Body Corporate for Admiralty Towers II v Johnson [2017] QCATA 29

CITATION: Body Corporate for Admiralty Towers II v Johnson [2017] QCATA 29 PARTIES: Body Corporate for Admiralty Towers II CTS 15344 (Appellant) v Rosemary Johnson (Respondent) APPLICATION NUMBER: APL106-16 MATTER TYPE: Appeals HEARING DATE: 28 November 2016 HEARD AT: Brisbane DECISION OF: Member Barlow QC DELIVERED ON: 8 March 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal be allowed. 2. The orders of the adjudicator made on 19 February 2016 be set aside. 3. The application for adjudication be remitted to the adjudicator for reconsideration. 4. Body Corporate for Admiralty Towers II CTS 15344 must file in the Tribunal one (1) copy and give to Rosemary Johnson one (1) copy of any submissions it wishes to make seeking costs of the appeal, by: 4:00pm on 17 March 2017. 5. If Body Corporate for Admiralty Towers II CTS 15344 does not comply with Direction 4, its application for costs will be dismissed. 6. If Body Corporate for Admiralty Towers II CTS 15344 complies with Direction 4, Rosemary Johnson must file in the Tribunal one (1) copy and give to Body Corporate for Admiralty Towers II CTS 15344 one (1) copy of any submissions on costs, by: 4:00pm on 31 March 2017. 7. Any decision on costs will be determined on-papers, without an oral -- 1 of 14 -- 2 hearing, not before 31 March 2017. CATCHWORDS: Body corporate and community management – by-law imposing noise requirements for flooring – whether by-law unreasonable Body corporate and community management – adjudication – whether adjudicator failed to take relevant evidence into account – whether adjudicator gave adequate reasons for decision Body corporate and community management – adjudication – extent of duty to investigate – whether adjudicator failed to investigate sufficiently Body Corporate and Community Management Act 1997, ss 94, 100, 102, 108, 269, 271 Ainsworth v Albrecht [2016] HCA 40; (2016) 90 ALJR 1118 Albrecht v Ainsworth [2015] QCA 220 Better Homes Queensland Pty Ltd v O’Reilly [2013] QCATA 122 Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 Body Corporate for Grand Pacific Resort v Cox [2012] QCATA 14 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 McLeod v Body Corporate for Stradbroke Tower and Villas [2015] QCATA 146 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Stradbroke Towers and Villas [2014] QBCCMCmr 11 -- 2 of 14 -- 3 APPEARANCES AND REPRESENTATION: APPLICANT: Body Corporate for Admiralty Towers II CTS 15344, represented by Mr K Kelso, counsel instructed by Grace Lawyers RESPONDENT: Rosemary Johnson, self-represented REASONS FOR DECISION Introduction Admiralty Towers II is a community titles scheme comprising 193 lots in a residential tower building in Brisbane. The scheme is regulated by the Standard Module under the Body Corporate and Community Management Act 1997. The appellant in this matter is the body corporate for the scheme. The respondent is the owner of a lot comprising one of the residential apartments. This appeal concerns the validity of a by-law made by the body corporate. The respondent contends, and the adjudicator found, that the by-law is unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme. The adjudicator held that the by-law is therefore inconsistent with s180(7) of the Act and invalid pursuant to s180(1). The adjudicator ordered that the body corporate make a different by-law. The by-law is 20(a)(xi), which provides: An owner who wishes to install a hard floor covering such as timber, tiling or similar must submit the specification in writing to the Committee of the Body corporate. An owner of a lot must ensure that the floor impact noise of that lot achieves a weighted standardised impact sound pressure level (LnTw) of not more than 45 when determined under AS/ISO712.2. A report showing compliance with the stated criteria should be prepared by a suitably qualified Acoustical Consultant who is a member of the Australian Acoustical Society and submitted to the body corporate Committee. LnTw is a measurement of the level of noise transmitted through a floor into a room below, expressed in decibels (dB). The higher the number, the more noise is transmitted. The Building Code of Australia requires that the LnTw between residential apartments be no more than 62dB.1 The type of flooring, including underlay, obviously affects the level of noise that is 1 However, as has been noted by this tribunal, that is a minimum construction standard with which builders must comply, but it does not set levels for the purposes of neighbourly relations: McLeod v Body Corporate for Stradbroke Tower and Villas [2015] QCATA 146, at [29]. -- 3 of 14 -- 4 transmitted to rooms below. A 10dB difference is typically perceived by the human ear as halving or doubling the original sound. Another method of measuring such noise is called the Field Impact Isolation Classification (FIIC), under which the higher the number the lower the level of sound transmission. 