Community Title Scheme No X v SV and HF
[2018] ACAT 72
•13 July 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMUNITY TITLE SCHEME NO X v SV & HF (Civil Dispute) [2018] ACAT 72
XD 319/2016 and XD 1245/2016
Catchwords: CIVIL DISPUTE – unpaid levies and associated expenses – whether the expenses were reasonable and reasonable incurred – double reasonableness test – allegations of deliberateness, intimidation and harassment by debt collectors – reliability of the parties evidence and credibility of witnesses – whether it was appropriate to refer the matter to a debt collector rather than relying on the executive committee or manager to pursue the debt directly – whether the engagement of counsel was reasonable – lump sum costs assessments
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 48
Australian Consumer Law (Cth) s 50
Civil and Administrative Tribunal Act 2013 No 2 (NSW) s 45
Community Titles Act 2001 ss 31, 32, 37, 44, 45, 46, 55
Court Procedures Act 2004 s 5A
Unit Titles (Management) Act 2011ss 27, 31
Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 62
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 s 30
Cases cited:Australian Competition and Consumer Commission v McCaskey (2000) 104 FCR 8
ACCC v The Maritime Union of Australia [2001] FCA 1549
Beach Petroleum NL v Johnson (1995) 57 FCR 119
Bleyer v Google Inc [2014] NSW 897
Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 117 ALR 253
Dupas v The Queen (2010) 241 CLR 237
Hamod v State of New South Wales and Anor [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738
Jones v Dunkel (1959) 101 CLR 298
Keen v Telstra Corporation Ltd (No 2) [2006] FCA 930
Lazarus v Azize & Ors [2015] ACTSC 344
The Matter Of Ruling Tribunal Section 31 Of The Unit Titles (Management) Act 2011 [2017] ACAT 56The Owners – Units Plan 371 v Nabua & Anor [2018] ACAT 29
The Owners – Units Plan 546 v Donnelly & Anor [2018] ACAT 27
The Owners – Units Plan 638 v Carroll [2018] ACAT 25
The Owners – Unit Plan No 1565 v Ruff [2018] ACAT 31
The Owners – Units Plan 3182 v Black & Anor [2018] ACAT 6
The Owners – Units Plan 3182 v Black & Anor [2018] ACAT 24
The Owners – Units Plan 3492 v Robson & Anor [2018] ACAT 30
The Owners – Units Plan No 3609 v Chen [2018] ACAT 26
The Owners – Units Plan No 3802 v Ilhan [2018] ACAT 28
The Owners – Unit Plan 3964 v Wang [2018] ACAT 32
P & G Builders Pty Ltd v Flaherty [2018] ACAT 58PCM Office Services Pty Ltd & Anor v Mi [2018] ACAT 36
The Queen v DF [2010] ACTSC 31
Trustee of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn as Trustees for St Mary Mackillop College Canberra [2017] ACAT 97Sgro v Australian Associated Motor Insurers Ltd [2015] NSWCA 262
List of
Texts/Papers cited: Debt Collection Guidelines for Debt Collectors and CreditorsTribunal: Senior Member H Robinson
Date of Orders: 13 July 2018
Date of Reasons for Decision: 13 July 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 319/2016
XD 1245/2016
BETWEEN:
COMMUNITY TITLE SCHEME NO X
Applicant
AND:
SV
First Respondent
HF
Second Respondent
TRIBUNAL: Senior Member H Robinson
DATE:13 July 2018
ORDER
The Tribunal orders that:
1. The respondents are to pay to the applicant:
(a)application fee of $136.00 for XD319/16 and $140 for 1245/16;
(b)section 37 costs of $16,000; and
(c)statutory interest as agreed, in accordance with the rate fixed by the body corporate under section 47 of the Community Titles Act 2001, failing which the parties have leave to approach the Tribunal for a determination as to outstanding interest
………………………………..
Senior Member H Robinson
REASONS FOR DECISION
1.By way of these two debt applications, the applicant community title corporation (the applicant) seeks recovery of unpaid levies and associated collection expenses allegedly owed by the respondent lot owners pursuant to section 37 of the Community Titles Act 2001 (CT Act). For their part, the respondents[1] do not contest that they owe the levies, but argue that some or all of the collection and legal expenses incurred during the recovery process are not recoverable under section 37 of the CT Act as they are “not reasonable expenses, reasonably incurred”, as per the “double reasonableness” test for the recovery of enforcement expenses set out in The Matter Of Ruling Tribunal Section 31 Of The Unit Titles (Management) Act 2011 [2017] ACAT 56 (the ruling tribunal decision).
[1] Due to the amount of personal information in this decision, and at the request of the respondents, the names of the Community Title and the respondents have been anonymised. The initials used bear no resemblance to the parties real names
The proceedings
2.In the first application, XD 319/2016 lodged 24 March 2016 (the first debt application), the applicant initially sought $1,266.80, consisting of:
(a)$582.40 for unpaid levies for the period 23 April 2015 to 1 January 2016;[2]
[2] Schedule to application filed 24 March 2016
(b)$136 ACAT filing fee;
(c)$34.15 statutory interest; and
(d)section 37 expenses.[3]
[3] Schedule to application filed 24 March 2016
3.On 4 October 2016, the Tribunal ordered, by consent, that the respondents pay $683.89 by instalments of $100 per week, with the first payment due 7 October 2016 (first ACAT order). Consistent with the Tribunal’s practice at the time, the claim for section 37 expenses was adjourned pending the ruling tribunal decision.[4] At that time, the expenses claimed were $684.40, plus the cost of attendance at the assessment hearing. The principal debt has now been satisfied and only the claim for section 37 expenses remains to be determined.
[4] ACAT order of Senior Member Anforth, 4 October 2016
4.In the second application, XD 1245/16, filed 7 December 2016 (the second application), the applicant sought:
(a) $1,179.00 for unpaid levies for the period 1 April 2016 to 1 October 2016;[5]
[5] Schedule to application filed 7 December 2016
(b) $140.00 for the filing fee;
(c) $16.72 statutory interest; and
(d) $792.00 section 37 expenses, including costs of enforcement of the first ACAT order.
5.The respondents did not file a response to the second application and default judgment was entered on 1 September 2017. The matter was then set down for an assessment hearing on 27 September 2017. At that hearing the respondents were ordered to pay $575, being:
(a)$387 for unpaid levies as at that date;
(b)$48 interest; and
(c)Tribunal fee of $140
(second ACAT order).
6.At the assessment hearing, the section 37 expenses claimed were $1,012. The second ACAT order was set aside by the Tribunal on 11 October 2017 (set aside order), pursuant to an interim application filed by the respondents on 6 October 2017 (the set aside application). Accordingly, both the principal debt and the section 37 expenses were in issue in this proceeding, although the principal debt itself was not contested.[6]
[6] The Tribunal has been advised that, since the conclusion of the hearing, the principal debt has now been paid
7.The applicant now claims section 37 expenses for both matters, including hearing fees and counsel fees, well in excess of $18,000.
The parties
8.The applicant is a body corporate community title scheme established under Division 8.1 of the CT Act.
9.The respondents are the owners of a unit in a lot within the scheme. They are members of the applicant corporation pursuant to section 32(1) of the CT Act.
The hearing
10.The hearing took place over one and a half days.
11.The applicant was represented by Collection Corporation of Australia Pty Ltd (CCA)[7] and CCA Legal, who in turn instructed Mr Blank of Counsel. The applicant’s evidence, which was several hundred pages, consisted of:
[7] Or perhaps by its legal arm
(a)Costs schedule for the hearing day and the two matters in issue.
(b)Affidavit of Mr Ecob, managing director of CCA, of 6 November 2017.
(c)Statement of Mr Ecob dated 1 December 2017.
(d)Statement of Mr Arnolda, a process server engaged by CCA, dated 1 December 2017.
(e)Statement of Mr Anthony Stevens, an employee of City Strata Management Pty Ltd, the current manager (manager) of the applicant, dated 30 November 2017.
(f)Chronology.
12.The statements annexed numerous records of CCA and the manager. The applicant’s barrister also filed an outline of submissions.
13.Mr Ecob, Mr Arnolda and Mr Stevens gave oral evidence and were cross examined.
14.The applicant’s case was relatively straightforward. It sought to show that the respondents owed the levies, had failed to pay the levies, when pursued by CCA had entered into several instalment arrangements but failed to comply with them, and that the costs incurred in trying to recover those levies through debt collection processes and the Tribunal had, accordingly, been reasonable costs, reasonably incurred.
15.The respondents were self-represented, with Ms SV acting as advocate. On Ms SV’s evidence, she is a public servant and a law student.[8] While she was broadly aware of some legal principles, she was clearly unfamiliar with Tribunal processes. The Tribunal made some allowances for this, as is usual with self-represented litigants.
16.The respondents’ evidence consisted of a:
(a)witness statement of Mr HF dated 11 December 2017;
(b)witness statement of Ms SV dated 11 December 2017; and
(c)bundle of documentation enclosing levy notices, emails and other documentation relied upon at the hearing.
[8] Transcript of proceedings, 6 February 2018, page 123, line 11
10.Both Ms SV and Mr HF gave oral evidence and were cross examined at some length. Ms SV also filed written submissions in relation to the present applications (applicant’s substantive submissions).
11.Also before the Tribunal was an ‘Application for Interim or Other Orders’ signed by Ms SV on 3 October 2017 and filed in the second application. Attached to that interim application was a submission dated 27 September 2017 (applicant’s set aside submission).
12.As is not uncommon with self-represented litigants, the respondents’ case evolved somewhat over the course of the proceedings. They argued consistently throughout that the section 37 expenses were not reasonably incurred because it was not necessary to take legal steps to recover the debts. However, at the commencement of proceedings, they also suggested that the manager and CCA had more covetous ulterior motivations in commencing legal proceedings.
13.The respondents commenced their written submissions with the allegation that the manager and CCA:
…embarked on a systematic and deliberate course of conduct designed to, firstly, induce the initial debt and then to increase the debt by taking unnecessary and frivolous recovery action and charging excessive fees for each action.
14.They set out particulars in their substantive submissions.[9] They may be summarised as follows:
(a)The respondents did not receive “any” relevant levy notices, arrears notices or letters of demand in relation to the unpaid levies.
(b)The manager and CCA “deliberately” did not give them the opportunity to resolve the debt privately before commencing litigation and commenced litigation despite the respondents making payments in accordance with an agreement.
(c)The manager and CCA “deliberately tried to confuse” them as to how the debt should be satisfied.
(d)The manager and CCA made unnecessary ACAT applications and garnishee requests and then unnecessarily charged the respondents for them.
(e)The manager and CCA engaged in a systematic and deliberate course of conduct designed to induce and increase the expenses associated with the debt.
[9]Respondent’s submissions, pages 1-2
15.The respondents also alleged that employees of CCA breached the Debt Collection Guidelines for Debt Collectors and Creditors (Debt Collection Code), published by the ACCC.
16.During the course of the hearing the respondents somewhat modified their approach. While they did not withdraw the allegations of misconduct by an employee of CCA, they asked the Tribunal to focus on the allegedly flawed decisions at the commencement of the debt recovery process:
I’m saying let’s take it right back to before that first ACAT application was filed in March, when it was clear that we weren’t responding to supposedly sent levy notices or letters of demand, because we hadn’t received them, and we didn’t know we were at that point. We knew there was a debt but we didn’t know what point we were at. It’s right back there that phone calls should have been made, or a knock on the door should have been made, and said, “Have you been receiving your levy notices? Do you know that you’re in arrears? Is there anything we can do to help you?” And whether that’s the executive committee, whether that’s City Strata, or whether that at that point is the debt collector, it doesn’t matter. It’s about how you try to resolve debts in the first place.[10]
[10] Transcript of proceedings, 7 February 2018, pages 218-219
17.In other words, at the end of the hearing, the respondents argued that as a consequence of precipitous collection and legal action by the applicant, and the subsequent cumulative failures by the body corporate, the manager and CCA, the fees charged were not reasonable, and also not fair, and are therefore not recoverable under section 37. This is, for the most part, the line of argument that I have addressed in these reasons. However, for reasons that are considered below, I cannot ignore the other allegations, particularly as they have had an impact on the length, complexity and cost of this hearing.
