Claimant Awarded Legal Costs After Unsuccessful Tenancy Application

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[2025] NZTT 9048164

TENANCY TRIBUNAL AT Christchurch I Ōtautahi

APPLICANT: [redacted] Owner of a principal unit

RESPONDENT: [redacted] [COMPANY]

ORDER

1. [NAME] and [NAME] must pay [NAME] $15,362.16 immediately, calculated as follows:

Descriptions Applicant Respondent

Costs following unsuccessful application $15,362.16

Total payable by Applicant to Respondent

$15,362.16

Reasons:

1. On 15 August 2024, the Tribunal issued its decision dismissing an application Mr and Mrs [NAME] ([NAME]) made against [NAME].

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2. The Tribunal considered several issues raised by [NAME] including a claim for $20,000.00 arising from a disputed Deed of Settlement between the parties (which followed an earlier Tribunal application and decision), levies [NAME] claimed were ultra vires, a dispute about insurance cover, the correctness of historical levies, and a request for a forensic financial audit dating back to 2014.

3. I made a timetable for submission on costs. I received submissions from counsel for [NAME], but not from [NAME]. I therefore issued a decision on costs on the assumption that [NAME] did not wish to make submissions.

4. I was unaware that counsel for [NAME] did not send his costs submissions to [NAME]. Equally, [NAME] made no enquiry of the registry when they did not receive costs submissions on the timetable I had set.

5. After I issued my decision, [NAME] applied for a rehearing. I granted that application on the papers, given the procedural flaw that had occurred.

6. I set a new timetable for submission on costs. At the request of [NAME], I extended that timetable. I receive their costs submissions in terms of the timetable I set, and reply submissions from counsel for [NAME].

The rehearing

7. As is usual, costs are considered on the papers based on the written submissions the parties provide. [NAME] have submitted that another adjudicator should make the costs decision, a rehearing having been granted.

8. The usual process in this Tribunal is that when a rehearing is granted, a different adjudicator will hear the case afresh. However, that is more a practice than a legal requirement. The law does not automatically exclude the same adjudicator from conducting a rehearing.

9. A decision on costs does not require the adjudicator to hear witness evidence or make credibility findings. It is, in a sense, an administrative type of decision. The adjudicator weighs the application against the applicable legal principles that apply to costs and makes a decision.

10. It is appropriate that I conduct the rehearing on costs because only I know how the hearing progressed and only I can assess objectively the amount of work required by counsel to answer the matters raised by [NAME] in the application.

11. I assured [NAME] that I would consider the issue of costs afresh and that is what I have done. The timetable for submissions on costs ended on 25 April 2025 and I have given a lot of thought to the application and to the parties’ submissions over the last 3 weeks.

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The law on costs

12. I need not set out the law as I did in my first decision on costs as the parties are familiar with it. I have been guided by the 2 decisions I referred to in that decision – BC 346799 v [NAME].

13.As I noted in my decision, the Tribunal must have regard to the factors set out in those decisions – the amount of money involved; the length of the hearing; the legal and factual complexity; and the time involved in preparation – and where appropriate the District Court scale can be considered as a guide.

14.Overall, the Tribunal aims to make a decision that is objectively reasonable, legally correct, and fair to both parties.

Discussion

15.Counsel for [NAME] sought full indemnity costs, because the application was akin to a levy recovery application where the law provides for the full recovery of costs by [NAME] pursuing a claim for outstanding levies.

16.Here, the issues were far wider ranging, and complex. It was never a claim for levies by [NAME].

17.[NAME] submits that the case was not too complex and would have required minimal preparation. He notes that the hearing was confined to a morning.

18. In response [NAME] has submitted (and I will set this out):

e The applicant’s description of the claim and reference to various points of statute highlights that the claim warranted counsel. A number of arguments which [NAME] believes lacked substance were advanced, and the factual and legal complexity is reflected in the owners of [NAME] seeking to revisit various points in their lengthy costs submissions (in addition to the existing submissions and what the applicant describes as a “truckload” of supporting material).

f. Further, the owners of [NAME] not suggest the issues were of “moderate to low importance”, and that [NAME] “raised unmeritorious arguments”. [NAME] disputes these assertions: given the high utility interest of [NAME] and the potential liability of [NAME], defending the claim was of high importance to [NAME], and based on the result, [NAME] believes it is the applicant who raised unmeritorious arguments (and continues to do so in its costs submission).

g. In addition, the applicant’s costs submissions contain unnecessary and inappropriate criticisms of various parties, including the Tribunal, [NAME]

1 [2020] NZDC 3669 2 [1997] 3NZLR 143

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committee other owners, and counsel. These reflect the applicant’s carriage of the claim.

