Hablethwaite v Andrijevic

Case [2005] QCA 336

SUPREME COURT OF QUEENSLAND

CITATION:

Hablethwaite & Anor v Andrijevic & Ors [2005] QCA 336

PARTIES:

PETER AND MARCIA HABLETHWAITE
(appellants/applicants)
v
IVAN AND CARMELINA ANDRIJEVIC AS TRUSTEES FOR MELIVAN PTY LTD ACN 063 710 725
(first respondents/first respondents)
CLAUDE AND SHIRLEY MARSH
(second respondents/second respondents)
MICHAEL JOHN TAIFALOS
(third respondent/third respondent)

FILE NO/S:

Appeal No 4720 of 2005
DC No 18 of 2004
DC No 91 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

9 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

6 September 2005

JUDGES:

Jerrard and Keane JJA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Application for leave to appeal dismissed

2.   Applicants to pay the costs of the first and second respondents to the application to be assessed on the standard basis

CATCHWORDS:

APPEAL AND NEW TRIAL - APPEAL – PRACTICE AND PROCEDURE - QUEENSLAND - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY - where applicants had exercised their majority voting rights at the annual general meeting of a body corporate to veto a number of motions - where the other members of the body corporate sought to have this exercise of the applicants' voting rights overturned - where the matter was submitted for the decision of an adjudicator appointed under s 267 Body Corporate and Community Management Act 1997 (Qld) - where the adjudicator decided the matters referred to him for decision against the applicants - where the applicants appealed the decision of the adjudicator to the District Court where the adjudicator's decision was upheld - where the applicants sought leave to appeal from the decision of the District Court pursuant to s 118(3) District Court of Queensland Act 1967 (Qld) - where the matters which were the subject of the contested motions had been overtaken by the course of events - whether the absence of any practical utility in the Court resolving the issues sought to be agitated on appeal was sufficient reason to refuse leave to appeal

STATUTES - ACT OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND CLAUSES - PARTICULAR ACTS AND ORDINANCES - QUEENSLAND - where the applicants were invited to make submissions that would be considered by the adjudicator but did not do so - where the other parties to the dispute did provide submissions to the adjudicator - where the applicants complained that the adjudicator had not sought to obtain a copy of submissions previously submitted by the applicants to the annual general meeting - where the applicants also complained that the adjudicator had failed to inform them that he would decide the matter against them in the absence of any submissions from them - whether the procedure adopted by the adjudicator meant there had been a failure "to observe natural justice" as required by s 269(2) Body Corporate and Community Management Act 1997 (Qld)

STATUTES -…

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Details
AGLC
Hablethwaite v Andrijevic [2005] QCA 336
Case
[2005] QCA 336
Decision Date

CaseChat Overview and Summary

In the case of Hablethwaite v Andrijevic, the applicants, Hablethwaite, sought to exercise their majority voting rights at an annual general meeting of a body corporate to veto several motions. This action was opposed by the other members of the body corporate, who sought to have the applicants' exercise of voting rights overturned. The dispute was brought before an adjudicator appointed under the Body Corporate and Community Management Act 1997 (Qld). The adjudicator ruled against the applicants, a decision that was subsequently upheld by the District Court. The applicants then sought leave to appeal the District Court's decision to the Supreme Court under section 118(3) of the District Court of Queensland Act 1967 (Qld). The central legal issue before the court was whether the absence of any practical utility in resolving the issues on appeal due to the course of events was sufficient grounds to refuse leave to appeal.

The court examined the practical utility of resolving the issues raised on appeal. It considered whether there were any tangible benefits or consequences that would arise from the court intervening and reviewing the decisions of the adjudicator and the District Court. Given that the matters which were the subject of the contested motions had been overtaken by subsequent events, the court determined that there was no practical utility in resolving the issues sought to be agitated on appeal. The court also noted that appeals are generally disfavoured as they result in unnecessary costs and delay. In light of these considerations, the court decided to dismiss the application for leave to appeal. The applicants were ordered to pay the costs of the first and second respondents to the application, to be assessed on the standard basis.

Orders

Orders of the court

1. Application for leave to appeal dismissed

2. Applicants to pay the costs of the first and second respondents to the application to be assessed on the standard basis

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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