Hablethwaite & Anor v Andrijevic & Ors [2005] QCA 336

SUPREME COURT OF QUEENSLAND

CITATION: Hablethwaite & Anor v Andrijevic & Ors [2005] QCA 336

PARTIES: PETER AND MARCIA HABLETHWAITE (appellants/applicants) v IVAN AND CARMELINA ANDRIJEVIC AS TRUSTEES FOR MELIVAN PTY LTD ACN 063 710 725 (first respondents/first respondents) CLAUDE AND SHIRLEY MARSH (second respondents/second respondents) MICHAEL JOHN TAIFALOS (third respondent/third respondent)

FILE NO/S: Appeal No 4720 of 2005 / DC No 18 of 2004 / DC No 91 of 2004

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Civil)

ORIGINATING COURT: District Court at Cairns

DELIVERED ON: 9 September 2005

DELIVERED AT: Brisbane

HEARING DATE: 6 September 2005

JUDGES: Jerrard and Keane JJA and Cullinane J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Application for leave to appeal dismissedApplicants to pay the costs of the first and second respondents to the application to be assessed on the standard basis

CATCHWORDS: APPEAL AND NEW TRIAL - APPEAL – PRACTICE AND PROCEDURE - QUEENSLAND - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY - where applicants had exercised their majority voting rights at the annual general meeting of a body corporate to veto a number of motions - where the other members of the body corporate sought to have this exercise of the applicants' voting rights overturned - where the matter was submitted for the decision of an adjudicator appointed under s 267 Body Corporate and Community Management Act 1997 (Qld) - where the adjudicator decided the matters referred to him for decision against the applicants - where the applicants appealed the decision of the adjudicator to the District Court where the adjudicator's decision was upheld - where the applicants sought leave to appeal from the decision of the District Court pursuant to s 118(3) District Court of Queensland Act 1967 (Qld) - where the matters which were the subject of the contested motions had been overtaken by the course of events - whether the absence of any practical utility in the Court resolving the issues sought to be agitated on appeal was sufficient reason to refuse leave to appeal / STATUTES - ACT OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND CLAUSES - PARTICULAR ACTS AND ORDINANCES - QUEENSLAND - where the applicants were invited to make submissions that would be considered by the adjudicator but did not do so - where the other parties to the dispute did provide submissions to the adjudicator - where the applicants complained that the adjudicator had not sought to obtain a copy of submissions previously submitted by the applicants to the annual general meeting - where the applicants also complained that the adjudicator had failed to inform them that he would decide the matter against them in the absence of any submissions from them - whether the procedure adopted by the adjudicator meant there had been a failure "to observe natural justice" as required by s 269(2) Body Corporate and Community Management Act 1997 (Qld) / STATUTES - ACT OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND CLAUSES - PARTICULAR ACTS AND ORDINANCES - QUEENSLAND - where s 269(1) Body Corporate and Community Management Act 1997 (Qld) places an obligation on an adjudicator to investigate an application referred to that adjudicator for decision - whether inviting submissions from the parties as to what decision should be made could be considered to discharge an adjudicator's obligation to conduct an investigation / STATUTES - ACT OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND CLAUSES - PARTICULAR ACTS AND ORDINANCES - QUEENSLAND - where s 267 Body Corporate and Community Management Act 1997 (Qld) requires an adjudicator to make an order that is "just and equitable in the circumstances" - whether the decision by an adjudicator to override the exercise of majority voting rights by a member of a body corporate was "just and equitable in the circumstances" / Body Corporate and Community Management Act 1997 (Qld), s 227, s 231, s 232, s 238, s 239, s 239, s 243, s 246, s 248, s 267, s 269, s 271, s 276, s 289, Sch 5 / District Court of Queensland Act 1967 (Qld), s 118 / Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334, applied / Cole v Cameron (1944) 68 CLR 571, cited / Hockley v Sowden [2000] QCA 9; Appeal No 10317 of 1999, 3 February 2000, cited / In re Hamilton; In re Forrest [1981] AC 1038, cited / Pearson v Thuringowa City Council [2005] QCA 310; CA No 94 of 2005, 26 August 2005, cited / Pickering v McArthur [2005] QCA 294; Appeal No 4013 of 2005, 16 August 2005, cited / Rayner v Whiting [1999] QCA 214; [2000] 2 Qd R 552, cited

