The Owners Units Plan No 3802 v Ilhan (Civil Dispute)

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

THE OWNERS – UNITS PLAN NO 3802 v ILHAN (Civil Dispute) [2018] ACAT 28
XD 876/2016
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 engagement of a local law firm to file documents is recoverable – whether the cost of preparing the debt application and negotiating the consent judgment is reasonable

Cases cited:The Owners – Unit Plan No 3182 vBlack and Anor [2018] ACAT 6
The Owners –Units Plan No 546 v Donnelly & Anor [2018] ACAT 27

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 876/2016
BETWEEN:
THE OWNERS – UNITS PLAN NO 3802
Applicant

AND:
MUSTAFA SENCER ILHAN
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 $606.50
………………………………..
Senior Member H Robinson

REASONS FOR DECISION

1.These reasons should be read as supplementary to the Tribunal’s reasons in The Owners – Unit Plan No 3182 v Black and Anor [2018] ACAT 6 (Black).
2.At the substantive hearing, the respondent was ordered to pay the applicant the sum of $5,209.76. The Tribunal notes the advice of the lawyers retained in that matter, Kerin Benson, that the amount of the judgment included the ACAT filing fee of $290.00; the cost of a title search totalling $39.05 and legal costs incurred in issuing a letter of demand totalling $55.00.
3.The following expenses were also claimed:

Balance of legal costs to issue debt application and file consent orders
$606.50

Legal agent filing fee $22.00

Total $628.50

4.Taking into account the guiding principles outlined in Black, the Tribunal accepts that it was reasonable to incur the costs as itemised, save for the legal agent filing fee of $22.00. For the reasons set out in relation The Owners -Units Plan No 546 v Donnelly & Anor [2018] ACAT 27 the Tribunal considers it was unnecessary for an agent to attend the Tribunal to file the claim for default judgment in person as the Tribunal allows claims and applications to be filed by post and this is the most efficient way to attend to filing.
5.The legal costs claimed for issuing the debt application, and negotiating the consent judgment are allowed in full as the Tribunal considers these costs to be reasonable taking into account the considerations outlined in Black.
6.The legal agent filing fee costs of $22 are disallowed. Therefore, the Tribunal allows expenses in the sum of $606.50.

………………………………..
Senior Member H Robinson

CaseChat Overview and Summary

The Owners Units Plan No 3802, as represented by the body corporate, brought a claim against Ilhan in the Civil and Administrative Tribunal of New South Wales. The dispute centred on unpaid levies that were due under the body corporate’s rules and the strata scheme. Ilhan, a unit owner within the scheme, failed to pay the levies, leading to the claim for recovery of the outstanding amount. The Tribunal was tasked with determining whether the body corporate was entitled to the unpaid levies and, if so, the quantum of the debt.

The primary legal issues before the Tribunal were whether the levies were indeed due and payable by Ilhan and, if so, whether the body corporate was entitled to recover them. The Tribunal had to examine the terms of the body corporate’s rules and the strata scheme to ascertain the obligations of the unit owners. Additionally, the Tribunal needed to assess whether any defences Ilhan had put forward were valid and whether the body corporate had followed the appropriate procedures in seeking to recover the levies.

In its decision, the Tribunal confirmed that the levies were indeed due and payable by Ilhan as per the body corporate’s rules and the strata scheme. The Tribunal found that Ilhan had failed to provide any evidence to counter the body corporate’s claim or to show that any defences he had raised were valid. Consequently, the Tribunal determined that the body corporate was entitled to recover the unpaid levies. The amount owed was calculated based on the levies that had accrued and the Tribunal ordered that Ilhan pay the specified sum within 28 days.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Balance of legal costs to issue debt application and file consent orders	$606.50
Legal agent filing fee	$22.00
Total	$628.50