The legal framework – section 37 expenses
18.Section 37 of the CT Act provides relevantly as follows:
37 Recovery of expenditure resulting from member’s etc default
(1)This section applies if a body corporate has, in carrying out its functions, incurred expense, or carried out any work, that is necessary because of—
(a) a wilful or negligent act or omission of a member of the community title scheme, or an occupier of the member’s lot; or
(b) a breach of its by-laws by a member of the community title scheme, or an occupier of the member’s lot.
(2)The amount of the expense, or the amount spent on the cost of the work, is recoverable by the body corporate from the member as a debt.
19.At the time of the hearing, section 37 of the CT Act is in substance the same as section 31 of the Unit Titles (Management) Act 2011 (UTM Act). The approach taken by the Tribunal to claims for expenses under section 31 of the UTM Act has been discussed in several cases, most relevantly in the ruling tribunal decision and the succession of ‘example’ cases that followed.[11] These cases determined that section 31 of the UTM Act provides for the recovery of legal professional costs and disbursements, company title searches, filing fees and administrative costs and disbursements incurred, including in enforcement proceedings in the Magistrates Court, provided those expenses met the ‘double reasonableness test’– that is, that:
it was reasonable for the owners’ corporation to incur expenses of the type … and the amount of each component of the expenses sought is reasonable.
[11] The Owners – Units Plan 638 v Carroll [2018] ACAT 25; The Owners - Unit Plan 3964 v Wang [2018] ACAT 32; The Owners – Unit Plan No 1565 v Ruff [2018] ACAT 31; The Owners Units Plan No 3609 v Chen [2018] ACAT 26; The Owners – Units Plan No 3802 v Ilhan [2018] ACAT 28; The Owners – Units Plan 371 v Nabua & Anor [2018] ACAT 29; The Owners – Units Plan 3788 v Black & Anor [2018] ACAT 24; The Owners – Units Plan 3492 v Robson & Anor [2018] ACAT 30; The Owners – Units Plan 546 v Donnelly & Anor [2018] ACAT 27
20.The parties appeared to be in agreement that the same test should be applied to section 37. Neither suggested any alternative approach.
21.It is worth noting that section 31 of the UTM Act has since been amended by section 116 of the Courts and Other Justice Legislation Amendment Act 2018 to expressly provide that an “expense includes … a legal expense relating to a proceeding in the ACAT”. A note was also added to section 48 of the ACT Civil and Administrative Tribunal Act 2008 to make it clear this is an exception to the usual practice that costs are not recoverable in the Tribunal. The Explanatory Statement to the Bill provides that the purpose of these amendments is to:
clarify that the recovery of an expense by an owners’ corporation for a units plan can include a reasonable legal expense reasonably incurred in ACAT proceedings (an associated amendment has been made to the Unit Titles (Management) Act 2011.[12]
[12] Page 2
22.It is not clear why amendments have been made to the UTM Act and not the CT Act. It may simply be an oversight. Nonetheless, I am of the view that the reasoning of the ruling tribunal decision in relation to section 31 clearly applies, by analogy, to section 37 of the CT Act. I therefore adopt the ‘double reasonableness’ test for these proceedings as well.
Legal Framework – debt applications
23.Claims for unpaid levies under section 37 of the CT Act may be brought as debt applications in the Tribunal’s civil jurisdiction.
24.The approach to be taken to debt applications was considered by the Tribunal in PCM Office Services Pty Ltd & Anor v Mi [2018] ACAT 36:
Onus of proof must be approached with caution, especially in Tribunal proceedings. However in my view, in a claim for unpaid fees, the person seeking payment must at least be able to demonstrate in a reasonably transparent manner the tasks done referenced to the time spent. Only with that information disclosed can the reasonableness of the time spent, and implicitly the fees charged, be considered. For example, in Onesteel, the builder itemised its costs by reference to different components and/or sequential tasks that it contended were necessary to construct the building. Having done so, the onus moved to the builder’s client to show why, in relation to each costed component, the amount was “neither reasonable nor proper”.
25.This approach has been adopted in other Tribunal matters[13] and I adopt it here. On this approach, the applicant must demonstrate how the expenses were accrued, and costed, and why, and once this burden is satisfied, it is then a matter for the respondents to demonstrate why they are not reasonable or reasonably incurred.
[13] See P & G Builders Pty Ltd v Flaherty [2018] ACAT 58 at [58]
26.The respondents conceded, in closing, that “it’s about not the reasonableness of each of these costs but the reasonableness of the approach that was taken from the get-go and subsequently.”[14] Other than to contest the necessity of counsel, they did not make detailed submissions about the individual costs claimed.
[14] Transcript of proceedings, 7 February 2018, page 218, lines 6-8
27.I note that the Tribunal’s position in relation to debt application of this kind has been to permit applicants to amend their applications to recover the costs of the proceeding in the application. The Tribunal’s reason for this approach was discussed in The Owners – Unit Plan No 3182 v Black and Anor [2018] ACAT 6 (Black) at [18] to [22]. I refer to that decision and do not need to repeat the reasoning here.
Legal framework – the allegations of deliberateness, intimidation and harassment by CCA
28.On one view, the allegations made by the respondents, that the applicant, or one of its agents, deliberately mislead the respondents so as to inflate expenses may amount to allegations of fraud – for example, the allegation that arrears notices or demand letters were deliberately not mailed so that additional fees could be charged could be considered such an allegation.[15]
[15] See respondents’ submissions, page 1
29.As a matter of natural justice, allegations of fraud must be clearly pleaded and properly particularised.[16] A legal practitioner who makes allegations of fraud without supporting evidence may well be the subject of disciplinary action.[17] Self-represented litigants are not subject to these kinds of repercussions, and some leeway was given to the respondents by the Tribunal where the allegations were relevant to the question of reasonableness. Other allegations I declined to hear further.
[16] Sgro v Australian Associated Motor Insurers Ltd [2015] NSWCA 262
[17] Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 117 ALR 253
30.At no stage during these proceedings did the respondents produce any evidence of malice or deliberateness by any person associated with the respondent, and nor was there any evidence of a kind from which I could draw such an inference.
31.This case illustrates the perils of making unfounded allegations of misconduct in such circumstances. Notwithstanding that the allegations made were unsubstantiated, the applicant and their agents, quite reasonably, wished to address them in reply. Not only did this detract from the real basis of the respondents’ case, it increased both the time taken to resolve this matter, and the costs that the respondents must now ultimately bear.
The alleged breach of the debt collection guide for collectors and creditors
32.In their response and at hearing, the respondents alleged that an employee or agent of CCA engaged in harassment and intimidation in breach of the Debt Collectors Code. Although it was not entirely clear from the documents, I understand that the applicant’s argument is that the conduct of the relevant CCA employee was unreasonable, when viewed against this Code, and that the costs incurred in relation to work done by the employee should therefore not be recoverable. They also, in effect, asked that the Tribunal make findings about the conduct, so as to assist other people who must interact with debt collectors.
33.It is important that I be clear about the role of the Tribunal. In determining this matter, the Tribunal must consider whether expenses incurred in recovery of the debt were reasonably incurred. This may involve an assessment as to whether certain steps were reasonable. The Code of Conduct is a relevant factor in this consideration. However, it is not the role of the Tribunal in this proceeding to review CCA’s overall compliance with the Code, let alone make findings against individual employees or officers of the applicant’s agent.
34.Still, some of the allegations are relevant to questions of reasonableness, and so I make the following observations in relation to the allegations, as put.
35.It is apparent that the respondents were under considerable stress, financial and otherwise, during 2015 through 2017. I have no doubt that they found contact by a debt collector to be stressful and unpleasant, just as I have no doubt it added to their distress. As such, I accept the evidence of both respondents that they felt coerced and harassed. I also accept that their feelings in turn impacted on their responses and interactions with CCA and the manager. However, this alone does not make the conduct of the CCA, or the manager, or their officers or agents, unreasonable.
36.Almost any debtor is likely to find contact from a debt collector stressful, and even harassing. This is why the prohibition on harassing and coercive conduct in the Code of Conduct (and indeed, in the Australian Consumer Law[18]) is not a prohibition on ‘harassment and coercion’ per se, but rather on ‘undue’ harassment and coercion.[19]
[18] See section 50 of the ACL
[19] See page 45
37.As was observed by Justice French in Australian Competition and Consumer Commission v McCaskey (2000) 104 FCR 8,[20] the question of whether particular conduct amounts to ‘undue harassment’ or ‘coercion’ depends very much on the context:
Repeated unwelcome approaches to a potential acquirer of goods or services could qualify as harassment and, so qualified, require very little additional evidence, if any, to attract the characterisation of “undue harassment”. On the other hand a consumer who owes money to a supplier can expect repeated unwelcome approaches requesting payment of the debt if he or she does not pay. No doubt such approaches might also qualify as harassment. If legitimate demands are reasonably made, on more than one occasion, for the purpose of reminding the debtor of his or her obligation and drawing the debtor’s attention to the likelihood of legal proceedings if payment is not made, then that conduct, if it be harassment, is not undue harassment. If, however, the frequency, nature or content of the approaches and communications associated with them is such that they are calculated to intimidate or demoralise, tire out or exhaust a debtor rather than convey the demand and an associated legitimate threat of proceedings, the harassment will be undue…
…The collection of debts may involve coercion in the sense that the debtor is subjected to the pressure of the demand and the legitimate threat of civil process for recovery with the additional cost and damage to credit which that can involve. Such pressure may be thought of as coercion but is entirely legitimate and not “undue”. Where the demand includes content which does not serve legitimate purposes of reminding the debtor of the obligation and threatening legal proceedings for recovery but is calculated otherwise to intimidate or threaten the debtor, then the coercion may be undue.
[20] See also ACCC v The Maritime Union of Australia [2001] FCA 1549 at [60]
38.Refshauge J of the ACT Court of Appeal observed in Quach v Butt [2017] ACTCA 4 at [32]:
Generally it can be said that a person will be harassed by another when the former is troubled repeatedly by the latter. The reasonableness of the conduct will be relevant to whether what is harassment constitutes undue harassment.
39.Debt collection that is unduly harassing may, by its nature, result in unreasonably incurred costs. However, context is critical in this case. CCA personnel made contact with the respondents on several occasions, by SMS and telephone, to attempt to get them to pay the debts. On other occasions, the respondents (no doubt reluctantly) made contact with CCA. Some of the communications could have been clearer, on both sides[21], but there is no evidence of excessive or unreasonable conduct that would incur unnecessary costs. On the information before me, I am satisfied that each of the steps taken by the applicant was reasonable in the context of making legitimate demands for the recovery of a debt, albeit a fairly small one. There is, on the evidence before me, no evidence of undue harassment or coercion in that context.
[21] Although a heavier burden to be clear and not misleading lies on CCA
40.That said, I have not considered in any detail the conduct of each individual on each of the occasions that they interacted. The evidence is in conflict. I do not need to resolve the dispute. If the respondents genuinely consider that, for example, words exchanged in the course of the conversations were unduly intimidating or harassing, there are other avenues under which they can make complaint and through which a proper investigation may be undertaken.
