Olims Hotel Brisbane [2002] QBCCMCmr 129 (8 March 2002)

RA MeekREFERENCE: 0634-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3563
Name of Scheme:	Olims Hotel Brisbane
Address of Scheme:	355 Main Street KANGAROO POINT QLD 4169

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Olims Hotel Brisbane

RA MeekI hereby order that the application by the Body Corporate for Olims Hotel Brisbane, for orders that
money alleged to be owed to the Body Corporate by previous Committee members claims that exceeded

1. What was allowed by the BCCMA 97 in the period from 13/7/97 to 21/11/97, and

2. From 22/11/97 after a 21/11/97 EGM resolution re annual limits on claims,

be refunded by ex Chairpersons and committee members P Crick and J Forno and B Cook, is dismissed.

I further order that a copy of this order, and accompanying Statement of Adjudicator’s Reasons for Decision shall be sent to each owner whose name appears on the roll of this body corporate with the next notice of general meeting sent to such owners. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0634-2001

“Olims Hotel Brisbane” CTS 3563

The applicant, the Body Corporate for Olims Hotel Brisbane, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That money alleged to be owed to the Olims Body Corporate CTS 3563 by previous Committee members claims that exceeded

1. What was allowed by the BCCMA 97 in the period from 13/7/97 to 21/11/97, and

2. From 22/11/97 after a 21/11/97 EGM resolution re annual limits on claims,

be refunded by ex Chairpersons and committee members P Crick and J Forno and B Cook.

Section 223(1) provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

Competence and integrity of Adjudicator

As part of the material attaching to the application, in correspondence signed by the chairperson, Martyn Barsby, and the treasurer, Colleen Hackett, it was requested of the Commissioner that “this matter not be dealt with by Mr Richard Meake (sic)”.

More particularly, Mrs CA Hackett, in a separate letter to the Commissioner dated 26^th November 2001, has made certain statements regarding myself being the adjudicator in this application; in particular, questioning both my impartiality regarding dealings with Olims Body Corporate and my competence to act as any adjudicator, and seeking that the Commissioner disqualify me from so acting. Mrs Hackett has made this request before. This time the basis of her request has been stated in greater detail. On the basis of the written statements made by Mrs Hackett regarding me, in which I consider both my competence and integrity as an adjudicator are called into question, I consider I am entitled to respond.

In the letter to the Commissioner dated Monday 26 November 2001, Mrs Hackett in her capacity as Treasurer of Olims Body Corporate has stated –

Our concerns regarding Mr Meek were for two reasons. You should have been informed that Mr Meek was mentioned within the application re. Committee overclaims. Mrs Forno & Mr Caslick (then chairperson and BCM) alleged at a committee meeting on 4/9/99 that they had received “from Richard Meek” a letter saying “Col Young” was dismissing the application before Olims adjudicator Mr Young officially brought down his findings on Ref. 248-99 on 6/9/99. They refused to table the letter so there was no way of knowing if they were telling the truth or not.

It would seem that the presence of that alone in the application would cause Mr Meek to want to disqualify himself and if untrue confront J Forno and P Crick. But we had a separate reason for believing that Mr Meek should not be an adjudicator for Olims as he dismissed an application regarding a flawed EGM (held in Nov 97 at Dockside) as being just a problem between personalities at Olims. Yet clear breaches of the new BCCMA occurred in relation to that meeting.

... Had Mr Meek acted on the breaches of the act at the sham Nov 97 EGM most Olims owners feel that we (and DNR) would have been saved a lot of trouble and time.

My response to the alleged letter is simple. There is no such letter. The fact is I have never written such a letter, neither to any party or parties involved in any dispute at Olims, nor to any party in any dispute application before this office. Objectively, if a person in my position were seeking to advantage one party to a dispute over another, would they then implicate themselves in such endeavour by making a written record of such action.

