Huang v Body Corporate for the Dorchester: when a BCCM adjudicator is a tribunal, not a public entity

A lot owner persuaded the Court of Appeal that the tribunal below had made an error. He lost the appeal anyway. The finding that decided it against him was not one he advanced: it came from his opponent’s notice of contention, and it was the opposite of what he had argued.

That is Huang v Body Corporate for the Dorchester CTS 10749 [2026] QCA 147, delivered on 7 August 2026. Bradley JA wrote the reasons, with Bond JA and Brown JA agreeing. Both the Attorney-General and the Queensland Human Rights Commission intervened, on opposite sides of the central question.

The result reaches past community titles. It sets out the features that make a statutory dispute-resolver a tribunal rather than a public entity, and it holds that the provision most often reached for to make human rights bite on a court or tribunal imposes no general duty to apply them. A right can still bear directly on a function it is directed to, as the Court accepted at [76]. What it cannot do is oblige a tribunal to canvass rights nobody has raised.

What the Court decided

Three questions were answered. The lot owner won one of them, lost another, and the third was his opponent’s and defeated him.

Leave was granted because the questions were of general importance and, as the Court noted at [34], may have some relevance for other decision-makers. The appeal was then dismissed on the respondent’s notice of contention. At [111] the Court put the split plainly: the lot owner “has persuaded the Court that the decision of the appeal tribunal was affected by an error identified in his notice of appeal”, and “the respondent has succeeded on its notice of contention”. One error established by him, and a separate one found at the body corporate’s urging that made his success beside the point.

How the dispute reached the Court of Appeal

The lot sits on the top floor of a Surfers Paradise scheme, with exclusive use of an area of rooftop common property. Before 2000 the owner built an enclosed bathroom there without authorisation, and the body corporate approved it after the fact. Engineer reports later traced water ingress to corrosion in a ventilation duct beneath the structure and recommended demolition so the infrastructure could be maintained. In March 2022 the annual general meeting rescinded the approval.

The owner applied for adjudication, arguing the body corporate had not acted reasonably as Body Corporate and Community Management Act 1997 (Qld) s 94(2) requires. The adjudicator dismissed the application. An appeal lies to the QCAT appeal tribunal under s 289(2), but only on a question of law, and that appeal failed too.

The critical procedural fact is recorded at [21]: in the adjudication itself, neither party raised any issue about the Human Rights Act 2019 (Qld), and no question about the construction of s 94(2) was put. The Court described it as unsurprising that the adjudicator gave the Act no consideration. The human rights argument first appeared on appeal. Everything that follows is shaped by that.

Why an adjudicator is a tribunal, not a public entity

The adjudicator was a public service employee, and so within the definition of a public entity in Human Rights Act 2019 (Qld) s 9(1)(b). But s 9(4)(b) excludes a court or tribunal “except when acting in an administrative capacity”. The Act defines “court” and leaves “tribunal” undefined, so the question became whether an adjudicator resolving a chapter 6 dispute exercises judicial power.

The Court applied the High Court’s summary in New South Wales v Wojciechowska (2025) 283 CLR 148, quoted at [48]: a judicial decision binds, determines existing rights and duties according to law, and applies a pre-existing standard rather than formulating policy. Measured against that, and as the Court set out at [49], the adjudicator was not conducting a merits review and was not substituted for the body corporate. He was determining the existing rights and liabilities of the parties against a concrete norm of reasonableness in s 94(2), was bound to decide, and bound the parties.

The one feature pointing the other way was that an adjudicator cannot enforce a decision. The Court accepted at [54] that this is “a strong factor weighing against the characterisation of its powers as judicial”, but held it was not essential, and would have assumed more importance only if the other features had indicated an administrative character. The conclusion at [55] is that the adjudicator was exercising a judicial function and was a tribunal within the meaning of the Act. Section 58 was therefore never engaged.

Whose point this was matters. The lot owner argued that the adjudicator was a public entity bound by s 58. The body corporate argued the contrary on its notice of contention and won it. That is the holding that dismissed the appeal.

The “private nature” exclusion looks at the decision, not the dispute

The appeal tribunal had reasoned that because the underlying disagreement was between a lot owner and a body corporate, the adjudicator’s decision was an act “of a private nature” excluded by s 58(4). The Court rejected that at [56]. The private character of a dispute does not determine the character of the decision-maker’s conduct in resolving it. The adjudicator was exercising a statutory function, judicial in nature and binding on the parties, and so was not acting in a private capacity. This was the lot owner’s ground, and the only one he made good.

