NETTLE J. This is an appeal from a judgment of the Court of Appeal of the Supreme Court of Queensland (McMurdo P, Morrison JA and Martin J agreeing). The Court of Appeal allowed an appeal from a decision of the Queensland Civil and Administrative Tribunal (Member P Roney QC) ("the Tribunal"), which had allowed an appeal from orders made by an adjudicator under s 276 of the Body Corporate and Community Management Act 1997 (Q) ("the BCCM Act"). The facts of the matter and the relevant statutory provisions sufficiently appear from the joint reasons.
The adjudicator concluded that she was not satisfied that the second respondent ("the Body Corporate") acted reasonably in deciding not to pass a motion to allow the first respondent ("Albrecht") to combine and extend the decks appurtenant to Lot 11 in the Viridian Noosa Residences at Noosa in Queensland, and, on that expressed basis, the adjudicator declared that the motion was not passed because of opposition that was unreasonable in the circumstances. The Tribunal decided that the adjudicator erred in law in a number of material respects and that, applying the correct legal test, the adjudicator ought to have held that Albrecht had not established that the Body Corporate acted unreasonably. The Court of Appeal held that the Tribunal erred in identifying errors of law in the adjudicator's reasons that were not there. For the reasons which follow, the Tribunal was correct. The adjudicator did err in law in a number of material respects. On the material before the adjudicator, she should have held that it was not established that the opposition to the motion was unreasonable, and that Albrecht's application for an order giving effect to the motion as proposed should be dismissed.
The adjudicator's reasoning
Having set out the history of the matter and referred to some of the evidence and submissions, the adjudicator observed of the BCCM Act that s 94(2) imposed an obligation on a body corporate to act reasonably; that Sched 5 provided "examples of the types of orders that an adjudicator may make pursuant to section 276"; that "[b]efore any of those orders could be made, the issue will be whether a body corporate has complied with its obligation to act reasonably"; and thus that "the central question in this application is whether the Body Corporate acted reasonably in deciding not to approve [Albrecht's] motion". It is apparent that the adjudicator viewed the dispute referred to her as one which involved an alleged contravention of s 94(2) of the BCCM Act constituted of the Body Corporate acting unreasonably in opposing the motion, and thus as a dispute falling within s 276(1)(a) of the BCCM Act.
As is observed in the joint reasons, however, the dispute was, in reality, a dispute about the exercise of rights or powers under the BCCM Act and, therefore, a dispute which fell within s 276(1)(b). Since s 276(1)(b) explicitly provided for the resolution of disputes about the exercise of rights or powers under the BCCM Act, in contradistinction to a dispute about a claimed contravention of the BCCM Act by a body corporate failing to act reasonably, s 276(1)(b) operated to the exclusion of s 276(1)(a) according to the maxim expressum facit cessare tacitum. Contrary, therefore, to the adjudicator's reasoning, the "central question" was not whether the Body Corporate had acted reasonably, but whether the adjudicator was satisfied that the motion had not been passed because of opposition that in the circumstances was unreasonable.
As a consequence of that error, the adjudicator directed herself to the test of reasonableness under s 94(2) which she opined was not the test of Wednesbury unreasonableness but rather a broad common sense test of objective reasonableness requiring "a balancing of factors in all the circumstances according to the ordinary meaning of the term 'reasonable'" and stated that:
"an order of this nature enables an adjudicator to determine the balance between the need to protect the genuine interests of owners and their voting entitlements, and upholding the justifiable position of proponents [in] the face of unfounded or vexatious opposition."
The adjudicator then undertook the "balancing" exercise which she had presaged. In favour of the motion, the adjudicator observed that the primary purpose of the proposal was to improve the amenity of Lot 11 by providing it with a larger deck and perhaps by improving the safety of the deck areas by removing a "trip hazard" the result of a change in level from the interior of the lot to the outside deck. She concluded that Albrecht had a "legitimate interest" in so improving the amenity of his unit, albeit one that had to be "balanced against impacts of the proposal on other lots and the scheme as a whole".
As against the motion, the adjudicator referred to each of the concerns expressed by the opponents of the motion (some of whom are appellants in this Court) and rejected each of them seriatim. The first was that the proposal ceded to Albrecht the common property airspace between the two discrete nooks comprising the current decks. The adjudicator said that she rejected that as a reasonable basis of opposition because:
"I cannot see how the granting of exclusive use rights, and the corresponding alienation of common property, has of itself any material or adverse impact on any other person."
