Thompson v Body Corporate for Aspect Caloundra CTS 35499 - [2013] QCATA 121

CITATION:

Thompson v Body Corporate for Aspect Caloundra CTS 35499 [2013] QCATA 121

PARTIES:	Ms Maikki Toivanen & Mr Roderick Thompson (Applicants/Appellants)
V
Body Corporate for Aspect Caloundra CTS 35499 (Respondent)

APPLICATION NUMBER:

APL140-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Hon James Thomas AM QC,
Judicial Member
Patricia Hanly, Member

DELIVERED ON:

18 April 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The appeal is allowed.

2. The Adjudicator’s order of 7 March 2011 application number 0735-2011 is set aside and the matter is returned to the Adjudicator for reconsideration and determination in accordance with law after further investigation and evidence concerning:

a) The validity of the committee’s resolution of 19 February 2007;

b) Whether there is good reason to waive non compliance with the time limit provided for in section 242 of the BCCM Act;

c) What the body corporate should be directed to do in the reasonable discharge of its duties concerning the common property under section 152 of the BCCM Act.

CATCHWORDS:

Community Titles Schemes – Nuisance and encroachment in common property area –nuisance (noisy air-conditioning exhaust) installed in Residential Scheme by owners in adjacent Commercial Scheme – duty of Body Corporate to affected lot-owners – Nature of Adjudicator’s jurisdiction – identification of issues therein – disclosure of issues to parties to observe natural justice – whether jurisdiction to require Body Corporate to act in above circumstances – facts establishing jurisdiction – onus of establishing such facts – need for proof on balance of probabilities – ”disposition” of common property – need for resolution without dissent to authorise such intrusion

Body Corporate and Community Management Act 1997 ss 217, 228, 229, 239A, 239B, 239C, 240, 242, 243, 269, 271, 276, 289, 294(1)

Body Corporate and Community Management (Accommodation Module) Regulation 2009 s 159

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

This is an appeal against an Adjudicator’s decision in a dispute between unit owners and the body corporate of a residential community titles scheme situated at Lower Gay Terrace, Caloundra (“Aspect Caloundra”).
Aspect Caloundra is adjacent to a commercial scheme, the Knox Avenue Retail Community Titles Scheme 38068 – (“Knox Avenue Retail”).
The dispute concerns a fan which discharges air from the air conditioning system of the principal business in Knox Avenue Retail. It is situated on the common property of Aspect Caloundra and in the view of the appellant unit owners, constitutes a serious nuisance to the enjoyment and value of their unit.
A third party, described as “the affected person” provided evidence and made submissions in the proceedings before the Adjudicator, but did not participate in the present appeal. He was identified as Mr Sydney Walker, and described himself as representing Knox Avenue Retail. His submission to the Adjudicator indicates that he is a resident, committee member and the “rep” for the commercial lots”, that his project marketing company sold the majority of the lots in Aspect Caloundra, and that his wife (Glenda Walker) is the sole director of the company that owns the commercial shops. Mr Walker apparently also speaks on its behalf.
Having regard to the nature of the dispute, the appropriate “affected person” would seem to be the person or entity who owns or controls the source of the alleged nuisance, and who would be put to expense if the body corporate of Aspect Caloundra withdrew its license (if any) for the discharge apparatus to remain on its common property. This would seem to be the company that owns and leases the commercial shops to the tenants who run the businesses. Mr Walker has stated that he represents that interest. However, in any future proceedings and dealings by the body corporate of Aspect Caloundra, it would seem that the relevant third party should be the company which is controlled by Mr and Mrs Walker.
The applicants were Ms Toivanen and Mr Thompson, the owners of lot 1031 in Aspect Caloundra, the unit most severely affected by the offending structure and its discharge. They sought orders that the fan be switched off, and that the body corporate take action against the owners of Knox Avenue Retail to remove the fan from Aspect Caloundra’s common property.
The Adjudicator, essentially on the basis that there was a “distinct possibility” that the offending infrastructure was installed under a provision in a building management statement, and that decisions by management groups and actions there under are not reviewable by Adjudicators, dismissed the application.
In these reasons Ms Toivanen and Mr Thompson will be referred to as “the applicant unit owners”, and the respondent body corporate for Aspect Caloundra as “the body corporate”. The owner of the properties in the commercial scheme will be referred to as “Mr Walker’s company”.

