What was the outcome of Tenancy Tribunal case 9051004?

The tribunal order states: Body Corporate 126586 must immediately pay Body Corporate Administration

How much money was awarded in case 9051004?

ORDER Body Corporate 126586 Must Imm…: $3,293.06 awarded to landlord

What type of tenancy dispute was case 9051004?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9051004?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10481562-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9051004?

The tribunal order states: Body Corporate 126586 must immediately pay Body Corporate Administration

How much money was awarded in case 9051004?

ORDER Body Corporate 126586 Must Imm…: $3,293.06 awarded to landlord

What type of tenancy dispute was case 9051004?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9051004?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10481562-Tribunal_Order.pdf.

Saint Marys Bay, Auckland Tenancy Tribunal Case 9051004 — Unit Titles

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Reasons

Claims and awards in Tenancy Tribunal application 9051004. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
ORDER Body Corporate 126586 must immediately pay Body Corporate Administration Limited	$3,293.06		ORDER Body Corporate 126586 must immediately pay Body Corporate Administration Limited

This is a decision on costs made on the papers.

The body corporate manager filed submissions as directed on 5 July 2024.

The body corporate has not filed costs submissions on 19 July 2024 as directed.

The decision on costs was made on 5 August 2024, the body corporate still not having submitted anything. Background

The body corporate originally applied to the Tribunal for an order to terminate the manager’s service contract. It then expanded its claim as explained by Adjudicator J Tam on 16 May 2024: 1

The applicant’s claim filed on 20 February 2024 initially sought an order to terminate the engagement between Body Corporate Administration (‘BCA’) and Body Corporate 126586, claiming that after the EGM held on 23 January 2024 where unit owners passed a motion to terminate BCA’s services and relaying the termination to them on 1 February 2024, BCA have ignored all communication from the body corporate’s new managers (Crockers) and Ms Mihakis regarding the handover of body corporate documents.

Ms Mihakis confirmed that BCA has now handed over information sought to the body corporate but the body corporate wishes to claim reimbursement of the Tribunal filing fee and commence an investigation into BCA on their practices.

I explained to Ms Mihakis that the onus is on the applicant to prove their respective claims at the Tribunal rather than for the Tribunal to investigate any parties’ practices in the manner that the body corporate has requested.

I consider issuing the above directions appropriate for the respondent to properly defend and answer additional claims sought by the body corporate, and for the proper despatch of the proceedings before the Tribunal at the substantive hearing.

However, on 13 June 2024, Andrew Harris, a body corporate member, emailed the Tribunal that the body corporate was discontinuing its proceedings.

Despite the body corporate withdrawing the proceedings, the body corporate manager has incurred $5,488.44 in costs. Legal principles

The body corporate manager was legally represented. Under s 102(2)(b) of the Residential Tenancies Act 1986, costs may be ordered “where any of the parties was represented by counsel”.

Costs follow the event. That is, the unsuccessful party must contribute to the other party’s legal costs.

The contribution the Tribunal orders is typically a reasonable contribution, not the entire costs. 1 Tribunal order 16 May 2024 at [2]-[5].

Under s 85(2) of the Residential Tenancies Act 1986 , the Tribunal is required to determine disputes in accordance with the general principles of law and the substantial merits and justice of the case: (2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.

Under High Court, Rule 15.23 there is a presumption that a plaintiff who discontinues will pay costs to the defendant. I note in FM Custodians Ltd v Pati Associate Judge Abbott found in FM Custodians that: 2 [10] The presumption [that the discontinuing plaintiff pay the defendant’s costs] may be displaced if the Court finds there are circumstances which make it just and equitable that it should not apply. [11] The Court is not limited in the factors that can be taken into account when considering whether the presumption is displaced, but the following are matters which are taken into consideration: (a) As the general rule the Court will not consider the merits of the respective cases (unless they are so obvious that they should influence the costs issue). (b) The Court will consider the reasonableness of the stance of both parties in the proceeding (whether it was reasonable for the plaintiff to bring and continue the proceeding, and for the defendant to oppose and continue to oppose it, up to the point of discontinuance). (c) Conduct prior to the commencement of the proceeding may be relevant (for example, if any conduct by a defendant has precipitated the litigation), as may be the reason for discontinuing (for example, where a change of circumstances has made the proceedings unnecessary). [12] The Court's general discretion in relation to costs can also override the general principles in relation to discontinuance.

Section 85(2) is consonant with the approach taken in FM Custodians.

I can see nothing in this case to displace the presumption that the body corporate should pay costs to the manager.

A reasonable contribution to fees can be considered in the light of ordinary civil costs principles. In Holden v Architectural Finishes Ltd, McGechan J, held that reasonable costs must be determined objectively, and a reasonable contribution will likely fall with the range of 40-70 per cent of reasonable actual costs. 3 2 3 [1997] 3 NZLR 143 at 149. For application of this decision in the Tribunal see for example, Barfoot & Thomson Limited and Lei v Cullum [2021] NZTT Remote Location 4272190, 4188182, 4209293 at [17]-[19]. Discussion

Counsel for the manager submits that a reasonable contribution to costs in this case would be 66.6 per cent of the manager’s costs.

I take account of the body corporate being represented by lay people, presumably without experience in the Tribunal. The Unit Titles jurisdiction can be difficult to navigate especially when inexperienced lay people face experienced counsel on the other side, as in this case. The body corporate’s proceedings did not have merit that I can see. On the other hand, the body corporate sensibly elected to withdraw the proceedings at an early stage.

I consider an award of 60 per cent of the manager’s actual costs is apposite. Conclusion

The Tribunal orders the body corporate to pay the body corporate manager $3,293.06 towards its costs.

Reasons

Claims and awards in Tenancy Tribunal application 9051004. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
ORDER Body Corporate 126586 must immediately pay Body Corporate Administration Limited	$3,293.06		ORDER Body Corporate 126586 must immediately pay Body Corporate Administration Limited