The second basis of opposition was that the airspace between the nooks was valuable. One of the opponents adduced evidence from a sworn valuer that the airspace was worth at least $10,000 and possibly up to $20,000. That opponent based his opposition to the proposal in part on the fact that Albrecht was not offering any compensation for his acquisition of the airspace. The adjudicator dismissed that concern because the valuation was disputed and, although the airspace was of value to Albrecht, "no submission refutes that this air space is of no material use to any other owner or occupier".
The adjudicator referred then to concerns expressed by several of the opponents that approval of Albrecht's proposal would make it difficult for the Body Corporate to refuse other, similar proposals in the future. She rejected those concerns on the basis that:
"if it were to be determined that one deck amalgamation would have no adverse impact on other owners or the scheme as a whole, I find it difficult to see how the cumulative effect of multiple identical improvements would generate an adverse impact." (emphasis in original)
Evidently, the adjudicator also considered it to be significant that:
"[n]o evidence has been submitted that a similar deck extension, or indeed any other external alterations, has been proposed."
The adjudicator turned next to concerns that the proposal would compromise the original design intent and architectural integrity. She rejected all of those concerns on the basis that, despite the written opinions of the leading architect who had designed the development ("Mainwaring"), who was an opponent of the motion and is an appellant in this Court, and two other notable architects, the proposal would not detract from the original design intent:
"[T]hey [Mainwaring and the two other architects] appear to be importing a subjective view of the impact of the alteration rather than an objective one. Accordingly I am not convinced that they assist the dispute.
Given his qualifications and history in the scheme, it was entirely understandable that owners would rely on the expressed views of Mr Mainwaring as to the impact [of] the proposal on the architecture of the scheme. However on balance I am of the view that his opinion takes into account considerations that are not relevant for the Body Corporate to have regard to when balancing the competing interests and acting reasonably.
...
Having assessed the material submitted and the competing architectural opinions, I am not satisfied that the opponents of the proposal have demonstrated that the proposed modification materially offends the integrity of the architectural design of the scheme. ... I do not consider that any submission has demonstrated that the extension would have any noticeable detrimental impact on the appearance, structure or functionality of the architecture of the scheme."
The adjudicator also dismissed concerns that the expansion of the deck would lead to added use and increased noise. She accepted that the expansion might lead to greater use of the deck, and a greater number of people on the deck on those occasions, but rejected that as immaterial because:
"I do not consider that it can be assumed that any increased use of the larger deck area will cause a disturbance. There is no demonstrable evidence it will do so."
The adjudicator recognised that the design of the current nooks purposely "restricts the functionality of the decks" but dismissed that consideration on the basis that:
"I do not consider it is reasonable to oppose an improvement on the basis that it will make part of a lot more functional or useable."
There was a body of evidence as to the impact of the proposal on the privacy and views of the occupants of other lots. Some of it supported the opponents' concerns. Some of it was directed to minimising any consequent loss of privacy or overviews. The adjudicator said that she preferred the latter evidence. She accepted that the proposal would increase the overview from the deck to the adjacent Lot 10 and, therefore, have an impact on Lot 10. But she stated that she did not consider that that was sufficient to make objection on that basis reasonable; and that, in any event, the impact on Lot 10 could "be addressed by additional privacy screening".
There were also concerns about the aesthetic effects of the structural elements necessary to support the enlarged deck, compliance with the Architectural Design & Landscaping Code, planning approvals and other financial obligations potentially arising from the extension. But the adjudicator rejected all of those concerns as well because, she said, there was no evidence that they would be borne out.
The adjudicator concluded:
"On balance I am not satisfied that the Body Corporate acted reasonably in deciding not to pass Motion 1 at the EGM on 10 August 2012. Individual owners may have voted against the motion in good faith, and in genuine reliance on architectural and other advice. However I consider they have relied on irrelevant and unsubstantiated considerations. The most substantive objection is the potential impact on Lot 10, but based on the evidence submitted, I consider that any impact will be so slight that it does not constitute a reasonable basis to refuse the proposal."
