Unit Titles Act 2001, s.54

Unit Titles (Management) Act 2011, s.31

List of cases: Proprietors of Units Plan No. 52 v Patricia Gold

[1993] FCA 385; (1993) 116 ALR 638

CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 17 OF 2012

1. The appellant shall pay the respondents costs and disbursements in the sum of $6,445.80.
2. If the parties cannot work out a repayment arrangement, liberty is given to either party to relist before me.

1. I refer to this matter that was deal with by the Tribunal and now attach the transcript of my ex tempore reasons and rulings of Thursday, the 26th of July 2012. I do not wish to add to those. I did reserve the issue of costs.

2. I invited submissions to be sent to the Tribunal within 14 days by the parties. I indicated that I would then do a brief written judgment in relation to costs. The respondents have asked for $11,841.80 costs and disbursements. (Copy attached).

3. The Unit Titles Act 2001 and the Act governing collection of private school fees are two instances where the normal rules that apply to ACAT under sections 48 and 49 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) covering costs in the Tribunal do not apply. ACAT is a low cost jurisdiction and unless we are specifically authorised by another Act, sections 48 and 49 of the ACAT Act apply. Under the Unit Titles Act a body corporate can claim costs, including legal costs when they successfully prosecute a debt recovery action for unpaid levies.

4. I accept the submissions by the respondents which clearly set out the law. That is section 54 of the Unit Titles Act 2001, which is now section 31 of the Unit Titles (Management) Act 2011 (set out below) applies to this case.

31 Recovery of expenditure resulting from member or

(UTA s 54)

(1) This section applies if an owners corporation for a units plan

has in carrying out its functions incurred an expense, or

_carried out work, that is necessary because of - _

(a) a wilful or negligent act or omission of a member of the

corporation, or an occupier of the member's unit; or

(b) a breach of its rules by a member of the corporation, or

(2) The amount spent or the cost of the work is recoverable by the

(3) If the owners corporation recovers an amount under subsection

(2) from a member for an act, omission or breach of an

occupier of the member's unit, the member may recover the

work, carried out by an owners corporation, means maintenance or anything else the corporation is authorised under this Act to do.

It has been held that if an owners corporation is owed money by an occupier of a unit, as in this case, the body corporate is entitled to receive the money as a debt and the costs incurred in getting that debt are payable. As indicated by the respondents, it is a general rule as well that the costs have to be deemed to be reasonable.

I accept the solicitor for the respondents' submission that the Federal Court of Australia in the matter of Proprietors of Units Plan No. 52 v Patricia Gold [1993] FCA 385; (1993) 116 ALR 638 held that legal costs incurred by a body corporate suing the owner of a unit to recover unpaid strata levies came within the ambit envisaged by the above section, and were claimable and payable.

In the current case, it was not until the appeal that a final definitive figure owed by the appellant was available. The Senior Member was quite correct in her decision, but I had to adjust slightly downwards the final figure as a result of the respondents finally getting it exactly right. The respondents could and should, in my view, have called Ms Brown, the Manager, Units Plan No. 259, who was available to give evidence in the Tribunal at first instance, but did not do so. The final figure owed was available only after an audit was done by John Beard. It was also necessary for the proprietors of the Units Plan No.259 and their legal representatives to also prepare a statement by Tim Maly, the previous manager. All of this work should have been done prior to the hearing before Senior Member Lennard, or at the very least that matter could have been part heard and adjourned until those tasks were done. Had that been done, the respondents may well have been entitled to those costs before the Senior Member but not legal costs as none had been incurred at that time.

I do not in the circumstances think it is appropriate for those all the costs claimed by the respondents to be borne by the appellant. If the matter had been handled efficiently to start with there may not have been a necessity for a solicitor to be involved. That said it is clear to me that regardless of the exact amount, the appellant had a weak case in all other aspects except on the question of quantum.

It is my view that the respondents are entitled to some of the legal costs sought. In my view, the respondents are entitled to the costs of the solicitor attending the hearing, disbursements in relation to that, and also I will allow 4 hours at $400 per hour ($1,600) for preparation including preparation of the costs summary. Accordingly, I allow the solicitor for the respondents $2475 being attendance on the 26th of July for the hearing of the matter, $366.80 for travel to Canberra, $396 in relation to preparation and attendance at the telephone directions hearing and disbursements of $156 for the transcript and parking plus 4 hours preparation at $1,600- total $4,993.80. The respondents claimed $1,320 for Ian McNamee and $990 for John Beard, Auditor. I will allow $792 for Ian McNamee being 5 hours at the appeal ($660) plus the $132 appearance on 10/7/12 and $662 for John Beard for the audit and attendance at the Appeal Tribunal. This makes the total costs and disbursements payable by the appellant to the respondents $6,445.80.

Accordingly, I order that: 1. The appellant shall pay the respondents costs and disbursements in the sum of $6,445.80. 2. If the parties cannot work out a repayment arrangement, liberty is given to either party to relist before me.

DATE/S OF HEARING: 26 July 2012 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )