Kenmore Views [2001] QBCCMCmr 15 (12 January 2001)

P G DanielsREFERENCE: 0524-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19101
Name of Scheme:	Kenmore Views
Address of Scheme:	19 Merlin Terrace KENMORE QLD 4069

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

Susan Mellor a co-owner of lot 34



P G DanielsI hereby order that a decision of the Body Corporate for Kenmore Views community titles scheme 19101 as recorded in a letter dated 22 September 2000 from Body Corp Management Pty Ltd to Susan Mellor, a co-owner of lot 34, that an approval given to Mrs Mellor to keep a cat on lot 34 had been revoked and requiring removal of the cat from lot 34, is invalid and of no effect.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0524-2000

“Kenmore Views” CTS 19101

The applicant, Susan Mellor, a co-owner of lot 34, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

I be allowed to retain our family pet (cat) on our property at Kenmore Views.

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)).

The applicant has received notice to remove a cat kept on her lot. She seeks an order that would allow the cat to remain. Coralie Mott of Body Corp Management, the body corporate manager for the scheme, has made a submission on behalf of the Body Corporate (the body corporate submission). The background is as follows.

The applicant was originally given approval to keep two cats at a Committee meeting on 23 March 1996.

The minutes of the Body Corporate’s annual general meeting on 12 September 1996 state that, “... Barard Management Pty Ltd write to all owners and occupiers and advise that any person who has a pet must apply, or reapply to the body corporate for permission.”

The applicant made further application. It is stated in the body corporate submission that the Committee decided to reject the application at a meeting on 7 November 1996. However, at a Committee meeting on 3 December 1996 the following resolution was passed:

“LOT 34: RESOLVED that the proprietor of Lot 34 be granted permission to keep the remaining cat on the following conditions:-

1.	That it is kept at all times within the confines of lot 34.
2.	That the proprietor of Lot 34 accepts responsibility for any damage it may cause.”

(“the 1996 approval”)

It is stated in the body corporate submission that by the time of the Committee meeting on 3 December 1996 one of the applicant’s cats had died.

It is stated in the grounds of the application that the applicant, her two daughters and the surviving cat moved to Melbourne in 1997 and lived for three years in that city. I note a letter from the applicant to the body corporate manager dated 21 February 2000 that indicates they lived in Melbourne from February 1998. It is not necessary for the purposes of this application to determine when the departure occurred. They returned to live at lot 34 in 2000.

In the period that they had been away, a community management statement with by-laws was recorded. By-law 13 prohibits the keeping of animals. The community management statement was recorded on 15 April 1999.

The Committee had initially considered a change to the animal by-law at a meeting on 11 October 1997. The minutes indicate that the Committee noted legal opinion that “Any change to by-laws will apply to future not present animals ie residents of lots 1, 2, 14, 22, 23 and 25 may apply and receive approval.”

Lot 34 is not mentioned in the list of lots. Perhaps the reason is that the applicant was living in Melbourne at the time.

The “legal opinion” is correct. When moving from an “approval” animal by-law to a “prohibition” animal by-law, a body corporate cannot generally require that existing approved animals be removed pursuant to the new by-law as this is considered unreasonable and a contravention of section 87 of the Act. The approval under the previous by-law continues to have effect.

In my view, the 1996 approval for lot 34 also continues. It was given prior to the new prohibition By-law. The approval continued to exist even though the applicant, her daughters and the cat went and lived in Melbourne for three years. I note that the Body Corporate considered a motion to approve the keeping of the cat at its annual general meeting on 29 August 2000. The motion was defeated. In my view a further Body Corporate approval was not necessary. The 1996 approval continued in force.

The applicant, her two daughters and the cat moved back to lot 34 in 2000. The body corporate submission indicates this happened about March 2000.

The Body Corporate received two adverse reports in respect of the cat.

A report was forwarded from Harry De Boer the resident manager and owner of lot 7. The report is dated 17 August 2000 and states:

“To date I have had four complaints and numerous comments on the cat belonging to the owner of unit 3.

1)	The cat gets into garages and sits on bonnets and car roofs.
2)	The cat gets locked into the garage all day [?] all night.
3)	The cat somehow manages to get into neighbours units.
4)	The cat gets in our yard and the owners come onto our property to retrieve it.
5)	How come they have permission when we were told “no pets”.
6)	Will I be reimbursed for damage done to my vehicle.
7)	The cat defecates in my yard.

The other report was made by Philippa McKennariery, the owner of lot 36. It is dated 24 August 2000 and states:

Could I please bring this letter to the notice of the body corp members that I have an objection to the white cat now at unit no. 3. I have no objection to it being kept within the boundaries of the town house it belongs to but it has once been locked inside my garage [?] and I found it there two hours later. It also wanders very freely into my garage on other occasions when the door is left open. It has been at the top of my steps on several occasions, has used the area under my stairs as a toilet and has three times been sitting on the roof on my car – I do not object to cats but do not want it in my town house area.”

