Published tribunal order
Tenancy Tribunal case 9069224 — Leaks in East Tamaki, Auckland
Decided 19 March 2026 · Published 19 March 2026 · Application 9069224
Mixed / unclear
- Leaks
- Unit Titles
Order
- This order replaces the order dated 22 December 2025.
- Craig Raymond Dalton, Homi Tehmurasp Vazifdar, Bilkish Homi Vazifdar must pay Body Corporate 106372 $21,429.06 immediately, calculated as follows: DescriptionsApplicant Costs: Plumbing invoice 91334 dated 25 March 2023$3,957.20 Costs: BC Debt Collection ($900.00 less 10%)$828.00 Costs: Legal costs and disbursements ($16874.88 less 10%) $15,187.39 Interest$956.47 Filing Fee$500.00 Total award$21,429.06
Reasons
- On 22 December 2025 I issued an order for the owners to pay the body corporate $12,069.50. That order included orders for costs without providing for appropriate submissions first.
- On 23 December 2025 a rehearing application, on costs only, was lodged by the applicant.
- The reason cited for a rehearing on costs was accepted and submissions on costs were timetabled with a final order to follow. Given the history and time expended to date, it was expedient for the rehearing of costs to remain with me.
- The 22 December 2025 order reasons should be read in conjunction with this order as necessary. That order confirmed owner liability for one invoice of $3,957.30 (including the strata admin fee) that remained disputed and unpaid.
- This order incorporates that invoice sum and makes fresh orders on other costs.
Is the Unit owner liable for costs?
- The crux of the issue in this matter vis-à-vis cost recovery is whether s 127 applies in this instance, therefore providing for an award of reasonable costs incurred in collecting the expense. This position was the stance of the applicant.
- Section 127 Unit Titles Act 2010 provides: 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.
- The respondent’s submission on costs cited the High Court decision in Body Corporate 319327 v Gabrielle’s Trustee Co Ltd. In that judgement, Associate Judge Faire stated that the act must be “rendered necessary by reason of any wilful or negligent act or omission” by the unit owner.
- The word act includes commencement of legal proceedings 1 . 1 See Body Corporate 331094 v Smith [2015] NZDC 17745.
- The respondents’ submitted there can be no suggestion that any “act” in bringing these proceedings was “wilful or negligent”, (it was silent on any “omission”). The proceedings were commenced by the Body Corporate, not the unit owners, after a prolonged failure by the unit owners to pay a disputed cost of repair.
- I had to consider if the legal proceedings commenced by the Body Corporate against the unit owner were rendered necessary by reason of any wilful or negligent act or omission by the unit owner?
- In this matter, I consider the unit owners have wilfully refused to, or omitted to, pay $3,957.20 being the plumbing Invoice 91334, dated 25 March 2023 (including strata admin fee). The 22 December 2025 order expands on the determination of unit owner liability. Obviously, if their defence was upheld and the application dismissed the cost scenario would have been different.
- Having considered the respective submissions on costs and the facts in this matter, I consider the Body Corporate 319327 v Gabrielle’s Trustee Co Ltd decision may be distinguished from this matter as in that matter the act of the Body Corporate in commencing proceedings was not due to any wilful or negligent act or omission by the unit owner.
- My finding was that the unit owner was liable but failed to pay the expense. This is effectively the root cause of what followed (with some reservations as discussed later). The unit owner’s stance of non-liability and non-payment was clearly rejected by the Body Corporate before the commencement of these proceedings. The standoff needed resolution and it is unfortunate a more timely resolution from this Tribunal was not sought by the unit owners’ when they previously engaged legal advice and indicated pending action.
- Ultimately, that the Body Corporate needed to engage in legal proceedings was due to the unit owners continued rejection of their liability, and failure to pay the expense. In my view, there was wilful and omission causation.
- Therefore, I accept the submission of the applicant that s 127 applies is correct. The successful applicant is entitled to reasonable costs. Given this is a rehearing, I accept the updated costs per the last submission of counsel. Reasonable costs incurred in preparing a rehearing application or a submission on costs are recoverable.
- What are the reasonable costs? The applicant submitted that the “concept of reasonable costs is well-established in the body of case law governing cost recovery under the Unit Titles Act 2010. The Applicant’s claimed costs are consistent with that body of law.” It is accepted that “reasonable” in this context means costs that were incurred in the solicitor-client engagement, rather than any overall sense of what costs might be considered just. As the adjudicator, I have no discretion to waive any reasonable costs in favour of the unit owner.
- In this matter, there was an additional invoice payment demanded from this unit owner. On 10 September 2024 counsel was instructed by the BC Manager to on- charge– Invoice 89591 (due 30/06/23), being $660.57. This was included in later demands on the unit owner from counsel. It was later withdrawn after realising it was an error. Interest due was recalculated accordingly, based on the single invoice now in dispute.
- On 17 November 2025, a retrospective resolution of the Body Corporate Committee was recorded and clarified the stance of unit owner liability. The previous minutes of the 2024 AGM noted the owners raising the issue, as well as the subsequent decision that “the committee will review the information provided and decide whether the Body Corporate will pay the costs or if the amount will remain on the unit’s account”. Before that resolution, there is evidence of the Body Corporate stance on liability being clearly articulated.
- I consider there is also case law that supports an assessment of each billed task in determining what are reasonable costs. As the High Court in Exuberant Limited v Quinovic Property Management Limited 2 stated [regarding actual solicitor-and-client costs], “If they are reasonable then they are recoverable. If they are not, then only the proportion which is reasonable is recoverable“.
- I consider some distinction is appropriate here as there were instances where I consider costs were incurred unnecessarily, be it due to incorrect instructions or advice on body corporate procedural matters not directly a consequence of the unit owners’ failure to pay.
- I have reviewed the detailed tasks as recorded by counsel for the Body Corporate. The limited detail makes it difficult to isolate and account where effort was expended on tasks that I would consider unreasonable costs allocated to the unit owners here. Given that, I have pragmatically decided to apply a percentage reduction of total costs based on considered proportionality, rather than require some further billing forensics from counsel. I have adopted a reduction of 10%.
- While the respondents correctly note the 22 December 2025 order finds fault on both sides and speculates of a possible hinderance to earlier resolution due to the seeking of non-liable costs, I do not consider significant weighting follows that and the extent of any such faults have been address by the revision of costs as addressed above.
- Further, the respondents’ belief “they pursued their rights to resolve legitimate disagreement” reasonably through their defence of this application is considered misplaced. They had previously sought legal advice and indicated at that time an intent to pursue some declaration regarding any liability. Unfortunately, that appears a missed opportunity for a likely lower cost resolution than the apparent “rolling of the dice” on defending this application, given the costs typically expected and incurred in such proceedings. 2 Exuberant Limited v Quinovic Property Management Limited [2021] NZHC 3533 at [46]
- The extent of costs awarded reflects the root cause of the s 127 costs incurred and ordered was the unjustified, continued non-payment of Invoice 91334 by the unit owners.
- I accept this order for costs is a significant upwards revision from the previous order and that will be a further disappointment to the unit owners. However, I do not believe that a timetabling instruction on 22 December 2025, rather than later on 14 January 2026 as occurred, would have materially impacted the resulting award for costs. This is reflected in the dates of the tasks performed from mid- January 2026 and allowing for the seasonal holiday between the two dates.