20181085-ASC11 - North Point Brisbane [2012] QBCCMCmr 355

5KIPGFD[#WUV.++

         [10]   After the interim order was made, the original applicant (Ballada Pty Ltd) was invited to advise
                how it wished to proceed with the application, including providing any amendments or updated
                information relating to the current status of the matter. The application was then amended.
         [11]   The Commissioner3 provided the amended application to the Body Corporate, with an invitation
                to the Committee, BCM and all owners to make a submission. Subsequently the applicants
                submitted additional information, and at the Commissioner’s request 4, distributed it all parties.
         [12]   Further additional information and changes to the outcomes sought were then submitted. It
                was identified that the application then sought outcomes against QPCU, but QPCU had not
                been specified as a respondent. Accordingly the Commissioner sought further clarification of
                the application. The second respondent was added but there was then lengthy communication
                regarding the basis for the application. On 21 March 2012 the Commissioner advised the
                applicants that there remained a question as to whether the amended outcomes fell within the
                jurisdiction of an adjudicator, and whether the information provided had adequately addressed
                the requests for clarification5. However, the Commissioner decided to proceed to seek further
                submissions on the amended application.
         [13]   Submissions were made by the Body Corporate, BCM and QPCU, and two other owners. The
                applicants inspected and responded to the submissions received.6
         [14]   A dispute resolution recommendation7 was made referring the file to department adjudication.
         [15]   I then investigated the dispute8, which included reviewing the application and submissions.
                Jurisdiction
         [16]   An adjudicator may make an order that is just and equitable in the circumstances to resolve a
                dispute, in the context of a community titles scheme, about: a claimed or anticipated
                contravention of the Act or the CMS, or the exercise of rights or powers or performance of
                duties under the Act or the CMS.9 An order may require a person to act, or prohibit a person
                from acting, in a way stated in the order. An adjudicator's order may contain ancillary and
                consequential provisions the adjudicator considers necessary or appropriate. 10
         [17]   In deciding the interim order application I determined that the application fell within the
                legislative dispute resolution provisions 11. However the parties and the outcomes sought have
                since been substantially altered and so it is necessary to assess whether the amended
                application also complies with the jurisdictional requirements of the Act.
         [18]   The purpose of the Act’s dispute resolution provisions is to resolve ‘disputes’. A person may
                only bring an application if they are a party to or directly concerned with a dispute, and have
                made reasonable attempts to resolve the dispute by internal dispute resolution. 12
         [19]   In regard to the outcomes sought against the Body Corporate, the first applicant clearly raised
                its concerns regarding its missing vote with the Body Corporate. There is limited indication of
                attempts to raise the remaining concerns about the EGM notice and motions with the Body
                Corporate. However on balance I am satisfied there is sufficient evidence of a dispute to
                proceed with this aspect of the application. It would not be in the interests of parties to defer
                determination of the applicants’ concerns until further attempts at self-resolution are made.




         3
           Section 243 of the Act
         4
           Section 245 of the Act
         5
           Pursuant to section 240 of the Act
         6
           See sections 246 and 244 of the Act respectively
         7
           Section 248 of the Act
         8
           The investigative powers of an adjudicator are set out in section 271 of the Act
         9
           Section 276 of the Act
         10
            Section 284(1) of the Act
         11
            See sections 227, 228, 276 and Schedule 5 of the Act
         12
            Section 238 of the Act


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


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(19] After the interim order was made, the original applicant (Ballada Pty Ltd) was invited to advise
how it wished to proceed with the application, including providing any amendments or updated
information relating to the current status of the matter. The application was then amended.

111) The Commissioner® provided the amended application to the Body Corporate, with an invitation
to the Committee, BCM and all owners to make a submission. Subsequently the applicants
submitted additional information, and at the Commissioner's request’, distributed it all parties.

12] Further additional information and changes to the outcomes sought were then submitted. It
was identified that the application then sought outcomes against QPCU, but QPCU had not
been specified as a respondent. Accordingly the Commissioner sought further clarification of
the application. The second respondent was added but there was then lengthy communication
regarding the basis for the application. On 21 March 2012 the Commissioner advised the
applicants that there remained a question as to whether the amended outcomes fell within the
jurisdiction of an adjudicator, and whether the information provided had adequately addressed
the requests for clarification®. However, the Commissioner decided to proceed to seek further
submissions on the amended application.

(131 Submissions were made by the Body Corporate, BCM and QPCU, and two other owners. The
applicants inspected and responded to the submissions received.°

(14, A dispute resolution recommendation’ was made referring the file to department adjudication.
(15) | then investigated the dispute®, which included reviewing the application and submissions.
Jurisdiction

(16) An adjudicator may make an order that is just and equitable in the circumstances to resolve a
dispute, in the context of a community titles scheme, about: a claimed or anticipated
contravention of the Act or the CMS, or the exercise of rights or powers or performance of
duties under the Act or the CMS.° An order may require a person to act, or prohibit a person
from acting, in a way stated in the order. An adjudicator's order may contain ancillary and
consequential provisions the adjudicator considers necessary or appropriate. '°

17) In deciding the interim order application | determined that the application fell within the
legislative dispute resolution provisions"’. However the parties and the outcomes sought have
since been substantially altered and so it is necessary to assess whether the amended
application also complies with the jurisdictional requirements of the Act.

(18} The purpose of the Act’s dispute resolution provisions is to resolve ‘disputes’. A person may
only bring an application if they are a party to or directly concerned with a dispute, and have
made reasonable attempts to resolve the dispute by internal dispute resolution.

(19] IN regard to the outcomes sought against the Body Corporate, the first applicant clearly raised
its concerns regarding its missing vote with the Body Corporate. There is limited indication of
attempts to raise the remaining concerns about the EGM notice and motions with the Body
Corporate. However on balance | am satisfied there is sufficient evidence of a dispute to
proceed with this aspect of the application. It would not be in the interests of parties to defer
determination of the applicants’ concerns until further attempts at self-resolution are made.

Section 243 of the Act
Section 245 of the Act
° Pursuant to section 240 of the Act
See sections 246 and 244 of the Act respectively
Section 248 of the Act
® The investigative powers of an adjudicator are set out in section 271 of the Act
° Section 276 of the Act
"° Section 284(1) of the Act
3 See sections 227, 228, 276 and Schedule 5 of the Act
Section 238 of the Act

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