Body Corporate 212050 v Wang

[2017] NZHC 476

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-002356 [2017] NZHC 476

UNDER

the Unit Titles Act 2010

IN THE MATTER

of unpaid Body Corporate Levies

BETWEEN

BODY CORPORATE 212050
Plaintiff

AND

PENG WANG, JIAN TANG WANG AND WEI DONG ZHOU

Defendants

Hearing:	16 March 2017
Appearances:	P Muir for Plaintiff No appearance for Defendants
Judgment:	16 March 2017

JUDGMENT OF LANG J

This judgment was delivered by me on 16 March 2017 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

BODY CORPORATE 212050 v WANG [2017] NZHC 476 [16 March 2017]

[1]      The defendants in this proceeding are the owners of a unit in a block of apartments situated in Symonds Street, Auckland.   The affairs of the complex are conducted by the plaintiff, Body Corporate No. 212050 (the body corporate).

[2]      The defendants have failed to pay outstanding levies and charges rendered by the body corporate. As a result, the body corporate instituted this proceeding seeking judgment against them.  The defendants have been served but have taken no steps to defend the proceeding.1     As a result, the claim has proceeded by way of formal proof.

The claim

[3]      The amounts in respect of which the body corporate seeks judgment against the defendants can be summarised as follows:

Unpaid levies rendered by the body corporate

$215,462.98

Costs of removing and disposing of furniture left in the unit by the

defendants

$300.00

Auckland Property Management Ltd – debt collection charges

$258.75

Unpaid water use charges

$455.41

Legal costs incurred in recovering debt

$9,065.50

Interest at 10% per annum on outstanding amount

$44,157.45

$269,700.09

Decision

[4]      I am satisfied that the body corporate has sent notices to the defendants in respect of each of the levies rendered by the body corporate.   As a result, the defendants owe the body corporate the sum of $215,462.98 in respect of unpaid levies.

[5]      The evidence also confirms that the body corporate was required to pay for the removal and disposal of furniture that the defendants left in the unit after they were notified they needed to vacate the unit to allow weathertightness repairs to be carried out.  These amount to $300 and are recoverable from the defendants under s

126 of the Unit Titles Act 2010 (the Act).

1      The proceeding was served  by service on counsel then instructed by the defendants on 8

November 2016.

[6]      Similarly, the evidence establishes that the defendants have been invoiced for water use charges totalling $455.41.  That sum is recoverable, as if it were a levy, under s 125 of the Act.

[7]      The evidence includes invoices rendered by the solicitors acting for the body corporate.  These confirm that the body corporate has incurred legal costs amounting to $9,065.50 in relation to the present proceeding.  Section 124(2) of the Act permits the body corporate to recover unpaid levies as a debt due to the body corporate together with any reasonable costs incurred in doing so.   Section 124(2) therefore permits the body corporate to obtain recovery of legal costs on a solicitor-client basis from a unit owner who defaults in paying levies.  The Court of Appeal confirmed

this in Body Corporate 162791 v Gilbert.2

[8]      In addition, the body corporate has incurred debt collection costs payable to Auckland  Property  Management  Ltd  in  the  sum  of  $258.75.    Those  costs  are similarly recoverable from the defendants.

[9]      Finally, s 128 of the Act permits a body corporate to charge interest on unpaid levies.  The unit owners resolved that the body corporate would charge interest at the rate of ten per cent per annum on unpaid levies at annual and extraordinary general meetings held on 31 October 2013, 15 April 2014, 13 January 2015 and 21 October

2015. As at today’s date, the interest payable under this head amounts to $44,157.45.

Result

[10]     I enter judgment against the defendants on a joint and several basis in the sum of $269,700.09 inclusive of costs and interest.

Lang J

Solicitors:

Price Baker Berridge, Auckland

2      Body Corporate 162791 v Gilbert [2015] NZCA 185 at [77]-[79].