COUNSEL: The applicants appeared on their own behalf / C J Ryall for the first and second respondents / No appearance by the third respondent

SOLICITORS: The applicants appeared on their own behalf / Miller Bou-Samra Lawyers for the first and second respondents / No appearance by the third respondent

JERRARD JA: In this application I have had the advantage of reading the reasons for judgment of Keane JA, and the orders proposed by His Honour. I agree with what he has written, and with the orders he proposes.

Provisions of the Act

The Body Corporate and Community Management Act 1997 (Qld) (“the Act”) provides in Chapter 6 thereof for the resolution of disputes such as those underlying this application, namely disputes between the owners or occupiers of lots included in a Community Titles Scheme.¹ The Commissioner for Body Corporate and Community Management² has a responsibility for providing a dispute resolution service³ and persons who are parties to, or directly concerned with, any dispute as defined in the Act may make application in the approved form to the Commissioner for the outcome sought by the applicant.⁴ The application must state, in detail, the grounds on which the outcome is sought.

The Commissioner may require an applicant to give further information after receiving the application, and is obliged to give written notice of the application to the Body Corporate, which in turn must give a copy of that notice to each person whose name appears on the roll as the owner of a lot included in the scheme. That notice must invite each person given a copy of it to make written submissions to the Commissioner about the application.⁵ Where one or more persons are invited to make submissions, the original applicant may apply to the Commissioner to inspect those submissions, and can make a written reply to them. Additionally, any person affected by the application may inspect it, the submissions made about it, and the applicant’s reply to those submissions.⁶

Those provisions of the Act allow each lot owner to make a written submission about an application to the Commissioner, which application must set out in detail the grounds on which that outcome is sought. After receiving the application and written submissions, the Commissioner may make 1 or more dispute resolution recommendations, as defined in s 248 of the Act; it appears that in this matter the Commissioner recommended a Department adjudication. Part 9 of Chapter 6 makes general provisions about adjudication, including the powers granted to an Adjudicator, obliging her or him to investigate the application to decide whether it would be appropriate to make an order on it; and when investigating, to observe natural justice and act as quickly as possible, and with as little formality and technicality as is consistent with a fair and proper consideration of the application. Section 276 empowers an Adjudicator to whom an application is referred to make an order that is just and equitable in the circumstances about, inter alia, the exercise of rights under the Act.

Division 4 of Chapter 3, which chapter deals with the management of Community Titles Schemes, makes provision for Body Corporate meetings and counting of votes. The various forms of the 1997 Regulation have provisions giving the right to lot owners to vote at general meetings.⁷ Section 276 explicitly provides that an Adjudicator may make an order mentioned in Schedule 5 of the Act; those approved orders include, for example, orders giving effect to a motion considered by a general meeting of the Body Corporate, in which a resolution required to be without dissent was not passed because of opposition that the Adjudicator considered was unreasonable in the circumstances. I agree with the Adjudicator that the act of voting at the Annual General Meeting ("AGM") is an exercise of a right under the Act by a lot owner, and it was intended by the Parliament that an Adjudicator be able to review votes cast by owners on an application to overturn a negative vote on a resolution.

Background facts

The judgment of the District Court dated 13 May 2005, from which Mr and Mrs Hablethwaite seek leave to appeal, was given on their appeal under s 289(2) of the Act from a decision of an Adjudicator given on 2 December 2003. That Adjudicator’s decision records that altogether there were three applications made to the Commissioner under s 238, all arising out of the AGM of the Body Corporate of the Maria Creek Estate Community Titles Scheme, Scheme No 25253. One application, reference number 377 of 2003, was by the respondents to this application for leave to appeal, those respondents being respectively the co-owners of lots 1, 4, and 5, in the 9 lot Maria Creek Estate. The present applicants, Peter and Maria Hablethwaite, are the co-owners of Lots 3, 6, 7, 8, and 9; and accordingly have a majority of votes at any meeting in which they cast votes.