Jurisdiction

In this matter it is desirable to say something about the jurisdiction and procedure involved in the adjudication process in matters of this kind.
An Adjudicator’s jurisdiction stems from sections 228 and 229 of the Body Corporate and Community Management Act 1997 (“the BCCM Act”). The procedure is both inquisitorial and adjudicative. It provides a system for the resolution of disputes both great and small that arise within community titles schemes involving unit owners, bodies corporate and those who play roles in their management. It is meant to cater for both laypersons and persons with substantial commercial interests. The ambit of such disputes and the purpose of the legislation are identified in sections 227 and 228 of the BCCM Act.
The processes prescribed by the Act for the resolution of such disputes are exclusive (Section 229).
The Act provides for a system that includes departmental vetting, conciliation, mediation and ultimately determination by Adjudicators, including Specialist Adjudicators.
An Adjudicator “must investigate the application” (section 269), the meaning of which phrase is to some extent clarified in section 271 which authorises the Adjudicator to require a party (and indeed anyone else whom the Adjudicator considers may be able to help resolve issues raised by the application) to give a “report or other information” (section 271). The Adjudicator also has the right, subject to prescribed limitations, to enter and inspect property and records. There is therefore an investigative and evidence-gathering function. But it is not a purely inquisitorial procedure. By the stage an Adjudicator is appointed, the parties have failed to settle their differences and are adversaries. They have issues which must be determined by the Adjudicator according to law.
The prescribed procedure does not sit comfortably with any familiar system of pleading. Identifying the issues that arise in the course of determining these disputes is no easy task for an Adjudicator. The prescribed notice of dispute adjudication application form (see sections 239A, 239B, 239C, 240 and 243) simply asks “what outcome are you seeking?”, and also for the applicant’s “grounds” with the guiding statement “please provide concise and relevant details of the background to the dispute, together with your arguments supporting the outcome sought.”
In the ordinary course an Adjudicator gathers the initial evidence and submissions of the parties, identifies the issues that appear to be in dispute, and having clarified the issues gives the parties the opportunity to present any further evidence and submissions on them. The extent to which an Adjudicator gathers evidence from sources other than the parties is entirely up to the individual Adjudicator, but of course such evidence must be brought to the attention of the parties, and so must the issues that seem to arise for determination. It is especially important in any area where the Adjudicator perceives that a party bears a persuasive onus that an opportunity is given to that party to present evidence that might discharge it. This would seem to be a logical way of observing the natural justice that section 269 requires to be observed by Adjudicators. Failure to observe that statutory duty amounts to an error of law.
The present appeal is brought under part 11 of chapter 6 of the BCCM Act (sections 288A – 294). Under section 289(2) an appeal from an Adjudicator’s decision lies only on a question of law. This brings into play section 146 of the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act”), which contemplates an appeal in the strict sense, confined to the material that was before the Adjudicator.
The powers of the Appeal Tribunal include returning the matter to the Adjudicator for reconsideration after hearing additional evidence (QCAT Act s 146(c)(i)). The Tribunal has “in addition”[1] to its ordinary appellate powers the right “to exercise all the jurisdiction and powers of an Adjudicator” under the BCCM Act (s 294(1) of that act). Those powers are extensive and include “an order that is just and equitable in the circumstances (including a declaratory order)” and “an order may require a person to act, or prohibit a person from acting, in a way stated in the order” (BCCM Act s 276). Examples of the wide variety of orders that may be made are given in schedule 5 of the Act.
[1] As stated in BCCM act section 294 (1).