How far it carries needs care. In a footnote to that paragraph the Court recorded that “the outcome of the appeal does not turn on whether the adjudicator was acting in a private capacity”. The conclusion is therefore considered obiter: unanimous, fully argued, and on a question the Court chose to answer, but no part of the disposition. Read it as persuasive on the construction of s 58(4) rather than as a binding correction, and note that for this adjudicator the question was academic in any event, because s 58 had already been held not to apply at all.

Section 5(2)(a) and the limits of “direct application”

This is the part with the widest reach, and it is the point the lot owner lost. Section 5(2)(a) applies the Act to a court or tribunal “to the extent the court or tribunal has functions under part 2 and part 3, division 3”, and part 2 is where the rights sit. The Commission argued that this makes certain rights apply directly to a court or tribunal acting judicially, relying on the Victorian Court of Appeal’s reading of the equivalent provision in De Simone v Bevnol Constructions & Developments Pty Ltd (2009) 25 VR 237. The Attorney-General argued that s 5 merely signposts obligations imposed elsewhere.

The Attorney’s construction was preferred. The reasoning at [73] to [81] is that Parliament did not simply list rights; it also specified how each organ of government was to give effect to them. As the Court put it at [64], for courts and tribunals that means s 48, the obligation to construe statutory provisions compatibly with human rights, with the declaration power in s 53 reserved to the Supreme Court. A freestanding duty to apply every right would sit oddly with those targeted provisions, and would require a tribunal to work out for itself which rights a decision might affect. Nothing in the Act, the Court held at [91], indicates an intention to give the judicial system here the inquisitorial nature of civilian courts.

The result, at [81], is a workable test. Whether a right applies directly depends on the function the court or tribunal is performing. In a civil proceeding, where a particular right is not in issue between the parties and no statute is to be interpreted, the right does not apply directly to that function. Applied here, at [104], neither party had put the property right in issue and no question of statutory interpretation arose, so the adjudicator was not required to apply s 24 directly.

The Court did not frame this as a clean break from De Simone. At [103] it said its conclusions “are to be preferred, notwithstanding that they may depart to some extent from the broadly expressed view of the Court in De Simone“. The hedge is deliberate and worth preserving, because the two positions are not flatly opposed: at [76] the Court accepted that a human right “might be said to apply ‘directly’ to courts and tribunals when performing functions to which the human right is directed”. The catchwords record De Simone as doubted, which is the accurate word.

What it changes in practice

For anyone acting in a body corporate dispute, the practical instruction is at [33]. The Court accepted that had the owner contended before the adjudicator that the rescission resolution was not reasonable because it arbitrarily deprived him of his property, the adjudicator would have had to determine whether that was so. The route survives. It runs through s 94(2), not through s 58.

Three consequences follow. The argument belongs in the adjudication, in the grounds, as part of the reasonableness case under s 94(2), rather than as a freestanding s 58 obligation. The Court put the test at [81] the other way round: where a right is not in issue between the parties and no statute falls to be interpreted, it does not apply directly to the function being performed. Direct application turns on that function. What [33] establishes is narrower and more useful, that this adjudicator would have had to determine a properly raised contention that the resolution was unreasonable under s 94(2) because it arbitrarily deprived him of his property. Leaving it until the appeal is a poor substitute rather than an absolute bar: leave was granted here and the construction questions were decided, but the appeal lies only on a question of law and there was no finding on the property contention to review. And the argument needs content: at [33] the Court noted that counsel was unable to identify with certainty the nature of the property in question or how the resolution might be characterised as arbitrary, which diminished the potential utility of an appeal.

The wider point is that the same analysis reaches any statutory dispute-resolver with the features identified at [49] to [54]. If the body determines existing rights against a fixed standard, is bound to decide, and binds the parties, s 58 is unlikely to reach it, even though it cannot enforce its own decision. The Court said at [34] that the questions may have some relevance for other decision-makers, and the reasoning on s 5(2)(a) is expressed in terms of courts and tribunals generally.

Published 12 August 2026.

What remains unsettled

There is still no appellate guidance on when a body corporate resolution arbitrarily deprives an owner of property, because the Court declined to decide it.

The relationship with De Simone is the more interesting gap. What exists is a considered difference on an equivalent provision, not a declared interstate split, and whether it is later treated as a divergence or a refinement is not something this judgment settles. The full reasons are on AustLII, and the provisions discussed are on the current reprint of the Human Rights Act.

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This article is general information only and is not legal advice. Queensland law and the figures referred to can change, and every situation turns on its own facts. Contact Fraser Lawyers for advice specific to your circumstances.

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