2 When Admiralty Towers II was built, the apartments were furbished with carpet and underlay in bedrooms, hallways and living areas, while kitchens and bathrooms had tiles. The evidence disclosed that the LnTw of the carpeted areas in the building is about 28 and that of kitchen (tiled) areas is about 61 to 65. Ms Johnson wishes to replace the flooring in her living and dining areas, hallways and kitchen with a French oak timber floor over a dimpled rubber underlay. She applied to the body corporate committee for its approval. Testing has demonstrated that the LnTw of that flooring will be about 51dB. The body corporate committee refused to approve the flooring. Faced with that decision, Ms Johnson proposed to the body corporate in general meeting to amend the by-law to require an LnTw of no more than 50 to 55. That motion was lost at the meeting. Ms Johnson then applied to the Commissioner to resolve the dispute by adjudication, contending that the by-law is unreasonable.3 The decision and the appeal The adjudicator determined that the by-law is unreasonable and therefore invalid. He ordered that the body corporate make a by-law that either is in the form unsuccessfully proposed by Ms Johnson or imposes “reasonable performance requirements with regard to any flooring alterations.” The body corporate now appeals from that decision, pursuant to s289(2) of the Act. An appeal must be on a question of law. The body corporate contends that the adjudicator erred in law in that: a) despite being invited, he failed to request any additional testing of various flooring systems and he failed to undertake a site visit to investigate the noise performance of various flooring systems or the aesthetics, practicality, installation and safety issues of various flooring systems; b) he failed to give proper reasons for findings of fact that led to his determination that the by-law was unreasonable; 2 This summary is not contentious and derives from an information sheet produced by the Australian Timber Flooring Association that was in evidence before the adjudicator, and some of the expert evidence tendered to the adjudicator. 3 Notably, she did not contend that the body corporate’s decisions to make the by-law and not to amend it were unreasonable. The only question before the adjudicator was whether the by-law itself is unreasonable in imposing a requirement of up to 45 LnTw. -- 4 of 14 -- 5 c) he acted on evidence from Ms Johnson’s flooring acoustics expert which the expert was unqualified to give; d) he failed to make relevant findings of fact that were necessary to enable a proper determination of whether the by-law was unreasonable; e) he made a finding that was contrary to the evidence and made findings that no reasonable adjudicator could make. While many of these complaints concern evidence and findings of fact, they raise questions of law because the failure of a decision maker to have a reasonable basis for the decision (including where findings of fact were not open on the available evidence) is an error of law,4 as is a failure to provide sufficient reasons for findings. I did not understand Ms Johnson to contend otherwise. The adjudicator’s reasons After reviewing a number of cases concerning the factors necessary to consider in determining whether a by-law or a body corporate decision is reasonable, the adjudicator turned to the evidence; in particular that of the experts whose reports were tendered. He noted (at [51]) that the by-law was introduced after the body corporate sought the recommendation of an expert as to floor impact noise criteria suitable for this building. That advice (by the same acoustics expert who provided reports for the body corporate in this case) assumed that the existing (carpet based) noise transmission would be about 40 to 45dB. On that basis, the expert recommended that the by-law impose an LnTw of not more than 45dB. I note (although the adjudicator did not) that, in his report, the expert recorded his view that adopting that level was “a cautious approach for minimising floor impact noise and it will be extremely difficult to achieve this rating in timber or tile floors …”. The adjudicator then referred to the expert evidence about tests of the LnTw of a variety of floor coverings that had been undertaken. He summarised some of that evidence at [59] as follows: The overall test results from several investigative floor impact sound insulation tests at the subject premises5 are summarised as follows: Floor Test Description Test result LnTw 4 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [33], [69], [90], [91]. 