MacArthur Court [2000] QBCCMCmr 53 (8 February 2000)

RA MeekREFERENCE: 0632-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	95
Name of Scheme:	MacArthur Court
Address of Scheme:	21 Douglas Street MANUNDA QLD 4870

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Geoffrey John Prior and Genevieve Prior, the occupiers of lot 3

RA MeekI hereby order that the notice of continuing contravention dated 28 September 1999 and signed by N Waters to the effect that the body corporate has reasonable grounds to believe that The Occupants of lot 3 are contravening by-law 11, is invalid and of no effect. y

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0632-1999

“MacArthur Court” CTS 95

The applicants Geoffrey John Prior and Genevieve Prior, the occupiers of lot 3, have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), to resolve a dispute regarding the keeping of a cat at the applicant’s unit.

Section 223(1) provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicant state that –

We have a cat living in our unit and it appears someone has objected to this fact. As the attached notice states that “approval in writing” is required to keep an animal, I suggest that this issue is voted on in the next body corporate meeting or a letter sent to all members of the body corporate requesting that they object to us having a cat in our unit.

Through our investigations we are convinced that the other residents in the complex have no objections to use having a cat in the unit. The owner of the unit also has no objections. There are only two other residents in the complex and they have animals as well (presumably without written approval).

In a facsimile to the body corporate manager, the applicant explained that –

My wife and I (and the cat) have been residing in Unit 3, Macarthur Court for over five years. The owner (Mr Alan Smith) has granted his permission for the cat to remain in his unit for this entire period and still has no objections to this day. During this period no complaint has ever been received about the cat and the owner of unit 2, Mr Dave Hard has a cat himself for approximately 2 years. ... We are therefore totally perplexed why this vindictive Notice has been issued and advise that the cat will remain in unit 3 until an investigation is carried out by NRQ and an appropriate decision made.

The notice the applicant is referring to is a notice of continuing contravention of a body corporate by-law, addressed to “The Occupants, Lot 3”. The notice states that the body corporate has reasonable grounds to believe the occupants have contravened the by-law relating to keeping of animals “by having a cat in your unit”. The notice is dated 28 September 1999, and signed by N Waters.

N. Waters has not responded to the application on behalf of the body corporate. In fact no owner has written to me supporting the terms of the notice. The only submission received is from the body corporate secretary, David Robert Hard, who is also the owner of lot 2. This submission is supportive of the position of the applicants.

The submission states that –

During that time (previous 4/5 years) I and the other occupants of the units were approached by the Priors to see if we objected to their having their cat at the premises. None of us objected. ... for a period of approx. two years prior to my wife and I leaving Cairns we had a cat as well. We also asked the other tenants if they objected to us having our cat. None of them did. ... The Prior’s cat has never been a nuisance, and has always been well behaved. ... I don’t object to them having their cat at the units.

In the circumstances, I fail to see that there is even a dispute. The secretary of the body corporate has indicated that he personally has no objection to the animal, nor believes that any other owner or occupier has any such objection. In the circumstances, I am unable to understand how the notice was even caused to be issued. I intend to order that the notice of continuing contravention dated 28 September 1999 and signed by N Waters to the effect that the body corporate has reasonable grounds to believe that The Occupants of lot 3 are contravening by-law 11, is invalid and of no effect.