Body corporates of sectional title schemes (and its members for that matter) must be wary not to unnecessarily institute legal proceedings in the courts and are encouraged to make use of the provisions of the Community Schemes Ombud Service Act, Act 9 of 2011, if possible. In the case of Coral Island Body Corporate v Hoge, which was heard in the Cape Town High Court with judgement delivered on 23 May 2019, honourable Judge Binns-Ward J refused to grant a cost order in favour of the Body Corporate which had brought an application against one of its members relating to a dispute about certain minor alterations that the member had effected to the section that she owns. Even though the application was for all intents and purposes successful and notwithstanding the fact that the Body Corporate was technically within its rights to bring the application in the High Court, the Court found that it was nevertheless inappropriate, taking into account the fact that disputes such as these had to be dealt with as informally and inexpensively as possible and that the Community Schemes Ombud Service Act specifically makes provision for this. The Court therefore held that even though judges and magistrates cannot refuse to hear matters such as these, their discretion must nevertheless be used to discourage parties to inappropriately resort to the courts in such instances. Accordingly no cost order was made in this case.
Written by: Lucas Theron (B. Com Law, L.L.B, Dipl. Fin. Plan.); source: https://www.lexisnexis.co.za/
Property :: sectional title scheme
Coral Island Body Corporate v Hoge
|Case Number:||22991 / 2017|
|Judgment Date:||23 / 05 / 2019|
|Division:||Western Cape, Cape Town|
|Bench:||AG Binns-Ward J|
Property – Sectional title scheme – Dispute between body corporate and member – Resort to court – Costs
The applicant, as the body corporate of a residential property sectional title scheme, sought declaratory and interdictory relief against the respondent. The respondent was one of the applicant’s members and had effected certain minor alterations to her section in the scheme.
About two weeks before the hearing, the respondent delivered an unconditional offer of settlement in which she essentially conceded the relief sought in the application, save for costs. She explained her concession, pointing out that she had determined that the cost of complying with the trustees’ requirements would be less than R10 000, and that she was unable, in the context of the value of what was in issue in the case, to afford the cost of litigating the dispute in the High Court. She nevertheless maintained that she should not be mulcted in costs because the trustees should not have proceeded against her in the present court, but should instead have sought the adjudication of the dispute under the auspices of the Community Schemes Ombud Service Act 9 of 2011.
Held that the institution of the application in the High Court rather than under the auspices of the Act was legally competent. However, that was distinct from the question of whether the trustees’ decision to proceed in the present forum was well-advised, and whether such decisions should be discouraged by the courts in cases in which body corporates should more appropriately have proceeded in the less expensive fora that have been specially devised for the purpose by the legislature.
The disputes that lay at the heart of the current litigation were essentially of a domestic character and involved issues that fell to be determined with reference not only to statutory law and rules and regulations, but also the common law principles of private nuisance or neighbour law. Because of their common occurrence, the desirability that they be determined as informally and cheaply as possible led to the enactment of the Community Schemes Ombud Service Act. The Act’s provisions allow for the adjudication of disputes such as those that presented in the current litigation by a suitably qualified adjudicator who will deal with the matter on an inquisitorial basis and, save in especially indicated circumstances, without the involvement of legal representation on behalf of any of the parties. Courts should use their judicial discretion in respect of costs to discourage the inappropriate resort to the courts in respect of matters that could, and more appropriately should, have been taken to the Community Schemes Ombud Service.
The court consequently declined to make any order as to costs.