Banksia Terraces [2000] QBCCMCmr 593 (20 November 2000)

P G DanielsREFERENCE: 0364-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19892
Name of Scheme:	Banksia Terraces
Address of Scheme:	2-10 Banksia Avenue NOOSA HEADS QLD 4567

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

P G DanielsI hereby order that the Committee of the Body Corporate for Banksia Terraces community titles scheme 19892 is deemed to have passed a resolution consenting to Anne Elizabeth Marshall the owner of lot 6, to keep a cat and a cocker spaniel dog that are currently kept on lot 6 subject to the following conditions:

1.	The consents endure for the terms of the lives of the dog and cat;
2.	There will be no additional, substituted or replacement animals;
3.	The cat and the dog are to remain at all times within lot 6 except that the cat and the dog may be transported by vehicle across the common property;
4.	The Committee may withdraw the consent to keep the cat or dog or both of them should the keeping of the cat or dog or both of them cause a nuisance or unreasonably interfere with a person using another lot or the common property by the creation of excessive noise or otherwise PROVIDED THAT the Committee must give Anne Elizabeth Marshall seven days notice of the intention to withdraw the consent and allow Anne Elizabeth Marshall to make a submission about the matter.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0364-2000

“Banksia Terraces” CTS 19892

The Body Corporate for Banksia Terraces, the applicant, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

1.	Ms Anne Marshall of Unit 11, Banksia Terraces, 2-10 Banksia Avenue, Noosa Heads, remove the two animals (a dog and a cat) that she is keeping in her unit in contravention of the Body Corporate and Community Management Act 1997.

2.	Ms Anne Marshall reimburse the Banksia Terraces Body Corporate for legal fees and costs associated with her breach of the Banksia Terraces Body Corporate By-laws.

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)).

Ms Anne Marshall, the owner of lot 6, also referred to as unit 11, (the respondent) is keeping a dog and a cat in her lot without the consent of the Committee. The consent of the Committee is required pursuant to By-law 14 of the scheme’s By-laws which provides as follows:

“14. Subject to Section 30(12) no animals reptiles or birds shall be kept or allowed in any lot or on the common property without the consent of the Committee which consent may at any time be withdrawn.”

The issue to be resolved by this application is whether the applicant Body Corporate is entitled to an order that the animals be removed. I will also address the second order sought, the payment of costs.

The respondent purchased lot 6 in 1996. For a number of years she let the lot to tenants. Toward the end of 1999 she took up residence in lot 6. Prior to taking up residence, the respondent wrote a letter dated 7 October 1999 to Dan Philpot, for Secretary, stating that the dog and cat would be kept in lot 6. The letter relevantly states:

“This letter is also to inform the Body Corporate, through you, that I will have two pets living with me – a13 year old tabby cat and a 9 year old black Cocker spaniel. My cat is a very timid, desexed male and spends most of the time indoors. My dog is a small house dog, a desexed female; also very timid, and is walked twice a day.”

The respondent received a response to her letter from Ms Brenda Marshall, the chairperson of the applicant. The response was by way of letter dated 15 October 1999 in which it is stated the respondent’s request to keep the dog and cat is denied, although there was an expression of sympathy for the distress of the respondent.

The respondent moved into her lot with the cat and dog. The applicant states that the respondent then sought to obtain support from other owners so that she would be allowed to keep the dog and cat.

The applicant held its annual general meeting on 13 January 2000. The applicant resolved through motion 17 as follows, “It is resolved that the committee be authorised to take legal action for a breach of By-laws in that animals are kept without authority of the body corporate.” The voting was 6 yes, 5 no and 1 abstain. I have read the respondent’s submissions about the meeting: paragraphs 9 and 10. I do not need to resolve issues in respect of the calling of the meeting and the use of proxies.

The applicant was served with a “Notice Regarding Likely Future Contravention of a Body Corporate By-law” dated 19 January 2000 which stated the contravention as, “By keeping a dog and cat in your Unit without the written approval of the Body Corporate you have contravened the above by-law.”

