Tenant's Claim for Reassessment of Levies Dismissed, Costs Awarded

__________________________________________________________________________________ 9056804 1

[2025] NZTT Auckland | Tāmaki Makaurau 9056804

TENANCY TRIBUNAL AT Auckland | Tāmaki Makaurau

APPLICANT: [redacted] [[NAME]]

[COMPANY] [[NAME]] [NAME] of a principal units D and E

RESPONDENT: [redacted]

ORDER ON [COMPANY] and [COMPANY] must pay costs of $2,532.71 to [NAME] immediately.

Reasons

1. Both parties attended the hearing on 20 December 2024.

2. The respondent [NAME] was represented by counsel. The applicant ([COMPANY] and [COMPANY]) are represented by directors [NAME] and [NAME] as [NAME] of principal units D and E.

3. At the substantive hearing, I ruled in favour of the [NAME] and dismissed the applicant’s claim.

4. On dismissal of the application for reasons set out in my order of 20 December 2024, I reserved the issue of costs for the proceedings and invited both parties to file written submissions, which have been duly filed.

5. The respondent’s counsel filed submissions seeking costs; the applicant opposes the respondent’s claim for an order for costs.

__________________________________________________________________________________ 9056804 2

6. I now issue my decision on costs, on the papers, as follows.

7. I acknowledge the applicant’s submission that costs should lie where they fall because they are not the “wrong-doer” in that they did not break any laws. I also note the applicant’s continued position that “the only party that didn’t follow the correct procedure for reassessment under Unit Titles Act 2010 was the [NAME]”.

8. However, the general principle is costs follow the event.

9. 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.

10.Here the dismissal of the applicant’s claim in its entirety meant that the [NAME] has been successful in their defence of the claim. Because the [NAME] has incurred legal costs, the [NAME] is entitled to an order for the applicant to pay costs.

11.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 parties are represented by counsel.

12.The issue is what are ‘reasonable costs’ in the circumstances.

13. In the Tenancy Tribunal, there is no schedule as to costs and so the Tribunal traditionally relies on common law case authorities that outline the principles as to awards of costs.

14.Prior to the introduction of schedules the District Court and High Court the courts awarded a reasonable contribution to costs based on a “shopping list” of factors – for example the length of the hearing, the amount involved, the importance of the issues, legal and factual complexity, urgency, preparation time, any unnecessary steps, arguments lacking substance, unnecessarily technical points taken, degree of success and conduct of the parties – see [NAME] [1997] 3 NZLR at 148-149.

15. In [NAME] the court stated “…a court [or Tribunal] should not forget the ultimate question or overlook the principles which underlie. There is wood as well as the trees. The ultimate question always remains: What is a reasonable contribution in these particular circumstances?”

16.The leading text by Grinlinton Residential Tenancies (4th edition, 2012) at para 8.3.5 states:

The Tribunal may also order a party to pay the reasonable costs of any other party to the proceedings … The general principles that are applied by the courts on the quantum of costs, may also be applied by the Tribunal referring to the factors set out in Holden v Architectural Finishes Ltd [1997] 3 NZLR 143 at 148 – 149. What is considered “reasonable contribution” to

__________________________________________________________________________________ 9056804 3

a successful party’s costs will depend on many factors, but there is authority that a figure of 60 percent is regarded as the average, with most awards falling within the range of 40-70 per cent of actual costs ([NAME] v Architectural Finishes Ltd at 149-150).

17. In this case, counsel for the [NAME] says that the legal costs which the [NAME] has incurred relating to dealing with the applicant’s unhappiness about the allocation of levies has reached a total of $7,322.99 which its counsel seeks a sum of $3,748.69 which represents 51% of actual costs incurred.

18. However, section 102(3)(b) RTA provides that the Tribunal can only order the unsuccessful party to pay reasonable costs to the successful party on matters in connection with the proceedings, rather than all of the costs incurred by the [NAME] ‘in dealing with the applicant’s unhappiness’ which includes advice in relation to levies and reassessing ownership and utility interests, advice on the applicant’s proposed resolution wanting reallocation of costs and providing advice on the applicant’s again raising issues about past levies.

19. I consider these invoices incurred by the [NAME] totalling $4,221.19 to be in connection with the proceedings:

a. Legal costs of INV-027853 - $3,175 + GST and disbursements – in relation to receiving the claim, corresponding with the [NAME] and defending the claim at a hearing.

b. Legal cost of INV – 027902 - $472.50 + GST totalling $543.38 – 16 January 2025 - relating to costs submissions

20.[NAME], I consider an award of costs of $2,532.71 (being 60% of $4,221.19) appropriate and reasonable in the circumstances. Even with 60% of legal costs awarded in favour of the [NAME], they still carry the remaining 40% costs which were necessitated by the applicant bringing the proceedings in the first place.

21. I therefore make an order for the applicant to pay costs of $2,532.71 to the respondent.

[NAME] 14 May 2025

__________________________________________________________________________________ 9056804 4

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