What was the outcome of Tenancy Tribunal case 9039044?

The tribunal order states: George Developments Limited must pay Boutique Body Corporates Limited costs

How much money was awarded in case 9039044?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9039044?

The primary dispute was Unit Titles. Related themes: Costs.

Where can I read the official tribunal order for case 9039044?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10359290-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9039044?

The tribunal order states: George Developments Limited must pay Boutique Body Corporates Limited costs

How much money was awarded in case 9039044?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9039044?

The primary dispute was Unit Titles. Related themes: Costs.

Where can I read the official tribunal order for case 9039044?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10359290-Tribunal_Order.pdf.

Parnell, Auckland Tenancy Tribunal Case 9039044 — Unit Titles

Order

George Developments Limited must pay Boutique Body Corporates Limited costs of $4,536.05 immediately.

Reasons

A decision dismissing the substantive application has been delivered previously. The respondent sought costs.
Memoranda were sought and filed, together with the applicant’s updated memorandum received 10 May 2024.
The respondent seeks indemnity costs on the basis that the proceeding was “vexatious or frivolous” and takes the position the applicant should never have brought or continued its application.
As an alternative to costs under the Residential Tenancies Act 1986 (“RTA”), the respondent seeks costs pursuant to section 127 of the Unit Titles Act 2010 (“UTA”) submitting that the word “act” in section 127 includes defending legal proceedings. The respondent relies on the decision of the High Court in Hart v Body Corporate 180455 HC Auckland CIV-2005-404-1429, 23 June 2005, in which Courtney J found that the similarly worded section 34 of the Unit Titles Act 1972 allowed recovery of legal costs incurred defending legal proceedings.
The applicant opposes an award of costs on the basis of delays caused by the respondent, which gave rise to the need for an application to the Tribunal. The applicant further refers to its payment of a portion of the respondent’s costs as part of his body corporate levies.
In May 2024, the applicant filed a further memorandum noting the body corporate accounts showed a lesser quantum of legal fees than those claimed by the respondent. Having reviewed that memorandum, together with the body corporate accounts attached, it is clear that the accounts deal with only one quarter of the financial year and not the entire period covered by the application for costs. Accordingly, it does not reflect at the true position.
I accept the quantum of costs sought by the respondent is the actual costs incurred, noting that position is substantiated by copies of the actual invoices rendered to the body corporate.
Given there is a specific mechanism for seeking costs in the Tribunal, set out in section 102 of the RTA, it is my view that costs should be dealt with under that section rather than pursuant to section 127 of the UTA.
Section 102 of the RTA relates to costs. Section 102(2) confirms that the Tribunal “may make an order” where “any of the parties was presented by counsel”. Subsection 3 confirms that an order may be made to a party for “the reasonable costs of that other party in connection with the proceedings.”
It is unusual for a Tribunal or Court in New Zealand to award full indemnity costs against the losing party.
What is considered to be ‘reasonable costs’ will depend on a range of factors. In Holden v Architectural Finishes Ltd [1997] 3 NZLR 143 Justice McGechan, in his reserved costs decision, held that: ...the sum in issue is a ‘reasonable’ ‘contribution’. It is not some mere gesture. It is not some virtual payment in full. It is merely a contribution, and a reasonable one. At the outer limits, proportions of reasonable actual fees can afford some guidance. A 10% or even 20% contribution – very little indeed – may seldom qualify. A 90% or 80% contribution, virtually the total, may be regarded as likewise...if the ‘reasonable contribution’ earlier determined falls within a middle range, say 40% to 70%,there is a feeling of some comfort...
The High Court confirmed that when a party is represented by counsel, that the following factors are relevant to be considered when assessing costs: a. The length of the hearing. b. The sum of money involved. c. The legal and factual complexity. d. Whether the argument lacking substance was advanced, and e. The degree of success achieved by the parties.
Similarly in the judgment of David Blair Ltd v Hawkins Arms and Engineering Ltd (No 2) [1988] 1 PRNZ 162, Tompkins J considered a costs issue where the party was represented, and held: In addition to the length of the hearing, matters such as the amount of money involved, the importance either to the parties or generally of the issues, monetary or non-monetary, the legal and factual complexities, the amount of time required for effective preparation, the number and complexity of interlocutory applications and the likely or actual solicitor and client costs incurred, may, in appropriate cases, be relevant to the exercise of the discretion.
I do not accept that the bringing of this proceeding was vexatious or frivolous. The respondent did not take steps to resolve the dispute without resort to the Tribunal. The obvious step was to put this matter to a vote at an AGM, which is what happened following the first direction of the Tribunal.
That said, following after the resolution did not pass at the AGM, the continuing of proceedings was largely without merit.
I accept this was a relatively complicated proceeding, requiring the respondent to engage counsel. I further accept that the full success of the respondent weighs in favour of an award of costs.
Accordingly, I consider the applicant should pay the costs incurred by the respondent after the first hearing. The award made, is the total sought by the respondent, less the first invoice rendered on 28 February 2023. I consider this reflects a reasonable contribution to the respondent’s costs, while also acknowledging that the proceeding was not unreasonably commenced.

