Published tribunal order
Tenancy Tribunal case 9044944 — Tenancy dispute in Albany Heights, Auckland
Decided 17 Oct 2023 · Published 17 Oct 2023 · Application 9044944
Landlord favoured
- Costs
- Interest
- Unit Titles
Order
- Diane Margaret Adamson And GEB Trustee Limited as Trustees for the Byers Family Trust must pay Body Corporate 346275 $13,275.48 immediately, calculated as follows: DescriptionsApplicantRespondent Levy$7,190.06 Interest$509.31 Costs: BC Manager collection costs$1,300.00 Costs: Legal$3,776.11 Filing Fee$500.00 Total award$13,275.48 Total interest Total award with interest$13,275.48 Total payable by Respondent to Applicant $13,275.48
Reasons
- Both parties attended the hearing. Ms Hannagan and Mr San Diego appeared for the applicant. Mr Graham Byers appeared for the owner.
- Mr Byers advised Ms Diane Adamson resigned as trustee some 1-2 years ago. He was unable to confirm the details of any replacement trustee. The applicant confirmed the legal owners on the unit title remain as Diane Margaret Adamson and GEB Trustee Limited. It appears any change in trustee has not been formalised, but Mr Byers accepts responsibility for the debt is his (Ms Adamson is his sister). As she remains a registered owner she is named in this order but that does not prevent Mr Byers resolving the debt now and avoiding any subsequent enforcement against any other respondent.
- 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.
- 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?
- Mr Byers disputes the additional collection and legal costs as unreasonable and unfair. This was discussed at the hearing and having reviewed again the communications and supporting evidence I am satisfied due process completed and the costs claimed are reasonable and are a consequence of his failure to pay body corporate levies as due.
- It appears the change in the registered address of GEB Trustee Limited during 2021 may not have been advised to the body corporate but the onus for that rests with My Byers. Regardless, as he confirmed, email communications to him form the Body Corporate have been frequently received. Even if I am wrong regarding service, the bulk of the costs, both collection and legal, have been incurred after My Byers unsuccessfully attempted to negotiate with the body corporate a settlement at a reduced amount. The need for subsequent Tribunal activity and resulting cost was a direct consequence of his failure to remedy the debt at that time and he should have been aware that further costs would follow. The authority and process are clearly recorded in AGM minutes.
- 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.
- Because the Body Corporate has succeeded with the claim I have reimbursed the filing fee. Section 176(1) Unit Titles Act 2010 and section 102(4) Residential Tenancies Act 1986.