What was the outcome of Tenancy Tribunal case 9054524?

The tribunal order states: ON COSTS

How much money was awarded in case 9054524?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9054524?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9054524?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11348235-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9054524?

The tribunal order states: ON COSTS

How much money was awarded in case 9054524?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9054524?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9054524?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11348235-Tribunal_Order.pdf.

Mount Eden, Auckland Tenancy Tribunal Case 9054524 — Unit Titles

Order

ON COSTS

Christine Graham must pay costs of $7,670.28 to Body Corporate 494243 immediately.

Reasons

Both parties attended the hearing on 21 November 2024.
The body corporate was represented by law clerk Joshua Kennedy of the law firm Contessa Law Limited. The applicant was unrepresented.
On 21 November 2024, I dismissed the applicant’s claims in this proceeding in its entirety and reserved the issue of costs.
In her claims filed and heard before me, the applicant sought an order that the body corporate representative Mr Joshua Kennedy of Contessa Law Limited was not validly appointed by the body corporate. The applicant also sought a general order that all decisions be made by the body corporate be by consensus and through dialogue between the unit owners rather than by decisions circulated though written resolutions and motions.
Both parties filed written submissions on costs; I now issue my decision on costs on the papers as follows.
The general principle is costs follow the event.
I do not agree with the applicant that the Tribunal has no power to award costs against the applicant on grounds that the body corporate has not been represented by counsel.
Sections 102(2) and 102(3)(b) of the Residential Tenancies Act 1986 (‘RTA’) provides that the Tribunal can order the unsuccessful party to pay reasonable costs to the other party in connection with the proceedings where: a) in the opinion of the Tribunal, the proceedings are frivolous or vexatious or ought not to have been brought; or b) parties are represented by counsel.
I consider in the first instance that the applicant’s claims filed herein are frivolous or vexatious and ought not to have been brought.
At the heart of the various proceedings filed by both parties is the issue of whether the body corporate can or cannot trim the hedges situated on common property to a certain height. Instead of focussing on this material issue, the applicant has chosen to raise technical objections on the body corporate’s appointment of their representative and attempted to circumvent the decision making powers of the body corporate under section 104 Unit Titles Act 2010 (‘UTA’).
I consider that Ms Graham in these proceedings had no reasonable prospect of success at all.
Consequently, I declined to make an order that all decisions by the body corporate must only be by consensus and through dialogue between the unit owners rather than by decisions circulated though resolutions and motions.
In my opinion, the applicant’s proceedings challenging the appointment of Mr Kennedy and the decision making powers of the body corporate expressly authorised under section 104 UTA are frivolous or vexatious and ought not to have been brought.
For those reasons, I consider that the body corporate is entitled to an award of costs in their favour.
Given the frivolous and vexatious nature of the proceedings, I consider that an award of indemnity costs to be appropriate. To rule otherwise would be to burden the body corporate of having to bear costs which were necessitated solely by the applicant’s actions in filing this claim.
In the alternative, I also agree with counsel for the body corporate that the body corporate may also recover costs on an indemnity basis pursuant to section 127 UTA, which provides: 127 Recovery of money expended where person at fault (1) This section applies if the body corporate does any repair, work, or act that it is required or authorised to do, by or under this Act, or by or under any other Act, and the repair, work, or act was rendered necessary by reason of any wilful or negligent act or omission on the part of, or any breach of the Act, the body corporate operational rules, or any regulations by, any unit owner or his or her tenant, lessee, licensee, or invitee. (2) Any expense incurred by the body corporate in doing the repair, work, or act, together with any reasonable costs incurred in collecting the expense, is recoverable as a debt due to the body corporate (less any amount already paid) by the person who was the unit owner at the time the expense became payable or by the person who is the unit owner at the time proceedings are instituted.