5 In fact, these tests were not conducted at the premises the subject of the application (Ms Johnson’s apartment), but in a different apartment, and in the bedroom of that apartment rather than the living areas. These facts were pointed out and criticised by Ms Johnson before the adjudicator, but he appears to have overlooked those criticisms. -- 5 of 14 -- 6 A- Bare concrete floor (180mm) 75 B- Existing carpet and underlay 33 C- Floating bamboo timber on underlay (total 41mm) 52 D- Floating bamboo timber on underlay (total 59mm) 43 E- Floating bamboo timber on underlay (total 49mm) 42 F- Floating bamboo timber on underlay (total 43mm) 46 G- Floating bamboo timber on underlay (total 42mm) 45 H- Floating engineered timber on underlay (total 49mm) 41 The adjudicator noted the body corporate’s submission that these test results demonstrate that it is possible to install hard flooring that meets the standard; thus there is no prohibition but simply a reasonable condition. The adjudicator then went on to the crux of his reasons, at [63], saying: I note that Palmer Acoustics, was the project acoustic engineer for the building at the time of construction and has confirmed that the building was not designed to have a 6 star acoustic rating. Further, as outlined in the Palmer Acoustics report the timber floor proposed by the applicant achieves a LnTw of between 51 and 52 which, based on relevant standards, would be considered reasonable and achieve a 3 to 4 Star rating. Palmer Acoustics are also of the opinion that a performance requirement of between LnTw 50-55 would be appropriate for this building. The body corporate is entitled to seek a higher standard of noise isolation, provided that such a requirement can be regarded as objectively reasonable. However I do not believe that the acoustic rating specified in by-law 20(a)(xi) can reasonably be achieved. While Alpha Acoustics state that a LnTw of less than 45 can be achieved using specified underlay products, this would involve a minimum installed depth in the vicinity of 50mm. Flooring of such a nature cannot be considered practical or reasonable as it would require adjustment to all internal door openings over the floor and ramps at the entry way and at all interfaces with the existing carpet. Apart from the aesthetic impact, such a variation in floor level between rooms that are carpeted and rooms with hard flooring would create obvious trip hazards. It would also mean that doors would have to be cut down or replaced. The parties’ contentions The grounds of appeal are extensive, but the written and oral submissions were, with respect, presented succinctly. I shall equally attempt to deal with the issues succinctly, just as I have attempted in summarising the grounds of appeal above. -- 6 of 14 -- 7 First, the body corporate submits that the adjudicator applied an incorrect test, in considering whether the decision to make the by-law was reasonable, rather than whether the by-law itself is unreasonable.6 Secondly, the body corporate submits that the adjudicator improperly substituted his own view of reasonableness for an objective criterion and failed to consider the interests of all owners and occupiers in the scheme. That is not permissible. Whether a by-law is reasonable or not must be judged objectively having regard to all the circumstances of the case and specifically having regard to the interests of all owners and occupiers. In this case, the onus was on Ms Johnson to demonstrate that the by-law is unreasonable. It cannot be said that she has done so where the evidence was that it is possible to install hard floors that comply with the noise level criterion imposed by the by-law. It is irrelevant that, in order to do so, a lot owner may have to modify other aspects of the apartment, such as cutting doors and installing ramps. And the adjudicator concentrated too much on Ms Johnson’s interests without balancing them against the interests of all other owners and occupiers. In this context, the body corporate made submissions about the test of what is or is not reasonable, in the light of the recent decisions of Ainsworth v Albrecht [2016] HCA 407 and, applying that decision, Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177. Those cases respectively concerned whether opposition of lot owners to a motion requiring unanimous consent was unreasonable and whether a body corporate had acted reasonably in refusing to allow a pet onto the premises. The point made by the body corporate by reference to these cases is that, in determining whether something was reasonable, the decision maker must apply objective criteria, not the subjective views of the decision maker. Thirdly, the body corporate submits that there was no proper evidence, nor any from which a factual inference could be drawn, that it would be necessary to cut doors or install ramps, nor that to install flooring of up to 50mm height would constitute an unsafe trip hazard. The only evidence to that effect was the opinion of the acoustics expert engaged by Ms Johnson. He was not qualified to express such opinions, which required expertise in building and occupational health and safety. Fourthly, the body corporate submits that the