South Australian Current Acts South Australian Current Acts142—Resolution of disputes etc
(1) An application may
be made under this section—
(a) if
the applicant claims that a breach of this Act or of the by-laws of the
community scheme has occurred; or
(b) if
the applicant claims to have been prejudiced, as occupier of a lot, by the
wrongful act or default of the community corporation or of a delegate or the
management committee of the corporation or of the developer or the owner or
occupier of another lot; or
(c) if a
member of a community corporation claims that a decision of the corporation or
a delegate or the management committee of the corporation is unreasonable,
oppressive or unjust; or
(d) if a
dispute arises—
(i)
between a community corporation and a member of the
corporation; or
(ii)
between two or more members of a corporation,
in relation to—
(iii)
any aspect of the occupation or use of a lot; or
(iv)
the position in which a cable, wire, pipe, sewer, drain,
duct, plant or equipment should be laid or installed; or
(e) for
an order authorising a person to use force to enter a lot or a building on a
lot.
(2) Subject to this
section, an application must be made to the Magistrates Court.
(3) A person may, with
the permission of the District Court, bring an application under this section
in the District Court.
(4) The District Court
may, on the application of a party to proceedings under this section that have
been commenced in the Magistrates Court, order that the proceedings be
transferred to the District Court (and such an order will have effect
according to its terms).
(5) Proceedings should
not be commenced in, or transferred to, the District Court under
subsection (3) or (4) unless the District Court considers that it is
appropriate for the court to deal with the matter by reason of the complexity
or significance of the matter.
(6) A court may, on
its own initiative or on an application by a party to the proceedings—
(a)
transfer an application under this section to the Supreme Court on the ground
that the application raises a matter of general importance; or
(b)
state a question of law for the opinion of the Supreme Court.
(7) A court, in
hearing and determining an application under this section, should act
according to equity, good conscience and the substantial merits of the case,
without regard to technicalities and legal forms, and is not bound by the
rules of evidence but may inform itself on any matter in such manner as it
thinks fit.
(8) A court may, in
respect of an application under this section—
(a)
attempt to achieve settlement of the proceedings by agreement between the
parties; or
(b)
require a party to provide reports or other information for the purposes of
the proceedings; or
(ba)
order a party to have any accounts audited or to reimburse any person for the
costs of having any accounts audited; or
(c)
order that a party take such action as is, in the opinion of the court,
necessary to remedy any default, or to resolve any dispute, and is specified
in the order; or
(d)
order that a party refrain from any further action of a kind specified in the
order; or
(da)
make a declaration as to the validity of—
(i)
any by-law or purported by-law of the corporation; or
(ii)
any decision or purported decision of the corporation; or
(e) by
order—
(i)
alter the by-laws of the community scheme (and make any
necessary consequential changes to the scheme description and development
contracts); or
(ii)
vary or reverse any decision of the corporation, or of
the management committee of the corporation or of a delegate of the
corporation; or
(ea)
vary, avoid or terminate a contract entered into (whether before or after the
commencement of this paragraph) between a community corporation and any of the
following:
(i)
the developer;
(ii)
an associate of the developer;
(iii)
the body corporate manager;
(iv)
an associate of the body corporate manager; or
(f) give
judgment on any monetary claim; or
(g) by
order determine the position in which a cable, wire, pipe, sewer, drain, duct,
plant or equipment is to be laid or installed; or
(h) make
orders as to costs; or
(i)
make any incidental or ancillary orders.
(9) A court should not
make an order to alter the by-laws of a community scheme unless—
(a) the
corporation is a party to the proceedings or the court is satisfied that the
corporation has been given a reasonable opportunity to become a party to the
proceedings; and
(b) if
it appears to the court that the alteration could adversely affect a member of
the corporation who is not a party to the proceedings—the court is
satisfied that the member has been notified of the possibility that such an
order could be made and has been given a reasonable opportunity to make
submissions to the court in relation to the matter; and
(c) in
any event—the court is satisfied that the order is essential to
achieving a fair and equitable resolution of the matters in dispute.
(9a) A court should
not make an order to vary, avoid or terminate a contract entered into between
a community corporation and another party unless the court is satisfied that
the contract involves a breach of fiduciary duties or other duties under this
Act.
(10) Where an
application is made under this section and the court is satisfied that an
interim order is justified by the urgency of the case, the court may make an
interim order to safeguard the position of any person pending its final
resolution.
(11) An interim
order—
(a) has
effect for such period as the court may determine and specifies in the order,
and may be renewed by the court from time to time; and
(b) may
be made or renewed whether or not notice of the application has been given to
a respondent; and
(c)
unless sooner revoked, ceases to have effect on the determination or
resolution of an application under this section.
(12) The power to make
an order under this section includes the power to vary or revoke an order.
(13) A person who
fails to comply with an order under this section is guilty of an offence.
Maximum penalty: $15 000.
(14)
Subsection (13) does not limit the court's power to punish a person who
fails to comply with an order for contempt.
(15) A court may
decline to proceed with an application under this section if it considers that
it would be more appropriate for proceedings to be taken in another court or
tribunal constituted by law.
(16) Rules of court
may be made dealing with any matter necessary or expedient for the effective
and efficient operation of this section.
(17) The rules for a
particular court will be made in the same manner as ordinary rules are made
for that court.
(18) This section does
not limit or derogate from any civil remedy at law or in equity.