19. I agree with those observations. An example of the litigious approach adopted by [NAME] is further illustrated in his submissions on costs which run to 35 pages plus annexures. He variously addresses some of the substantive issues again, expresses his disagreement with the Tribunal’s findings, and is generally critical. While he refers to a ‘without prejudice save as to costs offer’ to somehow support his submission that no costs or very limited costs should be awarded, there appears to have been very little willingness by him to engage in settlement discussions.

20. I accept [NAME]’ submissions that all costs not associated with the claim have been removed and the costs claimed are properly within the scope of what can be considered. No additional costs have been sought responding to [NAME]’ submissions on costs.

21.The Tribunal stands by its observation that this was not a ‘bread and butter’ case; the application raised complex issues and the hearing process was protracted. The rehearing application (of the substantive decision) was considered to have no merit. And [NAME]’s attempts at settlement were rejected, or at least, not accepted.

22.Before I had the benefit of considering [NAME]’ submissions on costs, I found that a 70% contribution to costs was a fair and reasonable contribution, at the upper level as referred to in Holden, but for justifiable reasons.

23.With the benefit of [NAME]’ submissions, I now consider that a 55% contribution to costs is a fair and reasonable exercise of the Tribunal’s discretion in this case.

24.[NAME] refer to [NAME] bearing all or most of the responsibility for its legal costs. How can that be fair? [NAME] is the sum of the unit owners. It is not objectively fair for the other unit owners to bear the cost of [NAME]’s legal representation in a case it succeeded in defending.

25.However, relevant to a lower award in this case is the fact that [NAME] as owners of [NAME] have a much higher level of ownership and utility interest. The balance of the legal costs will be levied by [NAME] either as part of the next annual levies or as a special levy. So, [NAME] will have a levy apportionment for the balance of [NAME]’s legal costs based on their high utility interest. Even so, the other unit owners will still be levied for part of the balance of [NAME]’s legal costs.

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Result

26.[NAME] and [NAME] must pay [NAME] $15,362.16 for [NAME]’s legal costs following [NAME]’ unsuccessful application.

J Greene 20 May 2025

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Please read carefully:

SHOULD YOU REQUIRE ANY HELP OR INFORMATION REGARDING THIS [COMPANY] [PHONE].

MEHEMA HE PĀTAI TĀU E PĀ ANA KI TENEI TAKE, PĀTAI ATU KI TE [COMPANY] [PHONE].

AFAI E TE MANA’OMIA SE FESOASOANI E UIGA I LENEI MATAUPU FA’AMOLEMOLE IA FA’AFESO’OTAI’I LOA LE OFISA O LE [COMPANY] [PHONE].

Rehearings:

You may make an application to the Tenancy Tribunal for a rehearing. Such an application must be made within five working days of the order and must be lodged at the Court where the dispute was heard.

The only ground for a rehearing of an application is that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur. Being unhappy or dissatisfied with the decision is not a ground for a rehearing. (See ‘Right of Appeal’ below).

Right of Appeal:

If you are dissatisfied with the decision of the Tenancy Tribunal, you may appeal to the District Court. You only have 10 working days after the date of the decision to lodge a notice of appeal.

However, you may not appeal to the District Court:

1. Against an interim order made by the Tribunal. 2. Against an order, or the failure to make an order, for the payment of money where the

amount that would be in dispute on appeal is less than $1,000. 3. Against a work order, or the failure to make a work order, where the value of the work

that would be in dispute on appeal is less than $1,000.

There is a $200.00 filing fee payable at the time of filing the appeal.

Enforcement:

Where the Tribunal made an order that needs to be enforced then the party seeking enforcement should contact the Collections Office of the District Court on [PHONE] or go to www.justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc:

Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

http://www.justice.govt.nz/fines/civil-debt