Summary of evidence

Aspect Caloundra initially consisted of two lots, created by the subdivision of lots on SP 186487:
a)Lot 2 on SP 186487.
b)Lot 3 on SP186487.
Both lots, and the management of the buildings they encompass, are subject to the terms and conditions of the Building Management Statement executed on 3 April 2006 (the BMS). There is no evidence of any amendments to the BMS since its execution.
On or about 8 June 2006, Lot 3 on SP 186487 (a residential lot) was subdivided by SP 186488 and is now the Aspect Caloundra Community Titles Scheme 35499. The Body Corporate for Aspect Caloundra is the Respondent to this appeal.
The appellant unit owners own lot 1031 in Aspect Caloundra. They purchased it “off the plan” on 17 December 2003 and took possession in July 2006.
Mr Walker’s company at material times controlled the development of the commercial scheme Knox Avenue Retail.
Around December 2006 a cantilevered exhaust fan and flume were installed on the roof of one of the buildings, wholly protruding into the airspace of Aspect Caloundra and located in close proximity to the appellant unit owners’ lot.
Since that time the fan has been operated to provide air-conditioning for the two commercial lots that were leased to a tenant to operate a restaurant in the commercial complex.
On or about 13 February 2008, Lot 2 on SP 186487 (a commercial lot) was subdivided by SP 175345 and is now the Knox Avenue Retail Community Titles Scheme 38068.
The exhaust fan has caused difficulties for the appellant unit owners since 2006. It impacts on their ability to use their balcony and interferes with their sleep, television viewing and entertaining within their lot.
On 19 February 2007 the committee of the Body Corporate of Aspect Caloundra purported to resolve to “approve the installation of the exhaust vent, however, the committee sought further noise attenuation be undertaken by the owner of the Lot to deflect noise away from the complex.”[2] The right of a committee to grant such approval with respect to common property is now challenged.
[2] As recorded in the Committee Minutes.
On 5 September 2007 the appellant unit owners brought a dispute resolution application seeking removal of the fan. An agreement was reached during conciliation, and on 5 October 2007 that application was referred back to the Commissioner.
The performance of that agreement by the parties did not resolve the concerns raised by the appellant unit owners with respect to the exhaust fan. It is common ground that some variations to the existing system were attempted without the achievement of a satisfactory result and that the original system of installation and discharge was then restored. According to one of the appellant unit owners, Mr Thompson, further alternative methods of relocation of the fan within the commercial premises (e.g. in the 2 hour fire-rated duct within commercial lot 2’s title) were not explored, for which no reason was given. He further alleges that Mr Walker stated at the time that he did not want the exhaust fan located within his commercial premises of lot 2, but did not state any specific reason.
The material before the Adjudicator includes a submission from another unit owner to the effect that the fan is not installed on common property of Aspect Caloundra, and that it only encroaches into its common property airspace. The Adjudicator found on the evidence that the fan is located on the common property and adjacent to the applicant’s lot.[3] The Body Corporate also seems to have accepted this to be so, and it is noted that an earlier conciliation agreement in a precursor to this dispute, on 5 October 2007, to which the body corporate was a signatory, refers to the exhaust fan as “installed on the common property in front of lots 1032 and 1031”. Whether the installation is “in” or “on” the common property is in the end immaterial, as the management of rights to the volumetric airspace of common property would in any event be a matter for the body corporate to deal with, and it would be prima facie within an Adjudicator’s jurisdiction to deal with a dispute in relation to it.
[3] See Adjudicator’s reasons for judgment paragraph 14.
The situation remained a problem for the appellant unit owners, and in October 2011 they made the present adjudication application.
In March 2012 the Adjudicator dismissed the application. That order is the subject of this appeal.

Issues

The appellant unit owners appeal the Adjudicator’s decision on the basis that the Adjudicator erred in law by:
a.Failing to investigate the application and afford the Appellants natural justice wherein the Adjudicator:
i.     Determined the application on the presumption that the exhaust fan may have been installed under a provision of a building management statement without undertaking investigations to determine this.
ii.     Identified that there may have been an issue that would limit his jurisdiction to make the orders sought, yet did not provide the Appellants with an opportunity to make submissions on them.
iii.   Did not undertake investigations necessary to enable him to make an order that was just and equitable in the circumstances.
b.Taking into account irrelevant matters, including that the exhaust fan may have been installed under a provision of the building management statement where there was no evidence to support that assumption.
c.Failing to provide sufficient reasons, or any reasons, for his decision, including:
i.     Why a distinct possibility that the exhaust fan was installed under a provision of a building management statement is a sufficient consideration to restrain the Adjudicator from further investigation or determination of the application.
ii.     Why the exhaust fan not being part of the original development or design is not relevant.
iii.   The validity of the resolution made on 19 February 2007 by the Committee of the Respondent approving the installation of the exhaust fan.
d.Failing to take into account relevant matters, including:
i.     That the exhaust fan was not part of the original development or design.
ii.     The validity of the resolution made on 19 February 2007 by the Committee of the Respondent approving the installation of the exhaust fan.
iii.   Whether the installation of the exhaust fan amounted to a disposition of common property of Aspect Caloundra CTS 35499 through a continuing license to use.
iv.   Whether the Respondent had discharged its duty to administer the common property for the benefit of the owners of lots within Aspect Caloundra CTS 35499 and act reasonably in the circumstances.
v.     That the Body Corporate for Knox Avenue Retail did not have any right to a statutory easement to install the exhaust fan as the installation was not the installation of the essential services for a lot within Aspect Caloundra CTS 35499.