adjudicator was wrong in finding that only 2 flooring systems would comply and that they would each require a floor height of about 50mm. The table extracted at [12] above demonstrates that systems D, E, G and H could comply and G required only 42mm. There was also no evidence of what height the respondent’s proposed flooring would be and whether its sound transmission properties 6 Compare s94(2) concerning decisions and s108(7) concerning by-laws. 7 Now reported at (2016) 90 ALJR 1118 and 338 ALR 1. -- 7 of 14 -- 8 could be improved to comply with the required LnTw. Therefore, the adjudicator erred in relying on a fact that was contrary to the evidence. Finally, the body corporate contends that the adjudicator should have asked for more testing to be done, particularly in Ms Johnson’s living room (as relevant testing had been done in the bedroom of a different unit, which would not give comparable results) and should have inspected the site during testing to hear the sounds produced himself. His failure to take either of these steps meant that he had not sufficiently complied with his obligation, under s269, to investigate the application. Ms Johnson submits that the by-law is unreasonable because it does not really permit the installation of any type of flooring other than carpet or other soft floorings, given the depth of underlay and the height of flooring that would be needed in order for a hard floor to comply with the LnTw of 45dB. Therefore, it practically prohibits hard flooring - which a by-law cannot do – rather than regulating it. Ms Johnson is also critical of the evidence of testing that was summarised by the adjudicator (extracted in [12] above). First, it was conducted in a bedroom in a different apartment, which would affect the results and would not accurately reflect the sound penetration of areas such as living and dining rooms and hallways. Secondly, even if it were accepted, once one allows for variance it cannot be said that any system would clearly comply with the required level. Therefore, again, the by-law effectively prohibits rather than regulates the use of hard flooring. In the circumstances, Ms Johnson contends that the noise level permitted by the by-law is unrealistic and an effective prohibition on hard flooring, notwithstanding that a number of residents have installed hard flooring in their apartments (none of which were tested for the purpose of this application). I also understood Ms Johnson to contend that the by-law is unreasonable because, even though it was made having regard to expert advice, that advice was made without testing and yet it made it clear that it would be “extremely difficult” to comply with the recommended LnTw with hard flooring. That being so, and having regard to the need for flexibility in internal design of modern apartments, the by-law was and remains unreasonable. Consideration There have been many decisions of adjudicators and this tribunal concerning disputes over noise transmission from flooring in high rise apartment buildings. However, they are of limited assistance as each depends on its own facts and many of them concern decisions of bodies corporate rather than the validity of by-laws under which the decisions have been made. -- 8 of 14 -- 9 Nevertheless, it is appropriate to consider a recent case, to which the parties and the adjudicator referred: Stradbroke Towers and Villas [2014] QBCCMCmr 11 and, on appeal, McLeod v Stradbroke Towers and Villas [2015] QCATA 146. That case concerned the reasonableness of a by-law that permitted the committee approving hard flooring to impose a condition that the FIIC of the completed works must not be less than 77 in lounge and bedroom areas and 60 in the kitchen. The adjudicator, with whom the appeal tribunal agreed, found that a FIIC of 77 could not be achieved with any sort of hard flooring and thus a condition imposing that level was unreasonable since it effectively prohibited an owner from installing a hard floor. She noted that a by-law may only regulate the use and enjoyment of lots and may not prohibit an activity altogether, especially where it is an “ordinary domestic activity”. In this case the test for whether the by-law is invalid is whether it is unreasonable. The onus was on Ms Johnson to satisfy the adjudicator of that fact. The adjudicator had to apply the proper tests to the facts that he found in concluding that it was unreasonable. And the facts that he found had to be supported by the evidence before him. I do not accept the body corporate’s submission that the adjudicator applied the wrong test. While he referred to the requirement in s94 that a body corporate act reasonably, he also referred to the separate requirement that a by-law be reasonable and, in my view, that is what he ultimately considered, concluding that it is unreasonable. Nor do I accept the body corporate’s submission that the adjudicator did not consider the reasonableness of