Village Square [2003] QBCCMCmr 25 (17 July 2003)

Last Updated: 17 May 2005

DISPUTE RESOLUTION APPLICATION REFERENCE NO: 0230-2003 "VILLAGE SQUARE" COMMUNITY TITLE SCHEME REASONS FOR FINAL ORDER

By letter dated 14 July 2003 the applicant’s solicitors Short Punch & Greatorix advised the office of the Commissioner for Body Corporate and Community Management that their client withdrew his application for resolution of a dispute under Chapter 6 of the Body Corporate and Community Management Act 1997.

Sub-section 245(3) of the Act relevantly provides:-

"3. The application may be withdrawn by the applicant at any time before it is disposed of under this chapter. " [6]

Section 280 of the Act provides in respect to a specialist adjudication as here that unless the adjudicator otherwise orders the applicant is responsible for the costs of the adjudication.

The respondent body corporate has submitted that the applicant should pay the costs of the adjudication.

The applicant’s solicitors have not made any submission concerning the costs.

The facts relevant to the costs issue appear to me to be as follows:

(a) The applicant instituted proceedings seeking final orders with a view in effect to enjoining performance of an agreement between the body corporate and another party said to be ultra vires the body corporate.
(b) The applicant applied for interim orders to similar effect.
(c) Prior to the application for interim orders being determined by me upon reference by the Commissioner the body corporate had in fact ceased to perform the subject agreement.
(d) In consequence of (c) no orders were made on the interim application.
(e) In fact, the parties are now apparently agreed that the agreement the subject of the applicant’s application is at an end and both the body corporate and the applicant appear (albeit for different reasons) to accept that the agreement was ultra vires the body corporate.

In the above circumstance it is not surprising that the applicant does not wish to seek any further orders to resolve the dispute. The dispute has in fact been resolved by the events which transpired.

I am not persuaded that the applicant was unreasonable in instituting the application nor am I persuaded that the body corporate was unreasonable in making the submissions that it did in respect of the application. It is perhaps unfortunate that with the benefit of hindsight the application was made when further discussion between the applicant and the body corporate might have resolved the matter without the necessity for making the application. That fact however does not reflect more heavily on one party to the dispute than the other as far as I can see.

There have been two contested adjournments of the application before withdrawal.

The Act provides by its provision for costs a default situation where no order is made by a specialist adjudicator. I do not think that that is indicative of any general rule that the applicant is responsible for the costs of the adjudication unless an order is made in its favour on the final resolution of the dispute.

I have determined the costs of the adjudication in the sum of $2,400 in accordance with the tax invoice attached herewith. I think a fair order for costs in the circumstances would be that the applicant pay 2/3rds of those costs and the body corporate pay 1/3rd of those costs. This appropriately reflects as best as can be done my assessment of the relevant factors.

D A SAVAGE
Specialist Adjudicator

Date: 17 July, 2003