Legal Research
Cases
The Owners - Units Plan 840 v Richardson

The Owners - Units Plan 840 v Richardson

Link copied

Case Copied 20 November 2015 41 min read

Contents

On this page

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

THE OWNERS – UNITS PLAN 840 v RICHARDSON
(Civil Dispute) [2015] ACAT 77

XD 14/1080
Catchwords: CIVIL DISPUTE – unpaid levies – recovery of owners corporation’s expenses when taking action to recover unpaid levies – whether recovery expenses were reasonable – 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 legal costs of taking action in the Magistrates Court are recoverable without assessment – whether other expenses were necessarily incurred

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48

Unit Titles (Management) Act 2011 ss 8, 31, 94, 95, 129
Unit Titles Act 1970 (repealed) ss 48
Court Procedures Rules 2006 r 1720
Strata Schemes Management Act 1996 (NSW) ss 80

Cases cited: Anderson v Bowles (1951) 84 CLR 310

Aussie Invest Corporation Pty Ltd v Hobsons Bay CC [2004] VCAT 2188
Blundell v Sentence Administration Board of the Australian Capital Territory, The Australian Capital Territory and the Chief Executive of the Department of Justice and Community Safety [2010] ACTSC 151
Body Corporate for Sunseeker Apartments CTS 618 v Jasen [2012] QDC 51
Cachia v Hanes (1993) 179 CLR 403
CIC Australia Ltd v ACT Planning and Land Authority, Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96
Ford & The Owners Units Plan No. 259 [2012] ACAT 59 Goodwin v Phillips (1908) 7 CLR 1
Jelin Pty Ltd v Johnson (1987) 5 ACLC 463
Lauren Allen and William Bruce v Chris O'Loughlin [2014] NSWCATCD 21
Meales Concrete Pumping Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2015] VSC 594
Owners Strata Plan No 36131 v Dimitriou [2009] NSWCA 27
Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
State Drug Crime Commission (NSW) v Chapman (1987) 12 NSWLR 447
The Proprietors Units Plan No 52 v Gold (1993) 44 FCR 123
Young v Queensland Trustees Ltd (1956) 99 CLR 560

Tribunal: Ms M-T Daniel - Member

Date of Orders: 20 November 2015
Date of Reasons for Decision: 20 November 2015

ACT CIVIL & ADMINISTRATIVE TRIBUNAL XD 14/1080

BETWEEN:
THE OWNERS – UNITS PLAN NO 840
Applicant

AND:
KEVIN WILLIAM RICHARDSON
Respondent

TRIBUNAL: Ms M-T Daniel - Member

DATE:20 November 2015
ORDER

The Tribunal Orders that:

The respondent is to pay to the applicant, by close of business on 18 December 2015, the sum of $631.24
being comprised of:
a)$297 for expenses of the owners corporation;
b)$64.24 for interest on unpaid levies at 10%; and
c)$270 filing fee

………………………………..
Ms M-T Daniel - Member

REASONS FOR DECISION

This matter concerns recovery of unpaid levies by an owners corporation and the issues that arise when seeking to also recover the owners corporation’s expenses of taking action in the ACT Civil and Administrative Tribunal (the tribunal) and the Magistrates Court.
The application the subject of this decision (

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.

Keep reading for free

Create a free CaseChat account to read The Owners - Units Plan 840 v Richardson and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] ACAT 77
Decision Date: 20 November 2015

CaseChat Overview and Summary

The Owners - Units Plan 840 filed an application seeking default judgment against Richardson. The applicant was awarded a default judgment in the amount of $3174.04 by the tribunal on 5 November 2013, and a certificate of registration of judgment was issued in the Magistrates Court on 28 November 2013. The applicant subsequently applied for a debt redirection order on 24 March 2014, which was granted on 8 April 2014, and the respondent was ordered to pay the amount of the default judgment plus legal costs and interest. On 15 May 2014, the respondent filed an application to stay the enforcement proceedings and an application to set aside the default judgment, both of which were dismissed by the tribunal on 28 May 2014. The respondent made partial payments towards the debt redirection order, and the stay proceedings were ultimately lifted on 16 July 2014.