the by-law having regard to the interests of all lot owners and occupiers. It is clear from the matters considered in paragraphs [61], [62] and [63] of his reasons that he took into account what he perceived, in the light of the evidence and submissions, to be those interests. In doing so, he attempted to consider the question of reasonableness objectively, having regard to all the circumstances. In the light of those circumstances, reasonable minds can differ as to whether or not something is reasonable. It is not for this tribunal to overturn an adjudicator’s decision even if this tribunal disagrees with the adjudicator’s conclusion on reasonableness, provided that the adjudicator reached that conclusion on the basis of objective facts as found by the adjudicator. While the adjudicator expressed his reasons in the first person,8 he was in fact expressing the reasons why, in his view and having regard to the interests of all lot owners, the by-law was unreasonable and was agreeing with submissions made to him by Ms Johnson. However, I agree with the body corporate’s submission that there was insufficient evidence for the adjudicator to make the finding (at [63]) that 8 For example, “I believe that it is reasonable for owners to update their lots …”: [62]. -- 9 of 14 -- 10 Flooring of such a nature cannot be considered practical or reasonable as it would require adjustment to all internal door openings over the floor and ramps at the entry way and at all interfaces with the existing carpet. Apart from the aesthetic impact, such a variation in floor level between rooms that are carpeted and rooms with hard flooring would create obvious trip hazards. It would also mean that doors would have to be cut down or replaced. The only evidence of a need to adjust or replace doors and to install ramps comprised comments by Ms Johnson’s acoustics expert to the effect that it would be impractical to install flooring with a depth in excess of 49mm. The body corporate asserts, in this appeal, that the acoustics expert was not qualified to express that opinion. The body corporate did not object to that evidence being taken into account by the adjudicator, so it should not ordinarily be permitted to resile, in this appeal, from its conduct of the application below. However, even taking that into account it seems clear to me that the acoustics expert was not qualified to express such opinions. Those opinions (and the adjudicator’s conclusion that to install such flooring would result in obvious trip hazards) could properly only be formed by a builder or flooring installer and perhaps a safety expert. The opinions expressed by the acoustics expert should not have been accepted, or at most should have been given little or no weight, notwithstanding the absence of objection by the body corporate. In my view, the adjudicator erred in (apparently) accepting that evidence. It is necessary to keep in mind that the onus is on Ms Johnson to demonstrate, on the basis of proper evidence, that the by-law is unreasonable. It was open to her to produce evidence of what would be necessary to do in her apartment in order to lay flooring of various depths (including 42mm, the lowest of those referred to in the table in paragraph [12] above). As I have said, appropriate witnesses to give that evidence might be a builder or flooring layer and a safety expert. It may have been open to the adjudicator to form those views independently, in the absence of any expert opinion, had he visited the site and seen the layout and dimensions of the apartment, its flooring and doors. But he did not do so. In the absence of any cogent evidence (including perhaps a view of the premises), his conclusions on those issues had no basis in the evidence and he erred in law in reaching those conclusions. Furthermore, the adjudicator based his decision on a finding (at [63]) that, while the body corporate’s evidence was that an LnTw of less than 45 can be achieved using specified underlay products, “this would involve a minimum installed depth in the vicinity of 50mm.” With respect, that finding was clearly wrong on the evidence. First, he appears to have construed the by- law as requiring an LnTw of less than 45, when in fact it requires that the LnTw be equal to or less than 45. Having regard to that fact, the table extracted at [12] above demonstrated that at least one flooring combination had achieved an LnTw of 45 with a depth of 42mm. While the evidence was -- 10 of 14 -- 11 criticised because the tests had not been undertaken in Ms Johnson’s apartment, nor in a living area, it was the best evidence before him and could not be ignored. He did not explain why he did not accept that evidence9 and the absence of a reasoned explanation for rejecting it is also an error of law. It is necessary also to address the last of the body corporate’s contentions: that the adjudicator did not, despite invitation, attend on site to have