The applicant was subsequently served with a “Notice of Continuing Contravention of a Body Corporate By-law” dated 19 February 2000 which stated the contravention as, “By keeping a dog and a cat in your unit you are contravening the above By-law.”

After receiving the above notices, the respondent unsuccessfully sought to mediate the dispute with the applicant through the mediation program of the Dispute Resolution Centre.

The chairperson, Brenda Marshall and Treasurer/Secretary, Joan Stanbury, forwarded a letter to owners dated 17 March 2000 in which they sought the opinions of the owners about the matter. The applicant states in its grounds that, “eight owners were strongly opposed to animals being kept at the units while only two responded that they were happy to have animals kept at the units.” In the reply to submissions, the applicant has updated the situation. It is stated in the reply that due to changes in ownership there are now 8 owners not in favour of animals being kept and 7 owners in favour of animals being kept. The views of one lot owner were unknown. The applicant makes the point in the reply that of those not in favour of animals, 6 are resident owners and of those in favour of animals only 2 are resident owners.

The respondent sought Committee consent to keep the dog and cat by letter dated 11 April 2000. The Committee resolved to refuse consent on 26 April 2000.

The respondent has subsequently obtained Council approval to keep the dog in her lot.

The above sets out the background to the dispute. I will now consider the two orders sought, commencing with the order regarding the removal of the animals.

The primary duty of any Body Corporate in enforcing the by-laws of a scheme is that it must do so reasonably: section 87 of the Act.

In the context of this primary duty, it is relevant to ascertain how the applicant has previously administered By-law 14.

There is evidence that the Committee of the applicant has previously given consent to keep animals in exceptional circumstances. The Committee of the applicant must continue to enforce By-law 14 on that basis or there will be a contravention of section 87 of the Act.

In 1993, two owners were given consents to keep a dog and a cat respectively in order to facilitate the sale of the units to those persons. There is a document attached to both the application and submission from the respondent that indicates the matter was addressed at an annual general meeting of the applicant on 3 November 1993. That document has the following relevant paragraphs:

“RESOLVED that the proprietors of Unit 15 be permitted to continue to keep a dog in their Unit provided that the animal is not permitted to unnecessarily venture on to common property, specifically the swimming pool area and other proprietors’ property.

RESOLVED that the proprietors of Unit 10 be permitted to keep a cat in that Unit.

It was noted for the information of all proprietors and tenants that requests for approvals to keep animals within Lots would be dealt with by the Body Corporate Committee according to the merits of each particular case and that the approvals Relating to Units 10 and 15 were not to be regarded as a precedent.

It was also noted that any approvals given were subject to the right of the Committee to withdraw that approval if in there (sic) opinion the animal in question was creating a nuisance for other residents.”

More recently, a tenant in the respondent’s lot, Mrs Wilson, was given consent to keep a cat on compassionate grounds. A letter from Jim Mills to Noosa Getaways gives details about the matter. He states that the consent was given due to the exceptional circumstances of the illness of Mrs Wilson’s daughter. The consent was only for the balance of the lease. It is stated in the reply of the applicant that Mrs Wilson subsequently moved from unit 11 to unit 15. The owner of lot 15 terminated the lease as Mrs Wilson did not have consent to keep the cat in unit 15.

There is further evidence that the Committee administers by-law 14 by considering exceptional circumstances that relates to this particular application. It is in two letters. I have referred to the first letter above. It is from the Committee to owners dated 17 March 2000 seeking their opinions on the dispute. It relevantly states on the second page, “As stated previously, she has made no request to be permitted to keep animals in her Unit to the BC Committee nor has she provided documentation to the BC of any ‘exceptional’ circumstances of her case which are required by the BC Committee to assist in assessing any request she may make.” The second letter is from Joan Stanbury, the Secretary/Treasurer, to the respondent dated 4 April 2000 in which it is relevantly stated, “We note despite efforts made by Body Corporate Committee members to accede to your wishes and view documentation of “exceptional” circumstances in your home regarding the keeping of animals in your unit you have not made this material available within seven days as requested.”

The question that needs to be addressed is whether there are exceptional circumstances that would allow the respondent to keep her pets.