Factual findings – notes on the reliability of the respondents’ evidence and their credibility as witnesses
41.While much of the evidence in this matter is uncontested documentary evidence, a number of key contentions require an assessment of the credibility of the relevant witnesses.
42.Most of these contested contentions arise where the respondents are contesting the accuracy of documentary evidence.
43.‘Credibility’ imports notions of both truthfulness and reliability.[22] These are different things – a person may be completely honest in the evidence they give, but still not be a reliable witness.[23] Hence, in making the following observations about the credibility of the respondents’ evidence, I do not suggest that they were deliberately dishonest witnesses. However, I am satisfied that some of the evidence they gave, particularly in relation to dates and chronology, was inaccurate or incomplete, and is therefore unreliable.
[22] Dupas v The Queen (2010) 241 CLR 237
[23] For example, The Queen v DF [2010] ACTSC 31 at 315-316
44.It is not necessary to set out each occasion where the respondents’ evidence was inconsistent or otherwise unreliable, but the below examples are illustrative of some of the inconsistencies in Ms SV’s evidence:
(a)In their written submissions to the Tribunal, the respondents denied receiving “any” levy or arrears notices in 2015.[24] Under cross examination, both respondents conceded, when shown relevant records, that they made a payment toward their levies on 23 April 2015, and that they must have therefore received at least that notice.[25]
(b)In her submissions on the set aside application, Ms SV claimed that the applicant had “made eight separate ACAT applications”. On any view, there were only two applications.
(c)Also in her submission on the set aside application, Ms SV said that she had “entered into a payment plan with the debt collector to pay $100 a week to clear the debt”, being the debt the subject of the first application, but that “after making a number of payments under the plan, the debt collector began hounding me again by phone and email…” and “at the time I was unaware that a number of applications had been made to the ACAT to recover the debt, despite there being a payment plan in place that was in the process of being satisfied.” On any view, even if payment plans were eventually made between the parties, there was no payment plan prior to the first contact with the debt collector on 9 June 2016, and only one payment of $100 was made between 9 June 2016, when the debt collector first contacted the respondents, and 4 October 2016, when the ACAT entered judgment on the first application.
(d)Further, in her submissions on the set aside application, Ms SV stated that, in relation to the first application, she was “unaware a number of applications had been made to ACAT” until:
eventually I received a phone call from ACAT to see if we would be attending a hearing. This is when I became aware that a debt had been sent to ACAT[26]
The date of the phone call from ACAT was not stated, but Registry records indicate phone calls were made on 4 October 2016. By contrast, in her evidence to the Tribunal, Ms SV referred to a telephone conversation with Mr Ecob on 9 June 2016, in which she conceded that he advised her she would be served with legal proceedings.[27]
(e)There was also uncontested evidence that two copies of the first application, one for each respondent, were personally served on Mr HF, at home, by a process server on 10 June 2016.[28] Ms SV refers to the process server attending her home in several other items of correspondence filed with the Tribunal.[29]
(f)Also in the set aside application, Ms SV made a submission to the Tribunal to the effect that she had not received “any” documentation in relation to the second application prior to default judgment being entered against her.[30] She repeated this assertion in her statement of 11 December 2017 in these proceedings, asserting:
The application was filed on 5 December 2016….We never received any paperwork about this filing, until September 2017, when we received … a letter setting out a default judgment against us from ACAT on 17 August 2017.
However, in giving evidence before the Tribunal Mr HF conceded that he had received the application, and Ms SV acknowledged that she had as well.[31] The service of the documents were, in fairness, many months earlier and it is possible she was confused.[32] Nonetheless, this would indicate that she gave information to the Tribunal, in the context of the set aside application, and in the current application, that was plainly wrong.
[24] Submission page 1, item 1, cross referencing items 3-10 on the chronology
[25] Transcript of proceedings, 6 February 2018, page 105, lines 8-9; Transcript of proceedings, 7 February 2018, page 147, lines 15-17 and 40-41
[26] Submissions, 27 September 2017, page 1
[27] Transcript of proceedings, 6 February 2018, page 60 onwards re discussion of circumstances surrounding service of the application
[28] Transcript of proceedings, 6 February 2018, page 17, lines 7 to 22
[29] For example, letter to the Executive Committee of 10 January 2017, at page 2
[30] Interim Application, “grounds” and page 2 of the interim application submissions
[31] Transcript of proceedings, 6 February 2018, page 118 at 18 to 20; 28 to 31 and page 120 at lines 21 to 26
[32] Transcript of proceedings, 6 February 2018, page 120 at lines 24 to 26
45.While each of the above inconsistencies may, taken individually, be explainable and excusable, together they paint a picture of a witness whose evidence of dates, times and sequences cannot be relied upon. I do not reach this conclusion lightly.
46.My concerns about Mr HF’s evidence are similar. When questioned by Mr Blank, he had great difficulty recalling specific dates, times, or sequences of events. Mr HF could not, for example, recall the outcome of the 4 October 2016 hearing of the first application. He had initially been nominated to attend that hearing, and had filed with the Tribunal a copy of a power of attorney to represent his wife, although she attended in his place. He could not recall an ACAT instalment order to pay $100 a week, and could not recall whether he paid any instalments, even when shown records of payment.[33] He denied making a telephone call to CCA legal about payment of the instalments, but then conceded that a phone call had been made from his number shortly after the payments were due.[34] He was unwilling or unable to confirm that he had made payments that were recorded in the applicant’s ledger as having been paid.[35]
[33] Transcript of proceedings, 7 February 2018, page 163
[34] Transcript of proceedings, 7 February 2018, page 165, line 44
[35] For example, transcript of proceedings, 7 February 2018, page 168, line 11-12
47.I do not suggest that Mr HF was being deceptive or obtuse. By his own admission, he was working from memory and could not give exact dates.[36] He also appeared to not understand some of the paperwork shown to him during the hearing.[37] He left the writing of submissions to his wife.[38] It may be that they respondents have not communicated effectively. I am satisfied that Mr HF was confused, and had only a partial comprehension of the processes he was involved in. This means that I cannot treat his evidence in relation to dates, times, sequences or the nature of documents, as reliable.
Factual findings - background and facts
[36] Transcript of proceedings, 7 February 2018, page 137, lines 4-14
[37] Transcript of proceedings, 7 February 2018, page 147, lines 3-4.
[38] Transcript of proceedings, 7 February 2018, page 142, lines 37-40
48.There was a significant amount of evidence before the Tribunal, both contested and uncontested. It is neither necessary nor efficient to canvass the entirety of that evidence in these reasons. The key areas of contention, and my findings, are set out below.
The property
49.In 2014, the respondents purchased Unit 13 (the property) in a ‘community title scheme’ established under the CT Act (the Scheme) and managed by the body corporate.
50.A community title scheme is a residential development where individual owners share an area of common property or community facilities. This scheme has 16 units, the owners of which share a common property driveway that provides access to the individual blocks.[39]
[39] Transcript of proceedings, 7 February 2018, page 209, line 11
51.Under the CT Act, a body corporate is established to manage the common property in accordance with a master plan, a management statement and the other legislative requirements[40]. Under section 44 of the CT Act, the body corporate may appoint a manager and delegate to that manager the functions related to administration, management and control of common property. City Strata was appointed manager (the manager) from 8 December 2014, replacing another company. The manager is subject to the control and direction by the body corporate acting in general meeting or through a committee of management (in this case, called the executive committee), appointed under section 43.
[40] See CT Act sections 6; 7
52.Pursuant to section 45 of the CT Act, the body corporate must also establish an administration fund and it may from time to time levy contributions from members to meet expected expenditures pursuant to section 46. The contributions, or levies, must be levied on a basis fixed by the management statement registered under the CT Act, and a contribution must be paid by a day fixed by the body corporate and notified to the owner of the lot by written notice of the amount payable (see sections 46(2),(3)).
53.The applicant corporation regularly held annual general meetings. At those meetings, levies were determined for the coming year. The levies were small, less than $150 for the sinking fund and administration fund combined. This reflected the limited role of the body corporate in managing the communal driveway. There was no suggestion by the respondents that the levies in issue were not appropriately authorised in accordance with the requirements of the CT Act (although the respondents do argue that they were not issued with written notices as required by section 46 of that Act).
54.For some time after the respondents became residents of the complex – there is no evidence as to the exact dates – the respondents were active in the body corporate, and apparently members of the executive committee. Ms SV, at least, was involved in liaising with the manager about repairs to the complex. Both later ceased being members of the executive committee.
The levy notices
55.Central to the respondents’ case is the argument that they were not served any levy notices, and that legal proceedings were commenced prior to them being advised of the extent of the debt, and how to pay it. To quote the respondents’ submission:
…the executive committee, city strata, and consolidated collections Australia have been completely overzealous and frivolous in their use of the ACAT process to recover what is in fact a very small debt. They have wasted my time and the Tribunal’s time by not following standard procedures for debt recovery:
I never received a levy notice.
I never received an arrears notice.
I was never contacted by anyone about my debt until I was it was forwarded to a debt collector, who harassed and intimidated me.
56.I do not accept that a failure to receive the levy notices would of itself entitle the respondents to avoid liability for the levies. However, it would not be reasonable to expect an owner to pay for collection costs in respect of levies that they did not know, and were not advised, were due.
57.Mr Stevens, an employee of the manager, gave evidence as to the processes followed to generate and send levy and other notices. Mr Stevens gave written and oral evidence in a straightforward manner and I have no reason to doubt his evidence.
58.Mr Stevens said that sometime after the respondents purchased the property, their names and address for service were entered upon the body corporate roll maintained by the previous manager (a different entity from the current manager) under section 55 of the CT Act. He explained[41] that when the current manager took over the management of the complex, it determined to send levy notices to the address for service notified on records provided by the previous manager.[42] He explained that:
… in relation to Unit 13, there was a levy notice sent by email on 17 December 2014 to [SV]’s work address. After that date, all the levy notices from 11 March 2015 to 13 January 2017 were sent by mail to their residential address … Then after 15 December 2016, when it was requested by [SV], the levy notice was forwarded by email to her Hotmail email account and the first one went out on 13 January 2017.[43]
[41] Statement, paragraph 11-12
[42] Transcript of proceedings, 6 February 2018, page 23, line 25-26
[43] Transcript of proceedings, 6 February 2018, page 19, line 23-28
59.Mr Stevens gave the Tribunal copies of the four 2015 arrears notices, respectively dated 10 March 2015 (levy due 1 April 2015)[44], 9 June 2015 (levy due 1 July 2015)[45], 9 September 2015 (levy due 1 October 2015)[46] and 4 December 2015 (levy due 1 January 2015).[47] All the notices had the respondents’ residential address on them. Mr Stevens’ evidence is that the documents were generated by the manager and mailed by prepaid post. None were returned as undelivered.
[44] AS14
[45] AS15
[46] AS16
[47] AS17
60.Mr Stevens’ further evidence was that, in addition to the four arrears notices, the applicant mailed to the respondents, at their residential address, a notice of AGM containing financial records for the scheme, including a list of all outstanding debts.[48] Further, the manager sent a ‘final demand’ letter to the respondents on 21 January 2016[49], and a letter warning of legal action on 18 February 2016.[50] The latter notice stated that the debt was $775.81. On Mr Stevens’ evidence, all these notices were mailed to the respondents’ residential address. None were returned as undelivered.
[48] Transcript of proceedings, 6 February 2018, page 33, line 25-30
[49] AS18
[50] AS19
61.As noted above, the respondents accepted at hearing that the 10 March 2015 levy notice was appropriately served but deny receiving the other levy notices, the AGM notice, or the two notices of pending legal action.