The Tribunal's reasoning
The Tribunal found that the adjudicator had made a number of errors of law. The first was to cast what was in effect an onus of proof on the individuals opposing Albrecht's motion. As the Tribunal observed, the adjudicator was not empowered to make an order under Item 10 of Sched 5 unless she were first affirmatively satisfied that the motion was not passed because of opposition which in the circumstances was unreasonable. It was not enough to decide the matter, as the adjudicator stated she did, on the basis that she was not satisfied that the Body Corporate had acted reasonably. The Tribunal considered that the adjudicator's erroneous approach to that conclusion was compounded by her application of a similar approach in a number of places throughout her review of the stated bases of opposition to the motion.
Secondly, the Tribunal stated that the exercise of deciding whether the motion was not passed because of opposition which in the circumstances was unreasonable did not necessarily, or even ordinarily, require any "balancing [of] competing interests". To act reasonably in the relevant sense did not imply even-handedness, a conciliatory approach to a dispute, or recognition of the interests or wishes of others. The fact that a lot owner might have had an interest in improving his or her lot was not a prima facie affirmative proposition, the pursuit of which can be assumed to be appropriate or supported by other lot owners. The question was not a "balancing act". A balancing act might have assisted if the adjudicator had been asked whether it was just and equitable for the Body Corporate to pass the motion. But that was not the question. The question was whether it was shown to be unreasonable to oppose the motion. And as a consequence of that fundamental error of approach, the adjudicator failed to consider whether and why it was shown to be unreasonable for property owners, who had purchased their units knowing that the decks were intentionally designed with limited functionality, to insist that the deliberately limited functionality of the decks not be altered.
Thirdly, in relation to the integrity of the original design, the Tribunal observed that the adjudicator had assessed the issue on the expressed basis that she was "not satisfied that it is reasonable to seek to prevent any deviation from the original design intent". The Tribunal considered that to be an erroneous conception of the question. The issue was not whether any deviation from the original design intent was justified. The question was whether it was established that it was unreasonable for the objectors to insist on the original architectural vision for the scheme being maintained. As the Tribunal concluded, her misdescription of the question led the adjudicator to approach the matter erroneously according to whether, in her subjective view, it was appropriate to allow someone to alter the original design.
Fourthly, the Tribunal found that there were indications in several places in the adjudicator's reasons that she had decided the matter by placing herself, as it were, in the shoes of the Body Corporate, posing the issue in terms of what a "just and equitable" balancing of interests required and deciding the issue on the expressed basis that the opponents of the motion had not demonstrated that the modification offended the integrity of the scheme. As a consequence, it appeared that the adjudicator had erred in failing to recognise as a consideration relevant to whether the withholding of approval was demonstrated to be unreasonable that each of the several objectors had spent some millions of dollars in purchasing their units, each regarding the scheme's award winning architecture and design principles as a matter of high priority in their purchase and, consequently, that each feared that those architecture and design principles would be compromised if Albrecht's proposal were allowed to proceed.
Fifthly, the Tribunal noted, in an essentially similar vein regarding the privacy and noise issues, that, despite what might well be thought to be legitimate concerns, the adjudicator had disposed of the issues on the expressed basis that "[n]o submitter has demonstrated that the expansion of the deck will inherently increase the disturbance to other occupiers or users of common property compared with the potential use of the current deck configurations". As the Tribunal concluded, that was an erroneous process of reasoning. The question which the adjudicator should have determined was whether it was unreasonable for any of the owners who opposed the motion to have harboured those concerns and therefore whether there was not a reasonable basis for their opposition to the motion. Further, the adjudicator disposed of the privacy issue after she had recognised that there would be some impact on the privacy of and views from Lot 10. That invited the conclusion not only that she had erred by casting what was in effect a burden of proof on the opponents but also that she had acted erroneously by exercising her own subjective judgment in what she conceived of as a balancing exercise aimed at assessing the appropriateness of allowing the improvements.
Sixthly, in relation to the concern that the approval of the proposal would make it difficult to resist further similar proposals to amalgamate the decks of other units, the Tribunal observed that it was apparent, in holding that "[n]o evidence has been submitted that a similar deck extension, or indeed any other external alterations, has been proposed", that the adjudicator had erred by failing to take into account evidence that Albrecht had written to other lot owners stating that he made a "deep and abiding commitment" to ensuring that other lot owners would not be subjected to similar campaigns to prevent improvements to their lots and that Albrecht saw himself as paving the way for other owners to be permitted to make similar alterations. There was also a further indication of error in the adjudicator's conclusion that she did not consider concerns about opening the floodgates to be a reasonable basis for opposing the motion. That was indicative of the adjudicator again casting an onus of proof on the opponents and thus failing to give proper consideration to the question of why opposition to the proposal based on fear that it would set a precedent was unreasonable.