On the question of whether the statement was in fact made, I do not know. I was however completely unaware of the allegation until sighting Mrs Hackett’s letter of 26 November 2001. It is not my intention to confront Mrs Forno and Mr Crick concerning the making of the alleged statement. I did not make the statement, either in writing or at all. I do not need to take any further action to defend my integrity. To suggest that an adjudicator needs to “confront” persons who are alleged to have made false statements about them in order to somehow establish the inaccuracy of the statement or to protect their integrity, is inappropriate and unworkable. If the statement was in fact made, then it was a knowingly false statement on the part of the maker. This is so because the alleged letter does not exist. I cannot however prevent persons making false statements which relate to me. There is no sanction I can impose. The legislation provides no remedy or cause of action for the misrepresentation of, or misstatement about, an adjudicator.

I have never had, at least knowingly, any dealing with Olims Body corporate, members of its committee, or any owner thereof, in any personal capacity excepting that I was once introduced to Mrs Hackett at a Christmas function organised by the Unit Owners Association some two or three years ago. My recollection is that I did not engage in conversation with Mrs Hackett beyond the introduction. I do not know Mr Caslick, Mrs Forno or Mr Crick, except by name in association with Olims Body Corporate. Professionally, my last dealing with Olims was the adjudication of application 0453 of 1997 to which Mrs Hackett has referred.

Mrs Hackett refers to a “separate reason for believing that Mr Meek should not be an adjudicator for Olims as he dismissed an application regarding a flawed EGM (held in Nov 97 at Dockside) as being just a problem between personalities at Olims”. Mrs Hackett claims that had I “acted on the breaches of the act at the sham Nov 97 EGM most Olims owners feel that we (and DNR) would have been saved a lot of trouble and time.”

I have re-read my Statement of Adjudicator’s Reasons for Decision in that application. I did not dismiss that application “as being just a problem between personalities at Olims”. I did not mention the words “personalities” or “personality” in my reasons. I did state that the parties were choosing to engage in “continuing disputation”, however I consider this is a conclusion of fact which I was entitled to draw. In this regard, I do note that records of this Office indicate a long running history of disputation in this scheme; at least 19 applications since 1994, 13 of which have been made since 1999. I concluded my Statement of Reasons with –

I have considered the submission made by Colleen Hackett. Whilst it is lengthy, it is in my view short on specific detail which supports the application. Conversely, there are many references to and suggestions by Mrs Hackett of “hidden agendas”, attempts to discredit her, cooked up complaints about her, defamatory and misleading letters, amongst other things. Mrs Hackett has been successful in previous applications to this office. Moreover, this success has on one occasion at least was confirmed on appeal to the tribunal. I consider that Mrs Hackett understands, or at least should understand, the type of grounds that are necessary to succeed in an application to this office. I consider that the more recent matters in which Mrs Hackett has been involved have fallen short of this standard. In the circumstances, I suggest to the applicant and to Mrs Hackett that applications should only be made where there is a serious and real discrepancy being alleged. Certainly, I find that there was no real substance to this application.

I again refer to the comments I made in the interim order. I consider that factions within this body corporate are engaged in continuing disputation. I again confirm that this office will not intervene in this; we will not take sides. From her submission, Mrs Hackett appears to believe that she is the victim of a hostile committee. I do not have a solution for Mrs Hackett regarding this alleged scenario except to say that I will only make orders as sought by an applicant where there is real substance to the application.

I accept that there might have been minor irregularities in the convening and holding of this meeting. However, the duty of an adjudicator is to make orders which are just and equitable in the circumstances. Just and equitable requires that the order be so to all parties. In all the circumstances, the alleged detriment suffered in this case in minimal. In contrast, the detriment to the body corporate of having the meeting declared invalid, would in my view be substantial. For all the above reasons, this application has been dismissed.

I note that this order was never appealed. I reject the allegation that had I “acted on the breaches of the act at the sham Nov 97 EGM ... we (and DNR) would have been saved a lot of trouble and time”. This is simply the opinion of Mrs Hackett. It does not follow that further disputes would have been avoided simply if I had ordered differently in application 0453 of 1997.

As I understand the law, Mrs Hackett’s objections do not constitute a persuasive reason for me to disqualify myself from determining application involving Olims Body Corporate. The accepted basis for disqualification is an “appearance of bias”.

