Published tribunal order
Tenancy Tribunal case 9053705 — Unit Titles in Omapere, Kaikohe
Decided 8 Oct 2024 · Published 8 Oct 2024 · Application 9053705
Mixed / unclear
- Unit Titles
- Costs
Order
Sharon Wynyard must pay Body Corporate 97907 $2,111.00 immediately, calculated as follows: DescriptionsApplicantRespondent Legal costs$2,024.00 Charges and disbursements$87.00 Filing Fee$500.00 Filing Fee $500.00 Subtotals Balance $2,611.00 $2,111.00 $500.00
Reasons
Introduction
- This is a decision on costs.
- The Tribunal’s decision was delivered on 6 August 2024. The parties were given to 21 August and 4 September respectively to file submissions, which they have done.
- The body corporate claim was for an order for return of its documents and control of its bank accounts from Ms Wynyard who had been the body corporate’s treasurer. Belatedly, at hearing Ms Wynyard agreed to an order that required her to return the body corporate’s materials.
- The week before the hearing, Ms Wynyard had filed a claim seeking many declarations. However, at the hearing she sought orders that a non-unit owner be prevented from participating in body corporate meetings, that the unit owner’s voting rights be increased from a single ordinary vote to four, and that the body corporate be prevented from allowing voting on body corporate resolutions to proceed by way of postal votes.
- The body corporate did not oppose a restriction on postal voting. The Tribunal allowed that claim, but not the others. Legal principles
- The Tribunal is required to determine disputes in accordance with the general principles of law and the substantial merits and justice of the case: 1 It may regulate its own procedure within its statutory framework. 2
- Since the Tribunal does not yet have costs regulations it largely relies upon ordinary civil costs principles. Thus, costs typically follow the event and the amount awarded for costs will typically be a fair contribution to the actual costs.
- 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% of reasonable actual costs. 3
- The Tribunal’s power to award the filing fee is governed by s 102(4) of the Residential Tenancies Act 1986, which provides: 1 Under Residential Tenancies Act 1986 (RTA), s 85(2). 2 RTA, s 96(4). 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]. (4) If the applicant— (a) has been wholly successful in his or her claim, the Tribunal must order that the respondent pay the applicant the filing fee paid for the application: (b) has been partly successful in his or her claim, the Tribunal may order that the respondent pay the applicant the filing fee paid for the application. Costs discussion at the hearing
- Ms Wynyard took a keen interest in the likely costs outcome at the hearing.
- I briefly explained to her that legal costs of between 40 to 70 percent were liable to be awarded and that the Tribunal “may” be looking at the midpoint of that range in this case.
- I also indicated it appeared she would be successful in her application, so it subject to the body corporate’s submissions, the Tribunal would be inclined to ordering reimbursement of her filing fee.
- It is likely the indication was instrumental in Ms Wynyard finalising her claims, which might otherwise have required a face-to-face hearing. Parties’ submissions
- The body corporate seeks its full costs as it is entitled to do. It relies on the relevant factors in Holden including the degree of success achieved by the parties, and the principle that the “wrong doer” should pay the costs of the injured party.
- The body corporate submits in respect to its costs: The costs of $4,267.00 would not have been incurred by the Body Corporate to the current extent and claimed from the Unit Owner if the Unit Owner complied with her legal obligations to hand over the documents and bank accounts to Bespoke at any time prior to the Body Corporate’s filing of proceedings, and also due to her conduct throughout trying to stall, and prevaricate rather than address her legal obligations
- The body corporate resists an order for reimbursement to Ms Wynyard of her filing fee: The matter which is the subject of the order that was granted could have been dealt with through negotiations with the Body Corporate rather than proceeding with a Tribunal application, and the remaining claims were unreasonable in the circumstances. As such, the Body Corporate requests that the Unit Owner’s filing fee be borne by the Unit Owner and not paid by the Body Corporate as no proper attempt was made by the Unit Owner to raise this issue with the Body Corporate prior to the filing of her application, and she was unsuccessful in the majority of her application
- Ms Wynyard relies on the Tribunal’s brief summary of costs principles and its indication of what it was minded to ordering: I would like to seek reimbursement of the $500 filing fee I paid in submitting a request to the Unit Titles Tenancy Tribunal. I would like to take the time to remind everyone that the adjudicator already said (and it is recorded) that I would be reimbursed the $500 filing fee should I submit this to the Court and that I would not be paying all of the legal fees incurred but only 45-55% of the legal fee. Discussion
- I have considered the body corporate’s careful submissions, which correctly set out the law and clearly set out the body corporate’s arguments.
- In this case, the Tribunal gave a general indication of the likely costs outcome. It is likely the indication influenced Ms Wynyard’s approach to the case.
- The Tribunal’s indication is broadly in line with the usual costs principles in this case and accords with the substantial merits and justice of the case. That being so, I am going to apply my indication.
- The body corporate’s legal costs are awarded at the rate of 55 per cent (of $3,680.00). Disbursements, charges, and the filing fee are allowed.
- Ms Wynyard’s claim for reimbursement of the filing fee is allowed.