Tenant Wins: No Service Charges Owed Due to Lack of Evidence

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AH/OCE/2024/0050 Property : 20 & 20A [ADDRESS] [POSTCODE] Applicant : [redacted] [COMPANY] : Setfords London Respondent : [redacted] : N/A Type of application : Determination of the appropriate amount payable – paragraph 3 of Schedule 5 of the Leasehold Reform, Housing and Urban Development Act 1993 Tribunal member(s) : Judge Tagliavini Mr Duncan Jagger MRICS Venue : 10 [ADDRESS] [POSTCODE] Date of decision : 1 October 2024

DECISION

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The tribunal’s decisions 1. The tribunal determines the appropriate amount that is payable by way

of service charges by the applicant to the respondent pursuant to

paragraph 3 of Schedule 5 of the Leasehold Reform, Housing and Urban

Development Act 1993 is nil. 2. The tribunal makes no order for costs under rule 13 of The Tribunal

Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.

The application 3. This is an application for a determination of the service charge payable

by the applicant to the respondent pursuant to paragraph 3 of

Schedule 5 of the Leasehold Reform, Housing and Urban

Development Act 1993 (‘the 1993 Act’) after a vesting order was made in

respect of the subject property at 20 and 20A [ADDRESS] [POSTCODE] (‘the property’). Background 4. A vesting order was made in respect of the freehold of the property on 1

September 1993 in the county court and the issue of the appropriate sum

payable under the 1993 was transferred to the first-tier Tribunal. 5. The respondent has since been debarred by the tribunal by an Order of

Judge Martynski dated 7 August 2024. The applicant’s case 6. As per the tribunal’s directions this matter has been determined on the

papers provided and comprise a digital bundle of 59 pages. The

applicant asserts that no sums are payable in respect of the service

charges to the respondent and that the only sums due to the respondent

are:

(i) £9,750 (agreed premium)

(ii) £2,400 (s.33 costs)

Less:

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(iii) £6,818 costs awarded to the applicant in the county court

Total due to respondent: [redacted]

7. After the debarring order was made by the tribunal, the respondent

asserted that £32,004.08 is owed in respect of service charges but has

provided no justification for or evidence to support this claim and served

no valid demands for payment of this sum. 8. In LON/00A~H/LSC/2021/0073 the tribunal made various

determinations in respect of service charges in the period 2018 to

2021. However, since the tribunal’s decision, the applicant asserts

that no valid demands have been made of the [NAME] for the

sums determined by the tribunal as payable but has in fact continued

to provide a service (window cleaning), which the tribunal found was not

within the respondent’s obligation under the terms of the lease(s). 9. In addition to its assertion that no further sums are due to the

respondent (other than the £5,[RESPONDENT] above), the applicant also makes

an application for costs under rule 13(1)(b) of The Tribunal (First-tier

Tribunal) (Property Chamber) Rules 2013. The applicant now

seeks costs incurred in the tribunal of £2,496.00 (including VAT). 10. The applicant relies on the three- stage test set out in [ADDRESS] Company (1985) [COMPANY] v Mrs [NAME] [2016]

UKUT (LC) which requires the tribunal to answer the following

questions:

(i) has a person acted unreasonably in bringing, defending or

conducting proceedings…?

(ii) if so, should there be a costs order?

(iii) if so, what should be the terms of the cost order? 11. The applicant asserts the respondent has acted unreasonably in its

conduct and has failed to comply with the tribunal’s directions and has

made untrue assertions in its statements to the tribunal when seeking to

set aside the debarring order. The applicant asserts it has incurred costs

because of the necessity of making a witness statement opposing the

application to set aside the debarring order of 7 August 2024.

4 12. The respondent has made no representations in respect of the

application for rule 13 costs, although it appears it has not seen the

grounds for the application in light of the lateness of the submissions

made in the Applicant’s Statement of Case dated 19 September 2024. The tribunal’s reasons The appropriate sum(s) 13. The tribunal finds there is no evidence to support a claim or a valid

demand or any amount of service charges from the [NAME] of the

subject property. Therefore, without such evidence from the

respondent, the tribunal finds there is no alternative to its determination

that no (appropriate)sums are due pursuant to paragraph 3 of Schedule

5 of the Leasehold Reform, Housing and Urban Development Act 1993. Rule 13 costs 14. Notwithstanding the respondent’s lack of opportunity to make any

submission on this application, the tribunal finds the applicant has failed

to demonstrate the respondent has acted in such a way as to meet the

high bar set in the otherwise ‘no costs’ jurisdiction of the First-tier

Tribunal. 15. In any event, the tribunal considers the applicant has benefitted from

the Order of 7 August 2024, debarring the respondent from playing any

further role in this application, as it has not had to make any substantive

response to the respondent’s submissions, that might otherwise have

been made and would necessarily have incurred costs for the applicant. 16. Further, the applicant has benefitted significantly from the order for

costs made in the county court under the CPR and has benefited by the

absence of the respondent’s submission, in so far as the tribunal makes

a finding that is advantageous to the applicant. Consequently, the

tribunal also finds that any further order for costs would unfairly

prejudice the respondent.

Name: Judge Tagliavini

Date: 1 October 2024

5 Rights of appeal

By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the Tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written application for permission must be made to the First- tier Tribunal at the Regional Office which has been dealing with the case. The application should be made on Form RP PTA available at https://www.gov.uk/government/publications/form-rp-pta-application-for- permission-to-appeal-a-decision-to-the-upper-tribunal-lands-chamber The application for permission to appeal must arrive at the Regional Office within 28 days after the Tribunal sends written reasons for the decision to the person making the application. If the application is not made within the 28-day time limit, such application must include a request for an extension of time and the reason for not complying with the 28-day time limit; the Tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed, despite not being within the time limit. The application for permission to appeal must identify the decision of the Tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party making the application is seeking. If the Tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).