Kahala Towers [2002] QBCCMCmr 161 (26 March 2002)

DP GardinerREFERENCE: 0664-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11262
Name of Scheme:	Kahala Towers
Address of Scheme:	Cnr Bonney Avenue & Victoria Parade CLAYFIELD QLD 4011

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

Mr GB and Mrs BG Bassingthwaighte, the Owner of lot 16



I hereby order that the application for an order that the applicants be permitted to keep a dog in their lot is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0664-2001

“Kahala Towers” CTS 11262

The applicant Mr GB and Mrs BG Bassingthwaighte, the Owner of lot 16, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -
“ that the applicants be permitted to keep our little dog in our premises, being unit 16/114 Bonney Avenue, Clayfield. 4011. “

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 ma contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicants describe in some detail their version of the formulation of the by-law which relates to the keeping of animals by lot owners and cites the presence of animals (cats) in other lots as supporting their claim for the order set out above.

While I have not set out verbatim the supporting grounds detailed by the applicants, I have carefully read all the information they have provided and given appropriate weight to the applicants ‘ submissions.

I have also read all of the submissions received from other lot owners and analysed the information provided.

The starting point in this analysis of the facts as presently explained is a consideration of by-law 22.28 which provides:
“ No animals or birds shall be kept in any unit without the consent of the Committee which consent may at any time be withdrawn “.

The issue of the presence of a dog in the applicants ‘ lot was discussed at a body corporate committee meeting held on 28^th August 2001 when it was unanimously resolved that the applicants be requested to remove the dog, no application having been received seeking the consent of the body corporate committee for the keeping of the dog.

Following this decision, the applicants wrote to the body corporate committee seeking consent for keeping the dog.

This request was considered by the body corporate committee at its meeting on 21^st October 2001 with a decision being made that consent to keeping the dog would not be granted.

I note that brief medical reports have been supplied by each applicant’s medical practitioner suggesting that exercising the dog is important for their physical wellbeing. Whilst I attach importance to these opinions, I do not consider that they are sufficient by themselves to warrant an order being made in favour of the applicants.

In light of the provisions of by-law 22.28, the decisions by the body corporate committee requesting removal of the dog, the strong support shown by lot owners for the decision of the body corporate committee, and the absence of a request to keep a dog made at an early time, I affirm the decision of the body corporate committee and dismiss the application.
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