What was the outcome of Tenancy Tribunal case 9051404?

The tribunal order states: Cairong Tang must pay Body Corporate 344046 the amount of $5,097.73

How much money was awarded in case 9051404?

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 9051404?

The dispute type was not classified.

Where can I read the official tribunal order for case 9051404?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10693688-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9051404?

The tribunal order states: Cairong Tang must pay Body Corporate 344046 the amount of $5,097.73

How much money was awarded in case 9051404?

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 9051404?

The dispute type was not classified.

Where can I read the official tribunal order for case 9051404?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10693688-UTA_Tribunal_Order.pdf.

Hamilton East, Hamilton Tenancy Tribunal Case 9051404 — Tenancy dispute

Order

Cairong Tang must pay Body Corporate 344046 the amount of $5,097.73 immediately, calculated as follows: DescriptionsRespondent Insurance$1,921.20 Ordinary Levy$1,504.56 Collection costs$690.00 Tribunal costs$230.00 Filing Fee$500.00 Interest$251.97 Total payable by Respondent to Applicant $5,097.73

Reasons

The Tribunal must consider an application by the Body Corporate for building insurance and levies that have not been paid by the Unit Owner, as well as associated collection costs and interest.
The Body Corporate claims a total of $5,097.73 comprising: a. Insurance charges $1,921.20 b. Levies $1,504.56 c. Collection costs $690.00 d. Tribunal $230.00 e. Filing fee $500.00 f. Interest $251.97

BACKGROUND

The premises comprise four principal units, on the deposited plan the units are titled E, F, G and H. Although the units are also referred to as units A, B, C, and D.
The title provided to the Tribunal records that Cairong Tang is the owner of principal unit F (referred to as PUF). The title further records that the utility interest for PUF is 240 out of 1,000 – so a fraction under one quarter of the total for the complex. The Body Corporate also refers to the units another way, by reference to units A – D, Ms Tang’s unit is also referred to in Body Corporate documents as being Unit B.
So whether referred to as principal unit F, PUF or Unit B, I am satisfied that this is the same unit.
It is clear from hearing from Ms Tang, that over the years she has been in a dispute with the body corporate, her lawyers and the vendor of her property over various matters in relation to the title and disclosure for her purchase of her unit at the complex. There have been associated disputes around the payment of levies.
In more recent times, invoices have been raised both for insurance and other levies. The unit owner has not paid those, so they are the subject of this application to the Tenancy Tribunal, seeking recovery of the unpaid amounts.

APPLICANTS CASE

The position taken by the Applicant (the Body Corporate), is that the levies were correctly raised, they have not been paid, and an order should be made that the Respondent (the Unit Owner) pay the outstanding amounts.
The Body Corporate confirms that the only charges raised are those relating to PUF.
The Body Corporate submit that the matters raised by the Unit Owner at the hearing (as I will set out below) are different to those matters that are the subject of the claim. It was submitted that normally if there was a dispute over the debt, the correct process is to pay the amount charged and dispute it later, which avoids the late payment fees.

RESPONDENTS CASE

The Unit Owner says that she has a disagreement over the title of the premises. When the premises were purchased there was no body corporate involved, and there were also issues with not being provided with the necessary disclosure statements. Furthermore, the Unit Owner said she was not aware there would be a body corporate involved.
The Unit Owner states she has received legal advice which was that she should go back to the original lawyer she used with the property purchase and pursue those concerns there.
The Unit Owner questions how her property has been valued for insurance purposes, and she has raised that with the Body Corporate, but this has not been addressed by the Body Corporate.
The Unit Owner further says that she keeps getting charged late payment fees.
The Unit Owner says that this has been an ongoing issue, and she would sooner decline to pay the fees as she has done, and come to the Tribunal to have the dispute resolved once and for all.
The Unit Owner considers that the Body Corporate has the process wrong because they raise the invoices then they have a meeting to confirm them.

PROCEDURAL NOTE

I requested to see a copy of the relevant minutes of the Body Corporate. The representatives did not have those at the hearing, so I requested that they be provided by email on their return to the office, and I confirmed they would be considered in my order. As discussed at the hearing, these minutes would have already been provided to the Unit Owner in the usual course of things.

ANALYSIS

For the reasons as I will set out shortly, I find the Unit Owner is liable to pay the levies (including insurance) and the claimed collection costs. I have considered the defence to the claim raised by the Unit Owner, but am not persuaded that any grounds to avoid payment have been identified. I have explained why below also.

Is the Unit Owner Liable to pay levies?