A Fundamental error

The principal relief sought by the appellant unit owners was that the body corporate should be required to take action to remove the offending fan from the common property. Evidence showed that it causes severe hardship to some unit owners, and notably to the appellant unit owners.
It is the duty of the body corporate to protect unit owners, and to ensure that the common property is used for their benefit. Section 152 of the BCCM Act requires a body corporate to administer, manage and control the common property “reasonably and for the benefit of lot owners”. It is a mandatory duty.
One would think in any event that a reasonable body corporate would wish to assist unit owners in the removal of an encroachment and a nuisance which emanates from the common property. Prima facie the appellant unit owners are entitled to an order requiring the body corporate to take reasonable steps to bring about the removal of the fan in the given circumstances, unless some good reason is shown such as impossibility, or the existence of some contract or grant which makes such action commercially unacceptable.
No evidence has been produced of any such contract or grant, or indeed of the arrangements that actually led to the installation of the apparatus on the common property of the residential complex. The Adjudicator, on the basis of pure speculation, considered it possible that it was installed there under “a provision/s of a building management statement.”[4]
[4] Adjudicator’s reasons for judgment para 26.
The operative statement in the Adjudicator’s reasons is:
“I am not convinced that, in the circumstances, the building management statements are not a relevant consideration. There is a distinct possibility the infrastructure was installed on Aspect Caloundra’s scheme land under a provision/s of a building management statement.”
The Adjudicator noted that a disagreement about rights or obligations under a building management statement is not a matter that can be determined under the dispute resolution provisions of the Act.[5] That observation is correct, inasmuch as building management statements are regulated under the Land Title Act, and disputes thereunder are regulated by a dispute resolution method which involves reference to the President of the Queensland Law Society. The Adjudicator then observed that
“The applicants have not demonstrated that, in the circumstances, the body corporate has either contravened the Act or the scheme’s community management statement or that it has a power or duty under the Act or the community management statement to do the thing or things stated in the outcomes sought.”
[5] Adjudicator’s reasons para 27.
There was no onus on the appellant unit owners to demonstrate a breach of the scheme’s community management statement, or to eliminate the possibility that the fan was installed under some provision of a community management statement or some unknown decision of an unidentified management group under a building management statement. The appellant unit owners’ case was basically that there was a nuisance on the common property, and the body corporate ought to do something to abate it. The only relevance of the community management statement might be if it showed that the fan structure on the common property was a permitted use, and that it would be impossible or impracticable for the body corporate to terminate it. That would not destroy jurisdiction; it would be a defence, and the onus would be on the body corporate to show some evidence to make it out.

We have examined the building management statements applicable to the historical subdivisions, and in particular numbers 708029666 and 709488923. While there are provisions for the supply of utility services to and from each owner’s lot and an express provision in 709488923 enabling free passage of customers and others to and from the shops through a designated area of the residential complex, there is no such reference to the fan or any associated structures on any part of the residential complex or to the use of the residential complex’s common property.
The appellant unit owners submitted to the Adjudicator, correctly we think, that
“There is no mention in either of the building management statements that the commercial lot 2 has any right to install mechanical equipment of any nature within the common property of the residential lot 3.”
There are a number of errors in the approach taken by the Adjudicator on this point. In the first place there was no evidence that the infrastructure was installed under a provision of the BMS. That there might be a “distinct possibility” that it was so installed is pure speculation. An Adjudicator’s findings of relevant facts need to be supportable to the ordinary civil standard, that is, on the balance of probabilities. This is not a situation where a mere possibility is itself a relevant consideration. Further, there was no onus on the appellant unit owners to negative these possibilities in order to show a justiciable dispute between them and the Body Corporate.
This was a fundamental error.
We think that ground (a) of the appeal[6] has been made out in all respects.
[6] See para [33] above.
Therefore, unless there is some other point that indicates that further examination of the appellant unit owners’ complaint would be futile, it will be necessary to allow the appeal and return the dispute to the Adjudicator for further investigation and determination consistently with the reasons here given.