62.In order to accept the respondent’s evidence that they did not receive any of the notices or correspondence, I must accept one of two possibilities as being likely on the balance of probabilities:
(a)the levy notices were not mailed; or
(b)the levy notices were mailed but, for whatever reason, were not received.
63.Taking the first possibility first, Ms SV argued that it was for the applicant to ‘prove’ that it, or its manager, mailed the relevant arrears notices. Whether or not that is the test, I accept the evidence of Mr Stevens as meeting that burden. Copies of the arrears notices were in evidence. Mr Stevens explained the process by which these letters were generated and mailed. The weight of evidence before the Tribunal is that all the other residents of the community title scheme received their levy notices.[51] There was no substantive evidence that would establish that the manager had knowingly or deliberately withheld the respondents’ notices, nor any real apparent motive for the manager to do so, particularly in relation to only one unit. It is possible that an administrative mishap may have occurred on one or two occasions, but I am satisfied that the majority, if not all, of the levy notices, arrears notices and AGM notice were mailed.
[51] Transcript of proceedings, 6 February 2018, page 19, line 40
64.The next question is whether that correspondence was received.
65.It is not an uncommon occurrence in this Tribunal that a party to a proceeding will give evidence, usually on oath or affirmation, that they failed to receive a particular piece of correspondence, usually an application or listing notice. This happens with sufficient regularity that I am prepared to accept that prepaid mail can, and does, go astray. However, while I can accept that this may happen to individual items from time to time, I have a great deal of difficulty accepting that three levy notices, two arrears notices and the AGM notification letter all disappeared in the mail, without some evidence of a failure point in the mail delivery system.
66.The most obvious point of failure was the respondents’ residence. However, under questioning from the Tribunal, Mr HF confirmed “hundred percent”[52] that he had a letterbox, that he collected and opened the mail every day (within reason) and that he did not generally have problems receiving other mail. Ms SV said the dedicated mailbox was outside the house[53], and that she also collected the mail. She said that the mailbox was big enough for a “jammed in” A4 size document. She said that the respondents have a drawer where they put the mail. She denied ever having problems getting mail from anyone other than the manager and CCA[54] (and, apparently, the Tribunal). She conceded that she had received the April notice in her mailbox, and she also received the set aside order by mail. Accordingly, I am satisfied there was nothing preventing the delivery of the mail to the respondents’ premises.
[52] Transcript of proceedings, 7 February 2018, page 149, line 1
[53] Transcript of proceedings, 6 February 2018, page 122, line 37
[54] Transcript of proceedings, 6 February 2018, page 123, line 13
67.As noted above, there was no evidence of deliberateness or bias on the part of the manager or any of its employees. Negligence on the part of the manager or even Australia Post is a possibility, but to establish even that is it necessary to speculate. The most obvious explanation – that the letters were mailed to the wrong address – is not supported on the evidence, as each is correctly addressed. Again, at least one notice, in April, did make it through the postal system to that address. Other owners received their notices.
68.The only substantive evidence I have as to the failure of the mail to reach the respondents is their evidence that they never received any of the notices. I am satisfied the notices were generated, addressed to the respondents at their residential premises and mailed. I am satisfied that there was nothing preventing those documents being received at the respondents residential premises. I do not know what happened to the correspondence once it was mail. However, having regard to my comments above in relation to the respondents’ credibility, I do not accept their evidence that they did not receive any notice of the debt prior to the commencement of proceedings. I find it more likely than not that they received at least some of the notices.
69.Even if I am wrong about this point, and the respondents in fact did not receive the levy notices (or indeed, any correspondence), I am not convinced that that would have made a significant difference to the overall outcome of these proceedings, because on their own evidence, they knew they owed levies, but in the absence of the levy notices, they choose not to investigate further because of other pressing financial concerns.
70.During the course of the hearing (and after conceding that she received and paid the April 2015 levy), Ms SV then referred to her position later in 2015 as follows:
…. well at time, as I said, we were making payments, we had the details and then we fell into financial difficulty and we couldn’t afford to make the repayments.[55]
[55] Transcript of proceedings, 6 February 2018, page 106, lines 12-14
71.Elsewhere she also conceded that:
we fell behind because we were in financial difficulty because we had to try to pay for a wedding and we couldn’t afford it.[56]
[56] Transcript of proceedings, 6 February 2018, page 97, lines 5-6
72.Her evidence continued as follows:
Blank: You’d appreciate, wouldn’t you, that the history that you present to my client and the owners’ corporation is of someone who takes no steps to find out what they owe and owe more than year’s of levies - this is 2015 - does nothing about it. Do you agree?
SV---I didn’t do nothing about it.
Blank: That’s the perception that they would have from the information they had, isn’t it?
SV: At that point ---
Blank: Yes or no?---
SV: At that point in time, and I recall having this conversation with my husband, I knew we would have debt because we hadn’t paid the levies for some time. We hadn’t received any levy notices and said this is going to come back to bite us at some point in time - we’d better get onto this. Then we got a call from [Mr Ecob] and I remember saying to him, I know there’s a debt outstanding. I haven’t got any correspondence to make the payments, I’ve asked my husband to make a couple of phone calls to find out what’s going on, but at that point in time we hadn’t received anything.
Blank: You know who the strata manager was yourself?
SV: Yes, and he gave him a call. I don’t like talking to people on the telephone. I know it sounds weird, but I just don’t like talking to people on the phone.
Blank: You could have written a letter to the strata manager and said, “Please send this information to this address,” couldn’t you?
SV: If I had the time - - -
Blank: So you didn’t have the time to contact the strata manager about levies that you know were outstanding for over a year?
SV: Yeah. I didn’t have the time.[57]
[57] Transcript of proceedings, 6 February 2018, page 103, lines 9-34
73.In other words, even on Ms SV’s evidence, the respondents had known they were not paying their levies, knew there would be consequences for this, but chose not to do anything for nearly a year, until they started receiving calls from CCA. Unfortunately, by that time, as she conceded elsewhere in her evidence, they “couldn’t afford [the levies].”[58]
[58] Transcript of proceedings, 6 February 2018, page 97, line 6
74.This latter evidence is, in my view, a frank assessment and admission by Ms SV of the reality of her and Mr HF’s circumstances in the latter half of 2015. They had been members of the executive committee. They had paid their levies in previous years (albeit, on occasion late). They were aware of the obligation to pay levies quarterly[59] and knew they were about $150 a quarter. Having paid previously, they either had the payment details, or knew how to acquire them. They did not do so, at least not until the debt collector approached them. By then, they were in financial trouble and may have struggled to pay anyway.
[59] Transcript of proceedings, 6 February 2018, page 95, line 37
75.As stated above, I am satisfied that it is more likely than not that the respondents did receive at least some of the notices, albeit they may not have opened them. However, even if they did not receive the levy notices, they knew that the levies were owed, they knew how to find out about them, and they made a deliberate decision not to pay them.
76.Nonetheless, for reasons I explore further below, had the matter been resolved at this point, an argument that the debt collection costs were unreasonable may have been open to them. But that is not what happened.
Debt recovery and legal action
77.It is opportune here to summarise the position that the parties were in at the beginning of 2016, when the applicant referred the debt to CCA for debt recovery action.
78.The respondents had been late with levy payments throughout 2014. They made a levy payment of $543.00 on 23 April 2015, but then fell behind again. By 31 December 2015, their arrears and interest on those arrears was $693.62, or the equivalent of three quarters. Expenses had also been accrued by the manager in trying to recover this debt, which the applicant (or, more accurately, its members) were contractually liable to pay. There was no response or engagement by the respondent with the applicant corporation or the executive committee. Hence, the executive committee referred the debt to a debt collector for recovery.
79.During the hearing, Ms SV asked, quite reasonably, why, when she fell behind, someone from the executive committee did not simply called her and enquire what was wrong, rather than referring the matter to a debt collector. This raises two issues: first, whether the body corporate should have approached the applicant directly before commencing legal action; and second, whether it was appropriate to refer the debt to a third party collection agent at all, or to try to recover it in-house instead.
80.Turning to the first question, Ms SV suggested, in her evidence, that the executive committee took no steps to try to deal with her directly before commencing legal action:
All that needed to be done— and I’ve said this all along, and I said it in my letter to the executive committee, to my neighbours—was to come and knock on my door and ask me, “Hey, are you guys struggling?” That’s all they needed to do from the get-go.[60]
[60] Transcript of proceedings, 7 February 2018, page 217, lines 20-23
81.She said that, while she was a member of the committee, she had tried to be the “voice of reason” and encouraged the executive committee to leniency toward other members who had paid their levies late. In her closing submissions, she described her approach as follows:
I’ve been involved in decisions of how to recover debt previously, and the approach that I suggested- the softly-softly works. That person repaid their debt. The hardline approach, the scaring people approach, the using-the-full-force-of-the-law does not work. That’s why we’re here today because they scared the crap out of us. Honestly. We got threatened and all of these things. We didn’t know it was going to end here at a 10 grand debt[61]
and
And when our neighbour … fell behind, that’s exactly what I did. I knocked on his door and I said, “Mate, are you struggling?” And he said, “Yeah, I’m just going through a divorce. I can’t afford to pay my levies at the moment. But I will pay them when I can.” “No worries, mate. Let’s go have a beer, let’s have a chat about this, and once you’re ready to pay, you let us know.” And he did. We never needed a debt collector, because we took the reasonable approach, the neighbourly approach.
But now that the voice of reason is no longer on the executive committee and it’s being run by other people, who are out for blood because they’ve got nothing better to do with their time, we’ve ended up here.[62]
[61] Transcript of proceedings, 7 February 2018, page 215, lines 18-24
[62] Transcript of proceedings, 7 February 2018, page 217, lines 25-32
82.No doubt, the approach taken by Ms SV was a conciliatory one. In her submission, the approach favoured by some other members, and the approach taken to her, was less reasonable:
Now we’ve got an executive committee that’s really quite overzealous in pursuing these small debts. I know that because I have sat on the executive committee and I have been involved in conversations where they’ve wanted to 20 use the full force of the law against people who have fallen behind in a similar capacity to the way that we have.[63]
[63] Transcript of proceedings, 7 February 2018, page 209, lines 17-21
83.Is it, as Ms SV suggests, incumbent upon the applicant, or its executive committee, to take the initiative and reach out to the respondents before commencing legal action?
84.As matter of good practice, body corporates, or their agents, should make direct contact with owners prior to commencing debt recovery. Doing so may certainly avoid unnecessary (and unrecoverable) costs. It is possible, consistent with what Ms SV suggests, that a telephone call from either a member of the executive committee or, perhaps more appropriately, the manager, may have had a positive result in this case. Even an email enquiring of the respondents whether they had received the documentation would have been useful. At the very least, such steps could have helped establish that the applicant corporation actually made reasonable steps to avoid the expense of debt collection or litigation. Unfortunately, these steps were not taken. However, it does not follow from this oversight that the entire rest of the collection process was unreasonable.
85.Moreover, I am reluctant to impose upon all corporations an obligation to deal directly with a debtor – it is conceivable that personal dynamics or other factors may make that impracticable, particularly in a small complex such as this one.
86.A corporation that proceeds directly to collection or legal action takes a risk, as expenses will only be recoverable under section 37 where those costs were reasonably incurred. Had the respondents in this case, upon being advised of the arrears by the manager or the debt collection company, promptly paid those arrears (or entered into, and complied with, a repayment plan), then some recovery costs may not have been recoverable. But that it not what happened.
87.The other question is whether it appropriate to refer the matter to a debt collector rather than relying on the executive committee or the manager.
