Part 4Miscellaneous

Part 4—Miscellaneous 42—Unit holder's power of entry (1) If— (a) — (i) the proper supply of hot or cold water, gas, electricity, heating oil or air-conditioned air to a unit (unit A) fails; or (ii) the sewerage, garbage or drainage system as it affects a unit (unit A) fails to operate properly; and (b) some other unit (unit B) must be entered in order to investigate the cause of the failure, or to carry out necessary repairs, the unit holder of unit A, or a person authorised by that unit holder, may, after giving such notice to the unit holder of unit B as may be practicable in the circumstances, enter unit B for that purpose. (2) Reasonable force may be exerted in the exercise of powers conferred by this section but any damage to unit B must be immediately made good at the expense of the unit holder of unit A. 43—Insurance by unit holder (1) Nothing in this Act limits the right of a unit holder to effect insurance in respect of the unit. (2) A contract of insurance may be entered into by the unit holder in respect of damage to the unit for an amount equal to the amount secured at the date of the contract by mortgages over the unit. (3) Where a contract of insurance of the kind referred to in subsection (2) is in force— (a) payment must be made by the insurer under the contract to the mortgagees whose interests are noted in the contract in order of their respective priorities, subject to the terms and conditions of the contract; (b) subject to the terms and conditions of the contract, the insurer is liable to pay under the contract— (i) the amount stated in the contract; or (ii) the amount of the damage; or (iii) the amount sufficient, at the date of the payment, to discharge the mortgages noted in the contract, whichever is the least amount. (4) Where the amount so paid by the insurer equals the amount necessary to discharge a mortgage over the unit, the insurer is entitled to an assignment of that mortgage and where the amount is less than the amount necessary to discharge a mortgage over the unit, the insurer is entitled to obtain from the mortgagee a transfer of a proportion of the mortgagee's interest in the mortgage equal to the proportion that the amount of the payment bears to the amount owing under the mortgage immediately before the payment. (5) Money received under any such contract of insurance is not liable to be brought into contribution with any other money received under another contract of insurance, except where the other contract of insurance— (a) is in respect of damage to the same unit; and (b) relates to the same mortgage debt. 44—Dealing with part of unit (1) Subject to this section, a unit holder may not enter into any dealing with a part of the unit unless— (a) the dealing is to be effected by amendment to the strata plan; or (b) the dealing consists of the granting, surrendering or extinction of an easement. (2) Subject to any other law, a unit holder may grant a lease or licence over a part of a unit— (a) if all of the units comprised in the strata scheme consist of non-residential premises; or (b) where paragraph (a) does not apply— (i) if the lease or licence is granted to another unit holder; or (ii) if the lease or licence is authorised by unanimous resolution of the strata corporation (but no authorisation is required in relation to a lease or licence over the whole of a unit). (3) Where a unit holder acts in contravention of this section— (a) the dealing is void and no instrument purporting to give effect to the dealing may be lodged for registration; and (b) the unit holder is guilty of an offence. Penalty: Division 8 fine. 44A—Body corporate may act as officer etc (1) Where a unit holder is a body corporate, the body corporate is eligible to hold the office of presiding officer, secretary or treasurer of the strata corporation, or to be a member of the management committee. (2) If a body corporate is appointed as the presiding officer, secretary or treasurer of a strata corporation, or as a member of a management committee, the body corporate may, by instrument in writing, appoint a person to perform on its behalf any function that is conferred on the body corporate by virtue of the appointment. (2a) Subject to subsection (2b), the person appointed under subsection (2) must be a director, manager, secretary or other officer of the body corporate. (2b) Subsection (2a) does not apply— (a) if all of the units comprised in the relevant strata scheme consist of non-residential premises; or (b) if the body corporate is the South Australian Housing Trust; or (c) in any other case prescribed by regulation. (3) A function performed on behalf of a body corporate by a person appointed under subsection (2) will be taken to have been performed by the body corporate. (4) A body corporate may revoke at will an appointment under subsection (2). 