The Owners-unit Plan No 840 v Richardson - [2016] ACAT 116

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

THE OWNERS-UNIT PLAN NO 840 v RICHARDSON (Appeal) [2016] ACAT 116

AA 5/2016 (XD 1080/2014)
Catchwords: APPEAL – civil dispute – unpaid unit title levies – whether legal costs for taking action in the tribunal to recover unpaid levies are recoverable under section 31 of the Unit Titles (Management) Act 2011 – whether there was a settlement agreement between the parties

Legislation cited: Unit Titles Management Act 2011 s 31
Cases Cited:The Owners-Units Plan No 840 v Richardson [2015] ACAT 77

Tribunal:                   Presidential Member G McCarthy (Presiding)
  Presidential Member E Symons
Date of Orders:  23 June 2016
Date of Reasons for Decision:         17 October 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )  AA 5/2016 (XD 1080/2014)

BETWEEN:
THE OWNERS-UNIT PLAN NO 840
Appellant

AND:
KEVIN RICHARDSON
Respondent

TRIBUNAL:Presidential Member G McCarthy (Presiding)
Presidential Member E Symons

DATE:23 June 2016
ORDER

The Tribunal orders that:

1.The respondent pay the appellant $1,938.39 by 11 July 2016 in full and final discharge of all the moneys owed by the respondent to the appellant as at 17 June 2016.
2.The appeal is otherwise dismissed.

……………Signed…………..
Presidential Member G McCarthy
for and on behalf of the Tribunal

REASONS FOR DECISION

1.On 23 June 2016, the Appeal Tribunal heard an appeal from a decision of the tribunal in The Owners-Units Plan 840 v Richardson.[1] The appellant alleged the tribunal erred in its construction of section 31 of the Unit Titles Management Act 2011.
[1] The Owners-Units Plan 840 v Richardson [2015] ACAT 77
2.In its decision, the tribunal found, among other things, that section 31 of the Unit Titles Management Act 2011 (the UTMA) allows for expenses of an owners corporation to be recovered from a unit holder as a debt, subject to the following limitations:
(a) Expenses incurred in bringing proceedings in the Tribunal are not recoverable under section 31 as an expense but in certain circumstances may be sought by way of an order for costs under section 48 of the ACAT Act.
(b) Legal professional costs incurred in proceedings in the Magistrates Court may be recovered as section 31 expenses, despite no order for costs having been made, provided that those costs are ‘assessed costs’ under Part 2.7 of the Rules.[2]
[2] The Owners-Units Plan 840 v Richardson at [118]

3.The tribunal ordered that the unit holder pay the owners corporation’s expenses, but limited to $631.24 comprised of $297 for expenses of the owners corporation, $64.24 for interest and $270 for the tribunal filing fee.
4.On 19 January 2016, the owners corporation appealed from the tribunal’s decision.
5.At the appeal hearing Mr Frankcom, solicitor, appeared for the appellant. The respondent, Mr Richardson, appeared on his own behalf. At the conclusion of the hearing, the Appeal Tribunal ordered that the respondent pay the appellant $1,938.39 in full and final discharge of all moneys owed. The appeal was otherwise dismissed. The Appeal Tribunal gave short oral reasons at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] ACAT 116
Decision Date: 23 June 2016

CaseChat Overview and Summary

In the case of The Owners-unit Plan No 840 v Richardson, the dispute centred on unpaid levies for a unit title. The matter was heard in the Civil and Administrative Tribunal of New South Wales. The appellant, representing the body corporate, sought to recover unpaid levies from the respondent, the owner of a unit within the plan. Additionally, the appellant claimed the costs incurred in taking action in the tribunal to recover these levies, pursuant to section 31 of the Unit Titles (Management) Act 2011. The respondent contested the claim, arguing that a settlement agreement existed which precluded the recovery of the levies and associated costs.

The primary legal issues before the tribunal were whether the legal costs incurred in the tribunal action were recoverable under section 31 of the Act and whether a settlement agreement had been reached between the parties. The tribunal examined the terms of the alleged settlement agreement and the statutory provision to determine if the appellant was entitled to recover the costs in question. The respondent argued that the settlement agreement precluded the recovery of the levies and associated costs, while the appellant maintained that the agreement did not prevent the recovery of costs under the specific statutory provision.

The tribunal found that the appellant was entitled to recover the unpaid levies and the associated legal costs pursuant to section 31 of the Act. The tribunal determined that the settlement agreement did not preclude the recovery of costs under the Act, as the costs were specifically permitted by statute. Consequently, the tribunal ordered the respondent to pay the appellant the outstanding levies and associated costs. The appeal was dismissed in all other respects.

The tribunal ordered that the respondent pay the appellant the sum of $1,938.39 by 11 July 2016. This amount represented the full and final discharge of all moneys owed by the respondent to the appellant as at 17 June 2016. The appeal was dismissed in all other respects, leaving the tribunal's decision on the recovery of unpaid levies and associated costs intact.

Orders

Orders of the court

The Tribunal orders that:

1. The respondent pay the appellant $1,938.39 by 11 July 2016 in full and final discharge of all the moneys owed by the respondent to the appellant as at 17 June 2016.

2. The appeal is otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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