Order

George Developments Limited must pay Boutique Body Corporates Limited costs of $4,536.05 immediately.

Reasons

A decision dismissing the substantive application has been delivered previously. The respondent sought costs.
Memoranda were sought and filed, together with the applicant’s updated memorandum received 10 May 2024.
The respondent seeks indemnity costs on the basis that the proceeding was “vexatious or frivolous” and takes the position the applicant should never have brought or continued its application.
As an alternative to costs under the Residential Tenancies Act 1986 (“RTA”), the respondent seeks costs pursuant to section 127 of the Unit Titles Act 2010 (“UTA”) submitting that the word “act” in section 127 includes defending legal proceedings. The respondent relies on the decision of the High Court in Hart v Body Corporate 180455 HC Auckland CIV-2005-404-1429, 23 June 2005, in which Courtney J found that the similarly worded section 34 of the Unit Titles Act 1972 allowed recovery of legal costs incurred defending legal proceedings.
The applicant opposes an award of costs on the basis of delays caused by the respondent, which gave rise to the need for an application to the Tribunal. The applicant further refers to its payment of a portion of the respondent’s costs as part of his body corporate levies.
In May 2024, the applicant filed a further memorandum noting the body corporate accounts showed a lesser quantum of legal fees than those claimed by the respondent. Having reviewed that memorandum, together with the body corporate accounts attached, it is clear that the accounts deal with only one quarter of the financial year and not the entire period covered by the application for costs. Accordingly, it does not reflect at the true position.
I accept the quantum of costs sought by the respondent is the actual costs incurred, noting that position is substantiated by copies of the actual invoices rendered to the body corporate.
Given there is a specific mechanism for seeking costs in the Tribunal, set out in section 102 of the RTA, it is my view that costs should be dealt with under that section rather than pursuant to section 127 of the UTA.
Section 102 of the RTA relates to costs. Section 102(2) confirms that the Tribunal “may make an order” where “any of the parties was presented by counsel”. Subsection 3 confirms that an order may be made to a party for “the reasonable costs of that other party in connection with the proceedings.”
It is unusual for a Tribunal or Court in New Zealand to award full indemnity costs against the losing party.
What is considered to be ‘reasonable costs’ will depend on a range of factors. In Holden v Architectural Finishes Ltd [1997] 3 NZLR 143 Justice McGechan, in his reserved costs decision, held that: ...the sum in issue is a ‘reasonable’ ‘contribution’. It is not some mere gesture. It is not some virtual payment in full. It is merely a contribution, and a reasonable one. At the outer limits, proportions of reasonable actual fees can afford some guidance. A 10% or even 20% contribution – very little indeed – may seldom qualify. A 90% or 80% contribution, virtually the total, may be regarded as likewise...if the ‘reasonable contribution’ earlier determined falls within a middle range, say 40% to 70%,there is a feeling of some comfort...
The High Court confirmed that when a party is represented by counsel, that the following factors are relevant to be considered when assessing costs: a. The length of the hearing. b. The sum of money involved. c. The legal and factual complexity. d. Whether the argument lacking substance was advanced, and e. The degree of success achieved by the parties.
Similarly in the judgment of David Blair Ltd v Hawkins Arms and Engineering Ltd (No 2) [1988] 1 PRNZ 162, Tompkins J considered a costs issue where the party was represented, and held: In addition to the length of the hearing, matters such as the amount of money involved, the importance either to the parties or generally of the issues, monetary or non-monetary, the legal and factual complexities, the amount of time required for effective preparation, the number and complexity of interlocutory applications and the likely or actual solicitor and client costs incurred, may, in appropriate cases, be relevant to the exercise of the discretion.
I do not accept that the bringing of this proceeding was vexatious or frivolous. The respondent did not take steps to resolve the dispute without resort to the Tribunal. The obvious step was to put this matter to a vote at an AGM, which is what happened following the first direction of the Tribunal.
That said, following after the resolution did not pass at the AGM, the continuing of proceedings was largely without merit.
I accept this was a relatively complicated proceeding, requiring the respondent to engage counsel. I further accept that the full success of the respondent weighs in favour of an award of costs.
Accordingly, I consider the applicant should pay the costs incurred by the respondent after the first hearing. The award made, is the total sought by the respondent, less the first invoice rendered on 28 February 2023. I consider this reflects a reasonable contribution to the respondent’s costs, while also acknowledging that the proceeding was not unreasonably commenced.

Tenancy Tribunal case 9039044 — Unit Titles in Parnell, Auckland

At a glance

Tenancy Tribunal case 9039044 — Unit Titles in Parnell, 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