In my view such circumstances do exist. It relates to the mental health of the respondent. There are two relevant letters that have been provided by the respondent. The first is a letter from John McManus, Consultant Psychologist. It has two dates at the top of the letter, 25 February, 2000 and 12 May 2000. The letter relevantly states:

“In my capacity as a Consultant Psychologist, I have provided therapeutic assistance to you over the period of approximately the last eight years. In this time I have found you to be stable and reliable person. However one element of your presentation has been an underlying tendency to depression. Consequently it has been my consistent advice to you to develop strong support around you. This might be achieved in the work environment, the social environment and the home environment.

It has come to my attention that as a single mother you have drawn great support from the relationship with your daughter. I am also aware of the imminent likelihood of your daughter leaving home to pursue work elsewhere. I understand that you also receive great personal comfort and support from your two pets, a cat and a dog. The research evidence strongly supports the crucial role for pets in a home environment such as yours.

Therefore it is my opinion that it is in the interest of your ongoing good state of health, that you keep pets and maintain this important activity.”

The second letter is a “To Whom it May Concern” letter from Dr Jane Thompson, Consultant, King Edward Memorial Hospital for Women dated 24 February 2000. It relevantly states:

“My aunt has, according to her daughter, Natasha, suffered two ‘nervous breakdowns’. As a medical practitioner this terminology is fairly meaningless but would suggest a state of severe incapacitating agitation or depression. Unfortunately my aunt, as I do myself, come from a family in which there is a definite genetic depressive component. My mother and aunt’s mother killed herself by hanging when my mother was 24 years of age, and my aunt around 14 years of age. My mother has lived in a chronic state of depression for which she is presently undergoing treatment. It is well known that depression may be an inherited disorder and while my aunt and myself probably do not have the liability that other family members suffer from, she is undoubtedly at risk

...

I believe that to separate my aunt from her long standing pets would serve no benefit other than to cause great distress and misery to both the animals and my aunt and the medical consequences could for anybody be severe but considering my aunt’s family background would actually put her in an “at risk category”.

The above letters demonstrate that the respondent has at least a tendency toward depression and the keeping of animals is useful in the control of the condition. Whilst the above information is very personal to the respondent, I have quoted it as it is particularly relevant to this application.

In my view this constitutes exceptional circumstances particularly as a previous tenant of the respondent’s lot was allowed to keep a cat on compassionate grounds due to her daughter’s illness. As stated above, that previous consent was only for the balance of the relevant lease and related to one cat. In this case, the respondent seeks to keep two pets for the remainder of their lives. Despite the increased request of the respondent from the previous consent, it is my view that she has presented exceptional circumstances.

I will make an order that the Committee is deemed to have given consent to the keeping of the dog and the cat. I will make my order subject to a number of conditions which the respondent has agreed to in her submission. These are, no additional, substituted or replacement pets, the consent exists for the terms of the natural lives of the pets and the dog and cat are to remain within lot 6. However, I have provided that the cat and dog may be transported by vehicle across the common property.
Additionally, I will impose a condition that the consent of the Committee may be withdrawn at any time should the keeping of the dog or the cat or both of them cause a nuisance or unreasonably interfere with another person using another lot or the common property by the creation of excessive noise or otherwise. Prior to withdrawing consent the Committee will have to give the respondent seven days notice to make a submission about the matter. One matter that is of particular concern to me is that there are already allegations that the dog is making excessive noise. The applicant states in its reply, “The owner occupiers on the southern side of Ms Marshall have complained of hearing her dog barking on many occasions and of being distressed by the day-long howling of her dog on occasions when Ms Marshall has left her animal locked in her unit during her absences.” The respondent should carefully take that matter into account. The Committee can withdraw the consent to keep the dog if it is creating excessive noise.

In light of my order above, it would not be proper to make a costs order against the respondent as sought by the applicant. In any event, I do not have power to make orders for the payment of costs as there is no express power to that effect in the Act.

Finally, I do want to mention that it appears to me that the applicant has an active Committee and owners sincerely interested in the success of the scheme. Whilst it is understandable that the dispute may have strained some relationships, I encourage all owners and Committee members to once again work toward a harmonious community titles scheme.