Part 14Resolution of disputes

Part 14—Resolution of disputes 141—Persons who may apply for relief The following persons may apply for relief under this Part— (a) a community corporation; or (b) the owner or occupier of a community lot; or (ba) a person who has contracted to purchase a development lot or community lot; or (c) the owner or occupier of a development lot; or (d) any other person bound by the by-laws of a community scheme except for persons invited to or visiting the community parcel. 142—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. (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.