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When Is It Time to Go to Court or NCAT?

Wednesday, 01st June 2016

Everyone loses when a matter goes to court or tribunal (except the lawyers) so what triggers such action?

Everyone knows that legal action should be a last resort. Courts are intimidating, time consuming, energy sapping and expensive places to visit. One should do everything possible to avoid them. Even the law fraternity agrees! So taking a matter to court needs to be done in very special circumstances:

 

When nothing further can be done to resolve a situation that is detrimentally affecting a community.

When it is important to the proper running of the community that compliance to the by-laws is achieved (to deter others from flouting the rules).

When the by-law subject to the non compliance is important to the ongoing administration of the scheme or where members of the community are directly affected detrimentally by the non compliance.

Courts are places where a decision is made that resolves the issue. Sometimes the decision is made by the parties (reaching an agreed outcome) and sometimes it is made by the person presiding on the matter. Sometimes (but not always) the resolution achieves justice. Mostly it leaves all sides wondering whether it was all worth the effort, the heartache and the money. So, in making a decision to take legal action, it is important to ask:

Is the by-law worth taking the action?

Is it important for the future of the community and its members to enforce compliance to the rule?

If the answer to both questions is “Yes” and everything else has failed then proceed with the action. Go into it prepared for at least partial disappointment but go in well prepared to justify the action that is being taken. Your owners corporation manager will assist your committee to assess the prospects for success and will help to get you to the position of assessing the relevant issues.

It might be an opportune time to review the by-laws to ensure that they are suited to current lifestyles. It is rather pointless to make by-laws “for the sake of it” or that are unenforceable, or even ones that you would not enforce by taking legal action. If you agree as a community that a by-law is not worth the effort to pursue compliance for then you might ask “Why have that by-law?” An owners corporation can review and change its by-laws by Special Resolution.

 

By Roderick Smith - STM

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