Salerni v Hunt[2017] QCATA 135

REASONS FOR DECISION

1. [1]
   The only parties who appeared today were Mr and Mrs Hunt. The appellant yesterday sought an adjournment for three months or so on the basis that he has been in hospital.  But that adjournment I refused on the basis that he is being represented by his daughter, in any event.  I am satisfied that Mr Salerni and his daughter who represents him and John and Andrea Crossan and Patricia Crossan were all notified of this hearing, and so I’m entitled to proceed in their absence.
2. [2]
   The respondents to this appeal applied to the Commissioner for resolution of the dispute between them and the appellant about the affairs of the Body Corporate of which they are all members.  An application was made on 16 May 2016, following which the Commissioner sought submissions from each of the members of the Body Corporate.  The applicants below sought orders for the appointment of a person external to the Body Corporate as administrator for the purpose of holding a general meeting and establishing the books and records for the Body Corporate with ancillary powers during the period of that appointment.
3. [3]
   The Commissioner received submissions from various people but not one from the current appellant, Mr Salerni.  Mr Salerni sought an extension of time within which to make submissions.  That was opposed, but it was granted.  At about the time that that extension was to expire, Mr Salerni sought an additional extension for a further four or five weeks due to health considerations, but the Commissioner refused that extension and made an order referring the matter to an adjudicator.  The adjudicator did not seek any further submissions from any party, noting that, while an adjudicator has investigative powers which help to ensure there is adequate evidence to make a proper determination in carrying out the investigations, the adjudicator is required to act quickly and with as little formality and technicality as is consistent with a fair and proper consideration of the application.
4. [4]
   The adjudicator then proceeded to make a decision appointing an administrator for a three-month period to obtain the books and records of the Body Corporate and to hold an annual general meeting and perform ancillary functions pending the establishment, presumably, of a Body Corporate Committee at the general meeting.  The adjudicator did not, as I said, seek further submissions from any party. 
5. [5]
   In my view, in failing to seek further submissions and evidence from Mr Salerni, in circumstances where the adjudicator was aware that Mr Salerni had asserted that he and his wife both had health problems which necessitated them having an extension of time to make submissions, the adjudicator failed to observe natural justice, which is one of the requirements of an investigation being conducted by an adjudicator under section 269 of the Body Corporate and Community Management Act 1997.
6. [6]
   In this appeal, Mr Salerni has submitted that he was not given natural justice and has set out a number of pages of written submissions in the nature of explaining the types of information and submissions that he would have made, had he been given the opportunity.  It seems to me that if he had had the opportunity to make such submissions it may have had an effect on the outcome of the adjudication.  And, in that case, it seems clear to me that it is necessary that Mr Salerni be given a proper opportunity by an adjudicator investigating the dispute to make those submissions and provide any evidence he wishes. 
7. [7]
   The adjudicator relied on a couple of cases in determining that it was unnecessary to conduct any further investigation before deciding the application.  Those cases were, first, Body Corporate for Grand Pacific Resort [2012] QCATA 14 at paragraph 42; and Walden v Broadwater Tower Body Corporate [2015] QCATA 28 at paragraphs 20 and 21.  Neither of those cases, in my view, justifies failing to seek further submissions or evidence from a party who has indicated that he wishes to make submissions or provide evidence.  Of course, that party must then do so, and cannot continually ask for further extensions of time. 
8. [8]
   It is unfortunate in this case, that such a long period of time has passed since the application was made to the Commissioner and then since this appeal was commenced.  This appeal, itself, had been set down for hearing some months ago and then was adjourned for reasons that are not clear to me.
9. [9]
   In my view, the matter needs to be investigated and determined promptly and having given everyone a proper opportunity to make submissions or provide evidence to the adjudicator.  If, in the course of a further investigation, Mr Salerni fails, having been given a reasonable period of time, to produce any further evidence or to make any submissions to the adjudicator, then that’s a matter for him, and that would not prevent the adjudicator then making a proper decision.  But, in this case, in my view, as I’ve said, the adjudicator did not grant Mr Salerni natural justice, which results in the necessity to set aside the adjudicator’s order.  I will make the orders that I have indicated.