What was the outcome of Tenancy Tribunal case 9036984?

The tribunal order states: The application for costs is dismissed.

How much money was awarded in case 9036984?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9036984?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9036984?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9475304-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9036984?

The tribunal order states: The application for costs is dismissed.

How much money was awarded in case 9036984?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9036984?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9036984?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9475304-Tribunal_Order.pdf.

Avondale, Auckland Tenancy Tribunal Case 9036984 — Unit Titles

Order

The application for costs is dismissed.

Reasons

The Tribunal must consider an application filed by one unit owner against another, in relation to costs surrounding a dispute and proceedings previously considered in the Tenancy Tribunal.
For the purpose of this decision, the background can be summarised as follows.
The parties are unit owners of a unit titled premises, those units being commercial premises. The applicant in the current case (Chhiv & Chea Limited) own Unit D, the respondents (Mr and Mrs Pang) own Unit C. Various disputes arose between the two unit owners, but the substantial dispute is around the location of a carpark for Unit C which is located in front of Unit D, and also a roller door into Unit D which had been installed some years ago (the Pang’s wanted the door removed).
The Pang’s filed two claims with the Tribunal, and in short those claims were not successful. The decisions can be found under application numbers 9041524 (car parking dispute) and 9030261 (roller door dispute).
In terms of outcomes from those orders: a. The Pangs had no measure of success in the dispute around the roller door; and b. The Pangs had success in the dispute about the carparking, in that the Tribunal made a declaration as to the correct location of the carpark, although the answer was not what the Pang’s were hoping for.
The Pangs also filed an application for rehearing, which was not successful.
Chhiv & Chia Limited filed their own application which is the subject of this decision. At the hearing today Ms Menzies advised that the only outstanding issue relates to costs. I asked Ms Menzies what the legal basis would be that costs could be ordered.
I raised with Ms Menzies that the Tribunal has limited ability to order costs, and that the ability to order costs is covered in section 102 which I summarised to the parties.
Ms Menzies responded that section 102(2)(a) would apply. Ms Menzies submitted that the Pang’s have always been incorrect, and they have failed to address the dispute to the Body Corporate which would have been the correct respondent. Ms Menzies confirmed that costs are claimed for all matters before the Tribunal excluding today’s costs hearing. 10.
In response Ms Pang, opposed the costs claim. Ms Pang referred to the substance of the dispute around her applications. I cannot revisit any dispute in relation to the Pang’s original applications, but it is plain that Ms Pang is strongly of the view that they were right in their original grievances, and in fact remain of that view. Analysis
As I indicated to the parties at the hearing, the Tribunal is limited in the extent to which costs can be ordered.
The provisions that apply for the operation of the Tenancy Tribunal in the Unit Titles jurisdiction, are found in the Residential Tenancies Act 1986 (RTA).
