On August 7th 2013, Mr Peter Dowling, made orders in Application Number 0394-2013
This Application was the subject of an article on this website a few months ago. The Applicant advised the Commissioners office prior to the ruling that copies of the dispute had not been circulated to owners. She thought she was doing the right thing in providing the Commissioner's office with a "heads up".
It now seems that four months after the orders have been made, the Commissioner has decided to quash Mr Dowlings orders and reopen the Application from the beginning.
On 2nd Dec, the Commissioner for Body Corporate wrote to the Applicant stating that "distribution requirements" were not met as required by Section 243 of the Act.
He then went on to say that it "appears" that the orders of 7th August 2013 are a nullity with no legal effect. He quotes the case of Minister for Immigration and Multi Cultural Affairs v. Bhardwaj (2002) to support his claim that the orders are a nullity.
Despite the fact that it just "appears" that the orders are a nullity, he has decided to reopen the Application and invite submissions from all owners. The Commissioner's Office has circulated copies of the Application directly to owners rather than get someone else to do it (eg The Secretary or Body Corporate Manager.)
He has given owners until 20th Dec to lodge their submissions.
I have my doubts as to whether the Commissioner for Body Corporate actually has the authority to overturn or quash an Adjudicator's decision. I can understand why people might think that Mr Walker has exceeded his authority.
The Commissioner for Body Corporate may well have a reasonable argument but I think that the Applicant correctly points out that she cannot accept that the orders are a nullity unless she sees a court order proving that.
The cover sheet of the orders very clearly state that an appeal should be made through QCAT within 60 days. Surely Mr Walker could have referred the matter to QCAT or a court to decide on whether the order should stand or not.
This does seem to make a complete mockery of the Adjudication system. The fact is that the Body Corporate in question has already acted on the orders months ago and owners are now confused and shocked to see the dispute reopened.
I have been advised that Mr Walker addressed a meeting this year stating that it would be inappropriate for him to interfere with an adjudication in any way. Well, he certainly seems to have done an about face on that.
Her position is that the original orders stand until the Commissioner can prove that he has the authority to reopen the Application.