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Jimmy T’s comment is a very sensible and sound summation. What the discussion has opened up is the difference between the by-law complained of, and the standard model bylaw 6 of Schedule 1. As it happens, the reference to “common property” is absent also from bylaw 7.1 at the heart of the Franks case in the Supreme Court which I quoted, and might have precedence value in any challenge to the adjudicator’s decision.
The adjudicator determined that he did not have “declaratory powers” to grant any of the orders sought in relation to the NTC for alleged breach of a bylaw. However in the Franks case, the Adjudicator had no problem in making an order that pursuant to s.138 “the respondent shall not use language or behave in a way that is reasonably likely to offend or embarrass another owner or occupant of the strata scheme or their visitors.”
So, one adjudicator declined to use s.138 to resolve a dispute; another made an order to comply with exactly the same bylaw terminology. Question – Is the essential difference that one was asked to resolve a dispute at the initiative of an owner on whom a NTC had been issued, while the other was responding to a complaint by the owners corporation, alleging that the owner had breached the bylaw? (There was no mention in the Supreme Court report of the case that a NTC had been issued before the OC applied to the adjudicator for orders). Is the difference significant?
When is a dispute not a dispute? Finally, is this really a question of law, or the personality of the adjudicator?