The Hablethwaites did not attend in person at the AGM held on 29 May 2003, but had forwarded a voting paper to the Administrator for the scheme, which scheme the Adjudicator’s decision under appeal to the District Court described as having a dysfunctional history. That voting paper indicated how they wished to vote with respect to each of the motions for determination at that AGM. The judgment of the District Court records that the Hablethwaites also forwarded to the Administrator a written submission which included their response to each of the motions, and records that those documents set out their objections to each of the motions that they voted against; although there was some dispute before the District Court Judge as to whether the submission was actually received by the Administrator.

The Hablethwaites’ five votes out of the nine possible votes resulted in the resolutions numbered 11, 12, 13, 15, 16, 17, 19, 20, 21, 22, 23, 24, 27, 28, and 29, being defeated. After that the present respondents, the co-owners of Lots 1, 4, and 5, made application number 377 of 2003 to the Commissioner under s 238, asking as an outcome that the “no” vote of the Hablethwaites be declared void and each of those resolutions be deemed to have been carried. The adjudication on that application, which was the adjudication appealed to the District Court and from which decision of that Court there is now this application for leave to appeal, shows that an application (number 379 of 2003) was also made to the Commissioner in the name of the Body Corporate – presumably by the Administrator – seeking an order declaring that the resolutions numbered 5, 6, 7, 9, and 10 held at that AGM be declared void; and the Hablethwaites also made their own application, number 433 of 2003, seeking orders invalidating the AGM entirely, the removal of the Administrator, and the appointment of a registered liquidator or chartered accountant instead of that Administrator.

The Adjudicator’s decision in reference 377 shows that the Adjudicator accepted the Hablethwaites’ submission that their application number 433 of 2003 should be determined first, and the Adjudicator dismissed their applications. His reasons for so doing are not repeated in his decision number 377 of 2003, and the Hablethwaites did not pursue an appeal they lodged in the District Court about those reasons in number 433 and that dismissal of their application. The Adjudicator’s reasons in 377 of 2003 do not reveal precisely what happened on the Body Corporate’s application to the Commissioner, number 379, but the Hablethwaites originally appealed the result in that adjudication too, and then did not pursue that appeal.

In application 377 of 2003 the Adjudicator recorded that of the 18 motions submitted by the owners, 3 were carried (14, 18, and 26), and the rest were defeated, presumably on the votes of the Hablethwaites. The Adjudicator’s decision in application 377, which was referred to the Adjudicator by the Commissioner as was application 433 of 2003, records that the applicants in number 377 had submitted a statement explaining the basis of their request for their orders in respect of each of the 15 disallowed motions the subject of that application to the Commissioner. Those statements would have been submitted in accordance with s 239 of the Act. The Adjudicator in number 377 records that the Hablethwaites, the named respondents in number 377, were fully aware of those reasons (that is, the detailed grounds on which the applicants in number 377 sought the overturning of the “no” vote to each resolution), as a result of the submission process. The submission process referred to is the process set out in s 239 and s 243 of the Act.

That finding by the Adjudicator, that the Hablethwaites were fully aware of the minority lot owners’ reasons for challenging the “no” vote for each resolution, was not challenged at all in the proceedings before the learned District Court Judge. Nor was the further finding, that notwithstanding that the minority lot holders had specifically addressed each of the separate motions they sought to have validated in those lot holders’ grounds for their application, the Hablethwaites had not responded in like manner, and that their submission in response had been limited to the subject matter of motion number 13. That was a motion about a “gate entrance”, and about which the Hablethwaites did make a written submission to the Commissioner.

