The Owners Units Plan 638 v Carroll (Civil Dispute)

[2018] ACAT 25

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

THE OWNERS – UNITS PLAN 638 v CARROLL (Civil Dispute) [2018] ACAT 25

XD 638/2016

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 – costs in relation to adjourned assessment hearings – 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

The Owners – Units Plan 3609 v Chen [2018] ACAT 26

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 638/2016

BETWEEN:

THE OWNERS – UNITS PLAN 1447

Applicant

AND:

CAROL JEAN CARROLL

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 $968.00.

………………………………..

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 $2,156.80 for unpaid levies, interest and the application fee. Additionally, the applicant claimed the following expenses:

Register ACAT judgment	$66.00
Serve judgment order on debtor	$66.00
Issue debt application	$396.00
Judgment assessment hearing adjourned (26/8/16)	$220.00
Judgment assessment hearing continued (23/9/16)	$220.00
Total	$968.00

1. The applicant submitted that other personnel, primarily paralegals, performed additional work, the cost of which was not claimed in these proceedings.

2. Taking into account the guiding principles outlined in The Owners – Units Plan 3609 v Chen [2018] ACAT 26 at paragraph 5, the Tribunal accepts that it was reasonable for the corporation to recover the enforcement costs of previous proceedings against the same debtor in this proceeding.

3. The Tribunal must now determine whether each of the expenses claimed are reasonable.

4. The distinguishing factor in this case is a claim for two adjournments that the applicant’s legal advisor attended. At the first hearing, on 26 August 2016, Ms Carroll attended and sought an adjournment to allow her an opportunity to seek legal advice. The matter was adjourned to 23 September 2016, on which date consent orders were entered.

5. Do the two relatively brief appearances warrant two hearing fees? In this case, the Tribunal accepts that the applicant’s representative was required to prepare for the first hearing, and that the $220.00 claimed represents a reasonable sum for both the preparation and attendance. In relation to the second attendance, the only evidence before the Tribunal is that the hearing resulted in a consent decision – whether this was a consequence of a hearing on that occasion or agreement reached beforehand is not evident on the material. However, in the absence of any argument to the contrary by the respondent, the Tribunal accepts that a further $220.00 is reasonable for finalising the matter.

6. It is important to note here, however, that while the Tribunal has granted the expenses claimed for adjournments on this occasion, the Tribunal will not invariably grant a full attendance fee where, for example, the hearing is adjourned. Where hearings are brief, and where (as is typical in these matters), the applicant’s representative appears by telephone, it will not necessarily be reasonable to award a full one hour’s attendance fee. Where the adjournment is sought by the applicant’s representative, or required due to a lack of, for example, necessary evidence or evidence as to service of relevant documents, then it is unlikely that the applicant would be awarded the costs of appearance.

7. 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 for the reasons set out in Black.

8. Accordingly, the Tribunal awards the applicant section 31 of the Unit Titles (Management) Act 2011 expenses in the sum of $968.00.

   ………………………………..

   Senior Member H Robinson