88.In this regard, I note the observation of the Tribunal in Black at [44]-[46]:
44. In the circumstances, we broadly accept that there is nothing prima facie unreasonable about an owners’ corporation engaging a law firm or a debt recovery firm to pursue recovery of unpaid levies. The ultimate question, in our view, is not the identity of the entity that undertakes the necessary work, but whether the costs incurred by using that entity are reasonable.
45.There was nothing to suggest that the engagements of those firms in the eleven matters before this Tribunal was unreasonable.
46.However, the Tribunal does not accept that it will always or inevitably be reasonable for every owners’ corporation to instruct a legal representative or collection agency to represent it in debt collection proceedings. In cases where the debt is relatively small, where no complex legal issues arise, and where the company has engaged a management company, particularly one whose fees already cover the cost of some recovery action, it may not be reasonable for that company to engage external assistance, unless that assistance were actually more cost effective than the alternative. Again, none of the eleven cases appeared to be fall within any of these categories.
89.The executive committee in this case is small, and the applicant has limited functions and, hence, limited funds available to it. It is unclear whether the committee would have members capable of conducting debt recovery processes. It was not suggested by any party that the process would be more cheaply or efficiently conducted by the applicant or the executive committee or even the manager. Indeed, in a small complex, with persons living closely together, an argument could be made that it is more sensible to engage a third party to recover debts. I am satisfied it was reasonable for the executive committee to have relied upon a third party.
90.No suggestion was made that the debt collection process could have been conducted more efficiently by the manager than by CCA. I note that the manager had already sent letters of demand prior to engaging the debt collection company to commence legal proceedings. I do not think it unreasonable that they then engaged a debt collection company to advance the matter further.
91.In summary, therefore, I accept the respondents’ argument that the executive committee or the manager should have made some attempt to contact them by a form of communication other than pre-paid mail prior to referring the matter to a debt collector. A text or even an email would have sufficient, if only to ensure that the respondents were getting levy notices. Had the respondents promptly addressed the debt upon being advised of it by the debt collection company, I would have had some concerns about whether the additional costs were reasonable. However, in view of how this matter actually unfolded, I am not satisfied that this oversight rendered the entire debt collection process unreasonable, particularly when viewed in the context of ensuing events.
The debt collection process
92.The applicant sent the respondents a final demand letter on 21 January 2016 and a letter stating legal action will be commenced on 18 February 2016. They received no response. The applicant and its manager then referred the debt to CCA on 18 February 2018. The alleged debt at this time was $813.21. This included the sums for the arrears notices previously added to the account, and a modest collection charge of $34.
93.CCA did not commence legal action immediately. Their first action was to send a demand letter to the respondents on 18 February 2016. On Mr Ecob’s evidence, copies of this letter were sent by prepaid post and registered mail.[64] The demand letter clearly stated that if action needed to be taken, collection costs in excess of $500 would need to be charged.
[64] Transcript of proceedings, 6 February 2018, page 38
94.The evidence of Mr Ecob, supported by documentation from Australia Post, is that the notice slip (the notice slip) advising that a letter had been mailed by registered post was delivered to the respondents’ address on or about 19 February 2016. The letter was never collected. The respondents deny even receiving the notice slip.
95.On balance, I accept that the respondents probably did not receive did the notice slip. They were interstate, getting married, from 18 February to 23 February 2016, and it is conceivable that during that time the slip may have blown from the mailbox or otherwise been lost in the excitement of the wedding or the volume of cards and correspondence that usually surrounds one. However, no explanation had been offered by the respondents for their failure to receive the letter sent by pre-paid mail. I find it more likely than not that they received this letter, particularly as Australia Post apparently delivered the slip without issue.
96.Having received no response from the respondents, CCA sought advice from the applicant as to what it wished to do, and on 7 March 2016, the applicant instructed CCA to commence debt recovery proceedings.
97.Again, for reasons set out above, I accept Ms SV’s argument the better practice would have been to attempt to contact the respondents by some form of communication other than mail prior to commencing proceedings. However, I am not prepared to conclude that in these circumstances, where an owner in a small complex is nine months behind in levies, where a significant amount of correspondence has been sent, and where there is no communication or explanation from the debtor, commencing legal action to recover those unpaid levies was unreasonable.
98.That said, and further to comments at paragraph 68, above, had the respondents, upon being served with the an application, filed a response admitting liability for the arrears, but contesting the collection costs and application fee on the basis that they did not know about the debt, this Tribunal may have taken a different view of the reasonableness of the applicant commencing legal proceedings in these circumstances when the matter came before it for assessment. But again, that is not what happened.
99.On 24 March 2016, the first debt application was lodged with the Tribunal. At this time, the claim was for unpaid levies of $582.30, and section 37 expenses of $684.40, including the arrears letters, and the demand letter ($37.40), the debt application ($396.00) and an ACT title search ($88.00).
100.It is the usual practice of this Tribunal to serve applications. However, somewhat unusually, the then-solicitor for the owners’ corporation advised the Tribunal that:
In view of the registered letter for final notice issued by the mercantile agent being returned unclaimed by the Respondents, I would request that the [Application] be returned to my firm … for me to arrange for personal service upon the Respondents.
101.Personal service of documents adds to the cost, and may not be appropriate in every case. However, in circumstances where an applicant is proposing to commence legal action and there has been recent no contact with the respondents, it is appropriate and reasonable.
102.The Tribunal returned the sealed copies of the first application to CCA on 11 April 2016, and CCA provided a copy to the process server, Mr Arnolda, to serve on the respondents on that day.
103.Unfortunately, Mr Arnolda did not serve the first application for some time. Ms SV’s evidence is that the first time she heard of the debt application was an SMS sent to her by Mr Ecob on 9 June 2016. It does not appear to be in dispute that no contact was made between 18 February 2016 and 9 June 2016. This unfortunate delay was occasioned by the process server’s illness. Still, it does not appear to have occasioned any additional expense to the respondents, other than perhaps additional delay and interest. It is, in the circumstances, appropriate that no interest be awarded on the debt for the period 11 April 2016 to 10 June 2016.
104.On 7 June 2016, a further levy notice was mailed to the respondents, and the applicant enquired of CCA where the debt collection proceedings where up to. Mr Ecob made enquiries and determined that the application had not been served.
105.Mr Ecob then acted with some considerable haste to make contact with the respondents and serve the application. It is possible, and even probable, that the haste may have had some adverse impact on the manner in which subsequent events unfolded, as the impression I draw from the ensuing events is that CCA was under some pressure from the applicant corporation to resolve the matter. Again, had the respondents promptly resolved the dispute following contact with Mr Ecob, then some of these steps may have been unnecessary and hence the costs unreasonable, but that is not what happened.
106.On 9 June 2016 Mr Ecob texted Ms SV and asked her to contact him. Later that day, she called him back. Mr Ecob described the conversation as “very friendly”[65] and Ms SV agreed it was “pleasant”.[66] Having regard to both accounts of the conversation, I am satisfied that Ms SV advised Mr Ecob that:
(a)she had not received levy notices and did not know what the debt was;
(b)she had just gotten married and had incurred significant expenses in relation to the wedding;
(c)she and Mr HF did not have much money at present; but
(d)she would start making payments at $100 a week, commencing that night.[67]
[65] Transcript of proceedings, 6 February 2018, page 45, line 11
[66] Transcript of proceedings, 6 February 2018, page 59, line 5
[67] Transcript of proceedings, 6 February 2018, page 45, lines 20-21
107.The offer to make a payment appears in records kept by CCA as an “instalment order”.[68] Mr Ecob’s oral evidence was that he did not agree that the payment of $100 a week would settle the matter[69], but:
… we’ve entered into our system as the debtor’s intention but not agreed to as the type of instalment order. Rather than just ignore it, we do enter it in, because if the person says that’s what they’re going to do and they start doing it, the body corporate likes to know and likes to see if they keep it, and sometimes they change their mind…[70]
[68] Transcript of proceedings, 6 February 2018, page 39, lines 13-27
[69] Transcript of proceedings, 6 February 2018, page 45, line 26
[70] Transcript of proceedings, 6 February 2018, page 45, lines 28-33
108.It is not entirely clear from Ms SV’s evidence whether or not she thought the instalment offer was accepted at this time. The reference to a “payment plan” in the set aside application[71] appears to suggest that she did think a plan was agreed, but her submissions indicate that she was in fact unsure.[72] In the circumstances, some confusion was understandable.
[71] Submission attached to interim application, page 1
[72] Submissions page 3
109.It is common ground that in the course of that conversation, Mr Ecob agreed to email an owners’ ledger to Ms SV. This document contained an outline of the amounts claimed and the methods of payment. Ms SV sent him her email address at her place of work so he could email her in reply. Mr Ecob’s evidence is that he emailed the owners’ ledger to Ms SV that evening. A copy of an email attaching a document with the name “ledger card unit 13 CT 12” and addressed to a government email address in the respondent’s married name was in evidence.[73] The covering email states:
SUBJECT: Memo from CCA – 48701 12A_13 Owners ledger attached with payment options.
[SV],
Please make your first payment as mentioned in our phone conversation.
I doubt the Owners Corporation will accept the $100 per week offered. I believe they will want it finalised within the next few weeks,
If you are able to borrow the funds and then repay them at your leisure the OC would be very appreciative.
Please advise of alternative arrangements to $100 a week.
[73] SE14
110.In her written submission to the Tribunal, Ms SV asserted that the owners’ ledger was requested but “never sent”.[74] She conceded at hearing that she received the owners’ ledger at some time, but not that it was sent by the above referenced email.[75] She also appeared to concede at hearing that she was aware that the owners’ corporation did not accept the offer,[76] which suggests that she may have received the 9 June 2016 email. In any case, I am satisfied that the owners’ ledger was emailed to Ms SV on 9 June 2016, as an attachment to the 9 June 2016 email. It is possible, however, that as the ledger was not referenced in the body of the email, but only in the lengthy title, she did not realise that it was attached. She certainly received a copy sometime later.
[74] See R1, page 1, referring to the chronology, “Number 25 and 26 stating that the Owners Ledger was sent to [SV]’s work email, however this was never sent.”
[75] Transcript of proceedings, 6 February 2018, page 46, line 20
[76] Transcript of proceedings, 6 February 2018, page 59, lines 10-18; transcript of proceedings, 6 February 2018, page 65, lines 1-2
111.The Debt Collection Code of Conduct provides that it is not appropriate to ask a debtor to “pay a large upfront amount and state that only afterwards will you consider payment arrangements.” I do not believe that is what happened here. The amount suggested by Mr Ecob was modest, and would have demonstrated a goodwill or intention to pay. There are, however, other aspects of these conversation which, on any view, are concerning.
112.Mr Ecob submitted in evidence copies of the written updates he provided to the applicant.[77] The notes from 9 June 2016 contain some additional comments, including reference to research he had undertaken about the respondents’ salary, and the comment “… I am sure the debtors could borrow the full amount owed on a credit card immediately.” As a mere observation, this was not problematic – a debt collector would be expected to undertake such investigations, and I do not believe they constitute evidence of any deliberate intention to inflate costs, as suggested by the respondents. However, the evidence does suggest that at the same time that Mr Ecob was suggesting to Ms SV that she pay the $100 as a token of good will, because the applicant may agree to an instalment offer, he was also encouraging applicant to reject said offer and seek the entirety of the debt.