The applicant received a letter dated 22 September 2000 from Ms Mott on behalf of the body corporate manager which relevantly states:

“We act on the instructions of the Committee of the Body Corporate of Kenmore Views.

It has been confirmed that, since your return to residence in Kenmore View earlier this year, you have been keeping a cat. A number of verbal and written complaints have been received by the Body Corporate from other residents regarding this action. These complaints include allegations that your cat has fouled private lots, that your cat became locked in another resident’s garage overnight and caused damage to a vehicle, and that your daughters have trespassed on a private lot to gather the cat.

[Reference is then made to the 1996 approval.]

The Committee has not information to prove or disapprove that the current cat is the specific one in question. [My underlining]. Nevertheless, without prejudice, we note that you have breached the stared conditions of approval and must advise that the approval is hereby revoked.”

An initial reading of the underlined sentence indicates that the Committee did not know if the applicant’s cat was causing the trouble. That is how the applicant understood the sentence. However, I think Ms Mott means that the Committee is uncertain if the current cat kept by the applicant is the same cat that received the 1996 approval. I am supported in that interpretation of the sentence as the body corporate submission suggests that I should check the matter by reviewing photographic evidence.

Ms Mott forwarded the above letter after speaking to Committee members. There had been no formal Committee meeting at which it was resolved to revoke the former approval and require that the cat be removed.

The applicant and her two daughters responded by letter dated 18 October 2000. It sates:

1)	As you point out in your letter of the 22 September the committee has no information to prove or disprove that our cat was the cat causing the said problems.

2)	All animals take some time to adjust to their new home, our cat did explore its new surroundings for a short period of time. However we can assure the committee that our cat has well and truly settled into his new home, and we are sure that he is not causing any problems to any other residents.

3)	We are taking every precaution to make sure that our cat does not leave the confines of our property, and we will continue to do so.

4)	We have also been investigating various different products with the view to further making sure that our cat stays within our property. We enclose a copy of a brochure of a product called Catmax which appears suitable for our needs.

... ... ...

In conclusion it must be apparent to you that our cat is a very important part of our lives, he has been a part of our family for six years, and we would be Devastated if we could not keep him.”

I will now consider the actions of the Body Corporate in respect of this matter.

The primary obligation on a Body Corporate when enforcing by-laws is to act reasonably: section 87 of the Act.

The Committee considered two reports about the cat from Harry De Boer and Philippa McKennariey.

The report of Harry De Boer refers to complaints and comments from other persons without naming those persons. In my view, the report can only reasonably be relied on where Mr De Boer gives his own personal evidence. In my view, it is unreasonable to rely on indirect evidence where persons are not even named.

The reports of Harry De Boer and Philippa McKennariey certainly contain direct evidence that establishes a contravention of the 1996 approval. There is evidence that the cat in question has not been kept within the confines of lot 34. I accept the evidence.

However, there is no evidence that the applicant was given notice that a problem existed or was invited to make a submission about the matter. Further, there is no evidence before me that the applicant was given copies of the reports from Harry De Boer and Philippa McKennariey.

In my view the Body Corporate actions detailed in the previous paragraph are unreasonable. It is obvious that the keeping of the cat is something of great value to the applicant and her daughters. In this sort of case, it seems to me that a member of the Committee or another person speaking on behalf of the Committee could have at least warned the applicant of the problem and given her an opportunity to address the matter. I want to make it clear that I am not stating that warnings have to be given on every occasion that a Body Corporate seeks to enforce a by-law. I am stating that it would have been reasonable on this occasion given the significance of the decision that the cat be removed.

I will make an order that the decision to revoke the 1996 approval and require removal of the cat is invalid and of no effect.

However, I do want to inform the applicant that the keeping of the cat has already caused problems in this scheme. The cat has not been kept within the boundaries of lot 34. The applicant must take appropriate steps to address the problem and ensure that it does not reoccur. If there are any further problems, the Body Corporate can take action. I suggest that the Committee consider the matter at a properly constituted meeting.

Finally, it is stated in the body corporate submission that I should ensure that the current cat of the applicant is the same cat that received the 1996 approval. It is submitted that I should refer to photographic evidence. In my view, it is for the Body Corporate to establish this matter. If the Body Corporate believes this is the case and can prove it, then it can require the current cat be removed and seek an order from an adjudicator if necessary. An adjudicator could consider the merits of the matter. However, I note at this point that it is indicated in the letter of the applicant and her two daughters dated 18 October 2000 (referred to above) that their current cat is the one that received the 1996 approval.1n