The Unit Titles Act 2010 (the UTA) applies. The UTA confirms that a unit owner must pay all body corporate levies and outgoings payable for the unit. See sections 80(1)(f) and 121(1).
The Body Corporate has determined the levies payable and the Unit Owner's share has been calculated according to her utility interest.
I have reviewed the minutes provided by the Body Corporate for the AGM on 17 October 2022 and 22 November 2023 and both confirm a resolution to have the premise insured, and for levies to be allocated on the basis of the respective utility interest for each unit. I note that the minutes do not record that Ms Tang attended either AGM.
Ultimately the insurance and levies were invoiced as follows: a. On 28 August 2023 insurance charges for PUF were invoiced to Ms Tang to the sum of $1,921.20 b. On 6 December 2023 an annual levy for the year ending 31 August 2024, was raised, to the sum of $1,504.56.
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 copies of the invoices raised, and I accept they are correct, so I accept those are the amounts the Unit Owner should have paid to the Body Corporate.

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 (see for example the AGM on 22 November 2023), 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. The evidence on file confirms that various reminder notices were sent to the Unit Owner as would normally be seen, and costs have been incurred by the Body Corporate for that work. Further costs have been incurred in relation to filing this application and the associated work in preparing for and attending the hearing.
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 so those collection costs are ordered.
Because the body corporate has succeeded with the claim I have reimbursed the filing fee of $500.00. See sections 176(1) and 102(4) of the UTA. Ms Tang’s defence of the claims
Again the claims before the Tribunal are claims from the Body Corporate, that Ms Tang must pay the levies raised and the associated collection costs.
Ms Tang has identified various disputes she has with the Body Corporate. I have considered those, but find they do not establish good reasons why she would not be liable to pay the levies (or collection costs) raised.
Firstly, I agree with the Body Corporate representatives, that the usual approach taken with disputes to body corporate levies, is that the unit owner pays the levies, but then disputes liability for some or all of the levies paid. If a unit owner pays levies but records that they are paid under protest, they are still able to pursue a claim against the body corporate in order to establish that they either don’t owe the amounts claimed or are owed other amounts by the Body Corporate to offset the levies. In this case, there is no cross-application filed by the Unit Owner, the only claim I have to consider is that from the Body Corporate about levies.
Secondly, it is clear that a significant issue taken by the Unit Owner relates to the title for her unit. Section 171(4) sets out the sort of claims that the Tenancy Tribunal cannot consider, and that includes “any dispute relating to the title of land”. In fact neither does the District Court have an ability to hear title disputes (section 172(3)), if Ms Tang wants to have that dispute adjudicated, she would need to file an application with the High Court (s173(1)(b)).
Thirdly, while the unit owner has a dispute as to the disclosure she has around the purchase of her unit in 2016, then that would also need to be the subject of an application on the part of the Unit Owner, but it is not immediately clear to me how that would absolve the Unit Owner of paying her levies (including insurance). Ultimately we have a system of property law in New Zealand where once a person is recorded on the title as owning a particular property, then they are deemed the owner for all purposes, and that must be the case here. Until Ms Tang is removed from the title, she will continue to have all the obligations of unit owners under the UTA – including to pay the levies when raised.
Fourthly, the Unit Owner considers that the insurance charges are too high. It is solely a matter for the Body Corporate to decide what policy of insurance they will take, but the UTA is clear, that the buildings must be insured by the Body Corporate. The decision around what insurance to take is normally one taken by the Body Corporate at the time of the AGM, and if Ms Tang wishes to engage in that discussion with the Body Corporate, the time to do it is at the AGM. I note the minutes record that Ms Tang was not present at the last two AGM’s.
For now, the only matter of relevance is whether the charges raised are correct, which is limited to a consideration of whether the split of the charges is correctly based on utility interest (s121), and I am satisfied it was.

CONCLUSION

I find that Ms Tang is liable to pay the invoiced amounts for the levies (which include insurance), as well as the collection costs and interest.

Tenancy Tribunal case 9051404 — Tenancy dispute in Hamilton East, Hamilton

Tenancy Tribunal case 9051404 — Tenancy dispute in Hamilton East, Hamilton

Order

Reasons

BACKGROUND

APPLICANTS CASE

RESPONDENTS CASE

PROCEDURAL NOTE

ANALYSIS

Is the Unit Owner Liable to pay levies?

Is the Unit owner liable for interest?

Is the Unit owner liable for costs?

CONCLUSION

Order

Reasons

BACKGROUND

APPLICANTS CASE

RESPONDENTS CASE

PROCEDURAL NOTE

ANALYSIS

Is the Unit Owner Liable to pay levies?

Is the Unit owner liable for interest?

Is the Unit owner liable for costs?

CONCLUSION