The principle of disqualification on the basis of the appearance of bias was succinctly referred to by Justice Hayne of the High Court in Helljay Investments Pty Ltd & Deputy Commissioner of Taxation of the Commonwealth of Australia, [1999] FCA 63; (1999) 161 ALR 302, quote –

The principles concerning what has come to be called shortly, if not wholly accurately, the “appearance of bias” by judicial officers are well established – R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546; R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Re JRL; Ex parte CJL [1986] HCA 39; (1987) 161 CLR 342; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70; Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78. What must be demonstrated to the requisite degree is the appearance of prejudgment, not simply that a particular outcome of the litigation is likely or unlikely. As Mason J said in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352:

“It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson [1976] HCA 39; (1976) 136 CLR 248 and Livesey [1983] HCA 17; (1983) 151 CLR 288 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decision provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 553-554; Watson [1976] HCA 39; (1976) 136 CLR 248 at 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 14; 32 ALR 47 at 50-51.”

To reiterate, what must be demonstrated to the requisite degree is “the appearance of prejudgement”; there must be a reasonable apprehension that the officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. I do not believe that “the appearance of prejudgement” has been established. Previous orders I have made, as a delegate of the Referee, “in favour” of Mrs Hackett support my view that I have demonstrated that I determine each application on its merits.

Based on my previous determinations involving this scheme, and the statements contained in my statements of reason for such determinations, I do not accept that a “reasonable apprehension” that I will not decide further applications impartially by reason of prejudgement on my part has been shown to exist. I propose to adjudicate this matter.

Determination of the application

The applicant, the Body Corporate for Olims Hotel Brisbane, has sought orders that “money alleged to be owed to the Olims Body Corporate CTS 3563 by previous Committee members claims that exceeded

1. What was allowed by the BCCMA 97 in the period from 13/7/97 to 21/11/97, and

2. From 22/11/97 after a 21/11/97 EGM resolution re annual limits on claims,

be refunded by ex Chairpersons and committee members P Crick and J Forno and B Cook”.

The applicant here is the body corporate. The respondents are stated to be Messrs Peter Crick and Cook and Mrs Forno. The order sought specifically seeks refunds of amounts paid to these persons in their capacity as committee members.

Section 182 of the Act provides as follows –

182 Definitions for ch 6
In this chapter—
“dispute” means a dispute between—
(a) the owner or occupier of a lot included in a community titles scheme and the owner or occupier of another lot included in the scheme; or
(b) the body corporate for a community titles scheme and the owner or occupier of a lot included in the scheme; or
(c) the body corporate for a community titles scheme and a body corporate manager for the scheme; or
(d) the body corporate for a community titles scheme and a service contractor for the scheme who is also a letting agent for the scheme; or
(e) the body corporate for a community titles scheme and a letting agent for the scheme.
“occupier”, of a lot, means a person in the person’s capacity as the occupier of the lot, and not, for example, in the person’s capacity as a service contractor or letting agent for the scheme.
“owner”, of a lot, means a person in the person’s capacity as the owner of the lot, and not, for example, in the person’s capacity as a service contractor or letting agent for the scheme.

Under section 182, a dispute may exist between a body corporate and

• An owner or occupier;

• A body corporate manager;

• A service contractor who is also a letting agent; and

• A letting agent for the scheme.

There is no capacity for an application to be bought by, or against a committee, or alternatively, individual committee members. As well, if it is argued that the body corporate has a dispute with Crick, Cook and Forno as “owners”, then section 182 requires that the subject matter of the dispute must relate to the “person’s capacity as the owner of the lot”. This is not the case here, where the amounts sought to be recovered relate to person’s capacity as committee members.

There is no jurisdiction for the making of this application under the Act, and accordingly I intend to dismiss this application. It seems to me that the only cause of action which might exist is for the body corporate to resolve in general meeting, by special resolution (see section 259 of the Act), to take debt recovery action in the relevant Court for recover of the amounts alleged to be owing.

Copy of order and statement of reasons to be sent to owners

I have further ordered that a copy of this order and accompanying statement of reasons is to be sent to all owners on the roll with the next notice of general meeting. The contents of this order are a correct and complete statement of my involvement in this scheme, and I request that owners now disregard any statements they might have heard from any other source. My integrity is important to me, and I can assure all owners that it has not been impugned in any way, either in my involvement with Olims Body Corporate, or any other scheme for that matter.