Mediation

Mediation is worth considering for disputes in relation to community titles as it is more likely than legal action to enhance and preserve positive relationships.

Mediation is a voluntary process where trained mediators work with people to help them resolve their differences. A mediator can become involved in a dispute at the request of at least one of the parties. A mediator can write to invite the other party to discuss the problem and to participate in mediation. Because attendance is voluntary from both sides, any party may withdraw from the resolution process at any time.

The role of the mediator is to listen, ask questions and ascertain the facts, not to blame anyone or take sides. With all the information provided by the parties, the mediator helps people to put together an agreement. The agreement is not legally binding, but is made in good faith.

The advantages of mediation as a way to resolve disputes are:

If no resolution can be worked out then an application may be made to the court to decide the matter.

Court Proceedings

What disputes can be taken to court?

The types of disputes that may be heard by the court are set out in section 142(1) of the Community Titles Act 1996 (SA) and are as follows:

In addition, the court can also deal with the following issues:

Who can make an application to the court?

Those who can make an application are [s 141]:

Which court hears disputes?

An application to resolve a dispute must usually be made to the Magistrates Court [s 142(2)]. An application is heard as a minor civil action [s 149A], unless it involves enforcement of a development contract under section 49(2); these matters are heard in the general claims jurisdiction of the Magistrates Court.

An applicant should use a Form 2- Originating Application, with a supporting affidavit.

If the matter is particularly complex or significant [s 142(5)], an applicant can seek the permission of the District Court to commence proceedings there [s 142(3)], or a party may seek to transfer a matter from the Magistrates Court to the District Court [s 142(4)].

A court may, on its own initiative or on an application by a party to the proceedings, transfer a matter to the Supreme Court on the ground that the application raises a matter of general importance [s 142(6)(a)]. Similarly, a court may, on its own initiative or on an application by a party to the proceedings, state a question of law for the opinion of the Supreme Court [s 142(6)(b)].

A court may decline to proceed with an application to resolve a dispute if it considers that it would be more appropriate for proceedings to be taken in another court or tribunal [s 142(15)].

Orders that can be made

If appropriate, the court may attempt to achieve settlement of the proceedings by agreement between the parties [s 142(8)(a)].

In an urgent case, the court can make an interim order to safeguard the position of any person pending its final decision.

The court has power to make a range of orders under section 142:

In relation to by-laws, the court may:

In relation to contracts, the court may [s 142(8)(ea)]:

The court may also [ss 142(8)(h)—(i), s 142(10)]:

A person who fails to comply with an order under s 142 is, in addition to being liable to punishment for contempt [s 142(14)], guilty of an offence with a maximum penalty of $15 000 [s 142(13)].

Appointment of an Administrator

The Magistrates Court or the District Court may appoint an administrator to administer the affairs of the corporation [s 100(1)] in cases where governance has broken down to an extent that the group is not functioning. An administrator has, while the appointment remains in force, full and exclusive power to administer the affairs of the community corporation, including power to do anything for which a special or unanimous resolution of the corporation is required [s 100(2)].

An application to appoint an administrator may be made by [s 100(1)]:

It is important to get legal advice before seeking or opposing the appointment of an Administrator.