Seventhly, with respect to the absence of compensation issue, the Tribunal found that there was error in the adjudicator's perfunctory rejection of the sworn valuer's evidence as "disputed" and in thus failing to conclude that the absence of an offer of compensation was a reasonable basis for opposing the proposal. Evidently, the adjudicator's statement that the valuation was "disputed" was a reference to a letter from an estate agent, tendered by Albrecht, in which it was asserted that the airspace had "no value whatsoever". As the Tribunal observed, the estate agent had no formal valuation qualifications and the adjudicator did not provide any reason for rejecting the opinion of the sworn valuer on the say-so of the estate agent.
The Court of Appeal's reasoning
McMurdo P gave the only reasons for judgment in the Court of Appeal. Morrison JA and Martin J agreed with her Honour's reasons.
(i) The role of the adjudicator
After setting out the facts and history of the matter, McMurdo P stated the law to be that:
"The role of the adjudicator in this case was to investigate [Albrecht's] application and to decide whether it was appropriate to give effect to his motion before Viridian's body corporate to allow him to extend his decks. She was not bound by the rules of evidence; must act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the application; and must observe natural justice. She had wide investigative powers to obtain information. If satisfied the opposition to the motion is in all the circumstances unreasonable, she could give effect to the motion and could make an order that is just and equitable in the circumstances (including a declaratory order) to resolve the dispute." (footnotes omitted)
Although McMurdo P later qualified that observation, it should be observed at once that it was not the role of the adjudicator "to decide whether it was appropriate to give effect to [the] motion". As the Tribunal stated, correctly, the adjudicator's task was to decide whether the adjudicator was satisfied that the motion had not been passed because of opposition which in the circumstances was unreasonable.
McMurdo P continued:
"[The adjudicator's] role under s 276 and Item 10 in Schedule 5 BCCM Act ... was to determine whether she was satisfied the body corporate did not pass [Albrecht's] motion because of opposition from the [opponents] that was in the circumstances unreasonable. ... [T]he adjudicator was not limited to determining whether the [opponents'] opposition to the motion could have been reasonably held. She was required to reach her own conclusion after considering all relevant matters."
That may be accepted as a correct statement of the law provided it is understood that the requirement that the adjudicator "reach her own conclusion after considering all relevant matters" means that the adjudicator must reach her own conclusion after considering all matters relevant to whether she is satisfied that the motion was not passed because of opposition which in the circumstances was unreasonable. As the Tribunal emphasised, correctly, it does not mean that the adjudicator is to reach her own conclusion as to whether it would be reasonable to approve the motion.
McMurdo P held that the Tribunal erred in identifying errors of law in the adjudicator's reasons. Her Honour concluded that there were no such errors and, it followed, that the Tribunal was not entitled to set aside the adjudicator's decision.
(ii) Reversal of onus of proof
Plainly, however, there were errors of law in the adjudicator's reasons, and the Tribunal identified them correctly. As was earlier observed, the first error was the adjudicator's determination of the matter on the basis that "[o]n balance" she was "not satisfied that the Body Corporate acted reasonably in deciding not to pass [the motion]". As the Tribunal stated, that was not the correct test. The correct test was whether the adjudicator was satisfied that Albrecht's motion was not passed because of opposition which was in the circumstances unreasonable.
McMurdo P held that there was no error because, when the adjudicator's reasons are considered "in their entirety", it is clear that the adjudicator:
"conscientiously considered all the material and submissions relied upon by [Albrecht] and the [opponents], made findings of fact, all of which were open on that material, and was ultimately satisfied as a matter of fact that [Albrecht's] motion was not passed because of the [opponents'] opposition to it that in the circumstances was unreasonable."