The legal issues before the tribunal were whether the respondent was liable to pay the amounts claimed by the applicant and, if so, what the appropriate amount was. The tribunal considered the evidence and submissions made by both parties and concluded that the respondent was liable to pay the amounts claimed by the applicant. The tribunal found that the respondent had made partial payments towards the debt redirection order, and that the amount of $71.06 remained outstanding. The tribunal also found that the applicant had incurred expenses in the amount of $631.24, which the tribunal ordered the respondent to pay.

The tribunal ordered that the respondent is to pay to the applicant, by close of business on 18 December 2015, the sum of $631.24 being comprised of: a) $297 for expenses of the owners corporation; b) $64.24 for interest on unpaid levies at 10%; and c) $270 filing fee. The tribunal considered that the respondent had not disputed the liability to pay the amounts claimed by the applicant and that the respondent had made partial payments towards the debt redirection order. The tribunal also found that the applicant had incurred expenses in the amount of $631.24, which the tribunal ordered the respondent to pay.

Orders

Orders of the court

The Tribunal Orders that:

The respondent is to pay to the applicant, by close of business on 18 December 2015, the sum of $631.24

being comprised of:

a) $297 for expenses of the owners corporation;

b) $64.24 for interest on unpaid levies at 10%; and

c) $270 filing fee

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 5 November 2013, the applicant filed an application for default judgment in accordance with the tribunal’s procedural directions. Default judgment was entered by the Tribunal the same day in the amount of $3174.04 (the default judgment), the difference from the amount originally claimed reflecting an increase in the interest accrued to the date of the default judgment. On 28 November 2013, a certificate of registration of judgment was issued in the Magistrates Court. On 24 March 2014, the applicant filed in the Magistrates Court an affidavit seeking a debt redirection order (the enforcement application). It was attested that the sealed copy of the judgment had been served on the respondent on 17 December 2013. A debt redirection order was made on 8 April 2014 in the amount of $3837.80 which constituted the amount of the judgment plus the prescribed amount of $562.00 for legal costs in preparing the application for a debt redirection order[1] and $101.76 for the interest accrued on the default judgment.[1] Court Procedures Rules 2006 rule 1741 provides such costs in that amount must be allowed without assessment On 15 May 2014, the respondent lodged in the Magistrates Court an application to stay the enforcement proceedings (the stay proceedings). The same day the respondent lodged an application in the tribunal to set aside the default judgment. The stay proceedings were mentioned on 27 May 2014 and on 3 June 2014, on both of which occasions there was no appearance by the solicitor for the applicant. The Tribunal dismissed the application to set aside the default judgment on 28 May 2014. On 11 June 2014 the respondent paid to the applicant the sum of $3000 in respect of the default judgment. On 17 June 2014 the stay proceedings were mentioned again, at which time there was no appearance by the solicitor for the applicant but a letter was on file from the solicitors agreeing to a further two week adjournment to allow for negotiation of a repayment plan. The letter explained that although $3000 had been paid by the respondent, the sum of $908.06 of the debt redirection order remained outstanding. On 30 June 2015 the respondent paid $840 to the applicant. On 2 July 2014 the stay proceedings were mentioned again, the applicant’s solicitor appeared by telephone. The final mention of the stay proceedings occurred on 16 July 2014, at which time the solicitor for the applicant appeared by telephone. It was noted that a sum of $71.06 remained outstanding, and the order for a stay of the debt redirection order was lifted. (In fact, the $3000 and $840 paid exceeded the amount of the debt redirection order by some $2.20. It is not clear what the $71.06 referred to and an examination of the owners ledger shows that a sum of $73.00 had been paid by the respondent on 11 July 2015). An examination of the owners ledger shows that solicitors fees to the owners corporation, each in the amount of $385, have been debited to that ledger for solicitors appearances at the ACAT on 28 May 2014, and at the Magistrates Court on 17 June, 2 July and 16 July 2015.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.