7 Oaks North [2001] QBCCMCmr 54 (6 February 2001)

P J HanlyREFERENCE: 0631-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10907
Name of Scheme:	7 Oaks North
Address of Scheme:	7 Freyburg Street, SORRENTO QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for 7 Oaks North CTS 10907

I hereby order that within three (3) months of the date of this order, Nanette Maureen Leslie Stewart-Sandeman and David George Stewart-Sandeman, the co-owners of Lot 25, shall remove and shall keep removed, from the scheme, the cat being kept on the scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0631-2000

“7 Oaks North” CTS 10907

The body corporate has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) that the owners of Lot 25 remove an animal from the community titles scheme.

Section 223(1) of the Act 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 body corporate states that the owners of Lot 25 have brought a cat onto the scheme in contravention of By-law 14. It is stated that the respondents have ignored a “Notice of Continuing Contravention of a Body Corporate By-Law” seeking compliance with this by-law and that they have subsequently refused to remove the animal from scheme land. The committee, at its meeting dated 18 August 2000 resolved to make an application for an adjudicator’s order should the above notice not be complied with by the owners of Lot 25.

A copy of the application was forwarded to the respondents and to the secretary for distribution to all owners and to the committee.

Four lot owners (excluding the respondents) have opposed the application. These submissions made reference to the fact that the issue of the keeping of animals has been the subject of disagreement within the body corporate over a long period of time. This dissension is evident from the applications for orders of an adjudicator relating to this issue which have been received by this office. In Application Ref No. 747-1998, an adjudicator invalidated a previous by-law relating to restricting the number of animals kept on the scheme. In Application Ref No. 71-1999, an adjudicator refused the order sought by the body corporate that an occupier remove a dog primarily on the basis that the body corporate had relied on the abovementioned by-law which was held to be discriminatory and therefore invalid.

The submissions also make reference to the Extraordinary General Meeting (“EGM”) dated 9 May 2000. It was at this EGM that the body corporate consented to a new Community Management Statement (“CMS”) containing the current keeping of animals by-law. It is claimed that procedural decisions made at the EGM regarding the voting of lot owners altered the outcome of the relevant motion. Such matters should have been more properly dealt with by application for an order of adjudicator seeking to void the relevant motion.
This office has not received such an application. The only application lodged with this office concerning the EGM was an application for an interim order of an adjudicator (Ref No. 245-2000) which sought to prevent the meeting from proceeding. This application did not deal with the issues now being raised as the order dismissing the application was made before the disputed EGM.

Despite of the opposition from some lot owners regarding the by-law concerning the keeping of animals, the relevant by-law (numbered 14) contained in Schedule C of the CMS for this scheme states:

KEEPING ANIMALS

(a) Subject to Section 143 of the Act (guide dogs), an Occupier must not,

i)	bring or keep an animal on the Lot or the Common Property, or
ii)	permit an Invitee to bring or keep an animal on the Lot or the Common Property.

(b) Notwithstanding by-law 14(a), all existing animals in the scheme with Body Corporate approval or with notification made to the Body Corporate, as at 9 May 2000, are approved until the Occupier vacates the Lot or the animal dies. However, no new consents will be given by the Body Corporate after 9 May 2000. Any existing consents may be withdrawn at any time, if the animal creates any nuisance (including unacceptable noise), or if any of the conditions in section (c) have been breached.

(c) i) Animals must be de-sexed and vaccinated.

ii) Animals are subject to any local authority by-laws in force at any time, must have a collar with identification, cats must have a bell on the collar, and dogs must be registered.

iii) Dogs must be of the small lap-dog breed. Dogs must be exercised off the common property and must be kept on a leash while crossing common property to enter or leave the scheme. Occupiers with a dog must have an approved courtyard fence.

iv) Animals must be kept inside from dark until dawn.

v) Only one animal is permitted at lots with a pet approval.

This CMS took effect on the date it was recorded by the Registrar of Titles, namely 12 May 2000. Section 53 of the Act provides that the CMS for the scheme is binding on the body corporate, each member of the body corporate, and to each person who is not a lot owner but is an occupier of a lot included in the scheme. Section 87 of the Act provides that a function of the body corporate is to enforce the CMS. The body corporate must carry out its functions reasonably and for the benefit of the owners of lots included in the scheme.

In this instance, the body corporate committee has sought to enforce By-Law 14 against the owners of Lot 25 who are keeping a cat. The by-law does not allow for any discretion in respect of authorising an owner or occupier to keep an animal.

Nanette Stewart-Sandeman has, on behalf of the respondents, submitted that when they purchased Lot 25 they were advised that the body corporate was considering eliminating animals from the scheme. Ms Stewart-Sandeman has stated that it was not until after the purchase of the lot was completed that they became aware that the new by-law was backdated to the EGM dated 9 May 2000. In regards to the questions raised by Ms Stewart-Sandeman in her submission concerning general administrative and management issues, I suggest that she contact the Information Service provided by the Commissioner on Freecall 1800 060 119

This office has determined a great number of disputes concerning pets and animal by-laws over many years. The guiding principles observed in making orders in respect of those disputes have been that the decisions of the body corporate should be supported unless there is evidence of either acquiescence or discrimination.

I do not consider that acquiescence is an issue as the respondents became the registered owners of Lot 25 on 31 July 2000 and the committee gave a continuing contravention notice on 29 August 2000.

Ms Stewart-Sandeman has made a claim of discrimination arguing that other occupiers have been allowed to keep an animal. I do not agree with this argument as the body corporate has made a by-law which prevents an occupier from bringing an additional animal onto a lot or common property. In making such a by-law, the body corporate obviously has to consider the implications for those owners or occupiers who at the relevant time had approval to keep an animal. The body corporate has done so by including transitional provisions in the by-law. I am of the opinion that the body corporate has not discriminated against the owners of Lot 25 for the reason that other occupiers can only keep animals in accordance with By-Law 14.

In addition, the respondents cannot plead ignorance of this by-law. Firstly, the chairperson and secretary have, in a reply to the submissions made in response to the application, given written evidence that the statement to be given by the seller to the buyer of a lot (in this case, Lot 25) under section 160 of the Act contained information concerning the outcome of the EGM and the by-law relating to the keeping of animals. Secondly, it would have been obvious from any search of the records of this office under section 247 of the Act conducted by or for the purchaser of Lot 25 that there was a degree of disagreement within the body corporate regarding this matter. Thirdly, the respondents as purchasers with a distinct interest in the keeping of an animal should have undertaken a proper investigation of the records of the body corporate to discover the appropriate information.

For these reasons, I have ordered that the owners of Lot 25 must, within three months of the date of this order, remove and keep removed from the scheme the animal currently being kept on Lot 25.