Discussion: Is the appellant unit owners’ case viable?

The submissions for the appellant unit owners on this appeal were extensive and apparently carefully researched. The submissions for the body corporate were brief and generalised.
In so far as the body corporate’s submissions object to “new” arguments on appeal, we consider there is nothing in the appellant unit owners’ submissions that does not naturally arise out of the issues that obviously had to be explored in the adjudication. The main point in the body corporate’s submissions seems to be an assertion that the dispute is only between residents of different community titles schemes, and that there is no justiciable issue between the appellant unit owners and the Body Corporate of Aspect Caloundra. For reasons shortly to be mentioned that assertion is incorrect. Apart from generalised arguments of these kinds, and a slightly more detailed submission in which the body corporate sought an order for the costs of the appeal against the appellant unit owners, their submissions failed to respond to the specific arguments of the appellant unit owners.
This part of our judgment is intended to bring attention to areas and issues that still need to be dealt with, and to indicate how it seems that such issues would need to be decided if the evidence remains as it now is.
The duty of the body corporate was to administer the common property for the benefit of the lot owners.
There is no evidence that Mr Walker, his company, or anyone else acquired any right to install the commercial unit’s duct work and air-conditioning outlet on or within the common property of the residential scheme. The only purported authorisation that has been suggested is a committee resolution of 19 February 2007.
On 19 February 2007 the body corporate's committee purported to pass a motion to approve the installation of the fan on the common property. Relevantly the motion stated:
“Exhaust Vent – Retail Shops. The meeting noted a complaint regarding the installation of the motorised exhaust fan and flume onto the roof of the commercial shops. The meeting identified that the lot in question has installed the vent and this Lot was marketed as a commercial tenancy and as a restaurant.

The Committee resolved to approve the installation of the exhaust vent, however the Committee sought further noise attenuation be undertaken by the owner of the Lot to deflect noise away from the complex.”
The appellant unit owners have a satisfactory arguable case that this committee resolution is void, and alternatively, even if binding, does not ultimately preclude termination of any licence that may have been granted to Mr Walker’s company.
The appellant unit owners’ submission to the Adjudicator included:
“It is my understanding that the committee has not had the power to give approval for such an installation on common property. Approval for such an item to have been installed on the residential lot 3’s common property would have to be through an AGM or EGM as a special motion without dissent. This has never happened.”
This submission was not dealt with by the Adjudicator. The submission seems prima facie correct, as any grant of a right to use part of the common property amounts to a “disposition” of it within the meaning of section 159 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (“the Accommodation Module”), as then in force.[7] A similar conclusion concerning acts that will amount to a “disposition” was reached by Douglas J (with whom McMurdo P and Chesterman JA agreed) in Katsikalis v Body Corporate for the Centre Community Titles Scheme 14718 2009 2 QdR 320.
[7] See Reprint No 2.
On the point concerning “disposition” Douglas J wrote:
“The resolution is capable, however, of being construed as the grant of an indefinite license to the owner of lot 5 to use that part of the common property.”
His Honour also concluded that:
“If it were such a disposition “otherwise” to use the language of section 91(1)(a) of the Regulation then in force, the resolution said to authorise it retrospectively should have been passed without dissent in order to make it valid. That did not occur.”[8]
[8] Katsikalis (above) page 323, para 21.
The effect of the resolution in the present case, if valid, would seem to be a disposition of the common property, as it grants rights over part of the common property, which would probably be construed as a license to occupy the relevant area. It is not suggested that any particular term was agreed upon, and on ordinary principles, any such license would be terminable on reasonable notice. But such a grant under section 159 of the Accommodation Module can be authorised only by a resolution of the body corporate without dissent.
Further issues concerning invalidity of the motion were raised, and remain undetermined. These include alleged voting by persons with conflicts of interest (interest in the commercial complex inconsistent with the duty to the residential owners). On this issue we note that in his submission to the Adjudicator Mr Walker denied casting a vote, but we also note that the minutes record that the motion was carried 5-0 with no abstentions, and that in any event Mr Walker was not the only interested person in attendance. We say no more about this issue than that it remains a live issue if any further reliance is placed by the body corporate on the committee resolution.
Before addressing the question whether that resolution is invalid the Adjudicator would need to consider whether this is an appropriate case to waive the applicant’s non-compliance with the time limit on applications to void resolutions by committee or bodies corporate (BCCM Act section 242). The Adjudicator would need to consider whether there is “good reason” to waive the non compliance.
In ordinary civil process, a court or tribunal does not usually apply statutes of limitation unless the adverse party chooses to plead them. Unless they are promptly pleaded the party wishing to rely on them may be deemed to have renounced the benefit or to have waived the point.[9] However, in proceedings of the present kind with an inquisitorial character and no regular system of pleading, the Commissioner is obliged to deal with such applications notwithstanding the time limitation, and we think an Adjudicator would ordinarily be required to advert to the application of section 242, and to consider whether there is good reason to waive the non-compliance.[10]
[9] Corkin v Taylor and another 1963 Qd R 534.
[10] Cf S 242(4)(b).
On the question of delay and waiver of non compliance, although the delay is substantial this is not a case where an applicant has slept on his rights. The appellant unit owners raised the issue soon after the emergence of the nuisance and the passage of the resolution, then after conciliation, negotiation and attempts at remedying the situation, an impasse was reached. Several years passed before it was obvious that no satisfactory solution would be forthcoming from that attempt. The issues that are raised include fundamental lack of power to pass such a resolution, and impropriety. There is also the consideration that during the period in question, the persons principally disadvantaged have been the appellant unit owners, and possibly other unit owners who were likewise deprived of the opportunity of voting on a matter that might affect the enjoyment of their units. So far as the third party (Mr Walker’s company) is concerned, the delay would seem to have been to its benefit.
In all the circumstances, if the evidence remained substantially as it is, it would be appropriate to waive the non compliance with the time limit provided in section 242, and for declaring void the relevant resolution of the committee.

