Ti-Tree [2003] QBCCMCmr 316 (9 January 2004)

Last Updated: 19 November 2007

Application 0352/2003 Application 0524/2003 Ti Tree Body Corporate ORDER

1. In application 0524/03g make no order. I note there are no costs of this adjudication.

2. In application 0352.03 I order 1. a) the respondent pay $17,000 b) the applicant pay $7,000 being the costs of the adjudication by 23 January 2004. 2. The respondent is not to levy the applicant any sum a) to meet the costs payable by it under 1 (a) or the body corporate’s costs of the adjudication either directly or indirectly.

REASONS

3. For the reasons I gave in 0352/03 I have made the above orders.

4. I accept the submission of the respondent (and others who made similar submissions) that l should not make orders resolving any possible dispute between lot proprietors other than the applicants and respondent about the application of the funds of the body corporate for payment of legal fees or the costs of adjudication. To do so in present circumstances would unfairly prejudice honest proprietors fairly exercising their right to vote at a properly convened meeting of the body corporate. I am not in a position nor should I be able to review those reasons. It is thus a regrettable but necessary result that the proprietors other than the applicants should meet the costs in such proportion as the body properly determines.

5. I reject the respondent’s submission that I have no power in resolving the dispute to make orders as above. The costs of the adjudication are within the discretion of a specialist adjudicator. There is no reason in principle or practice to suggest those costs cannot be apportioned to recognise the success and failure of each party. To do otherwise would be manifestly unjust in present circumstances. Further to the extent the order deal with the application of the body corporate’s funds the orders are not "cost orders" but orders resolving the dispute. The distinction drawn in the body corporate’s submission between the powers of a specialist adjudicator and the powers of a court are explained by the fact that a specialist adjudicator does not have power to award costs in favour of or against a party. That is hot the purpose of the orders as to application of funds that I have made. If however I am wrong about my powers it would still be a relevant consideration on the question of the costs of the adjudication that the applicants would be levied for part of the body corporate’s costs in those circumstances if I was in error I would have ordered the body corporate to have paid a higher proportion of the costs of the adjudication.

6. Last by reason of the reasons in 0352/03 application 542/03 has become moot. The result in 0352/03 estopps the parties in that regard. I have therefore made no order.

D.A. Savage SC.

Specialist Adjudicator.