[77] SE33
113.Also, in the email of 9 June 2016 Mr Ecob suggests to Ms SV that she borrow to pay off the debt. Part 14 of the Consumer Credit Code, “Repayment negotiations”, states that:
g. It is also unacceptable to pressure a debtor to:
…
get further into debt to pay out an existing debt
114.Importantly, the prohibition is on putting ‘pressure’ upon a debtor to borrow money, not merely suggesting it. Whether this email amounts to ‘pressure’ or not is not something I need to decide. However, I can appreciate that Ms SV found the conversation uncomfortable and unpleasant.
115.On 10 June 2016 there were several conversations between Mr Ecob and Ms SV and then Mr HF, at least one of which was acrimonious. The evidence of these conversations was contentious, and clearly both parties had differing recollections as to what was and was not said. There appears to have been some discussion about the possibility of another instalment payment plan, but nothing was agreed.
116.I observe here that a repayment rate of $100 a week proposed by Ms SV was reasonable, particularly given the relatively low principal debt in issue. It was consistent with the payment schedule ultimately imposed by the Tribunal.[78] Indeed, the evidence suggests that the applicant’s refusal to accept the payment plan was influenced in part by urgency created by the unfortunate delay between commencing proceedings, and serving the application – events that were no fault of the respondents. The rejection of the offer was, in my view, unreasonable. However, the unreasonableness is not decisive for two reasons: first, the respondents did not make the payment of $100[79] and secondly, as a consequence of the respondents failing to make any payments, it is not clear (subject to one exception) that the refusal to accept the offer actually resulted in any unreasonable costs.
[78] See paragraph 3 above
[79] at least, not until 18 July 2016 in the context of another possible agreement
117.The one possible exception was the cost of the urgent service of the application. On 9 June 2015, Mr Arnolda attended the respondents’ property between 5.30pm and 8pm to attempt to serve the application. The respondents did not return home during that time.[80] Mr Arnolda returned to the property on the evening of 10 June 2016 and then waited some time before the respondents returned home and he effected service. On Mr Arnolda’s evidence, he then served the application by leaving a copy with Mr HF. Mr Arnolda’s evidence was that this conversation was “very cordial”, although Mr HF “did mention to me that he was - that his missus was a lawyer and they was going to take the matter further because she said [Mr Ecob] was harassing them”.[81] Mr HF had a different recollection of events, and I accept he found the situation somewhat more confronting. Nonetheless, on any view, the application was served.
[80] Transcript of proceedings, 6 February 2018, page 16, lines 44-45
[81] Transcript of proceedings, 6 February 2018, page 17, lines 16-22
118.On balance, and having regard to the respondents’ position that they had not received previous levy or arrears notices, it was reasonable for CCA to serve the application personally. Moreover, even if an offer had been accepted, the applicant would still have needed to serve the application. I am not convinced that it was reasonable to have the process server wait for a lengthy period of time on two consecutive nights – this appears to be a decision made having regard to the delays in service and the increased pressure on CCA. The applicants tendered an invoice during the hearing for $77 for Mr Arnolda’s additional time[82], but that additional charge does not appear in the chronology which sets out the applicant’s expenses. The only charge that appears is the claim for the original service fee of $110[83]. I would disallow the additional $77 were it included.
[82] Tax Invoice 256413 ; Transcript of proceedings, 7 February 2018, page 200, lines 25-30
[83] Tax Invoice 231047;
119.The service of the application is relevant for another reason – even if I accepted that the respondents did not know of the debt prior to this date (which I do not), or that they did not know how to pay it, I would certainly be satisfied that they knew about it from 9 June 2016. Moreover, I am satisfied that they had a copy of the owners’ ledger, which sets out numerous ways to pay the debt, including BPAY, direct debit, cheque and over the phone.
120.When no payments were received from the respondents on 11 July 2016, the applicant instructed CCA to press ahead with an application for default judgment.
121.On his evidence, Mr Ecob tried one more time to resolve the matter without pressing the application. On 12 July 2016, he telephoned Ms SV, but she was unable to talk at the time. He then telephoned Mr HF, who accepted the call. Again, recollections of the detail of this conversation varied. Mr Ecob’s evidence was that during the 15 minute phone conversation it was agreed that Mr HF would pay $200 a week, commencing July 2016, to be paid by Internet banking.[84] Mr HF denied this.[85] He said that he offered $200[86] but that this was refused and Mr Ecob did not accept any offer. He suggested that “we wouldn’t have been sitting here today if actually [Mr Ecob] accepted the offer.”[87]
[84] See chronology; transcript of proceedings, 6 February 2018, page 65, lines 15 to 36
[85] Transcript of proceedings, 7 February 2018, page 155, lines 16-21
[86] Transcript of proceedings, 7 February 2018, page 155, lines 34-35
[87] Transcript of proceedings, 7 February 2018, page 156, line 25
122.Whether an offer was accepted or not, Mr HF did pay $100 on 18 July 2015. Under cross-examination, Mr HF said as follows:
MR BLANK: You would not have made a payment to reduce the debt unless there was an agreement between you and CCA about how the debt was to be paid. Is that right?
MR HF: I could agree with that.[88]
[88] Transcript of proceedings, 7 February 2018, page 161, lines 4-6
123.He was then unable to explain why he had made this payment if no agreement had been made:
MR BLANK: You then made a payment on 18 July but of only $100? Doesn’t that look a bit funny to you? Not at all?
MR HF: Well, of course it does. What would I go from 200 to 100 and then 100 and then – so for me it doesn’t, it doesn’t even look right, because I can tell you now, I remember the phone call, I remember the phone calls that weren’t accepted.
MR BLANK: So why was a payment for $100 received on 18 July 5 if nothing had been accepted?
MR HF: I can’t - I can’t answer that question.
MR BLANK: Think about it now?
MR HF: Yeah.
MR BLANK: And think about it hard, sir, because it’s important?
MR HF: Yeah.
MR BLANK: Why would you have paid $100 to reduce the debt if there was not agreement?
MR HF: That’s a very good question about that, very good.
MR BLANK: I suggest the answer is because there was an agreement. You just didn’t have $200, so you paid 100?
MR HF: No. That’s not correct.[89]
[89] Transcript of proceedings, 7 February 2018, page 161, line 42 to page 162, line 16
124.On 25 July 2016 Mr Ecob sent an SMS to Mr HF that stated, in part, “You did not pay $200 as promised. You only paid $100”.
125.On balance, I accept that both parties were probably somewhat confused as to whether an agreement had been reached, and for what amount. I am not convinced that the mere fact a payment was made is sufficient to establish an agreement was reached. Notwithstanding his concession under cross examination that he would not pay until an agreement was reached, the sensible thing for Mr HF to do was to make a payment, agreement or not, and that was what he did.
126.Unfortunately, the payments did not continue.
127.I note, for completeness, that the fact that Mr HF made this payment evidences that he was aware of how to make a payment.
128.Later on 25 July 2016, Mr Ecob and Mr HF had another conversation. Again, the evidence of the witnesses conflicts as to what was agreed, if anything. CCA’s records state that HF again offered again to pay $100 a week, commencing 28 July 2016.[90] Mr Ecob recorded this in his records as an “instalment order”. Mr HF’s evidence was more ambivalent.
[90] Chronology item 25
129.On Mr HF’s evidence, he did not agree to pay $200, and when his offer of $100 a week was not accepted, he stopped the payments entirely. He was then not prepared to make any payments until an agreement was made. Hence, on Mr HF’s evidence, the respondents at best made a $100 payment toward the debt, on 18 July 2016, but declined to make any further payments until a deal was reached.
[125] Se 117
170.On 10 January 2017, the respondents sent a more measured letter of offer to the executive committee. The respondents offered to pay the outstanding levies (which were at that time $1,037.62) plus interest and administrative fees to the sum of $1,361.65 in weekly instalments. At this stage, the amount claimed by the applicant was over $2,600. They also asked that all debt recovery action cease to allow them time to pay it. Again, it is not entirely clear whether this letter was responded to.
171.The respondents paid the $283.89 on 18 January 2017.
172.It appears that during the period 10 January to 18 January 2017, there were several phone calls between Mr HF and CCA. I do not have the detail of those phone calls. However, the principal of CCA Legal, Mr Frankcom, then replied to Mr HF by way of a lengthy email on 19 January 2017 that set out what was owed, and also stated that:
Because the balance [owing on the first order] is only $108.48 we are going to advise [the employer] to desist from operating on the garnishee even though there is a balance owing.
We expect you to pay this balance immediately.
…
In view of your telephone manner I have taken the view that our communications should be only in writing so that all future telephone calls will not be answered.
173.On 19 January 2017, the garnishee order was withdrawn.
174.Meanwhile, unpaid levies continued to accumulate. The applicant contend that further levy notices were sent by mail to the respondents on 9 March 2017 (payment due 1 April 2017)[126] and 16 March 2017 (due 1 April 2017 – this included an additional $15 for the sinking fund)[127]; and 9 June 2017 (payment due 1 July 2017)[128]. The respondents made a payment of $150 on 11 July 2017, but no other payments were made in relation to these notices or any of the other debts. Most, if not all, of these levies were still unpaid as at the hearing date (although I understand they have, as at the date of these reasons, been paid in full). While not the subject of these proceedings, they are indicative of a failure to make payments that the applicant is entitled to take into account in determining what instructions to give its representatives.
[126] AS25
[127] AS26
[128] AS27
175.The respondents applied for default judgment on the second application on 15 August 2017, some nine months after service of the application. The applicant’s position is that the delay showed “further goodwill”[129] by the applicant, in giving the respondents an opportunity to pay. Maybe, but this is also a remarkable amount of time to let an application languish, and it is understandable that the respondents may have been confused about the purpose of the default judgment application, and its relationship to the first application, and the second application served all those months ago.
[129] Chronology
176.As was the usual path for such matters, default judgment was entered by the Tribunal administratively, and then the matter was set down for an assessment hearing on 27 September 2017. The Tribunal served a listing notice on the respondents by mail to their residential address. The notices were not returned to the Tribunal as unserved or unopened.
177.Meanwhile, another levy notice was mailed to the respondents on 7 September 2017.
178.The assessment hearing for the second application was listed for 27 September 2017. Neither respondent appeared. The respondents were ordered to pay the applicant $575, consisting of $387 in unpaid levies, interest of $48 and the Tribunal fee of $140. The application for section 37 costs was, as was the usual course at this time, adjourned. Copies of the orders were mailed by the Tribunal to the respondents’ residential address.
179.The respondents received the orders of 27 September 2017. On 6 October 2017 they lodged an application to have the default judgment set aside. The ‘Application for Interim and Other Orders’, dated 6 October 2017 and signed by Ms SV, reads (inter alia):
I am making this application on the ground that I was not made aware of the proceeding and received no correspondence relating to the hearing and was not afforded an opportunity to present my case at the Tribunal.
In addition, the applicant had made no attempts at resolving the matter privately and has disregarded a payment plan that was in place and subsequent payments that were made and instead wasted the Tribunal’s time by making 8 successive applications without my knowledge and charging my account between $136-535 for each application.
…
180.An attachment to the application makes further assertions, some of which I have extracted at various parts above. These include that she “never made aware of” and “not given an opportunity to attend the hearings” of the second application. Somewhat incongruously, the interim application attaches a copy of the listing notice for the hearing of 27 September 2017, addressed to Mr HF.
181.Upon receipt of the application, the Tribunal Registry made enquiries and investigations, and concluded that it was possible that the application had not been served. The registry sent an email to the respondents that read, in part:
The Tribunal received an application for interim and other orders lodged by the respondents on 6 October 2017. Following receipt of the application the Tribunal reviewed its file in these proceedings. As a consequence of the review, the Tribunal cannot be satisfied that the civil dispute application lodged on 7 December 2016 was served on the respondent. This appears to be an administrative error and I apologise for any inconvenience or distress caused…
182.Consequently, the orders of 27 September 2017 were set aside in chambers, on the basis of the respondents’ evidence that they had received no correspondence about the proceedings.
