The Owners Units Plan 3788 v Black

[2018] ACAT 24

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

THE OWNERS – UNITS PLAN 3788 v BLACK & ANOR (Civil Dispute) [2018] ACAT 24

XD 621/2016

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 – whether the expense for registering a charge is reasonable – whether each component of the expenses sought is reasonable

Legislation cited:      Unit Titles (Management) Act 2011 s 31

Cases cited:The Owners – Unit Plan No 3182 v Black and Anor [2018] ACAT 6

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 621/2016

BETWEEN:

THE OWNERS – UNITS PLAN 3788

Applicant

AND:

DAVID JOHN BLACK

First Respondent

RHIANNON LOUISE MCCLELLAND

Second Respondent

TRIBUNAL: Senior Member H Robinson

DATE:20 March 2018

ORDER

The Tribunal orders that:

1. Within 28 days the respondent pay the applicant the amount of $1,243.00.

………………………………..

Senior Member H Robinson

REASONS FOR DECISION

1. These reasons are supplementary to the Tribunal’s reasons in the Owners – Unit Plan No 3182 v Black and Anor [2018] ACAT 6 (Black).

2. The respondent was ordered to pay the applicant the sum of $982.16 for unpaid levies, interest and the application fee. Additionally, the applicant claimed the following expenses:

Debt recovery stage 2	$55.00
Register ACAT judgment	$66.00
Debt recovery stage 3	$55.00
Serve judgment on debtor	$66.00
Serve garnishee order	$66.00
Registration of charge	$457.00
Issue debt application	$396.00
Service fee (Black)	$77.00
Service fee (McClelland)	$77.00
Default judgment application	$165.00
Judgment assessment hearing	$220.00
Total	$1,700.00

1. The applicant noted that paralegal staff, amongst others, undertook significant work for which no payment was sought.

2. Taking into account the guiding principles outlined in Black, the Tribunal accepts that it was reasonable for the corporation to:

   (a)engage an agent to take steps to recover the debt;

   (b)issue proceedings; and

   (c)recover the enforcement costs of previous proceedings against the same debtor in this proceeding, including the costs of a garnishee order.

3. The next question is whether the amount of the expenses claimed are reasonable.

4. On the evidence available, and for the reasons set out above, the Tribunal accepts the majority of the legal costs claimed for issuing the debt application, default judgment, assessment hearing, registering and serving the judgment are reasonable for the same reasons as those set out above in relation to Black.

5. The one exception is the expense of $457.00 for registering a charge. There was no evidence before the Tribunal as to how this amount is calculated. It appears that the charge was registered by the strata manager while work was being done by the lawyers retained in the matter to garnishee the owners’ income to satisfy the judgment debt. While the Tribunal accepts that in some cases it may be prudent to explore multiple methods of enforcement, the Tribunal is concerned by the seemingly parallel actions of the manager and the legal advisors. On the evidence available, the Tribunal is not satisfied that the charge of $457.00 is reasonable and it is disallowed.

6. The Tribunal therefore allows the sum of $1,243.00 for expenses under section 31 of the Unit Titles (Management) Act 2011 in this matter.

   ………………………………..

   Senior Member H Robinson