Gayundah Gardens [2001] QBCCMCmr 395 (20 July 2001)

RA MeekREFERENCE: 0242-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15452
Name of Scheme:	Gayundah Gardens
Address of Scheme:	38 Gayundah Esplanade WOODY POINT QLD 4019

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

Michael Joseph Lucey, the co-owner of lot 6


RA MeekI hereby order that when invitees of the owner of lot 1, RW&CL King Pty Ltd, or the occupier, Mr Roy King, or any other occupier of lot 1, is in attendance at the lot, and the dog the subject of the application (a black toy poodle) is also in attendance, then the dog shall be carried from the garage of lot 1, or alternatively, the street, across the common property to the lot and vice versa, in which case the dog shall be carried at all times, in an orderly fashion so as not to cause nuisance to any other owner or occupier in their use of the common property.

I further order that whilst in attendance at the lot, the dog shall at all times be kept within lot 1 or the common property exclusive use area attaching to the lot, and not allowed at any time onto the common property walkway connecting the garages and lots or any other part of the common property of the parcel except when it is required to transport the dog to or from the garage to the lot, or the lot to the street, or vice versa.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0242-2001

“Gayundah Gardens” CTS 15452

The applicant, Michael Joseph Lucey, the co-owner of lot 6, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Order against Mr R King to prevent breaking by-law 11 by bringing his dog to his unit and allowing it freedom of movement on common property both inside and outside the building.

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)).

I am not prepared to restate the applicant’s grounds, nor the contents of the submission in reply to the application, in any detail. I am satisfied both parties are aware of the others material and have responded to it.

By-law 11 provides that –

Keeping of Animals

Subject to section 30(12), a proprietor or occupier of a lot shall not, without the approval in writing of the body corporate, keep any animal upon his lot or the common property.

There are several disputed allegations raised by both parties. I don’t intend to determine these aspects, as I don’t consider it necessary in order to determine this dispute. The occupier of lot 1, Mr Roy King (the occupier) has raised certain technical objections to the application. These are dismissed. I intend to make an order applicable to both the owner of lot 1 (a company) and to the occupier. Secondly, the fact of the occupier not being the owner of the dog is irrelevant to me. The application concerns the dog being bought onto the common property. It is this aspect with which I will deal.

In response to the application, the occupier states –

... Over a period of nearly 2 years since the unit was purchased either my daughter or myself have brought the dog onto the premises at the following times :- Boxing Day 1999, 2 nights and 1 day Easter 2000, Boxing day 2000, 2 nights and 1 day Easter 2001. He was also at the unit for a half day on two other occasions. The times he comes to the unit are when my daughter visits the unit at the same time as us or when she is away on annual holidays and we have to look after him. During the year my wife and I are rarely at the unit together so it is only on rare occasions that we need to bring him with us.

I have considered the reply of the applicant and note that the applicant does not challenge the accuracy of the above statement; in particular, by alleging that the dog has been kept on the premises longer than that stated in the occupier’s submission. In a limited way, the applicant’s reply in fact confirms the occupier’s statement. The applicant states that the dog “whilst in residence (my italics), does wander freely on common property”.

The occupier disputes the allegation that the dog does wander freely on the common property. The occupier states –

On the only two occasions that the dog has been on common area ground was when I walked out of the unit to go to the garage and the dog walked beside me on each occasion. The only way to gain access to the garage is by walking through the entrance hall or the rear driveway which are both common areas. Unit 1 has exclusive use of half of the front yard and gardens. There is no need for the dog to be running around in the hallway.

I do not intend to order in terms as sought by the applicant. Rather what I intend to order that on the occasions when invitees of the owner of lot 1, RW&CL King Pty Ltd, or the occupier, Mr Roy King, or any occupier of lot 1 for that matter, is in attendance at lot 1, and the dog in question is also in attendance, then the dog shall be carried from the garage of lot 1, or alternatively, the street, across the common property to the lot and vice versa. Whilst in attendance at the lot, the dog shall at all times be kept within the lot or the common property exclusive use area attaching to the lot, and not allowed at any time onto the common property walkway connecting the garages and lots or any other part of the common property of the parcel.

I consider the terms of this order to be satisfactory given the very limited periods the dog is in attendance at the lot. Moreover, I have noted that whilst submissions regarding the application were sought from all owners, only one additional owner chose to respond to the application, and that owner indicated support for the dog being kept at the lot during the occasions indicated. In particular, notwithstanding the applicant’s statement that other owners supported his position, no other owner wrote to confirm this. I conclude that this is at least an indication of the view held by the other owners towards the situation. Finally, I consider that there is a very limited amount of common property (excluding that which has been allocated by exclusive use) remaining at the parcel. Given this, I consider that the keeping of the dog at the lot on rare occasions as described does not create a nuisance, notwithstanding what the applicant might allege to the contrary. I consider that the applicant’s objection to the keeping of the dog, in the particular circumstances, to be unreasonable, notwithstanding the terms of the by-law.
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