The Adjudicator’s decision in number 377 recorded that:

“The Hablethwaites do not take issues [sic] with the other 14 of [sic] so motions the subject of this application. I conclude from this that the Hablethwaites do not have specific objections to the proposals contained in all other motions, but rather have simply voted “no” to each of the motions as technically they are entitled to do. The scenario is such however that the “no” vote of the Hablethwaites is determinative of the outcome of each of the motions. In this context, the other owners are alleging that the “no” by the Hablethwaites is unreasonable and should be reversed. This is the question to consider in respect of each of the motions in dispute, and I now intend to consider each motion in turn.”⁸

The Adjudicator then did that, considering in turn each motion, and for all except motions numbered 13 and 28 concluded that because all other owners excepting the Hablethwaites had voted in favour of the proposals, that suggested that the proposal was a reasonable one in the mind of all other owners. He then concluded that the Hablethwaites had raised no specific objection to the proposals to explain or justify their “no” vote; in the circumstances the Adjudicator regarded the “no” votes as unreasonable and considered they should be reversed. The Hablethwaites did not challenge the logic of that approach in the District Court, and do not do so on this application. Nor do they argue that the Adjudicator could not, by order, declare their “no” votes void, and that the resolution(s) be deemed to be carried. What they contend is that the Adjudicator ought to have been alerted, in application number 433 of 2003, the one made by the Hablethwaites and decided first by the Adjudicator, to the fact that they had made written submissions to the Administrator, intended for consideration at the AGM, and explaining the grounds of their opposition to each of the motions they had opposed. The Adjudicator should have been so alerted because the Adjudicator’s reasons for dismissing application number 433 (those reasons are only reproduced in part in the appeal record)⁹ included the observation that there was a hand written note at the end of their voting paper submitted to the Administrator for the AGM, which stated:

“We also vote yes to the motions included in our submission to the Administrator.”

The Hablethwaites contend that as a matter of law the Adjudicator did not investigate the application number 377, as the Adjudicator was obliged to do to decide whether it would be appropriate to make the order that those applicants sought. The failure to investigate in application number 377 was evidenced by the failure to inquire further about the submission to the Administrator referred to in application number 433. They also argue that the Adjudicator had not observed natural justice, as he was also obliged to do, when the Adjudicator simply relied on the written submissions those applicants had made to the Commissioner and the limited written response the Hablethwaites had given the Commissioner in application number 377. The Hablethwaites argue that once the Adjudicator was alerted to the possibility that there were submissions to the Administrator for the purpose of that AGM, the Adjudicator should have investigated further to find out if that was so. They say the Adjudicator should have asked for a copy of those submissions from the Administrator, or asked if they had one. After all, the Hablethwaites argue, the issue was whether or not they had provided reasons for their “no” vote at the AGM, not whether they made a submission to the Commissioner or Adjudicator.

In further support of that argument on this application for leave, the Hablethwaites argue that they had made a substantial submission in writing in application number 379 of 2003, the one lodged by the Administrator, which had included a dozen or more documents; and also lodged eight pages of submissions under the heading “grounds” in support of their own application number 433 of 2003. (Their written argument to this Court does not say whether those submissions in application numbers 379 or 433 of 2003 did explain their grounds for opposition to any of the motions other than motion 13, although Mr Hablethwaite seemed to suggest in his oral argument that they did. There is no evidence either way.) The Hablethwaites argue in the alternative that the Adjudicator made an order which was not just and equitable, contrary to the obligation imposed by s 276, and the injustice resulted from the Adjudicator’s failure to properly investigate application number 377.

The learned District Court Judge hearing their appeal held that the Hablethwaites were clearly put on notice that the onus was on them to place any relevant submission before the Adjudicator, and, substituting “Commissioner” for “Adjudicator”, I respectfully agree with that. The judge also held that it was unreasonable for the Hablethwaites to assume that their written submissions forwarded to the Administrator would be considered by the Adjudicator in the absence of their having provided the Adjudicator (I substitute “Commissioner”) with a copy, and I agree with that conclusion too. The judge also held the Hablethwaites could not assume that the Administrator would provide a copy of their submissions to the Adjudicator (I substitute “Commissioner”), and I agree with that as well. Likewise I agree with the learned judge that the Hablethwaites were well aware that each of the applications was being investigated, and would be determined separately, even if by the same Adjudicator.

