The Adjudicator determined, after having regard to ss 94(2), 276(1)(a) and Item 10 of Sch 5 of the BCCM Act, that her task was to decide whether the body corporate had acted unreasonably and, therefore, contravened the BCCM Act in failing to pass the motion at the general meeting.
In the High Court's dismissal of the Adjudicator's classification of the dispute under s 276(1)(a) of the BCCM Act as an error of law.
His Honour arguably highlighted a number of relevant points which could guide the District Court in its decision making process under s 78(2) of the BCCM Act.
In reviewing the Adjudicator's decision to order the allocation of common property for exclusive use under Item 10 of Sch 5 of the BCCM Act, the Queensland Court of Appeal regarded the following factors as relevant: (34)
In an application for a termination under s 78(2) of the BCCM Act, the District Court might be expected to take into account related issues.
After the Adjudicator's classification of the dispute, she went on to consider whether the actions of the body corporate were reasonable and, subsequently, whether the order under Item 10 of Sch 5 of the BCCM Act should follow.
While neither the adjudicator, nor the Queensland Court of Appeal, regarded consideration to be a relevant factor in assessing the reasonableness of the refusal of consent, the author argues that the level of compensation payable is pertinent to an assessment of whether the order for a termination would be just and equitable under s 78(2) of the BCCM Act.
Despite the finding of an error of law in Ainsworth v Albrecht, (69) the Court of Appeal's discussion may provide guidance to the District Court when making a determination pursuant to s 78(2) of the BCCM Act.
The only case borne from an application under s 78(2) of the BCCM Act did not result in a decision on termination.
7) The failure of the motion may be regarded as a complaint pursuant to the definition of 'dispute' in Sch 5 of the BCCM Act.
10) BCCM Act, item 10 Sch 5 and Ainsworth v Albrecht  1 ICA 40, [591.