Effect of proposed order

In the event that the Adjudicator determines that there is good reason to waive the time limit under section 242 for setting aside the committee’s resolution of 19 February 2007, and no further evidence emerges of the kind that demonstrates that it would be futile for the body corporate to demand removal of the structure, it would be appropriate to make orders along the following lines:
a)A declaration that the committee resolution of 19 February 2007 is void;
b)That the body corporate takes all reasonable steps to effect removal of the exhaust fan from the common property.
Prima facie the structure is an encroachment and a nuisance and the body corporate is entitled to have it removed. The ramifications to the body corporate of demanding removal of the structure will depend on further evidence that may emerge concerning the nature of any right on the part of Mr Walker’s company to maintain the structure on or within the residential common property. On present evidence his company has no permission except his own, and no lawful right.
Future issues may arise in relation to the body corporate’s dealings with and rights against Mr Walker’s company, but the Adjudicator possesses the power to order that reasonable decisions are made by the body corporate to protect its rights and those of its unit-owners.
Unless evidence of authorisation emerges which justifies the continuation of the present positioning and functioning of the fan, the body corporate would seem to have the power and, if properly authorised in general meeting, to institute court action to require Mr Walker’s company to discharge the commercial site’s air conditioning wastes from its own site in a manner that does not cause nuisance to the residential occupiers. One would however hope that an appropriate demand would result in Mr Walker’s company giving at least serious consideration to beneficial remedial action.
The first step would therefore seem to be to demand removal of the structure, to terminate any license for its retention, and to give a reasonable time for its removal. It is noted that a timer has now been installed which limits the hours during which the air-conditioner functions. But the position remains that acoustic treatments and solutions appear not to have been adequately explored. In the absence of sensible resolution by negotiation or through some form of alternative dispute resolution, it may be that the adjudication of this dispute will require consideration in stages and may involve the issuing of directions.

Orders

The following orders will be made:
1.The appeal is allowed.
2.The Adjudicator’s order of 7 March 2011 application number 0735-2011 is set aside and the matter is returned to the Adjudicator for reconsideration and determination in accordance with law after further investigation and evidence concerning:
a) The validity of the committee’s resolution of 19 February 2007;
b) Whether there is good reason to waive non compliance with the time limit provided for in section 242 of the BCCM Act;
c) What the body corporate should be directed to do in the reasonable discharge of its duties concerning the common property under section 152 of the BCCM Act.