Heritage Court [2001] QBCCMCmr 497 (7 September 2001)

RA MeekREFERENCE: 0427-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19879
Name of Scheme:	Heritage Court
Address of Scheme:	14 Sovereign Place BOONDALL QLD 4034

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

Allan John Egen, the co-owner of lot 25


RA MeekI hereby order that on the agenda of its next general meeting, the body corporate for Heritage Court shall include a motion in simple terms, as follows –

That the owners of lot 25, Allan and Pamela Egan be permitted to keep a cat at their lot during its lifetime, but that the cat not be replaced in the event of its death, and further that the cat be confined to the lot, and not be permitted onto any part of the common property or another lot.

I further order that the owners of lot 25 Allan and Pamela Egan shall be allowed to address the meeting and to explain their circumstances to all those present at the meeting.

I further order that the motion shall be determined by ordinary resolution.

I further order that if the motion is not carried, then within one (1) week of the date of the meeting at which the motion is considered is held, the owners of lot 25 Allan and Pamela Egan shall remove, and keep removed, from the lot, and the parcel generally, the cat presently being kept by them.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0427-2001

“Heritage Court” CTS 19879

The applicant, Allan John Egen, the co-owner of lot 25, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Permission to keep an animal on the lot (cat) after several refusals of applications being denied.

The Applicant also sought an order of an adjudicator, and on 16 July 2001, the following interim order was made, quote -

RA MeekI hereby order that the body corporate of Heritage Court shall not implement or take any further action in respect of the Notice of Continuing Contravention of A Body Corporate By-law which it issued to “Mr A and Mrs P Egan” dated 3 July 2001, until a final order to this application is made, this application is withdrawn, or this order is of no effect through operation of law.

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)).

This is one of two applications regarding this matter. The second application is number 0437 of 2001, an application by the body corporate seeking removal of the animal from lot 25. Clearly these two applications are interrelated and both have been considered by me in determining the respective applications.

I do not intend to restate the supporting grounds to each application. I consider that the grounds of each application are known to the respondent to that application in consequence of the submission process. Both applications involve allegations and counter allegations, such that it is difficult to determine any clear merit in the actions of the parties to either application.

Certain aspects appear relatively clear however. In particular, the Egans bought the cat to the parcel, without first obtaining the permission of the body corporate as required by the by-law. The body corporate become aware that the Egan’s were keeping a cat in consequence of certain complaints made by other owners regarding the cat. The body corporate initially made request for the cat to be removed from the lot, and when this was refused, served contravention notices on the Egans seeking removal of the cat. It was following this that the Egans belatedly sought body corporate permission for the keeping of the cat. When permission was refused, the Egans made application to this office seeking to overturn the body corporate’s refusal of permission to keep the cat.

The Egan’ principal allegation is that –

We believe we are not being unreasonable given the circumstances and that permission has been verbally granted to another lot owner by the committee chairman to keep a cat on the lot at a meeting, which I was present at, on 26^th August 2000 with other witnesses present.

The body corporate has responded to this allegation as follows –

Mr Egan refers to the EGM of 26/08/00. At this meeting another owner Mrs E Wilcox informed the meeting that she had, from time to time kept her daughter’s cat on her premises whilst her daughter was away from home ... and that it was only for a few days at a time and that the cat was trained not to go outside her unit. Mrs Wilcox had previous permission to keep a cat of her own. ... As Mrs Wilcox had never allowed her own cat outside her unit the chairman and committee were unaware it had died. (All approvals were given on the understanding that only an old animal could be brought in and when it died could not be replaced). ... When she explained her situation a vote was taken and the meeting (not just the chairman or the committee) approved, by majority but with some dissensions, that Mrs Wilcox could mind her daughter’s cat for short periods of time.

The body corporate goes on –

As Mrs Wilcox had made her statement at the August 2000 meeting it was an excellent opportunity for either Mr or Mrs Egan to make a similar statement about their cat. This they failed to do at both meetings. Perhaps, given the circumstances, if the matter had been raised, the body corporate might have been sympathetic to his problem. However, Mr Egan chose to ignore the by-laws and their requirements by pursuing his own selfish interests and by his actions displayed an “unreasonable” attitude to the interests of other residents.

In the circumstances, based on all the material available to me in respect of both applications, I have reservations about the relative merits of the actions of both parties. However I am not satisfied of the applicant’s (Egans) principal allegation, namely that the body corporate is acting in a discriminatory manner towards them. I consider the body corporate is correct to the extent that the Egans have not acted in good faith regarding this dispute to the extent that the Egans did not seek body corporate permission for the keeping of the cat prior to bring it onto their lot, and the common property. I acknowledge that the Egans only sought permission belatedly, and only after the body corporate had served notice of contravention on them requiring removal of the animal. In the circumstances, I can understand the reluctance of the committee to grant permission in circumstances where the Egans acted in clear contravention of the by-law. Moreover, the body corporate committee further alleged that the Egans failed to avail themselves of several opportunities to seek permission for the animal at several meetings, included the meeting at which the other owner sought permission, which was granted, to keep a cat, on her lot only, on an irregular basis. To this extent I conclude that the Egans application and various allegations of impartiality on the part of the body corporate lack credibility.

However, having said this, I have limited concerns that the body corporate’s decision to require removal of the cat might have been motivated, in part, by reasons not solely related to the keeping of the animal itself. In particular, the Egans acting in contravention of the by-laws (which is in fact related), and previous dealings between the body corporate and the Egans. Moreover, any situation where a body corporate makes different decisions on essentially the same aspect, in this case the keeping of animals) is always open to criticism and allegations of inconsistency and impartiality.

In the circumstances, what I intend to order is what the body corporate did in a fashion in respect of its previous determination regarding animals. Namely to put the matter to a vote of members, not simply the committee. This will removal any doubt regarding alleged impartially on the part of the committee. I intend to order that the body corporate include a motion on the agenda of its next general meeting. The motion should be in simple terms, and not seek to influence the outcome of the vote in any way. For example –

That the owners of lot 25, Allan and Pamela Egan be permitted to keep a cat at their lot during its lifetime, but that the cat not be replaced in the event of its death, and further that the cat be confined to the lot, and not be permitted onto any part of the common property or another lot.

Mr or Mrs Egan should be allowed to address the meeting and to explain their circumstances to all those present at the meeting. They are also at liberty to canvass the votes of owners who might not attend the meeting personally, and vote by voting paper ahead of the meeting. The motion should then be determined by ordinary resolution. It follows that the Egans are permitted to keep the cat at their lot until the next general meeting is held. However, I suggest to the Egans that they confine the cat to their lot. If this motion is not carried at the general meeting then I intend to allow the Egans one (1) week from the date of the meeting to remove the cat from their lot, and the parcel generally. Consequently, the Egans should make prior alternative arrangements on the basis that the keeping of the cat might not be approved by the body corporate in general meeting.