20181085-ASC12 - Ballada Pty Ltd v North Point Brisbane & Anor [2013] QCATA 184

5KIPGFD[#WUV.++
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                           voting paper was ever received, and that Ballada was not represented at
                           the meeting.

                    [18]   After the EGM the Committee noted that the air conditioning motions had
                           been carried, and also that one owner had reservations about the project
                           but had not attended the EGM and no voting paper had been received.

                    [19]   The second applicant (Mr Abasa) attended the EGM, but did not vote. He
                           appears not to have fully reflected on the implications of the motions until
                           some time later.

                    Applicants’ issues and contentions

                    [20]   The system of dispute resolution provided for in the BCCM Act is
                           exclusive. If other dispute resolution procedures fail there is provision for a
                           dispute to be determined by the adjudication of a specialist adjudicator.
                           The procedure is partly inquisitorial and partly adversarial. It does not sit
                           comfortably with any familiar system of pleading.

                    [21]   Identifying the issues that arise in the determination of disputes is no easy
                           task for an adjudicator. Issues may be identifiable from information
                           provided by an applicant in the prescribed application form (see ss 239A,
                           239B, 239C 240 and 243) which asks “What outcome are you seeking?”
                           and for the applicant’s “grounds”, with the guiding statement “Please
                           provide concise and relevant details of background dispute, together with
                           your arguments supporting the outcome sought”. The issues that an
                           adjudicator needs to address are those that must be decided in order to
                           determine whether the “outcome” or relief sought by the applicant is to be
                           granted in the light of the “relevant details of background dispute” and the
                           arguments advanced. An adjudicator is not required to prosecute an
                           applicant’s claim. There remains an onus on a claimant to raise the points
                           about which the parties are in dispute, and which need to be resolved.

                    [22]   In the absence of any prescribed procedure to define the issues difficulty
                           is often occasioned both for the Adjudicator and for this Appeal Tribunal in
                           identifying the issues that were or should have been litigated. This may
                           require reference to substantial correspondence between the parties and
                           the Adjudicator in order to see what issues were fairly raised for
                           adjudication. The present matter raised this difficulty.

                    [23]   It is clear in the present case that the issues that needed to be determined
                           were those that were raised concerning the matters listed in the
                           applicants’ Adjudication Application Form (form 15) dated 14 November
                           2011. This amended earlier applications, and, following correspondence
                           with the Adjudicator, seems to have crystallised what the applicants were
                           seeking. In that application, under the caption “What outcome are you
                           seeking?”, the relief that was sought was particularised. The relevant
                           issues were subsequently extrapolated and to some extent expanded in
                           extensive letters from the applicants’ solicitor containing submissions and
                           factual assertions.




4GVTKGXGFHTQO#WUV.++QP/CTEJCV                                                          8GTKH[XGTUKQP


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Signed by AustLll

[18]

[19]

voting paper was ever received, and that Ballada was not represented at
the meeting.

After the EGM the Committee noted that the air conditioning motions had
been carried, and also that one owner had reservations about the project
but had not attended the EGM and no voting paper had been received.

The second applicant (Mr Abasa) attended the EGM, but did not vote. He
appears not to have fully reflected on the implications of the motions until
some time later.

Applicants’ issues and contentions

[20]

[21]

[22]

[23]

The system of dispute resolution provided for in the BCCM Act is
exclusive. If other dispute resolution procedures fail there is provision for a
dispute to be determined by the adjudication of a specialist adjudicator.
The procedure is partly inquisitorial and partly adversarial. It does not sit
comfortably with any familiar system of pleading.

Identifying the issues that arise in the determination of disputes is no easy
task for an adjudicator. Issues may be identifiable from information
provided by an applicant in the prescribed application form (see ss 239A,
239B, 239C 240 and 243) which asks “What outcome are you seeking?”
and for the applicant's “grounds”, with the guiding statement “Please
provide concise and relevant details of background dispute, together wth
your arguments supporting the outcome sought’. The issues that an
adjudicator needs to address are those that must be decided in order to
determine whether the “outcome” or relief sought by the applicant is to be
granted in the light of the “relevant details of background dispute” and the
arguments advanced. An adjudicator is not required to prosecute an
applicant’s claim. There remains an onus on a claimant to raise the points
about which the parties are in dispute, and which need to be resolved.

In the absence of any prescribed procedure to define the issues difficulty
is often occasioned both for the Adjudicator and for this Appeal Tribunal in
identifying the issues that were or should have been litigated. This may
require reference to substantial correspondence between the parties and
the Adjudicator in order to see what issues were fairly raised for
adjudication. The present matter raised this difficulty.

It is clear in the present case that the issues that needed to be determined
were those that were raised concerning the matters listed in the
applicants’ Adjudication Application Form (form 15) dated 14 November
2011. This amended earlier applications, and, following correspondence
with the Adjudicator, seems to have crystallised what the applicants were
seeking. In that application, under the caption “What outcome are you
seeking?”, the relief that was sought was particularised. The relevant
issues were subsequently extrapolated and to some extent expanded in
extensive letters from the applicants’ solicitor containing submissions and
factual assertions.

Retrieved from AustLII on 30 March 2020 at 16:29:45

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