Xanadu North [2002] QBCCMCmr 290 (10 May 2002)

RA MeekREFERENCE: 0268-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26993
Name of Scheme:	Xanadu North
Address of Scheme:	77 Pacific Street MAIN BEACH QLD 4217

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

Paul James Marquet, the owner of lot 106


RA MeekI hereby order that the body corporate of Xanadu shall not take any steps, or further steps, to implement its determination to refuse approval for the dog currently being kept by the owner of lot 106, Paul James Marquet, at that lot, until a final order has been made, this application is withdrawn, or this order is of no effect by operation of law.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0268-2002

“Xanadu North” CMS 26993

The applicant, Paul James Marquet, the owner of lot 106, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That we be granted permission to have a small Pomeranian dog in our apartment.

The Applicant has also sought the following interim order of an adjudicator, quote -

To cancel the decision to prevent our having a dog.

Section 225(1) provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicant states that the apartment was purchased on condition that the applicant was “given permission to have a dog” which permission “was granted by Meriton Apartments sales manager ... ”. The applicant further states –

We had no problem with body corporate at the time until management rights changed and new body corporate management. As evidence supplied herewith Xanadu was known as a “dog friendly” building. We have complied with all requests regarding the dog (eg) entry to and from building, use on community property.

The applicant has attached correspondence –

• of 15 February 2002 from the body corporate secretary advising that the request to keep a small dog within the lot had not been approved;

• of 10 April 2002 from E Arden Wood of Meriton Apartments Pty Limited which states that the dog “which was previously discussed with Eunice of Meriton, has been approved;

• other information.

The purpose of a final order is not to make any final determination in relation to the application. The interim order as sought by the applicant is to “cancel the decision to prevent our having a dog”. This would in fact be a final determination of the application, and as such, would be inappropriate in the context of an interim order.

In the circumstances, I propose to order that the body corporate not take any steps, or further steps, to implement its determination to refuse approval for the dog, until a final order has been made, this application is withdrawn, or this order is of no effect by operation of law. I consider that this order will preserve the status quo until a final determination can be made. I consider that no significant detriment will be occasioned to any party by the order proposed.

This order should not be interpreted by any party as indicative of the outcome of the final order. The intent of this order is merely to preserve the status quo until a final determination can be made.

This matter will now be investigated in accordance with the usual processes undertaken by this office. A final order regarding the application will be made in due course.

All parties should note the provisions of section 225(2) of the Act which provides that -

An interim order -

a)	has effect for a period (not longer than 3 months) stated in the order; and
b)	may be extended, renewed or cancelled by the adjudicator until a final order is made; and
c)	may be cancelled by a later order made by the adjudicator; and
d)	if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

All parties should be aware of this section and its effect on this interim order. In particular, the applicant may need to request a renewal of the interim order, before a final order is made. The onus of renewing an interim order rests with the applicant. This office will not automatically renew an interim order. n