further testing undertaken in his presence, nor himself order that additional tests be done. In the last paragraph of its submissions to the adjudicator, the body corporate said: The Respondent invites the adjudicator to attend the Scheme to carry out his/her investigations. The Respondent is prepared to carry out additional tests related to the floor impact noise performance to demonstrate the stark difference between the L’nT,w score proposed by the Applicant, the L’nT,w score imposed through the by-law and the current L’nT,w score achieved by the carpet and underlay. Section 269 of the Act provides that an adjudicator must investigate an application to decide whether it would be appropriate to make an order. Section 271 provides that, when investigating the application, the adjudicator may, among other things, require a party to obtain a report or other information, or inspect a lot in the community titles scheme concerned. It is therefore compulsory for the adjudicator to “investigate” an application, but it is within his or her discretion how to do that. I considered the extent of an adjudicator’s obligation to investigate an application in Body Corporate for Grand Pacific Resort v Cox [2012] QCATA 14, at [36] to [42]. The principle relevant to this appeal is whether there was some logically probative evidence before the adjudicator which, if inadequate, should have led him to investigate further. If the evidence being examined contains some relevant evidence, it is an error for the adjudicator to treat that evidence as not providing any evidence without also investigating the matter further before rejecting that evidence. It is one thing to reject, improperly, some relevant evidence as being inadequate when there is some evidence showing a basis for adequacy and when the use of investigative powers under a general obligation to investigate might resolve the matter. It is completely different to say that there is some principle that where further investigations could have been made, but were not, there is necessarily an error of law in the approach of the adjudicator to the resolution of a question of fact. It is more a question of whether there is, or is not, an absence of logically probative evidence (perhaps as a result of a choice by the adjudicator to refrain from further investigation). 9 As I have said, it may be because he misconstrued the effect of the by-law. -- 11 of 14 -- 12 It can immediately be seen from the paragraph of the body corporate’s submissions extracted in [37] above that the invitation was not to view and consider what alterations would have to be made to door levels and what ramps would be required. I do not consider that the adjudicator should be criticised for not attending to consider those questions. But should he have taken up the invitation to attend and watch further tests being undertaken? Should he, at least, have required that tests be carried out in Ms Johnson’s living room with various flooring? Did he improperly exercise his discretion in not taking up the invitation or not requiring further tests? I do not consider that it was outside the proper exercise of the adjudicator’s discretion not to attend the site and listen to tests being undertaken. To hear sounds being produced is a uniquely subjective experience and a matter of personal impressions that could not, in my view, be of much assistance. Given that that was the object of the invitation by the body corporate, it was not an error of law for the adjudicator not to take up that invitation. Nor do I consider that he was obliged to require further reports. The evidence was fully dealt with by both parties and was logically probative. Neither party asked him to order further tests of, for example, Ms Johnson’s apartment, and either could have sought to have such tests undertaken as a joint exercise (if necessary obtaining an order to that effect). A joint report of the experts, having undertaken such tests, may have been useful and it would not have been inappropriate for the adjudicator to order that such a report be obtained. But I do not consider that it was an error of law for the adjudicator not to have done so, given the evidence that was before him and the absence of any suggestion by the parties that further evidence of that nature be obtained. I do not agree with Ms Johnson’s submission that the evidence demonstrated that the by-law is an effective prohibition on hard flooring. There was evidence that hard flooring could be installed in a manner that met the criterion. Indeed, there was evidence that a number of other lot owners have installed hard flooring, with the consent of the body corporate: a fact from which one might draw an inference that other lot owners have successfully installed hard flooring and met the criterion. The opinion evidence that it could not be done without making substantial changes to an apartment and without causing a trip hazard was not, in