Claimant wins unpaid levies case at Tenancy Tribunal

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[2025] NZTT 9058664

TENANCY TRIBUNAL AT HAMILTON | TE TARAIPIUNARA RETIHANGA KI KIRIKIRIROA

APPLICANT: [redacted]

RESPONDENT: [redacted] Owner, Owner

UNIT ADDRESS: Unit/[ADDRESS], Burbush, RD 8, Hamilton 3288

ORDER

1. [NAME] must pay [NAME] $41,475.77 immediately, calculated as follows:

Descriptions Applicant Respondent

Unpaid levies to 31 January 2025 Interest on unpaid levies to 31 January 2025 Interest from 01 February 2025 to 02 April 2025

[NAME] legal costs

Reimbursement of filing fee

$26,143.68

$2,755.14

$439.20

$11.637.75

$500.00

Total award $41,475.77

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Reasons:

1. [NAME] appeared for [NAME], accompanied by [NAME], the chairperson of [NAME] committee. [NAME] appeared for the owner.

2. [NAME] has applied for recovery of unpaid levies, interest, costs, and the filing fee from the unit owner.

3. On 20 October 2023, the unit owner filed an application seeking to challenge their levies obligation. The dispute concerned the interpretation of a Deed of Settlement (“DOS”) entered into by the parties on or about February / March 2021 regarding levies. On 15 August 2024, the Tribunal dismissed the owners claim. (NZTT 9048164).

4. At the hearing, [NAME] sought to raise a levies claim. However, the Tribunal declined to address the claim as [NAME] had not filed an application.

5. The owner sought a rehearing, which was declined.

6. On 23 September 2024, [NAME] filed a claim for unpaid levies of $63,291.43, interest of $3,499.19 as of 31 January 2025, costs, and reimbursement of the filing fee.

7. The application was set down for a remote hearing on 02 December 2024. On that date, the hearing was adjourned for an in-person hearing.

8. In the adjournment order, the Tribunal directed [NAME] to produce evidence confirming that it had instructed [NAME] to act in these matters and had resolved to pursue these claims against the owner.

9. Both parties have filed submissions for this hearing. [NAME] for the owner on 22 November 2024. [NAME] on 22 November 2024 and 12 February 2025. [NAME] also provided further written submissions at the hearing. [NAME] reviewed these submissions and wished the matter to proceed without delay.

10.[NAME] has produced a statement from [NAME] setting out details of the claim. [NAME] confirmed that since the filing of the application, the owner had settled $40,000.00 of the debt, leaving an outstanding balance of $26,143.68, with interest of $2,775.14 as of to 31 January 2025.

11.[NAME] stated that interest on the unpaid levies accrues at the rate of $7. 32 per day.

12.The previous adjudicator also directed that details of any legal costs sought be provided at the hearing, as opposed to being dealt with on the papers. In this case the legal costs claimed by [NAME] total $11,701.25.

13.As directed [NAME] has provided minutes of an extra ordinary general meeting (“EGM”) held on 27 June 2023 in which they state a resolution was

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passed instructing [NAME] to act in these matters and confirming that the BC wished to pursue [NAME] for unpaid levies.

Owner’s submissions

14.At paragraph [5] of the owner’s submissions dated 22 November 2024, [NAME] stated:

“5. The Respondents file their submissions in three parts.

a. Firstly, that the Parties entered into a Deed of Settlement. This Deed of Settlement expired on 31 May 2022 and the Parties subsequently agreed to extend this Deed of Settlement to 31 May 2023. The Respondents will establish the basis for this extension and say that if the Deed of Settlement in its entirety was extended then [NAME] is bound by the terms as negotiated in that Deed of Settlement.

b. Secondly the Respondents will further claim that upon expiry of the Deed of Settlement on 31 May 20243 [NAME] must revert back to the single levy system as directed by a previous Tribunal Order on 21 February 2021.

c. Finally, the Respondents will establish and counterclaim that all levies up to 31 May 2023 must be raised as per the Deed of Settlement and that by further failing to connect [NAME]’s utilities to [NAME] network is a breach of the Tribunal order dated 21 February 2021 and still continues to operate a dual levy system. The Respondents claim that the raising of levies contrary to the explicit terms as stated in the Deed of Settlement is ultra vires. Simply put [NAME] is acting beyond its power and is doing so without the required legal authority.”

15.The owner argues that the levies claim has arisen out of a deed of amendment to the DOS which has not been recorded in writing and was not legally valid.

16.The owner submits [NAME] is not entitled to claim the portion of the levies relating to utilities, as it has yet to actually provide the utilities in question.

17.The owner submits that the EGM held on 27 June 2023 had not been conducted in accordance with the provisions of the Unit Titles Act 2010 (“UTA”) and Unit Title Regulations 2011, as they were not notified of the meeting, did not receive an agenda, and were not advised of the outcome. On that basis, they submit the meeting was ultra vires, and that no valid resolution for representation or pursuing the claim had in fact been made.