Following BC 170989 v Anquila Holdings Ltd [2020] NZHC 758 at [75]), the elements needed for s 127 costs to be recoverable are when: (a) There is an act by the Body Corporate; (b) The Body Corporate must be required or authorised to do the act under the UTA or some other Act; (c) The act must be rendered necessary by reason of any wilful or negligent act or omission by specified persons; (d) Those persons must be a unit owner, or his or her or its tenant, lessee, licensee, or invitee
I find that the applicant’s proceedings were wilful acts that caused the body corporate to incur expense to successfully defend. I accept counsel’s submission that the expense was the fault of the applicant, meaning she is liable to pay the respondent’s reasonable costs incurred in defending the applications.
The Supreme Court n Gilbert v Body Corporate 162791 [2016] NZSC 61 [BC42] at paragraph [78] held that the UTA costs recovery provisions (including s 127) provided for reasonable solicitor/client costs to be recovered. In this regard, section 127 of the UTA does not differentiate between costs of legal representation or other expenses incurred by a body corporate such as the costs of a professional manager doing work above and beyond that manager’s standard management fee, due solely to the at-fault-party’s actions.
At the substantive hearing on 21 November 2024, I have heard directly from the owners of units 1, 2, 4 and 5 who confirmed having signed and agreed to all 5 motions sent on 2nd May 2024 with a return deadline of Thursday, 9th May 2024 as shown on exhibit 15. 4 out of 6 unit owners constitutes the required majority under section 104 UTA for the passing of ordinary resolutions.
Motion 1 that was passed states: That the body corporate confirm the committee majority agreement to appoint Tony Steindle of Contessa Law Limited (including any staff of that legal practice, including any staff of any agent of that firm) to represent the body corporate in relation to the Tenancy Tribunal Mediation instigated by the owner of unit 3 in relation to the height of the boundary hedge outside her unit. That it be noted the estimated costs of representation are $4,000 plus GST. That this also extend to any Tenancy Tribunal hearing that may be required to resolve the hedge height issue. That the body corporate approve any costs incurred in such representation with these costs to be met from existing body corporate funds. That where possible any costs incurred be recovered from the owner of unit 3 to resolve this matter.
Motion 3 that was passed also states: That the Body Corporate waives any conflict of interest that may arise in respect of Tony Steindle having acted for one or more unit holders of the Body Corporate.
Those were the basis of my decision that Mr Joshua Kennedy of Contessa Law Limited has been duly authorised to represent the body corporate in these proceedings and for my rejection of Ms Graham’s submission that there is any issue of conflict in Contessa Law or Tony Steindle (as counsel) representing the body corporate.
I do not see any issue of conflict or perceived conflict at all. In any event, the body corporate has specifically waived ‘any conflict of interest’ that may arise in the circumstances.
I also consider that the body corporate is entitled to be represented by the agent of their choice, including counsel, for the purposes of meeting the requirements of section 171(3) UTA.
For those reasons, all the orders sought by Ms Graham were unsuccessful.
While Mr Kennedy is technically not counsel in the sense of being a barrister or solicitor, he is nevertheless an employee of a law firm which has been duly authorised to represent the body corporate. Following Gilbert, the costs incurred by the body corporate for Mr Kennedy’s representation of the body corporate at the hearing and mediation is recoverable under section 127 UTA.
It is incumbent on the party bringing proceedings in an adversarial forum, which includes the tenancy tribunal, to be able to prove its case brought before the court or adjudication forum. Failing to do so has caused the body corporate expense which expense should now be met fully by Ms Graham.
I therefore make an order for the applicant to pay the body corporate its actual and reasonable costs of $7,670.28 which costs were in connection to the proceedings, including costs incurred at mediation, as set out in supporting invoices annexed to counsel for the body corporate’s submissions filed before me.

Tenancy Tribunal case 9054524 — Unit Titles in Mount Eden, Auckland

At a glance

Tenancy Tribunal case 9054524 — Unit Titles in Mount Eden, Auckland

At a glance

Claims & awards

Order

ON COSTS

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

ON COSTS

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions