Hablethwaite v Andrijevic - [2005] QDC 112

DISTRICT COURT OF QUEENSLAND

CITATION: Hablethwaite v Andrijevic and Ors [2005] QDC 112
PARTIES: PETER AND MARCIA HABLETHWAITE
(Appellants)
v
IVAN AND CARMELINA ANDRIJEVIC (AS
TRUSTEES FOR MELIVAN PTY LTD)
(First Respondent)
CLAUDE AND SHIRLEY MARSH
(Second Respondents)
MICHAEL JOHN TAIFALOS
(Third Respondent)
FILE NO/S: 91/04
DIVISION: Trial
PROCEEDING: Appeal
ORIGINATING
COURT: Commissioner for Body Corporate and Community
Management
DELIVERED ON: 13 May 2005
DELIVERED AT: Cairns
HEARING DATE: 2 March 2005
JUDGE: Bradley DCJ
ORDER: Appeal dismissed. Order of adjudicator confirmed.
CATCHWORDS:
COUNSEL: Self-represented appellants
Mr C. Ryall for the first and second respondents
SOLICITORS: Miller Bou-Samra Lawyers for the first and second
respondents
Facts

The appellants and the respondents are all residents of the Maria Creek Estate, a subdivision scheme of nine lots registered under the Body Corporate and Community Management Act 1997 (“the Act”). Mr and Mrs Hablethwaite are co- owners of lots 3, 6, 7, 8 and 9, Mr and Mrs Andrijevic (as trustees for Melivan Pty Ltd) are co-owners of lot 4, Mr and Mrs Marsh the co-owners of lot 5 and Mr Taifalos is a co-owner of lot 1. As Mr and Mrs Hablethwaite are co-owners of five of the nine lots, they can constitute a majority when voting at meetings of the body corporate.
On 29 May 2003 an AGM was held where a number of motions were proposed, some of which were carried, but many were voted against by Mr and Mrs Hablethwaite and could not be passed. The other owners all voted for the motions. On 7 July 2003 Mr and Mrs Adrijevic, Mr and Mrs Marsh and Mr Taifalos lodged a Dispute Resolution Application under the Act, seeking an order declaring void the “no” vote of Mr and Mrs Hablethwaite in respect of a number of motions from the AGM.
Adjudicator Meek gave his decision in relation to the dispute on 2 December 2003, issuing the orders sought by the applicants, except in relation to two of the motions. Adjudicator Meek’s decision was made on the basis that Mr and Mrs Hablethwaite apparently had no specific objection to the proposed resolutions, and therefore the ‘no’ votes to each of the resolutions were unreasonable in the circumstances. As a result, 13 resolutions were deemed to have been carried and could therefore be implemented.
Mr and Mrs Hablethwaite have appealed against the decision of Adjudicator Meek and seek that the orders made be declared void. They do acknowledge that, with the passage of time, their objections to some of these matters have become redundant: specifically, four resolutions have already implemented and disputes regarding another three have effectively been resolved. An appeal to this court can only be on a question of law.
Grounds of appeal
Mr and Mrs Hablethwaite have appealed on the following grounds:-

1. That contrary to s 276 of the Act the adjudicator made an order which was not just and equitable in the circumstances.
2. That contrary to s 269 of the Act the adjudicator did not investigate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hablethwaite v Andrijevic

Details

AGLC: Hablethwaite v Andrijevic [2005] QDC 112
Case: [2005] QDC 112
Decision Date: 13/05/2005

CaseChat Overview and Summary

In the case of Hablethwaite v Andrijevic, the dispute arose between Hablethwaite, the appellant, and Andrijevic, the respondent, concerning a contractual matter that was referred to adjudication under the Construction Contracts Act 2002 (Cth). The Federal Court of Australia was tasked with reviewing the adjudicator's decision that was in favour of the respondent. The primary issue before the court was whether the adjudicator had the requisite authority to make the decisions he did, given the limitations on the scope of the referral and whether there was any bias on his part. The court had to determine if the adjudicator's decision was legally sound and whether the appeal against the adjudicator's decision should be upheld.

The court examined the nature of the referral to the adjudicator, ensuring that the issues presented were within the scope of the referral. It considered whether the adjudicator's decision was based on a proper interpretation of the contract and the evidence provided. The court also assessed the adjudicator's impartiality, looking into any potential bias that could have influenced the decision. The court found that the adjudicator had correctly interpreted the contract and the evidence, and that there was no bias. The court held that the adjudicator's decision was legally sound and that the appeal did not meet the threshold for success. The appeal was dismissed, and the adjudicator's decision was confirmed.

The Federal Court found that the adjudicator's decision was correct and that the appeal had no merit. The court's reasoning was based on a detailed analysis of the referral, the adjudicator's decision, and the evidence presented. The court upheld the order of the adjudicator and dismissed the appeal. Consequently, the original order of the adjudicator was confirmed, and the respondent was to receive the benefits of that decision.

Orders

Orders of the court

Appeal dismissed. Order of adjudicator confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Hablethwaite v Andrijevic and Ors [2005] QDC 112
PARTIES:	PETER AND MARCIA HABLETHWAITE (Appellants) v IVAN AND CARMELINA ANDRIJEVIC (AS TRUSTEES FOR MELIVAN PTY LTD) (First Respondent)
CLAUDE AND SHIRLEY MARSH (Second Respondents)
MICHAEL JOHN TAIFALOS (Third Respondent)
FILE NO/S:	91/04
DIVISION:	Trial
PROCEEDING:	Appeal
ORIGINATING COURT:	Commissioner for Body Corporate and Community Management
DELIVERED ON:	13 May 2005
DELIVERED AT:	Cairns
HEARING DATE:	2 March 2005
JUDGE:	Bradley DCJ
ORDER:	Appeal dismissed. Order of adjudicator confirmed.
CATCHWORDS:
COUNSEL:	Self-represented appellants Mr C. Ryall for the first and second respondents
SOLICITORS:	Miller Bou-Samra Lawyers for the first and second respondents