18.The owner referred to the heavy redaction of the minutes, raising doubts about whether the EGM took place. The owner suggested the redactions may hide discussions related to the DOS, which should have been disclosed. The owner described the meeting as one between like-minded individuals with a common agenda, deliberately excluding them.

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19.The owner also challenges [NAME]’s charging of interest and recovery costs, stating no resolutions authorising it to do so had been passed under the UTA or Regulations.

[NAME]’s submissions

20.[NAME] argues that all of the substantive issues raised by the owner concerning the raising of the levies were addressed in the Tribunal’s previous decision NZTT 9048164, and that the owner was attempting to revisit matters already decided.

21.[NAME] denied that the levies had been improperly raised.

22.[NAME] stated that [NAME] does not rely on the Deed of Settlement, any amendment of the Deed, or any extensions.

23.[NAME] stated there was no oral extension of the Deed but acknowledged that the previous Tribunal had found the DOS to have been extended covering operational levies (excluding capital improvement levies) until 31 May 2023.

24.[NAME] referred to the minutes of an AGM on 20 September 2024, where [NAME] had resolved to instruct its manager to carry out debt control and collection including a provision charging 10% for late payment of levies. He also stated that all notices issued included references to interest.

25.[NAME] stated that [NAME] had attended the EGM on 27 June 2023, which she confirmed. [NAME], another owner, was at the meeting, and also present at the hearing. [NAME] acknowledged the redactions had been made for legal privilege, but maintained nonetheless that it was clear from the minutes that he had been instructed to act, and that [NAME] had authorised the pursuing of the unpaid levies. [NAME] stated further that the owner had on several occasions acknowledged his involvement on behalf of [NAME].

26.[NAME] stated that for a [NAME] to meet its operational and maintenance responsibilities to all unit owners , that owners with disputes must meet first their levy obligations before seeking resolution of disputes, referred “pay now , argue later”, a principle he stated had been acknowledged by the Court.

27.[NAME] stated if the owner wished to pursue [NAME]’s compliance with the UTA and Regulations concerning the raising of levies, the conduct of meetings, charging of interest, or recovery of costs, they should file an application with the Tribunal and pay a filing fee, which they have not done.

Law

28.Section 80 of the Act states, subject to section 105 (rehearings) and 117 to 120 (appeals), that every order of the Tribunal shall, unless expressed to be an interim order made under section 79, be final and binding on all parties to the proceeding.

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29.Section 80 reflects the common law doctrine that once a matter is resolved at cannot be revisited. The principle remains good law and was referred to by the Court in Muir, Bradbury, Peebles, and [NAME] v Commissioner of Inland Revenue [2015] NZHC 792.

30.Under section 80(1)(f) and 121(1) of the UTA a unit owner must pay all [NAME] levies and outgoings payable for the unit.

31.Under section 128 of the UTA, if a unit owner fails to pay levies by the due date, interest accrues on the unpaid balance. A [NAME] may charge interest up to 10% per annum.

32.Pursuant to section 124 of the UTA, and as resolved at meetings of [NAME] is entitled to recover any reasonable costs incurred by it in collecting unpaid levies as a debt due by the owner to [NAME].

33. In accordance with the judgments (of the District Court and Court of Appeal respectively) in [NAME] 162791 v Cheah DC Auckland, CIV2014-004- 0120, 24 June 2014 and [NAME] 162791 v Gilbert [2015] NZCA 185, the Tribunal must order that the reasonable costs incurred by [NAME] in recovering the levies, objectively assessed, be paid by a defaulting unit owner.

Decision

34.Despite the owner submitting that the matters raised have not been dealt with, having reviewed the previous decision, submissions, and heard from the parties, the issues raised by the owner concerning the levies have already been addressed.

35. I agree with [NAME] that if the owner wishes to challenge how the levies are apportioned, the conduct of [NAME] meetings, charging of interest, recovery of costs, or any other compliance issue, they should file an application with the Tribunal and pay a filing fee.

36.Despite the redacted minutes, there is sufficient evidence that [NAME] was properly engaged and that [NAME] intends to pursue the levies claim against the owner.

37. I am satisfied that [NAME] has properly raised the levies. [NAME] has determined the levies payable and unit owner's share has been calculated according to their utility interest.

38.[NAME] has fixed the due date for the levies to be paid, and the unit owner has not paid the levies by that date and has provided records to prove the amount claimed.

39. In this case I am satisfied [NAME] has resolved to charge interest at 10 % per annum on unpaid levies. [NAME] has also proved the amount of interest owing from the due date to the hearing date.

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40.The owner opposes legal costs and further argues that [NAME] maintain a fund for these purposes and that costs should be met from that. In my view [NAME] has been successful and is entitled to seek costs directly from the owner.

41.However, the Tribunal cannot award speculative costs associated with post hearing attendances. Accordingly, I reduce the claim by 0.5 hours (see daily rate Category 1A proceedings District Court Rules 2014). I am satisfied that the balance of the costs ordered, which include hearing time, are reasonable.

42.As [NAME] has succeeded with the claim, I have reimbursed the filing fee. Section 176(1) of the UTA and section 102(4) Residential Tenancies Act 1986.

[NAME] 02 April 2025

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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