Section 102 of the RTA relates to costs, and that provision holds: 102 Costs (1) Except in a case to which any of subsections (2), (4), or (5) apply, the Tribunal shall have no power to award costs to or against any party to proceedings before it. (2) The Tribunal may make an order of a kind referred to in subsection (3) in any of the following cases: (a) where, in the opinion of the Tribunal, the proceedings are frivolous or vexatious or ought not to have been brought: (b) where any of the parties was represented by counsel: (c) where, in the opinion of the Tribunal, the matter in dispute ought reasonably to have been settled before the Tenancy Mediator but that the party against whom the order is to be made refused, without reasonable excuse, to take part in proceedings before a Tenancy Mediator or acted in any such proceedings in a contemptuous or improper manner: (d) where any applicant to the Tribunal, after receiving notice of the hearing, fails to attend the hearing without good cause. (3) In any case to which subsection (2) applies, the Tribunal may order a party to pay— (a) to the Crown, ... (b) to another party, the reasonable costs of that other party in connection with the proceedings. (4) If the applicant— (a) has been wholly successful in his or her claim, the Tribunal must order that the respondent pay the applicant the filing fee paid for the application: (b) has been partly successful in his or her claim, the Tribunal may order that the respondent pay the applicant the filing fee paid for the application. (5) The Tribunal may make an order to give effect, in whole or in part, to a provision in a tenancy agreement requiring one party (the debtor) to reimburse the other party (the creditor) for any reasonable expenses or commissions paid or incurred by the creditor in recovering, or attempting to recover, any overdue payment that the debtor owes to the creditor under an order of the Tribunal.
Section 102(1) is clear, that the Tribunal has “no power” to award costs, unless one of the exceptions in section applies.
I will deal firstly with subsections 4 and 5, because plainly they are not relevant. a. Subsection 4 allows the Tribunal to order the losing party pay the filing fee paid to the Tribunal, but that is not relevant here. Chhiv & Chia Limited did not pay the filing fee in relation to the Pang’s applications, and they have not been successful in this proceeding either. b. Subsection 5 does not apply, that relates to costs in the recovery of a debt following a Tribunal order.
That means costs could only be ordered under subsection 2, and in this case Ms Menzies submitted that subsection 2(a) would apply. That would mean costs could be ordered: where, in the opinion of the Tribunal, the proceedings are frivolous or vexatious or ought not to have been brought:
The Pang’s applications were not frivolous. A frivolous application is one where there is no real matter of significance in dispute. In these cases I consider the matter in the applications from the Pang’s were of real significance to them, and also for the Unit D owners. These were not frivolous applications.
Further the proceedings were not vexatious. A vexatious application is one which is brought with the primary purpose of annoying the respondent. I have no doubt that is not the case here. I am convinced that the Pang’s genuinely believed that they had a right to park in the carpark in front of Unit D, and also that the roller door was incorrectly placed. But the applications were not brought intending only to annoy or irritate their neighbours.
What remains is the question of whether the application ‘ought not to have been brought’. That is a broad consideration. I cannot accept that a finding could be made that the applications should not have been brought, just because the Pangs were unsuccessful in one application. If Parliament had intended that that costs be ordered simply on the basis that a party lost a hearing, it would have worded that provision differently. When I step back and consider the matter as a whole, as indicated above I believe the Pang’s genuinely believed they were right in their views around parking and the roller door, and that belief was not in concert with the neighbours or body corporate. But it was a genuine belief no less. It is also the case that the legal principles in play are complex, and would not be generally understood as obvious by the public. It could not be said that a party was acting in any way unreasonably when they bring genuine disputes like this to the Tribunal. I find that it could not be said the Pang’s ought not to have brought the application.
I find there is no basis to order costs to be paid by the Pangs, so the application for costs is declined.

