Published tribunal order
Tenancy Tribunal case 9046704 — Tenancy dispute in Auckland, Auckland
Decided 11 Jun 2024 · Published 11 Jun 2024 · Application 9046704
Landlord favoured
- Interest
- Unit Titles
Order
- Avenes Roneel Swamy must pay Body Corporate 406198 $21,033.91 immediately, calculated as follows: DescriptionsApplicantRespondent Overdue operational levies$3,428.78 Overdue remedial levies$7,410.00 Body Corporate Manager's debt collection charges $402.50 Section 124 costs, including GST & disbursements $8,032.72 Appearance at hearing (1 hour a $265.00 per hour plus GST) $304.75 Filing fee$500.00 Interest$955.16 Total payable by Respondent to Applicant $21,033.91
Reasons
- Both parties attended the hearing which was held by phone on 1 May 2024.
- The Body Corporate has applied for recovery of unpaid levies, interest, costs and the filing fee from the Unit Owner.
- The Tribunal reserved its decision to consider in detail the exchange of communication between the parties which was referred to during the hearing.
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.
- The Unit Owner raised concerns about the lack of response from the Body Corporate. He also noted that he had purchased the property in December 2022 and unpaid levies from the previous owners had been passed on to him. He said settlement figures were requested by his lawyer, but these amounts were not listed. He disputes that he should have to pay for unpaid levies incurred during someone else’s ownership.
- In response, the Body Corporate submitted that it found the previous owner had not paid the remedial levies due 30 November 2022 and 31 December 2023 but as they were disclosed in the section 147 certificate dated 22 November 2022, the Unit Owner was liable to pay.
- Broadly, the Unit Owner could challenge the claim if they could show that there were procedural defects with the process in which the levies were struck, but he has not identified any. In my assessment the levies were raised by way of delegated authority from the Body Corporate in the usual way, so I accept the levies were correctly raised.
- I find the matters raised by the Unit Owner do not raise any arguable defence.
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 reimbursed the filing fee. Section 176(1) Unit Titles Act 2010 and section 102(4) Residential Tenancies Act 1986.