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To Court or to the Community Ombud?
14 July 2019
“I made some minor amendments to the outside of my sectional title unit without the consent of the Body Corporate because I wasn’t aware that I needed to get their consent. They have now informed me that if I don’t remove the amendments they will take me to court. I really feel that we can discuss the amendments as they were rather minor but the Body Corporate flatly refuses to even have a discussion and I don’t have money to go fight the issue in court. What options do I have?”

As a point of departure, it is right that a body corporate should regulate the conduct of unit owners in a complex. However, running straight to court is not necessarily always the most advisable, appropriate or cost-effective method of doing this.

Due to the frequency of disputes that arise from shared ownership community schemes ending in our courts the Community Schemes Ombud Service Act (“Ombud Act”) was enacted. The Ombud Act establishes the Community Schemes Ombud Service (“Ombud”) as a dispute resolution mechanism for community schemes to create a more informal and cost-effective manner to resolve typical ‘domestic’ disputes that arise from community living.

The Ombud Act defines a dispute as being one that affects the administration of a community scheme, between persons who have a material interest in that scheme, of which one of the parties is the association, owner or occupier, acting individually or jointly. These disputes are then further defined into a number of broad categories in respect of which the Ombud can make orders in respect of namely:

1. Financial issues, for example unreasonably high contributions.
2. Behavioural issues, for example noise disturbances.
3. Scheme governance issues, for example declaring governing provisions invalid.
4. Disputes relating to meetings and resolutions of the Body Corporate.
5. Management services, for example appointment of an executive managing agent.
6. Physical works, for example the effect of maintenance, amendments or repairs.
7. Other general issues, for example access to information.

In the recent High Court case of Coral Island Body Corporate v Hoge the court held that it was inappropriate for the trustees of the sectional title scheme to seek relief from our courts for a matter which fell within the jurisdiction of the Ombud Act and that the trustees should rather have referred the matter to the Ombud.

In your situation it does appear that your dispute relates to a typical dispute which would fall within the ambit of the Ombud Act. Ask your attorney to assist you with bringing the Coral Island-case to the attention of your body corporate and so encourage discussion of the dispute and possible referral of the dispute to the Ombud if necessary.
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