183.The respondents’ claim to have not received the application is contrary to other evidence given in this hearing, as set out in paragraph 162 and paragraph 167 above.
184.It is also notable that the respondents do not contest that they owe the levies, the subject of the second application. Consequently, of the orders of 27 September 2017, only the Tribunal filing fee could seriously have been in contention. The section 37 costs, the claim amount of which was just over $1,000, had in any case been adjourned pending the outcome of the ruling tribunal decision. Accordingly, the consequence of this set aside application – an application to set aside an order for payment of an amount not in dispute – was that more expense was incurred for little purpose.
185.The first and second applications were initially listed for hearing on 9 November 2017, along with a number of other ‘selected’ cases considering the interpretation of section 31 of the UTM Act (and, by analogy, section 37 of the CT Act).[130] The hearings were adjourned that morning by consent (adjourned section 37 hearing).
[130] Black case
186.The second application was then listed for a preliminary conference before Member Warwick on 13 November 2017. Mr Frankcom, a solicitor from CCA Legal, Mr Ecob, and both respondents attended. Directions were made by consent for both the first and second applications to be listed for hearing together on 12 January 2018. Directions were made for the filing of material. The applicant complied, and the respondents sought, and were granted, an extension. The applicant then sought, and was granted, an adjournment of the hearing date to 6 February 2018.
187.The respondents filed a response on 8 January 2018.
188.The hearing proceeded on 6 and 7 February 2018, as set out above.
189.It is not disputed that the respondents have been receiving levy notices since 1 January 2017.[131] On the respondents’ evidence, “We just pay them when we can.”[132] As at the time of the hearing, they remained at least five instalments in arrears.
Findings and decision
[131] Transcript of proceedings, 6 February 2018, page 92, line 35
[132] Transcript of proceedings, 6 February 2018, page 94, line 25
190.My findings in relation to each of the applications are as follows:
The first application
191.In relation to the costs of the first application, I am satisfied that:
(a)the respondents were in arrears on their levies in early 2015;
(b)although they were largely up to date by April 2015, three more levies went unpaid throughout the second half of 2015;
(c)the applicant complied with its obligations to notify the respondents of these levies, having mailed levy notices, two arrears notices and a final demand letter to the respondents before commencing legal action, and the respondents were in any case well aware that they owed the levies and were obliged to pay them;
(d)the respondents’ failure to pay their levies was due to competing financial priorities, including a mortgage, car repayments and various other loans and credit card debts. They were, by their own admission, under financial stress, and chose to pay other debts. They did not disclose this to the executive committee until proceedings had already been lodged, and did not approach the executive committee for assistance;
(e)ideally, the applicant or its manager should have attempted to contact the respondent by some means other than mail prior to commencing legal proceedings, but this oversight does not result in all subsequent conduct being unreasonable;
(f)once the matter was referred to CCA, the applicant made some attempts, through the debt collector, to enter into alternative arrangements with the respondents. The debt collector acted with undue speed, negotiations should have been fuller, and it is possible that the respondents were confused about whether a payment plan was in fact agreed. Still, on any view, the respondents made only one payment toward the arrears over the course of several months, and in such circumstances it was reasonable for the applicant to commence legal proceedings;
(g)had the respondents, upon being served with the application, promptly paid the outstanding levies, and then disputed the costs, an argument may have been made that the costs had been unreasonable, however they did not do this, and their subsequent conduct suggests that they had either no intention to pay the levies, or no capacity to do so;
(h)the respondents failed to lodge a response to the first application. Nonetheless, default judgment was not sought until other avenues for resolving the debt were tried and failed;
(i)the respondents consented to the Tribunal making the first order, being a payment of outstanding levies, the filing fee and interest at to be paid in instalments of $100 a week. The respondents did not comply with this order and prioritised other debts and “living costs” over complying with it;
(j)I do not accept the evidence of the respondents that they did not know how to pay the levies or the first order. They had paid levies before and should have had the relevant information. Ms SV is a public servant at a reasonably senior level and a law student. She should have been able to identify with minimum effort how to pay the levies;
(k)given the respondents’ failure to comply with the first order, I am satisfied that it was reasonable to commence enforcement proceedings to garnishee her wages. The garnishee evidently had the required effect, as the respondents paid the judgment debt shortly thereafter; and
(l)the steps taken by the applicant to enforce that consent order are broadly reasonable, although the Tribunal will disallow one of the two garnishee orders. The mistake made by the applicant in relation to the correct authority was understandable, though it is not an expense I consider reasonable to require the respondents to pay.
192.The only unnecessary or unreasonable expenses associated with the first application were the second garnishee order and a brief period of interest between the filing and the service of the first application.
The second debt application
193.As to the second debt application:
(a)Despite the ongoing proceedings in relation to the 2015 invoices, the respondents again fell behind on their levies for the 2016 financial year.
(b)The respondents knew they had to pay the 2016 levies. I am satisfied that they received the notices by mail, and even if they did not, I am satisfied they knew of the debt. They knew that legal action would be taken if they did not pay it.
(c)In the circumstances where the owners’ corporation already had one judgment debt against the respondents, and where the respondents had failed, on several occasions, to comply with the terms of that order, and to reach agreement on the payment of debt generally, it was hardly surprising that the owners’ corporation would again commence legal action.
(d)Even if the commencement of legal action was again precipitous – and I do not accept that it was in this second case at all – it is notable that the applicant again did not apply for default judgment for some months. On this occasion it was so that they could attempt to reach some kind of agreement. Unfortunately, again, agreement was not reached.
(e)During the period in which the owners’ corporation did not apply for default judgment, the respondents continually failed to pay levies when they fell due.
(f)At the time of the hearing, the respondents were still in arrears on their levies – they were effectively five payments in arrears.
194.It may well be that certain conversations between the applicant and its agent, particularly CCA, and the respondents were at times acrimonious. No doubt the respondents felt harassed or intimidated. However, none of the actions taken by CCA, under instructions from the applicant, could be said to be unreasonable in circumstances where the respondents persistently, and consistently, failed to pay levies that were due. Accordingly the debt collection expenses associated with the second application were reasonably incurred.
Are the expenses reasonable in quantum?
195.In Black, the Tribunal observed that:
Where a respondent to a proceeding does object to a claim for expenses, the Tribunal will expect the respondent to set out their objections, such that an independent assessment can be undertaken in accordance with the double reasonableness test. Again, the considerations in the [Legal Profession Act] and Schedule 4 of the [Court Procedures Rules] will provide a basis for any assessment, and the Tribunal will look to those considerations, but the available costs are not limited to scale costs, and any relevant matter may potentially be considered.
196.Other than to contest the necessity of counsel, the respondents did not make detailed submissions about the individual legal expenses claimed. In closing, they conceded that “it’s not about the reasonableness of each of these costs but the reasonableness of the approach that was taken from the get-go and subsequently.”[133] Having regard to these submissions, I did not press them for such submissions at the hearing. They were frustrated by the process, emotional and wanting to get back to work. They were also astonished and perhaps in denial at just how significant the claimed expenses, some of which were only raised on the day, were. They were in any case not in a position to address some of those expenses.
[133] Transcript of proceedings, 6 February 2018, page 218, lines 7-8
197.Notwithstanding that the respondents did not make any submissions, I am still required to give some consideration as to whether these claimed legal costs are reasonable. The question is how best to do this.
Engagement of counsel
198.Before considering the legal expenses claimed, I need to deal with the issue of counsel.
199.In the usual course, counsel would not be expected to appear on a debt recovery matter such as this. However, I am satisfied that this was an unusual case. I am so satisfied because of the serious allegations made against the manager and Mr Ecob. Given the allegations made, it was appropriate that the parties be allowed counsel to defend their reputations against the allegations. Had the allegations been less serious, I may well have considered otherwise. However, I am in any case satisfied that the costs incurred by counsel in this case are not disproportionate to the costs that would have been incurred by a solicitor or, indeed, by CCA’s principal, Mr Frankcom had he represented the applicant, which is perhaps the more important consideration in any case.
Expenses
200.The first application lodged with the Tribunal included section 37 costs of $684.40 for three arrears letters sent by the manager. The manager does not appear to have claimed any such costs for the second application, likely because the debt was referred straight to CCA.
201.The combined collection expenses claimed by CCA for both applications is $2,832.40.[134] This sum includes some appearance fees for assessment hearings and a mediation. It also appears to include the Tribunal filing fee of $136 for the first application and $140 for the second application, which should be claimed under section 48(2)(ii) of the ACAT Act. As noted above, I have disallowed the sum claimed for the second garnishee order ($187[135]), so the total collection expenses claimed are $2,369.40. I am satisfied that these expenses are reasonable in quantum.
[134] See chronology prepared by John Frankcom, marked up with costs, which I take to be the total claimed, and the cross referenced invoices. These expenses claimed in the chronology total $3085, but only $2,832.40 is claimed for “total expenses – General recovery Action” on that document.
[135] Invoice 237420, 8 December 2016, from CCA to City Strata Management
202.That leaves the legal expenses. These were not clearly particularised in one document, but as I understand it, the applicant seeks legal expenses as follows:
(a)A contribution of $725 toward the costs of the adjourned section 37 hearings, for which preparation was required prior to the matters being adjourned (the total expense having been shared amongst the respondents to that matter).[136]
(b)$6,330 in invoiced legal fees for CCA Legal[137] in relation to these proceedings, including costs of drawing the chronology, preparing witness statements and drafting submissions, briefing counsel, printing and collation of documents and disbursements.
(c)An additional $660 ($220 an hour) for Mr Ecob’s attendance as a witness for three hours on the first day[138] and $880 for four hours instructing counsel on the second half day.[139]
(d)Witness expenses of $50 for Mr Arnolda[140] and around $150 an hour for Mr Stevens[141] for attendance as a witness and preparation (the filed chronology suggests three hours).
(e)Counsel’s invoiced fees of $5,302[142] being for reading the brief, a conference, fee on brief and attending the Tribunal for the first day, plus the addition of either a ‘refresher fee’ or an additional four hours attendance on the second day of the hearing.[143]
[136] Invoice, 9 November 2017, from CCA Legal Pty Ltd to CCA for matter AA57/16; P201 at 31 to 36
[137] Invoice, 5 February 2017, from CCA Legal Pty Ltd to CCA for matters XD1245/2016 and XD319/2016 and transcript at P202 at 12 to 13
[138] Chronology item 42
[139] Transcript of proceedings, 7 February 2018, page 206, lines 37, 41-42
[140] Transcript of proceedings, 7 February 2018, page 206, line 31
[141] Transcript of proceedings, 7 February 2018, page 206, line 36
[142] Invoice 5 February 2018; transcript of proceedings, 7 February 2018, page 204
[143] Transcript of proceedings, 7 February 2018, page 206, lines 7-10
203.On any view, the legal expenses claimed in this matter are considerable in sum. It is quite extraordinary that two claims to recover cumulative levies of less than $1,000, on initial applications (including section of 37 expenses) claiming less than $3,000 cumulatively, have resulted in expenses approaching $19,000. This is not intended as a criticism of the applicant or its agent. The costs are not self-evidentially unnecessary or excessive, having regard to the kind of allegations made by the respondents, the detailed chronology and documentation submitted to address them, and the fact the expenses were incurred in the context of a one and a half day hearing of two contested applications. But the costs are indicative of why the justice system is often seen as out of reach of ordinary people. The threat of these kinds of costs orders is one of the reasons why tribunals are usually either no-cost[144], or subject to a broad prohibition on the engagement of fee-charging lawyers or agents without leave.[145] A claim for unpaid fees under the UTM Act or the CT Act is subject to neither limitation, and nor are they limited to scale costs or costs recoverable on a party-party basis.[146] The consequences of this, for good or ill, are evident in this case.