45—Persons under disability etc (1) Where a unit holder is under a disability, the rights and powers of that unit holder under this Act may be exercised on his or her behalf by a guardian. (2) If a unit holder is under a disability or cannot be found, the Court may on application by the strata corporation or any other person with a proper interest in the matter, dispense with any consent, approval or vote that would otherwise be required from that person under this Act. 46—Relief where unanimous resolution required (a1) In this section— relevant court means the Court or the Magistrates Court. (1) Where a unanimous resolution is necessary under this Act before an act may be done and that resolution is not obtained but the resolution is supported to the extent necessary for a special resolution, a person included in the majority in favour of the resolution may apply to a relevant court to have the resolution declared sufficient to authorise the particular act proposed and, if the court so orders, the resolution will be taken to have been passed as a unanimous resolution. (2) Notice of an application under subsection (1) must be served on— (a) every person who was entitled to exercise the power of voting conferred under this Act and did not, either in person or by proxy, vote in favour of the resolution; and (b) any other person whom the court declares to have a sufficient interest in the proceedings to require that the person should be served with notice of the application, and the court may direct that any person served with, or to be served with, notice of proceedings under this subsection be joined as a party to the proceedings. (3) The court should not order a party who opposes an application under this section to pay the costs of a successful applicant unless the court considers the actions of that party in relation to the application were unreasonable. 47—General defence It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence. 48—Applications etc (1) An application or plan submitted to the Registrar-General under this Act must be in a form approved by the Registrar-General and certified in any manner required by the Registrar-General. (2) Any such application must be accompanied by the prescribed fee. (3) Any other document that is to be lodged with the Registrar-General under this Act must be accompanied by the prescribed fee. (4) The Registrar-General may, in appropriate cases, remit or reduce a fee. 48A—Applications to Magistrates Court If an application is made to the Magistrates Court under any provision of this Act, the Magistrates Court Act 1991 applies, with such modifications as may be necessary for the purpose or as may be prescribed, in relation to the application as if the proceedings were a minor civil action within the meaning of that Act. 49—Service (1) A document to be served under this Act or the articles of a strata corporation may be served— (a) personally; or (b) by post; or (c) if the recipient consents to receiving the document by email—by transmitting the document by email to the email address provided by the person for that purpose. (2) A strata corporation must keep— (a) a letter box, with the name of the corporation clearly shown on it, for postal delivery to the site; or (b) where there is no postal delivery to the site, a post office box. (3) A document may be served on the strata corporation, its secretary or treasurer, or a member of its management committee— (a) by placing it in the strata corporation's letter box; or (b) by post addressed to the strata corporation, the secretary or treasurer at the postal address of the corporation. 50—Proceedings for offences (1) An offence against this Act is a summary offence. (2) A prosecution for an offence against this Act cannot be commenced except by— (a) the Commissioner for Consumer Affairs; or (b) an authorised officer under the Fair Trading Act 1987; or (c) a person who has the consent of the Minister to commence the prosecution. (3) In any proceedings, an apparently genuine document purporting to be a certificate of the Minister certifying authorisation of, or consent to, a prosecution for an offence against this Act will be accepted, in the absence of proof to the contrary, as proof of the authorisation or consent. (4) Where a person fails to comply with an obligation imposed by this Act and is, in consequence of that non-compliance, convicted of an offence against this Act, the court may order the convicted person to comply with the obligation within a time fixed by the court. (5) If the convicted person fails to comply with an order under subsection (4), that person is guilty of a further offence. 50A—Indemnity fund under Land Agents Act 1994 Money standing to the credit of the indemnity fund maintained under section 29 of the Land Agents Act 1994 may be applied by the Commissioner for Consumer Affairs for any of the following purposes: (a) the costs of investigating compliance with this Act; (b) the costs of prosecutions for offences against this Act; (c) the payment of amounts, approved by the Minister and the Minister responsible for the administration of the Land Agents Act 1994, towards the cost of prescribed advisory services or educational programs relating to this Act conducted for the benefit of members of the public. 50B—Review of operation of Act The Minister must, as soon as is practicable after the second anniversary of the commencement of the Statutes Amendment (Community and Strata Titles) Act 2012 or any provision of that Act— (a) cause a report to be prepared on the operation of this Act insofar as it was amended by the Statutes Amendment (Community and Strata Titles) Act 2012; and (b) cause a copy of the report to be laid before each House of Parliament. 51—Regulations (1) The Governor may make such regulations as are contemplated by this Act, or as are necessary or expedient for the purposes of this Act. (2) Any such regulation— (a) may be of general or restricted application; (b) may confer discretionary powers; (ba) may assign specified functions to an officer of a strata corporation of a specified class; (c) may impose a fine (not exceeding a division 9 fine) for breach of, or non-compliance with, the regulation or any other regulation.