Northern Territory Second Reading Speeches

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CULLEN BAY MARINA AMENDMENT BILL 1998

Bill presented and read a first time.

Mr STONE (Attorney-General): Madam Speaker, I move that the bill now be read a second time.

The purpose of this bill is to provide an expeditious method for the resolution of disputes relating to land that is the subject of the Cullen Bay Marina Act. The main effect of this bill is to amend the Cullen Bay Marina Act so that it gives the local court exercising small claims jurisdiction under the Small Claims Act the powers necessary to:

(1) deal with breaches of the Cullen Bay Marina Act or with the regulations and by-laws made under that act;
(2) deal with claims by land owners who have been prejudiced by the wrongful act or default of the Cullen Bay Marina Management Corporation and the committee of the Cullen Bay Marina Management Corporation, the owner of another lot or the owner of a unit or another lot; (3) deal with disputes between the owners of land and the Cullen Bay Marina Management Corporation or a committee of the Cullen Bay Marina Management Corporation or with claims that that corporation or that such a committee has made a decision that is unreasonable or oppressive or unjust; (4) deal with disputes between land owners over the use or occupation of land including the common property vested in the Cullen Bay Marina Management Corporation; and (5) deal with disputes relating to the restrictive covenant referred to in section 14 of the Cullen Bay Marina Act.
The disputes covered by this bill include disputes that may have never arisen prior to the commencement of the operation of the legislation. The effect of this amendment will be to bring land and land management rules under the Cullen Bay Marina Act into line with estate development of land and estate management corporations under the Unit Titles Act. I say this noting that the Cullen Bay Marina Act commenced operation on 18 December 1992 and is legislation which, in effect, provided for a specific estate development prior to the enactment in the following year of general legislation dealing with estate developments and with disputes settling for lands subject to the title under the Unit Titles Act. That legislation comprised, firstly, the Unit Titles Amendment Act 1993. This act inserted section 106 into the Unit Titles Act. The section commenced operation on 30 June 1993. The section provides a system for a local court to resolve under its small claims jurisdiction disputes relating to land under
the Unit Titles Act. Second, the Unit Titles Amendment Act No 2 1993. This act commenced operation on 1 December 1993 and inserted part 4B into the Unit Titles Act. It is general legislation dealing with developments such as the type of development that has been completed under the Cullen Bay Marina Act.

The Cullen Bay Marina Amendment Bill is derived from section 106 of the Unit Titles Act. In general terms, the bill provides that disputes relating to Cullen Bay can be dealt with by the local court exercising its small claims jurisdiction. Local court matters under the small claims jurisdiction are handled in a manner designed to ensure that a decision is made expeditiously. The court has a greater power to control the running of the proceedings, with there being limited rights for legal costs to be awarded against the losing party and with, as a general rule, there being no right to apply against the decision of the court. Thus, in applying these rules to these kinds of disputes, the objective of the amendments is to ensure that there is ready access to a court for the resolution of disputes of minor matters that can, despite the fact that they are often of a minor nature in terms of monetary value, unduly disrupt these communal living arrangements. However, for legislation such as this bill, these kinds of disputes will either not be resolvable by a court or would often be required to be dealt with by the Supreme Court, which is a totally unsatisfactory situation.

These general provisions operate subject to the local court having the power to refer applications from the small claims jurisdiction to another court exercising more judicial functions under the more traditional rules. This should occur if the court is of the view that it would be more appropriate that the dispute should be handled more formally. This qualification is necessary because the potential disputes covered by this proposed law could involve novel issues of law, extremely complex issues of law or property of great value. In such cases, it may be appropriate for the issues to be dealt with under the jurisdictions conferred by the Local Court Act or the Supreme Court Act. Additionally, it would be appropriate that local court refer a matter out of the small claims jurisdiction if, at some point in the proceedings, all parties agree that the matter should be referred to another court.

I must however emphasis that, in making these observations about when it may be appropriate for the court to refer a matter out of the small claims jurisdiction, I do not mean to indicate that this should occur simply because of either the value of the property or the potential complexity of issues. Rather, the overriding aim of the legislation, namely that of giving ready access to a court for complainants to an expeditious hearing concerning communal living and ownership disputes, should always be kept in mind. I would not expect the court to refer a matter out of the small claims jurisdiction if the practical effect of such a referral would be to prevent a complainant from being able to have an issue resolved by a court.

I will now deal briefly with the main provisions of the bill. First, new proposed section 12B sets out who can make application to the local court. Applications can be made in respect of disputes between various parties, in respect of alleged breaches of the act, the regulations or the by-laws, in respect of decisions that are oppressive, unreasonable or unjust in respect of the occupation or use of land. Second, proposed new section 12C sets out that applications are dealt with by the local court exercising its small claims jurisdiction. Third, the proposed new section 12D provides that the local court may decline to proceed with an application if it is of the view that it is more appropriate that the proceedings be taken in another court. Additionally, the local court is given the power to refer the matter to be dealt with under one or other of the jurisdictions given by the Supreme Court Act or the Local Court Act. Fourth, proposed new section 12E sets out the actions and orders that
a court may take or make in respect of the applications made under section 12B. Fifth, proposed new section 12F provides that a court may make interim orders for the purpose of preserving the status quo, or for the purpose of minimising the risk of loss or damage to personal property. Finally, clause 8 of the bill provides that disputes or matters that arose prior to the commencement of this legislation can be handled in accordance with the amendments to be made by this proposed legislation. I commend the bill to honourable members.

Debate adjourned.

 

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