The Owners Units Plan No 3609 v Chen (Civil Dispute)
[2018] ACAT 26
•20 March 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
THE OWNERS UNITS PLAN NO 3609 v CHEN (Civil Dispute) [2018] ACAT 26
XD 1335/2015
Catchwords: CIVIL DISPUTE – unpaid levies – owners corporation incurred expenses when taking action to recover unpaid levies – whether it was reasonable for the relevant owners corporation to incur the expenses claimed – cost of investigative work – costs associated with enforcement action in relation to a previous Tribunal decision – whether each component of the expenses sought is reasonable
Legislation cited: Unit Titles Management Act 2011 s 31
Subordinate
Legislation cited: Court Procedure Rules 2006 sch 3
Cases cited:The Owners – Unit Plan No 3182 v Black and Anor [2018] ACAT 6
In The Matter of Ruling Tribunal Section 31 of The Unit Titles (Management) Act 2011 [2017] ACAT 56
Tribunal: Senior Member H Robinson
Date of Orders: 20 March 2018
Date of Reasons for Decision: 20 March 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1335/2015
BETWEEN:
THE OWNERS UNITS PLAN NO 3609
Applicant
AND:
YUAN CHEN
Respondent
TRIBUNAL: Senior Member H Robinson
DATE:
ORDER
The Tribunal orders that:
Within 28 days the respondent pay the applicant the amount of $3,777.40.
………………………………..
Senior Member H Robinson
REASONS FOR DECISION
These reasons are supplementary to the Tribunal’s reasons in the Owners – Unit Plan No 3182 v Black and Anor [2018] ACAT 6 (Black).
The outcome of this matter was that the respondent was ordered to pay the applicant $2,964.20 for unpaid levies, interest and the application fee. In addition, the respondent claimed the following expenses:
Debt recovery stage 1 $33.00 Debt recovery stage 2 $33.00 Debt recovery stage 3 $33.00 Demand letter $37.40 Investigation visit $77.00 Advice/correspondence $132.00 Issue debt application $396.00 Default judgment $165.00 Assessment hearing $220.00 Register judgment $66.00 Serve judgment $66.00 Investigation (Radoski) $77.00 Investigation visit (Arnolda) $77.00 Garnishee order (3/6/16) $913.00 Office investigation $275.00 Office investigation $264.00 Garnishee order (8/9/16) $913.00 Total
$3,777.40
The applicant submitted that paralegal staff, amongst others, undertook significant work for which no payment was sought.
This is one of those unfortunate cases where the expenses claimed exceed the amount of the debt.
Partially, the high level of expenses is explained by the application including costs associated with enforcement action in relation to a previous Tribunal decision. The Ruling Tribunal[1] determined that the costs of enforcement incurred in the Magistrates Court against the same owner are recoverable in subsequent Tribunal proceedings as ‘expenses’ under section 31 of the Unit Titles Management Act 2011 (UTM Act) despite no order for costs having been made in the enforcement proceedings, provided the expenses were ‘reasonably incurred’. The respondent made no submissions, and there was no evidence before the Tribunal that suggested that it was unnecessary or unreasonable to commence enforcement action in the Magistrates Court, or to seek a garnishee order as part of that process.
[1] In The Matter of Ruling Tribunal Section 31 of The Unit Titles (Management) Act 2011 [2017] ACAT 56
Taking into account the guiding principles outlined in Black, the Tribunal accepts that it was reasonable for the applicant to engage a professional agent to assist with recovery of the debt. There was, in any case, no evidence of any circumstances that would cast doubt on the reasonableness of that decision.
Having determined that it was reasonable to commence legal action, the Tribunal must determine whether each of the expenses claimed are reasonable.
The expenses for ‘debt recovery stages 1-3’ are expenses incurred by the strata managment agency and I allow these in full as the amounts claimed are reasonable. The cost of the demand letter is allowed in full as the amount claimed is reasonable and there is no apparent ‘doubling up’ or anything to suggest the expenses are unreasonable.
The use of investigators was considered in Black at paragraphs 75 to 78. The evidence provided to the Tribunal in relation to this matter indicated that significant investigative work needed to be undertaken to identify the current address and whereabouts of the owner and to obtain details of the owner’s assets that were available to enforce the judgment obtained. Having regard to this evidence, the Tribunal accepts these expenses were reasonably incurred and are reasonable amounts and allows the amounts claimed for investigation visits, investigations and garnishee orders in full.
The legal costs claimed for issuing the debt application, default judgment, assessment hearing, registering and serving the judgment are allowed in full as the Tribunal considers these costs to be reasonable taking into account the following matters:
(a)The claim was not a complex one and proceeded to default judgment and an assessment hearing.
(b)Tribunal processes and procedures which are designed to minimise cost, formality, and delay have been followed.
(c)The amounts claimed fall within the range of costs amounts allowed for debt recovery claims not exceeding $10,000 prescribed from time to time under Schedule 3 of the Court Procedures Rules 2006.
Accordingly, the Tribunal awards the applicant under section 31 of the UTM Act expenses in the sum of $3,777.40.
………………………………..
Senior Member H Robinson
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