Order

The application for costs is dismissed.

Reasons

The Tribunal must consider an application filed by one unit owner against another, in relation to costs surrounding a dispute and proceedings previously considered in the Tenancy Tribunal.
For the purpose of this decision, the background can be summarised as follows.
The parties are unit owners of a unit titled premises, those units being commercial premises. The applicant in the current case (Chhiv & Chea Limited) own Unit D, the respondents (Mr and Mrs Pang) own Unit C. Various disputes arose between the two unit owners, but the substantial dispute is around the location of a carpark for Unit C which is located in front of Unit D, and also a roller door into Unit D which had been installed some years ago (the Pang’s wanted the door removed).
The Pang’s filed two claims with the Tribunal, and in short those claims were not successful. The decisions can be found under application numbers 9041524 (car parking dispute) and 9030261 (roller door dispute).
In terms of outcomes from those orders: a. The Pangs had no measure of success in the dispute around the roller door; and b. The Pangs had success in the dispute about the carparking, in that the Tribunal made a declaration as to the correct location of the carpark, although the answer was not what the Pang’s were hoping for.
The Pangs also filed an application for rehearing, which was not successful.
Chhiv & Chia Limited filed their own application which is the subject of this decision. At the hearing today Ms Menzies advised that the only outstanding issue relates to costs. I asked Ms Menzies what the legal basis would be that costs could be ordered.
I raised with Ms Menzies that the Tribunal has limited ability to order costs, and that the ability to order costs is covered in section 102 which I summarised to the parties.
Ms Menzies responded that section 102(2)(a) would apply. Ms Menzies submitted that the Pang’s have always been incorrect, and they have failed to address the dispute to the Body Corporate which would have been the correct respondent. Ms Menzies confirmed that costs are claimed for all matters before the Tribunal excluding today’s costs hearing. 10.
In response Ms Pang, opposed the costs claim. Ms Pang referred to the substance of the dispute around her applications. I cannot revisit any dispute in relation to the Pang’s original applications, but it is plain that Ms Pang is strongly of the view that they were right in their original grievances, and in fact remain of that view. Analysis
As I indicated to the parties at the hearing, the Tribunal is limited in the extent to which costs can be ordered.
The provisions that apply for the operation of the Tenancy Tribunal in the Unit Titles jurisdiction, are found in the Residential Tenancies Act 1986 (RTA).
Section 102 of the RTA relates to costs, and that provision holds: 102 Costs (1) Except in a case to which any of subsections (2), (4), or (5) apply, the Tribunal shall have no power to award costs to or against any party to proceedings before it. (2) The Tribunal may make an order of a kind referred to in subsection (3) in any of the following cases: (a) where, in the opinion of the Tribunal, the proceedings are frivolous or vexatious or ought not to have been brought: (b) where any of the parties was represented by counsel: (c) where, in the opinion of the Tribunal, the matter in dispute ought reasonably to have been settled before the Tenancy Mediator but that the party against whom the order is to be made refused, without reasonable excuse, to take part in proceedings before a Tenancy Mediator or acted in any such proceedings in a contemptuous or improper manner: (d) where any applicant to the Tribunal, after receiving notice of the hearing, fails to attend the hearing without good cause. (3) In any case to which subsection (2) applies, the Tribunal may order a party to pay— (a) to the Crown, ... (b) to another party, the reasonable costs of that other party in connection with the proceedings. (4) If the applicant— (a) has been wholly successful in his or her claim, the Tribunal must order that the respondent pay the applicant the filing fee paid for the application: (b) has been partly successful in his or her claim, the Tribunal may order that the respondent pay the applicant the filing fee paid for the application. (5) The Tribunal may make an order to give effect, in whole or in part, to a provision in a tenancy agreement requiring one party (the debtor) to reimburse the other party (the creditor) for any reasonable expenses or commissions paid or incurred by the creditor in recovering, or attempting to recover, any overdue payment that the debtor owes to the creditor under an order of the Tribunal.
Section 102(1) is clear, that the Tribunal has “no power” to award costs, unless one of the exceptions in section applies.
I will deal firstly with subsections 4 and 5, because plainly they are not relevant. a. Subsection 4 allows the Tribunal to order the losing party pay the filing fee paid to the Tribunal, but that is not relevant here. Chhiv & Chia Limited did not pay the filing fee in relation to the Pang’s applications, and they have not been successful in this proceeding either. b. Subsection 5 does not apply, that relates to costs in the recovery of a debt following a Tribunal order.
That means costs could only be ordered under subsection 2, and in this case Ms Menzies submitted that subsection 2(a) would apply. That would mean costs could be ordered: where, in the opinion of the Tribunal, the proceedings are frivolous or vexatious or ought not to have been brought:
The Pang’s applications were not frivolous. A frivolous application is one where there is no real matter of significance in dispute. In these cases I consider the matter in the applications from the Pang’s were of real significance to them, and also for the Unit D owners. These were not frivolous applications.
Further the proceedings were not vexatious. A vexatious application is one which is brought with the primary purpose of annoying the respondent. I have no doubt that is not the case here. I am convinced that the Pang’s genuinely believed that they had a right to park in the carpark in front of Unit D, and also that the roller door was incorrectly placed. But the applications were not brought intending only to annoy or irritate their neighbours.
What remains is the question of whether the application ‘ought not to have been brought’. That is a broad consideration. I cannot accept that a finding could be made that the applications should not have been brought, just because the Pangs were unsuccessful in one application. If Parliament had intended that that costs be ordered simply on the basis that a party lost a hearing, it would have worded that provision differently. When I step back and consider the matter as a whole, as indicated above I believe the Pang’s genuinely believed they were right in their views around parking and the roller door, and that belief was not in concert with the neighbours or body corporate. But it was a genuine belief no less. It is also the case that the legal principles in play are complex, and would not be generally understood as obvious by the public. It could not be said that a party was acting in any way unreasonably when they bring genuine disputes like this to the Tribunal. I find that it could not be said the Pang’s ought not to have brought the application.
I find there is no basis to order costs to be paid by the Pangs, so the application for costs is declined.

Tenancy Tribunal case 9036984 — Unit Titles in Avondale, Auckland

At a glance

Tenancy Tribunal case 9036984 — Unit Titles in Avondale, Auckland

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions