Law expert Ashwini Singh provides insights on claiming costs from a body corporate

Dear Conviction, 

If a body corporate incurs damages of a financial nature, can I claim the costs from them? As in, if I must take the body corporate to court over their failure to follow their own rules and it is costing me money. 

Ashwini Singh provides the following insight:  

It really comes down to what the costs were. Before approaching a court, it is important to consult the Community Schemes Ombud Service to find out whether the issue falls within their ambit of adjudication.  

If it does, then it is almost always compulsory to engage them prior to any court litigation as that would be financially prudent. Most contraventions of the Sectional Titles Schemes Management Act 8 of 2011 can be dealt with via the Community Schemes Ombud Service. 

If it is a dispute that falls within the jurisdiction of a court, such as a declaratory order or a delictual claim, then that matter would have to be placed before a court (not an ombud). And with court, comes costs in the form of attorney’s fees, appearance fees, counsel fees, etcetera. Court costs easily pile up, and when a body corporate is involved, parties resort to delay tactics and such to increase the likelihood of a case being withdrawn by the other party based on financial hardship.  

However, there is one source of consolation: a cost order. Whether by consent or judgment, costs awarded by the court must be complied with by the party who is ordered to pay. If a party refuses to pay the costs they are ordered to pay, then they will be pursued for the debt in the same manner as a creditor would pursue a debtor.  

I was made aware of a recent case in Durban where a body corporate of a sectional title scheme in Westridge had agreed to pay an owner Scale B costs via a High Court Consent Order. When the owner’s attorney sent the Westridge body corporate his Scale B costs, the body corporate suddenly refused to pay. 

The matter was set down with the Taxing Master of the High Court, resulting in the Westridge body corporate being ordered to pay R 61,000 in costs to the owner. Once an amount is finalised by a Taxing Master, that amount must be paid otherwise the defaulting party can be liable for debt collection or attachment of property.  

In essence, if an owner has no choice but to take a body corporate to court, then it must be a legitimate issue where costs can be rewarded to mitigate any financial damages caused by the body corporate (who cannot evade payment of these costs). 

Singh is a law academic and an affiliate of the Association of Certified Fraud Examiners, South Africa.  

#Conviction 

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