my view, of any weight given that the person giving it was not qualified to do so. The evidence was therefore not sufficient to demonstrate that the by-law in practice operated as a prohibition on the installation of hard flooring. There was some substance to Ms Johnson’s criticism of the evidence of tests undertaken by the body corporate’s acoustic expert, but the evidence was nevertheless cogent and relevant. I do not consider that the adjudicator made any error in referring to and relying on it, apart from -- 12 of 14 -- 13 apparently believing that it had been conducted in Ms Johnson’s apartment. The latter belief does not appear to have contributed to his final decision. Finally, I do not consider that the by-law is unreasonable simply because the advice obtained by the body corporate, in the light of which it imposed the 45dB requirement, noted that it would be extremely difficult for hard flooring to comply. The evidence before the adjudicator indicated that, although difficult, it was possible to comply using hard flooring. As I have said above, in the light of the inadequacy of the evidence about the effects on the apartment of flooring about 42 to 51mm thick, combined with evidence that other lot owners had installed hard flooring with the body corporate’s consent, the evidence did not go so far as to prove that it was practically so difficult as to be impossible to comply with the by-law. Conclusions In my view, the adjudicator made three errors of law that may well have affected the outcome of the application before him. a) First, there was no proper basis in the evidence for him to find that significant changes would have to be made to a lot owner’s apartment in order to install hard flooring that met the LnTw required by the by-law, and that as a consequence the by-law was unreasonable. b) Secondly, he appears to have overlooked cogent evidence that demonstrated that his conclusion, that a minimum floor height of about 50mm would be necessary to comply with the by-law, was wrong. c) Thirdly, in reaching the latter conclusion, he appears to have misconstrued the by-law as requiring an LnTw of less than 45 rather than equal to or less than 45. These errors lead me to the conclusion that the adjudicator’s decision should be set aside. While the appeal tribunal may itself exercise all the jurisdiction and powers of an adjudicator,10 it can only do so based on the material before the adjudicator and consistently with the adjudicator’s undisturbed findings of fact.11 In the circumstances I consider it necessary to refer the application back to the adjudicator for further consideration. It may be open to the parties, in that case, to provide further evidence in attempts to demonstrate each party’s case based on proper evidence, such as a joint acoustic experts’ report based on further testing, carried out in Ms Johnson’s apartment and the one below, and if necessary evidence from a builder or floor layer and 10 BCCM Act, s294(1); QCAT Act, s146. 11 Albrecht v Ainsworth [2015] QCA 220 at [94]. -- 13 of 14 -- 14 a safety expert. But whether such evidence is obtained will be for the adjudicator and the parties to determine. Costs The body corporate has sought an order that Ms Johnson pay its costs of this appeal. Ms Johnson opposes such an order, submitting that her opposition to the appeal was reasonable and there is no reason to override the usual situation in appeals to this tribunal, namely that each party bear its own costs: Queensland Civil and Administrative Tribunal Act, ss100, 102. The principles and bases on which the tribunal will make a costs order, despite the strong indication to the contrary evinced by ss 100 and 102, have been discussed in a number of cases including, with respect to an appeal, Better Homes Queensland Pty Ltd v O’Reilly [2013] QCATA 122. For a costs order to be made, the tribunal must be persuaded that the interests of justice positively require such an order: s102. The former President of the tribunal, Alan Wilson J, stated (with respect, correctly) that the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase “the interests of justice” point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s100.12 Although Ms Johnson made a brief submission against any order for costs being made, that was in her principal submission on the merits of the appeal. The body corporate has not made any submissions on the issue. I am not, therefore, currently in a position to make any order about costs. If the body corporate wishes to pursue such an order, then both parties should have the opportunity to make submissions on costs in the light of my reasons. I shall therefore make appropriate directions, in case the body corporate wishes to pursue such an order. If it does not make any submissions within the time provided, then its application for costs will stand dismissed. 12 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [29]. -- 14 of 14 --