Total payable by Respondent to Applicant $8,617.16
Reasons
- Both parties attended the video hearing on 6 June 2025.
- 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.
- At the heart of this matter is a dispute over whether levies, which the body corporate says were owing from 2018, have been paid. The body corporate says that they were not paid. The owner says that they were.
- The administration of the body corporate changed in 2020.
- The body corporate says that levies owing from 2018 of $592.63 and $231.60 were never paid. The owner says that both sums were paid by cheque. Ongoing investigations have been carried out with the previous administrator of the body corporate and the current administrator to search for evidence of the payment. No evidence of the payment has been discovered.
- The matter has been further complicated, as statements have been issued by the body corporate to the owner showing a nil balance owing.
- The body corporate, having concluded from their investigations that there is no evidence that the payments were made, have deducted funds paid by the owner towards current levies and allocated those funds towards the 2018 debt and body corporate collection costs. This has resulted in the owner being in arrears on her levy due dated 15 November 2024 for an amount of $1,562.75.
- I queried the owner about the payments made. I asked whether she had been able to obtain evidence from her bank of the funds being paid from her account. She said that she had contacted her bank and they had indicated that they were unable to access records which were more than six years old. I do not question the owner’s evidence on this point. I do not however accept that the evidence no longer exists. The owner emphasised the point that the body corporate was unable to find records of the payment. Proof of a negative is often impossible.
- I accept that the delays by the body corporate in bringing this matter to a conclusion have not assisted in the resolution of this matter.
- The levy claim before the Tribunal has at its origin a debt from 2018. As the body corporate has the right to allocate payments towards the oldest outstanding levy as disclosed on their invoice (see Anuj Gupta v Body Corporate 381068 [2024] NZDC 539 [at 34]], the issue of any limit on the claim under the Limitation Act 2010 does not apply. The body corporate has allocated funds, which the owner paid towards more recent levies, towards the oldest outstanding levy as it was entitled to. This has resulted in the levy before the Tribunal today being a levy due on 15 November 2024.
- Having reviewed all of the evidence provided by the parties, I prefer the evidence of the body corporate. The landlord was in a position, where evidence of the payment having been made could have been obtained with some diligence on her part. Having made that finding, the body corporate’s claims for costs, interest and the filing fee follow.
- 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 amount 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. I am satisfied that the costs ordered above are reasonable.
- As the body corporate has succeeded with the claim, I have ordered the owner to reimburse the filing fee. Section 176(1) Unit Titles Act 2010 and section 102(4) Residential Tenancies Act 1986.