With respect, that is not so. Apart from the insufficiency of the adjudicator's consideration of the submissions and her questionable findings of fact which are aspects of the reasoning that necessitate separate consideration below it is manifest that the adjudicator never expressed herself to be satisfied that the appellants' opposition to the motion was unreasonable. And, as the Tribunal identified, over and above the adjudicator's express conclusion that she was not satisfied that the Body Corporate acted reasonably in deciding not to pass the motion, the adjudicator so many times otherwise expressed herself to be unsatisfied that the grounds of objection were reasonable that it cannot realistically be supposed that she decided the matter on any other basis. As was earlier noticed, those occasions included the adjudicator's statement, when dealing with deviation from the original design intent, that "I am not satisfied that it is reasonable to seek to prevent any deviation from the original design intent" and her disposition of the noise issue on the basis that "[n]o submitter has demonstrated that the expansion of the deck will inherently increase the disturbance to other occupiers or users of common property compared with the potential use of the current deck configurations".
(iii) Deviation from design intent
Turning to the adjudicator's findings of fact, and beginning with the issue of whether it was unreasonable to refuse to pass the motion because Albrecht's proposal would result in a deviation from the original design intent, McMurdo P said that:
"The competing submissions and supporting material in this case, particularly the architectural reports, made the question of unreasonableness difficult to resolve. As the reasons of both the adjudicator and [the Tribunal] demonstrate, views as to what was reasonable or unreasonable involved value judgments on which there was room for reasonable differences of opinion, with no opinion being uniquely right. Had [the Tribunal's] views as to unreasonableness been the views of the adjudicator, and had the adjudicator made no errors of law, that finding would have been unassailable on a [Tribunal] appeal which was limited to a question of law: see s 289 [BCCM] Act."
With respect, that is not correct either. The competing submissions and supporting material did not make the question of unreasonableness difficult to resolve. Nor is reasonableness something about which informed views are likely to, or should, differ. Reasonableness does not mean whatever the adjudicator considers to be just and equitable and it does not involve the application of discretionary considerations of the kind that were essayed in Norbis v Norbis. The standard of reasonableness is objective and it is to be applied in this case at the time of rejection of Albrecht's motion taking into account all relevant factors including factors which were extant but which the parties may not have identified or appreciated at the time, as is implied by the words "in the circumstances" appearing in Item 10 of Sched 5 to the BCCM Act. Item 10 of Sched 5 is not to be read as if it contained the words "in the opinion of the adjudicator", nor as if it otherwise threw the determination of what is unreasonable upon the subjective and unexaminable opinion of an adjudicator. Evidently, the BCCM Act so values the interests of lot owners in common property that, subject only to proven unreasonableness, it conditions the disposition of common property upon unanimity. It would require terms much different from and clearer than those in Item 10 of Sched 5 to substitute adjudicative discretion for a lot owner's objectively not unreasonable exercise of self-interest.
The consequence of that error, with respect, is reflected in the following further observations of McMurdo P:
"[Mainwaring], the highly respected architect of Viridian, purposefully designed the decks so that they were discrete and did not interlink. He and other eminent architects opined before the adjudicator that the proposed deck extension would be harmful to the architectural integrity of Viridian, an architectural award winning development. Seven Viridian owners, having purchased their homes on the basis of Viridian's architectural merit, objected to [Albrecht's] motion for reasons including those based on these architectural opinions. On the other hand, the same number of equally respected architects opined that extending [Albrecht's] decks in the manner proposed would not have any detrimental impact on Viridian's architectural integrity and any appreciable change to its external appearance would be minimal.
...
After considering the competing architectural opinions and relevant photographs, diagrams and drawings, the adjudicator preferred the opinions of [Albrecht's] architects. She found that the proposed extensions would have no noticeable detrimental impact on Viridian's architectural integrity. She considered that she should balance [Albrecht's] interest in improving his lot against the impacts of the proposal on the other owners and on Viridian as a whole." (footnote omitted)
As already stated, the adjudicator's task was to determine whether she was satisfied that it was objectively unreasonable for the seven Viridian owners who had purchased their homes recognising Viridian's architectural merit and whose disquiet at the damage which the proposal, if implemented, would likely do to the original design intent was supported by the closely reasoned opinions of three eminent architects to oppose the motion. It was not for the adjudicator to reject one set of architectural opinions because she perceived them "to be importing a subjective view of the impact of the alteration". Axiomatically, both sets of opinions imported "a subjective view of the impact". Consequently, it was not open to the adjudicator to reject one of them on that basis while, in effect, preferring the other as if it did not. The inconsistency, and hence the error, in that reasoning is manifest. Moreover, as the Tribunal in effect observed, in view of the standing of the architects concerned, it could hardly be said that it was unreasonable to prefer one set of opinions over the other; and there is certainly nothing else in the legislation which purports to subjugate matters of reasonably defensible personal taste and preference to the demands of laissez‑aller alteration. Consequently, even if the adjudicator's preferred architectural philosophy was the latter, it was not within the statutory task with which she was entrusted to impose it on those opposing Albrecht's motion.
