Commercial and Consumer Tribunal Amends Orders of Adjudicator on Recovery Costs
BY: ASHLEY HOLLAND, PARTNER, HWL EBSWORTH LAWYERS
In a landmark decision the Commercial and Consumer Tribunal ("CCT") in an appeal from a decision of an Adjudicator ("the Adjudicator") from the Office of the Commissioner for Body Corporate and Consumer Management amended an order of the Adjudicator on the issue of an entitlement to claim legal costs relating to the recovery of Body Corporate contributions.
On 30 June 2008 the Adjudicator made a decision in a matter involving the Body Corporate for Liberty Community Title Scheme 27241 ("Liberty") and Alotier Pty Limited ("Alotier"). The Adjudicator's decision related to an application by Alotier seeking an order from the Adjudicator that certain legal fees incurred by Liberty in attempting to recover contributions from Alotier be removed from a levy notice to Alotier. Among other orders, the Adjudicator made an order on 30 June 2008 that Liberty was not entitled to recover such legal fees charged to Alotier unless and until those costs are determined by a Court of competent jurisdiction to be recovery costs reasonably incurred.
This order of the Adjudicator could have led to legal doubt as to whether Body Corporates were able to retain monies paid to them in some circumstances by defaulting owners in respect to reimbursement of legal fees incurred by the Body Corporates in recovering contributions from defaulting owners.
Liberty appealed the Adjudicator's decision to the CCT. Also SSKB applied to be joined to the appeal. At the appeal before the CCT, Liberty and SSKB claimed that the Adjudicator's decision was incorrect.
On 11 February 2009 the CCT made orders amending the above Adjudicator's order to indicate that Liberty was entitled to claim such legal fees as an unliquidated amount. This entitles Body Corporates to retain legal fees which are paid to them in these circumstances by defaulting owners in respect to reimbursement of legal fees incurred by Body Corporates in recovering contributions from defaulting owners. The decision of the CCT on 11 February 2009 now provides greater support for Body Corporates in pursuing Court proceedings to recover outstanding contributions and also claiming legal costs arising from steps undertaken to recover contributions.