The learned judge held that an Adjudicator is not obliged to seek clarification or further information from a party once that party has responded, apparently sensibly, to an invitation to make submissions to the Adjudicator (I substitute “Commissioner”); and that it was entirely reasonable for the Adjudicator to limit investigations “to inviting interested parties to make written submissions”. I observe, with great respect to the learned judge, that the Adjudicator did not invite anyone to make written submissions, and simply relied on those given to the Commissioner. However, I agree that was a reasonable approach for the Adjudicator to take in the circumstances, since the written submissions that were made by the applicants in number 377, and the response to those by the Hablethwaites, did not suggest that any inspection of the premises, or of other documents, or photographs, was necessary or desirable before deciding the application; or that there was any reason why it would be unsatisfactory to decide those applications on the written material already received.

The learned judge held that the Adjudicator was not under any obligation to seek out a copy of, or make investigations regarding, any such written submissions. That was because it had been made plain to the Hablethwaites that they could make written submissions to the Commissioner on the matters raised in application number 377, and because they did forward submissions that related to only one of those contested motions.

I sympathise with the Hablethwaites’ complaint that their written submissions to the Administrator were apparently not considered at the AGM, because the Administrator did not admit receiving those; and with the Hablethwaites’ complaint that they have been treated as if they did not provide written reasons for objection to most of the motions at that meeting, when they say they did, and their complaint that they had not realised that the Adjudicator did not have a copy of those written submissions. However, the Hablethwaites’ argument really says that the Adjudicator was obliged to investigate their response to the minority lot holders’ application number 377, and that is not so. The Adjudicator was obliged to investigate the application, not the response. The Hablethwaites do not suggest that their written submissions, in any of the three applications, referred to the fact that they had made written submissions to the Administrator for the AGM. In those circumstances I agree with the learned trial judge that the Adjudicator was not obliged by s 269 to make investigations regarding those written submissions, and agree with the learned judge that the Adjudicator satisfied the duty to investigate the application by relying on the written submissions made to the Commissioner. The circumstances do not identify any other matters, which as a matter of law, the investigator was required to do. That being so, I agree with the decision of the learned trial judge dismissing the appeal to the District Court, and agree with Keane JA that this application for leave should be refused, and would order that the applicants pay the first and second respondents’ costs of the application to this Court, to be assessed on the standard basis.

KEANE JA: The applicants seek leave to appeal to this Court from the decision of Bradley DCJ, given on 13 May 2005, whereby her Honour dismissed the appeal by the applicants against the decision of an adjudicator appointed pursuant to s 267 of the Body Corporate and Community Management Act 1997 (Qld) ("the Act").¹⁰ The adjudicator's decision was given on 2 December 2003. In effect, it overrode the exercise by the applicants of their controlling vote in respect of a number of motions proposed on 29 May 2003 at the annual general meeting of the body corporate of the Maria Creek Estate, a subdivision scheme of nine lots registered under the Act. The motions concerned proposals put by lot owners other than the applicants. The applicants held the majority of lots in the scheme.

The applicants require leave to pursue their appeal in this Court by reason of s 118(3) of the District Court of Queensland Act 1967 (Qld). It is well established by decisions of this Court that leave will not be granted pursuant to this section unless an applicant is able to demonstrate a reasonably arguable case of error on the part of the District Court and that some substantial prejudice will be suffered by the applicant if that error is not corrected.¹¹ These restrictions on the availability of an appeal serve to ensure that this Court's limited time and resources are not taken up by cases which have already had two hearings and in which no evident injustice has been caused to the litigant who seeks to have a third hearing of his or her arguments.¹²

The first and second respondents, through their counsel, submitted that the decision of the adjudicator which was upheld by Bradley DCJ related to resolutions of the body corporate in respect of its affairs as they were in May 2003. These resolutions are said to be no longer in issue between the parties. They are said either to have been overtaken by time and events, or to be resolutions which have not been and will not be pursued by the respondents. As a result, the respondents submit that the applicants will suffer no actual prejudice if their application for leave to appeal was refused.

The applicants did not dispute that submission. Rather, the applicants submit in reply that "[t]he material purpose of this appeal is to ask the Court for a precedent decision that the adjudicator must investigate an application with fair and proper consideration and in doing so, must observe natural justice as required by [the Act] s 269 and not simply write to interested parties inviting them to make a submission, which Judge Bradley … ruled was entirely adequate".