(iv) Noise and privacy
Turning to the adjudicator's consideration of the noise and privacy issues, McMurdo P said this:
"The adjudicator was unpersuaded on the evidence that the proposed deck expansion would increase the use of [Albrecht's] decks and noise in a way which would disturb other occupiers or users of the common property and that the unsubstantiated risk of a potential nuisance was not a reasonable basis to refuse the proposal. She accepted the evidence from [Albrecht's] architect, Mr McKerrell, and concluded that there would be no greater overlooking of and from lot 10 than at present and that any slight increase in vision between the lots would not interfere with the amenity of lot 10. Any arising privacy issues could be ameliorated by a privacy blade and would not unreasonably interfere with the amenity of lot 10. This was not a sufficient basis to warrant the refusal of the motion." (footnotes omitted)
With respect, McMurdo P's acceptance of that analysis repeats the adjudicator's error of approaching the question as one of whether the adjudicator was satisfied that the objections based on noise and the infringement of privacy were reasonable objections. It also repeats the misconception that the adjudicator's subjective perceptions of what would constitute acceptable, as opposed to unacceptable, effects on noise and privacy were somehow to be adopted as the appropriate basis of decision. The question was whether, given that the objections were bona fide and supported by a significant body of respectable architectural opinion, they were still somehow to be regarded as objectively unreasonable. As thus expressed, the question answers itself.
(v) Precedent effect of approval
Lastly there is McMurdo P's consideration of the precedent issue. Of that, her Honour said the following:
"As to the 'floodgates' argument, [the adjudicator] noted that there was no evidence of any similar pending applications by other owners to extend their decks. The history of [Albrecht's] proposal showed that no one had an automatic right to have such a proposal approved. Any future application would have to be determined on its merits. If the present application was found not to adversely impact on other owners or Viridian as a whole, it was difficult to see how the cumulative effect of multiple identical improvements would generate an adverse impact. The 'floodgates' argument, the adjudicator found, was not a reasonable basis for opposing the proposal." (footnotes omitted)
As the Tribunal identified, the difficulties with that sort of reasoning are manifold. First, since the type of deck modification which Albrecht proposed had the attractions for him which he contended it did, it was unreal to suppose that, if his proposal were approved, there would not then be others seeking to make similar deck modifications. After all, if some of the common property could be allocated to Albrecht to enable him to achieve his self-interested objectives, why would not others consider that more common property ought to be allocated to them so that they could achieve theirs? Secondly, as will be recalled, Albrecht had written to other owners stating that his "deep and abiding commitment [was to ensure] other unit owners [would] not be subjected to similar campaigns to prevent improvements to their residences" and that he saw himself as paving the way for other owners to be permitted to make similar alterations. Regardless, therefore, of whether there was evidence of other pending applications, it was distinctly possible that approval of the motion would lead to a multiplicity of applications to the Body Corporate for similar approvals; and, as the Tribunal recognised, it was easy to see how the cumulative effect of multiple identical improvements could generate an adverse impact. Thirdly, those further applications would necessitate the Body Corporate making further decisions as to whether it was reasonable to refuse them and in turn more division and conflict between owners would arise. The potential for that kind of disharmony may in itself have provided a reasonable basis to oppose the motion in this case.
Errors of law
It remains only to observe that one of the remarkable features of the Court of Appeal's judgment is that, apart from asserting that the Tribunal erred in holding that the adjudicator reversed the onus of proof and in holding that the adjudicator applied the wrong test, the Court of Appeal's reasons nowhere grapple with the Tribunal's detailed analysis of the adjudicator's specific errors of law. That is unfortunate for a number of reasons, but particularly because, if greater attention had been paid to the Tribunal's analysis of those problems, it might have led to a better understanding of the correct test and the correct method of its application. For the reasons given, the Tribunal was correct.
Conclusion
In the result, the appeal should be allowed and the orders proposed in the joint reasons made.