What was the outcome of Tenancy Tribunal case 9040324?

The tribunal order states: Masfen Holdings Limited Peter must pay Body Corporate 107519 $10,926.26

How much money was awarded in case 9040324?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 9040324?

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

Where can I read the official tribunal order for case 9040324?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9194708-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9040324?

The tribunal order states: Masfen Holdings Limited Peter must pay Body Corporate 107519 $10,926.26

How much money was awarded in case 9040324?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 9040324?

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

Where can I read the official tribunal order for case 9040324?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9194708-Tribunal_Order.pdf.

Parnell, Auckland Tenancy Tribunal Case 9040324 — Unit Titles

Order

Masfen Holdings Limited Peter must pay Body Corporate 107519 $10,926.26 immediately, calculated as follows: DescriptionsApplicantRespondent Overdue levies$5,094.09 Body Corporate Secretary costs$287.50 Legal costs to hearing$3,736.30 Counsel's attendance at hearing$287.50 Interest on overdue levies to 4/4/23$670.87 Filing Fee$850.00 Total award$10,926.26

Reasons

Clinton Baker and Briar Dobson of Price Baker Berridge, Barristers and Solicitors, attended the hearing for the Body Corporate.
Aidan Moss attended for the Unit Owner, Masfen.
The Body Corporate has applied for recovery of unpaid levies, interest, costs, and the filing fee from the unit owner. Background
Unit W is situated within a body corporate building development located at 1-3 Ruskin Street, Parnell, Auckland. The building includes residential, commercial, and car park units. The building has four levels. It has a lift at one end of the building which services all levels.
Unit W is a principal unit comprising only carparks. It is not associated with any residential or commercial units. Because Unit W is located just one level below Parnell Road, the users of Unit W’s carparks seldom, if ever use the lift. On the other hand, the bulk of the owners of the residential and commercial units probably use the lift regularly.
Masfen baulks at having to contribute to the costs of maintaining the lift because it believes it does not receive any direct benefit from it. It challenges the Body Corporate’s levies on it for the lift’s maintenance and replacement.
The issues for determination are: a. Did the Body Corporate exempt Masfen from contributing to lift-related levies at its 7 July 2020 AGM? b. Should the Tribunal exempt Masfen from contributing to the lift-related levies because they are not just or fair? c. What is the correct calculation of levies, interest, and costs? Did the Body Corporate exempt Masfen from contributing to lift-related levies at its 7

July 2020 AGM?

Mr Moss submits that the Body Corporate exempted Masfen from paying levies for the costs of maintaining the lift at the Body Corporate’s AGM of 7 July 2020.
The AGM minutes do not record any mention of an agreement among attendees that Masfen or any other unit owner would be exempted from the levies for lift costs. However, Mr Moss submits the minutes are inaccurate. He refers to an email trail of emails between Masfen and the Body Corporate Manage shortly after the 7 July 2020 AGM. Masfen’s email of 16 July 2020 asserts that the minutes were inaccurate for failing to record that the attendees had agreed Masfen would not have to contribute to the lift replacement and maintenance costs. However, the emails peter out on 20 July 2020 without any resolution of Masfen’s claim of inaccuracy.
Mr Moss also refers to the minutes from the Body Corporate’s 2012 AGM. They record that another carpark-only unit owner - the owner of Unit I - was exempted from contributing to the lift maintenance costs because, “Unit I car parks receive no direct benefit from the operation of the lift”. The 2012 minutes do not do much to corroborate Mr Moss’s submission because they do not mention Unit W and the 2012 AGM was more than 10 years ago.
The evidence Masfen relies on for disputing the accuracy of the July 2020 AGM minutes is slight. If the Body Corporate wanted to exempt Masfen, it would likely have been reflected in the AGM minutes from at least one other year, but it is not.
I do not find it proven that the Body Corporate ever exempted Masfen from contributing to the lift levies.
Moreover, as Mr Baker submits, even if the Body Corporate had wanted to exempt Masfen from contributing to the lift-related levies it could not have done so because it would be unlawful under s 121 of the Unit Titles Act 2020 (UTA). 1
Therefore, the Tribunal rejects this defence to the payment of the levies. Should the Tribunal exempt Masfen from contributing to the lift-related levies because they are not just or fair?
Mr Moss also argued that it is unjust and unfair for Masfen to have to pay the lift-related levies. However, he could not identify any legal basis for this argument.
Because Masfen has not identified a justiciable issue, the Tribunal rejects this purported defence.

What does the Unit Owner owe for levies?

1 Section 121 provides that levies must be calculated in proportion to each owner’s utility interest or ownership interest.

A unit owner must pay all body corporate levies and outgoings payable for the unit. 2
The Body Corporate determined the levies payable and Masfen’s share was 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 claimed by that date. 3 The Body Corporate provided records to prove the amount claimed.

What does the Unit Owner owe 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 percent per annum. See section 128 Unit Titles Act 2010.
The body corporate has resolved to charge interest at 10 percent per annum on unpaid levies. The Body Corporate has proved the amount of interest owing from the due dates to 4 April 2023.

What amount of costs is the Unit Owner liable for?

Under s 124 of the UTA, the Body Corporate is entitled to recover any reasonable costs it incurs in collecting unpaid levies as a debt due by the owner to the Body Corporate. 4 The Tribunal must order that the defaulting unit owner pay the body corporate’s reasonable costs in recovering the levies.
Costs are proved and are reasonable. Costs are awarded as set out in the table above.
Because the Body Corporate has succeeded with its claim, the Tribunal must order the Unit Owner to reimburse it for the filing fee. 5 R Kee 2 See ss 80(1)(f) and 121(1) of the Unit Titles Act 2010. 3 See s 124(1) of the Unit Titles Act 2010. 4 Body Corporate 162791 v Cheah DC Auckland, CIV2014-004-0120, 24 June 2014 and Body Corporate 162791 v Gilbert [2015] NZCA 185. 5 Section 176(1) of the Unit Titles Act 2010 and section 102(4) of the Residential Tenancies Act 1986. 19 July 2023

Tenancy Tribunal case 9040324 — Unit Titles in Parnell, Auckland

Tenancy Tribunal case 9040324 — Unit Titles in Parnell, Auckland

Order

Reasons

July 2020 AGM?

What does the Unit Owner owe for levies?

What does the Unit Owner owe for interest?

What amount of costs is the Unit Owner liable for?

Property management

Order

Reasons

July 2020 AGM?

What does the Unit Owner owe for levies?

What does the Unit Owner owe for interest?

What amount of costs is the Unit Owner liable for?

Property management