[144] As is the case with this this Tribunal – see section 48 of the ACAT Act
[145] See Civil and Administrative Tribunal Act 2013 No 2 (NSW) section 45; Victorian Civil and Administrative Tribunal Act 1998 (Vic) section 62
[146] In The Matter of Ruling Tribunal Section 31 of the Unit Titles (Management) Act 2011 at [90] and [102]. Similar issues arise with contractual cost recovery clauses – see Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn as Trustees for St Mary Mackillop College Canberra [2017] ACAT 97.
204.In this regard, I repeat the observation of the Ruling Tribunal[147]: If the consequences of this decision are thought to be unacceptable for policy reasons, then it is for the legislature to amend the legislation in some way, for example, by prescribing the types of expenses recoverable or imposing a proportionality test by way of legislation.
[147] Ruling Tribunal Case at [131].
205.For present purposes, the Tribunal must assess reasonableness having regard to the existing legal position.
206.In Black, the Tribunal observed that legal costs will be reasonably incurred where: “the expense or work must be reasonably required to recover the unpaid levies.”[148] The Tribunal went on to say that:
Legal costs represent the amount a client is obliged to pay to their lawyer as the price of professional work. They include solicitor-client costs as well as disbursements paid to third parties, such as counsel fees. The Ruling Tribunal determined that the legal costs recoverable under section 31 as ‘expenses’ are not limited to those costs that would be awarded pursuant to an assessment or taxation, but that they must meet the ‘double reasonableness’ test.[149]
[148] At [33]
[149] At [29]
207.The costs claimed by the applicant are presumably the costs they will be charged by CCA, although I do not have the final bills or invoices for the final day of hearing, or for various witness costs.
208.It concerns me that some of the preparation costs in this matter were likely incurred more for the purpose of defending the reputation of the applicant’s manager and CCA than being ‘required’ to recover the levies, but from a practical perspective, the way the respondents ran their case made the two aspects inseparable. In any case, this argument was not advanced by the respondents.
209.In an ideal situation, I would refer the parties to a mediation or conference in the hope agreement could be reached, but I am confident that will not be successful in this case. The alternative is to ask the applicant to set out all their expenses claimed, clearly and in written form, with relevant evidence, and ask the respondents to outline their objections, but that will inevitably result in even more cost and delay.
210.In many superior courts, where costs orders against one or other party inevitably follow proceedings, a practice has developed of awarding costs in a lump sum where the circumstances warrant its exercise.[150] This is indeed now the preferred practice of the Federal Court.[151]
[150] See: Hamod v State of New South Wales and Anor [2011] NSWCA 375; Beach Petroleum NL v Johnson (1995) 57 FCR 119 (Beach); Harrison v Schipp (2002) 54 NSWLR 738
[151] Federal Court Costs Practice Note – Costs at 4.1
211.The practice began in larger matters, but it is now recognised that orders may be equally appropriate for smaller cases. As was observed by Rares J in Keen v Telstra Corporation Ltd (No 2) [2006] FCA 930[152] (a matter involving $38,000 in costs, including $21,000 in solicitors fees, arising from a one day hearing over a comparatively nominal amount):
5. In Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120F-G von Doussa J said of O 62 r 4(2)(c) that:
‘The purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation. The power is appropriate to be used in complex cases.’
6. In my opinion it is also appropriate to be used in cases which are simple and in which there would be utility in the court cutting the Gordian knot of protracted fights about costs which is the hallmark of this particular piece of litigation…
7. In my opinion, it is appropriate that an amount of costs be fixed by the court so as to prevent yet further argument and delay in finalising this matter.[153]
[152] at [4]
[153] See also Hamod v State of New South Wales and Anor [2011] NSWCA 375
212.His Honour’s comments are apposite to these proceedings. Adopting a lump sum approach will save the parties “the time, trouble, delay, expense and aggravation” of having to itemise costs and objections.
213.A lump sum approach will also save the time and expense of the Tribunal’s resources. The Tribunal is not intended to be a costs jurisdiction, and some consideration must be given to whether conducting de facto assessments in matters of this nature are an effective use of public resources. The question is one of proportionality. In Bleyer v Google Inc [2014] NSW 897, McCallum J considered whether to dismiss a claim on the basis that the legal cost and court resources used to determine a matter were out of proportion to the value of the claim. Her Honour concluded that:
there is ample authority … for the proposition … that the just allocation of finite resources of the cost is a relevant consideration in the exercise of the court’s authority, at least in civil matters.[154]
[154] At [56]
214.Mossop J of the ACT Supreme Court[155] doubted that such a principle applied in the ACT Supreme Court, but his Honour was influenced, in part, by the absence of provisions in the Territory’s civil procedure legislation that requires a proportional approach to litigation.[156] Provisions to a similar effect have since been inserted into the Court Procedures Act 2004[157] and analogous provisions[158] have always existed in the ACAT Act.[159] In any case, his Honour was satisfied that even prior to those amendments:
… the court has the power, in an appropriate case, to stay or dismiss an action on the grounds that the resources of the court and the parties that will have to be expended to determine the claim are out of all proportion to the interest as stake. In my view, such disproportionality can properly be regarded as a species of abuse of process.[160]
[155] Lazarus v Azize & Ors [2015] ACTSC 344
[156] Cf. sections 56 and 60 of the Civil Procedure Act 2005 (NSW)
[157] Section 5A – inserted by Courts Legislation Amendment Act 2015(No 2)
[158] Albeit there is no express reference to proportionality, but rather a requirement to act ‘efficiently’
[159] Sections 6(c) and 7(a)
[160] At 62
215.There is no suggestion that the matters, the subject of this claim, are comparable to the Google matter, and nor is there any application for the proceeding to be struck out as disproportionate. However, the broader concept of ‘proportionality’ must, in my view, have some relevance to the resources that should be expended by either party, or indeed by the Tribunal, in finalising large expenses claims of this kind. The Tribunal’s objective to be simple, efficient and quick.[161] It is neither proportional, nor efficient, in the context of this matter, to require additional documentation or to conduct a line by line assessment or taxation of the costs claimed. It is neither proportional, nor efficient, or even fair, to expect the parties to expend the additional time or expense of doing so.
[161] ACAT Act subsections 6(a) and (b)
216.A body of case law and procedure has developed in relation to the practice of lump sum costs assessments. Some of the principles are arguably better suited to large matters in courts than to the Tribunal – for example, the usual practice of affidavit evidence or an expert reports is disproportionate. I do not need to canvass it all here, although I have considered it broadly.
217.The costs, as claimed, are in the order $19,000, including collection costs, hearing fees, counsel fees and hearing fees. Of that, some $3,000 arises from manager and collection costs, and the remainder is legal expenses. Doing the best I can, having regard to the length and complexity of this case, the considerations in Black, the complexity of the issues, the fact the respondents have demonstrated at best some minor problems with the approach taken by the respondents, and the likelihood that the work undertaken was as much for the purpose of defending the reputation of the applicant’s representatives it was for collecting unpaid levies, I assess the section 37 costs, in total, at $16,000. That is still, an extraordinary amount given the size of the initial claim, but it is not unreasonable having regard to the length and subject matter of the hearing.
Summary and conclusion
218.This is one of those unfortunate cases where relatively small debts have become very large debts as a consequence of collection and legal expenses. The costs are, arguably, completely disproportionate the debt itself, but I am not convinced that they are disproportionate to the work undertaken to collect that debt.[162]
[162] See the Owners – Units Plan 3182 v Black & Anor [2018] ACAT 6 at [61] to [62] where the Tribunal considered but rejected an argument for a proportional or ad valorem approach to the assessment of expenses under section 31 of the UTM Act
219.Early in these proceedings, the following exchange occurred between one of the respondents, Ms SV and Mr Stevens:
MS SV: …I’m just trying to show everybody here that it’s not fair.
…
MR STEVENS: …the owners’ corporation thinks it’s fair that you have to pay your levies on the due and payable dates and if you can’t do that, you need to make arrangements and up until now, no arrangements have been made and if they have, they haven’t been kept and your payments have been very irregular. So the owners’ corporation feel it’s in their interest to protect all the interest of all the owners that you pay your levies. So it’s not unfair from the owners’ corporation’s perspective.
MS SV: But we’re only talking about $150 … aren’t we, do you accept?
MR STEVENS: Well, if we’re only talking about that, it’s a shame it couldn’t be paid.
MS SV But that’s not the point I’m trying to make?
MR STEVENS---No, but the owners’ corporation feels it should be paid.
MS SV - The point I’m trying to make is that they’re spending a huge sum of money to recover a tiny amount of debt and it seems pretty ridiculous?-
MR STEVENS: But that tiny amount of debt has continued to grow.
MS SV : Yes, because of the continuing actions?
MR STEVENS: No, because of the additional levies that haven’t been paid as well.
MS SV: Yeah, anyway, that’s all I have to say.
220.Additionally, in her closing submissions, Ms SV said:
MS SV: So, first of all, let’s have a think about who we are and who the other parties are. We’re just two average people. We’re people who live in our house. We’re people who have to pay small levies of roughly $150 a week (sic) to cover a shared driveway. That’s all it is. It’s not a huge complex with massive costs. It’s a shared driveway. Those costs are likely to not be incurred by the body corporate in 20 to 50 years by the time the road needs to be resealed on the shared driveway. So, they’re small sums of money for something that’s really quite insignificant.
221.This exchange, in essence, reflects both the position of the corporation and the respondents.
222.For the respondents, the situation was ‘ridiculous’, and perhaps incomprehensible. How could it be that the smallest of their debts had become the largest? How could it be reasonable to throw large amounts of resources at such a small debt, and to then expect the respondent, already in financial difficulty, to bear that cost? These are understandable questions, but they do not address the real issue.
223.For the applicant it was not the size of the debt that is at issue, but the fact it was owed and not paid. The respondents live in a small community title co-operative. They are required by legislation to pay approved levies to cover the community facilities. The levies are small, and are to cover eventualities that may or may not arise in the future. They may seem a low priority to the respondents, particularly given that they have other, larger and more immediate debts. But they are a priority for the applicant, and the applicant is entitled to collect.
224.Hence, while I am somewhat astonished at the size of this claim, the actions of the applicant corporation cannot, in the all the circumstances, and particularly in the context of the respondents’ consistently avoidant conduct, be said to be unreasonable. The recovery action was justified. The expenses were reasonable and reasonably incurred.
225.I understand that the applicant have now paid all outstanding levies, so there is no need to make an order for the outstanding levies on the second application. The Tribunal has not been advised of the date the payments were made and is therefore not in a position to calculate interest.
226.Consequently, I order the respondents to pay to the applicant:
(a)application fee of $136.00 for XD319/16 and $140 for 1245/16.
(b)section 37 costs of $16,000;
(c)statutory interest as agreed, in accordance with the rate fixed by the body corporate under section 47 of the Community Titles Act 2001, failing which the parties have leave to approach the Tribunal for a determination as to outstanding interest
………………………………..
Senior Member H Robinson
HEARING DETAILS
FILE NUMBER:
XD 319/2016 and XD 1245/2016
PARTIES, APPLICANT:
Community Title Scheme No X
PARTIES, RESPONDENT:
SV and HF
COUNSEL APPEARING, APPLICANT
Mr Blank
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
Collection Corporation of Australia
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member H Robinson
DATES OF HEARING:
6 & 7 February 2018
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