This submission by the applicants is in the nature of a request for an advisory opinion from the Court rather than for an order resolving a dispute with real consequences for the parties. The general propositions that an adjudicator must act fairly and give proper consideration to the dispute referred to him, and observe natural justice in doing so, are plainly correct. The Act says as much; and to repeat the Act's prescriptions is not to elucidate them. Whether the statutorily prescribed standards have been observed in any particular case will depend on the circumstances of that particular case. To warrant the intervention of the Court, there must be an actual controversy requiring resolution. It is no part of the function of the Court to speculate how the law might apply to circumstances which may, or may not, eventuate.¹³

In this case, the applicants do not identify any practical utility in this Court's resolving the issues which the applicants seek to agitate. That is sufficient, in my opinion, to warrant the refusal of the application for leave to appeal.

In any event, the applicants have not demonstrated a sufficient basis for concluding that the adjudicator failed "to observe natural justice" as required by s 269 of the Act when investigating the application which had been referred to him. There is no suggestion by the applicants that they sought to make submissions to the adjudicator but were denied the opportunity to do so. The applicants' complaint is two-fold. First, it is said that the adjudicator did not request a copy of the submissions forwarded by them to the annual general meeting to explain why they would be voting against the relevant motions. Secondly, it is said that the adjudicator should have informed the applicants he would decide the matter against them if he received no submissions from them.

In this regard, the adjudicator noted that the other lot owners had submitted a statement explaining the basis for their request to have the dissenting votes of the applicants at the annual general meeting declared void. The applicants were invited to make a written submission that would be considered by the adjudicator. It is not entirely clear whether this invitation was made directly by the adjudicator or by the Body Corporate and Community Management Commissioner on his behalf but, in any event, the applicants conceded they had been afforded the opportunity to make submissions to the adjudicator in the course of the following exchange during the hearing before Bradley DCJ:

"HER HONOUR: So your argument is that despite the fact that the adjudicator invited you to make submissions to him in writing, as he did invite all the parties, that despite that, he nevertheless should have gone beyond that and made his own inquiries?

APPELLANT P HABLETHWAITE: Absolutely."

It was reasonable for the adjudicator to expect that the applicants would take this opportunity to put forward submissions, whether or not those submissions were the same as those advanced at the annual general meeting, as to why their dissenting votes should be upheld.

The applicants did not make any specific response to the submissions of the other lot owners, save in relation to one motion where a specific response was provided. The adjudicator then considered each motion in turn and concluded that, with the exception of two motions, the "no" vote of the applicants was unreasonable. In choosing to make no submission beyond that which they made, the applicants themselves determined the extent to which they sought to be heard by the adjudicator. As the learned District Court judge held, the applicants' argument "misconceives the concepts of a fair hearing, due process and natural justice".¹⁴ It is a rule of natural justice that a person should be afforded the opportunity to be heard before a decision is made against him or her¹⁵ but such an opportunity was obviously afforded to the applicants in the present case when they were invited to make submissions. The adjudicator was not required to do anything more.

In addition, and apart from the specific complaint about the failure to accord natural justice, the applicants also complain generally in their submissions about the procedure adopted by the adjudicator to gather material on which to base his decision. The applicants draw attention to s 269(1) of the Act which provides that:

"(1)The adjudicator must investigate the application to decide whether it would be appropriate to make an order on the application."

The submission made by the applicants is that the adjudicator failed to fulfil this obligation by only seeking submissions from the parties as to what decision should be made and that to only go so far amounted, in effect, to a failure to undertake any investigation at all. This submission cannot stand in light of s 271(1) of the Act which provides that:

"(1)When investigating the application, the adjudicator may do all or any of the following—

(a)require a party to the application, or someone else the adjudicator considers may be able to help resolve issues raised by the application -

(i)to obtain, and give to the adjudicator, a report or other information; or

(ii)to be present to be interviewed, after reasonable notice is given of the time and place of interview; or

(iii)to give information in the form of a statutory declaration;

(b)require a body corporate manager, service contractor or letting agent who is a party to the application to give to the adjudicator a record held by the person and relating to a dispute about a service provided by the person;

(c)invite persons the adjudicator considers may be able to help resolve issues raised by the application to make written submissions to the adjudicator within a stated time;

(d)inspect, or enter and inspect -

(i)a body corporate asset or record or other document of the body corporate; or

(ii)common property (including common property the subject of an exclusive use by-law); or

(iii)a lot included in the community title scheme concerned."

Two things may be said about this provision. The first is that s 271(1)(c) makes clear that seeking information from the parties to the application was a valid means for the adjudicator to pursue the investigation he was required to carry out under the Act. The second is that, while the adjudicator had other powers at his disposal, the introductory words to the provision stating that an adjudicator "may do all or any of the following" mean that the adjudicator was not required to make use of any more of these powers that he considered were necessary in order to carry out an effective investigation. The applicants' submission that the adjudicator's investigation was flawed because it was limited to considering submissions obtained from the parties must therefore fail.

Further, to the extent that the applicants now seek to agitate again the complaint that, contrary to s 276 of the Act, the adjudicator made an order which was not "just and equitable in the circumstances", no error is demonstrated in the decisions below.

The effect of the adjudicator's conclusion, which was upheld on appeal to the District Court, was that the applicants did not demonstrate that they would be adversely affected in the use and enjoyment of their rights as lot owners (other than their voting rights) by the nullification of their voting rights on the motions in question. The adjudicator's statutory powers extend to making orders resolving disputes about the exercise of voting rights by lot owners.¹⁶ The statutory conferral of power upon the adjudicator to make an order which is "just and equitable in the circumstances" necessarily contemplates a decision by the adjudicator which may be "just and equitable in the circumstances" even though it overrides the exercise of voting rights by a scheme member.

Accordingly, the mere circumstance that voting rights of the owner of a lot in a scheme are overridden by a decision cannot, of itself, render the decision something other than "just and equitable". Insofar as the rights of a lot owner, other than voting rights, are not affected by the adjudicator's decision, it is impossible to see how the lot owner can be prejudiced in a way which could not be "just and equitable" simply by a decision to nullify his or her voting rights. As I have already noted, the applicants did not seek to demonstrate to the adjudicator that the enjoyment of their other rights as lot owners would be adversely affected by the nullification of their voting rights. As a result, there was no basis on which the applicants could seek to demonstrate that the adjudicator had erred in reaching his decision so as to entitle them to succeed on appeal to the District Court on a question of law.¹⁷

Conclusions and orders

For these reasons, I would dismiss the application for leave to appeal and order the applicants to pay the costs of the first and second respondents of the application to be assessed on the standard basis. The third respondent did not take any part in the application; and I would, therefore, not make any order for costs in his favour.

CULLINANE J: I agree with the reasons of Keane JA in this matter and the orders he proposes.

Footnotes

1. The meaning of “dispute” is set out in s 227 of the Act ↩

2. Established by s 231 of the Act ↩

3. Created by s 232 of the Act ↩

4. This is provided for in s 238 and 239 ↩

5. This is provided for by s 243 ↩

6. As provided in s 246 ↩

7. Part 4 of each of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Qld); the Body Corporate and Community Management (Commercial Module) Regulation 1997 (Qld); the Body Corporate and Community Management (Small Schemes Module) Regulation 1997 (Qld); and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Qld) ↩

8. At AR 45, in the Adjudicator’s reasons in number 377 of 2003 ↩

9. At AR 36 ↩

10. Hablethwaite v Andrijevic & Ors [2005] QDC 112; DC No 91 of 2004, 13 May 2005. ↩

11. Rayner v Whiting [1999] QCA 214 at [5]; [2000] 2 Qd R 552 at 553; Hockley v Sowden [2000] QCA 9; Appeal No 10317 of 1999, 3 February 2000 at [19] - [20]; Pickering v McArthur [2005] QCA 294; Appeal No 4013 of 2005, 16 August 2005 at [3]. ↩