Temamere Gardens [2002] QBCCMCmr 294 (14 May 2002)

C G YOUNGREFERENCE: 0127-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19441
Name of Scheme:	Temamere Gardens
Address of Scheme:	15 Ann Street, Kallangur Qld 4503

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

C G YOUNGI hereby order that within three (3) months of the date of this order, the body corporate must provide all owners with a copy of this order (and the accompanying reasons) together with a written motion for the approval of the occupier of Lot 4, Andrew Shilton and Nicole Reiske, to keep the dog currently being kept by them on their lot, in the terms set out in the last three paragraphs of the reasons to this order.

I further order that owners must be allowed not less than three (3) weeks to return their written vote and that the motion will be decided by a simple majority, providing the persons voting constitute a quorum as if for a general meeting.

I further order that this order is self-executing in accordance with the decision of owners on the motion in that, if the motion fails to pass, then the occupiers of Lot 4, Andrew Shilton and Nicole Reiske, must remove the dog, and any other dog, from the lot, and must not afterwards bring or allow any dogs to be brought onto the lot or common property.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0127-2002

“Temamere Gardens” CTS 19441

The applicant Body Corporate for Temamere Gardens has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“Residents are in contravention of the body corporate by-laws in that they are keeping a dog in their premises. The residents were made aware of this contravention of the by-laws at special general meeting dated 13-1-2002, copy of minutes of meeting attached. The animal has not been removed, and an order is requested.”

JURISDICTION:
This is a dispute between the body corporate, the applicant, and the co-owners of a lot, Andrew Shilton and Nicole Reiske of Lot 4, alleging a breach of the body corporate by-laws regarding the keeping of animals on the scheme. It therefore comes within the dispute resolution provisions of the Act (see sections 182, 183 and 223).

The application actually names the respondents as “Mr & Mrs Shilton” whereas the co-owners are as named above. I am satisfied as to the identity of the respondent parties and shall deal with the application as being made against the correct co-owners.

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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).


APPLICATION AND SUBMISSIONS:
At the outset I mention that this is one of two applications lodged by the body corporate against residents keeping dogs on their lots, the other being Application No. 128-2002 against the residents of Lot 3. Many of the general comments made in these reasons is also applicable to the other application. In view the common nature of the disputes, orders in respect of both applications are being issued at the same time.

In the supporting grounds, the applicant states that the respondents attended the general meeting of 13 January 2002 when the following motion was passed –

“The owners of unit 4, A & N Shilton, were reminded that they were in contravention of the body corporate by-laws by keeping a dog in their unit. All agreed by majority that the existing by-laws not be amended.”

Despite the oxymoron of “All agreed by majority”, it is evidence that the respondents (Shilton and Reiske) were informed by the body corporate of being in breach of the animal by-law (but see later).

A copy of the application was provided to all owners who were invited to make a submission to the dispute. Most owners made a submission to one or both applications, some being in favour of the body corporate action and others against it. One owner is critical of the general behaviour of the committee in failing to comply with the legislation relating to notices of meeting, meeting agenda, minutes, accounts, and audits. Another owner is also critical of the committee’s behaviour, though believes the prohibition on animals should be upheld.

The respondents have made a submission through their solicitor, Michael Hefford of Kallangur. They contend that the by-law requires that an owner is required to remove an animal after notice from the local government council, the Pine Rivers Shire Council, not the body corporate as the applicant states. Additionally, the relevant resolution is not minuted as being put forward and seconded in the same manner as other motions were at the meeting. They state that the dog is a small one that does not leave the lot, and, when the owners are at home, the animal does not bark so as to annoy other residents. The seller told them before purchase that a small dog should not be a problem to keep on the lot, and they did not receive a copy of the by-laws until some 6 weeks after taking up possession of their lot. For all of these reasons the respondents ask that the application be dismissed.


DETERMINATION:
“Temamere Gardens” was registered as a group titles plan (now termed a “standard format plan”) on 12 October 1983. Under the Third Schedule by-laws of the Building Units and Group Titles Act 1980 (“the BUGT Act”), the governing legislation at the time, the animal by-law read as follows –

“Keeping of Animals.

A proprietor or occupier of a lot shall not keep any animal upon his lot or the common property after notice in that behalf from the council.”

The amendments of 3 October 1988, later amendments and the current Act, all provide that existing body corporate by-laws covering animals prevail where they are inconsistent with the new animal by-laws inserted from time to time. In simple terms this means that the above original by-law is still the animal by-law for “Temamere Gardens”. I understand that the committee considered the changed animal by-law brought in by the 1988 amendments, to be that applicable to “Temamere Gardens”.

The argument by the respondent concerning the role of the Pine River Shire Council is in error as the term “council” refers to what is now termed the body corporate “committee” (see section 7 definition BUGT Act). It was the frequent confusion amongst these two bodies that led to the term being renamed. The other grounds put forward by the respondent are also of little weight: motions do not have to seconded at meetings; the remarks by the seller as to the acceptability of a small dog is of no legal effect; and it is the responsibility to obtain their own by-laws – the legislation binds a person to the by-laws whether or not they have read them.

I would state also here that, as from 13 July 1997 with the commencement of the current Act, every contract for the purchase of a community title lot must have as its first page, by law, a warning statement; this statement advises potential purchasers of many things, including that they should obtain a copy of the body corporate by-laws, and it specifically warns purchasers that animal by-laws may restrict them bringing a pet onto a scheme. The respondents purchased after that date and should have read that important part of their contract.

However, I have not made the order sought by the body corporate for the following reasons.

Firstly, the Act introduced a system for bodies corporate to deal with breaches of by-laws in sections 144 to 146 of the Act and the relevant prescribed forms. For animal breaches of this sort, the body corporate should have issued a “Continuing Contravention Notice” against the respondents, following the form (BCCM Form 10) in setting out the offenders details, the text of the relevant by-law, the facts of the breach, and the time period for remedying the breach.

If the offender fails to comply with the breach, then under section 144(3)(e) the body corporate may prosecute the offender in the Magistrates Court, or may make application to an adjudicator. In this case the body corporate did not follow this procedure. While this does not necessarily mean that an adjudicator cannot deal with the matter directly, it is usual practice to require it, and in this instance there are other matters leading to my rejecting the application.

Secondly, because of the close division of opinion amongst owners, I consider that all owners constituting the body corporate should decide the matter. I am aware of the decision of the meeting on 13 January 2002 (referred to earlier), however the style and evident deficiencies in the minutes, coupled with the complaints of two owners regarding the lack of proper notice, agenda, etc., causes me doubts as to the validity of the meeting.

Accordingly, I consider the most appropriate way to resolve the dispute is for the body corporate in general meeting, which has a paramount decision power over the committee, to decide whether the dog should stay or be removed. That is, all owners eligible to vote will have the opportunity to review the decision of the committee not to approve the animals.

In order that all owners will be able to make an informed vote on the matter I have included in my order that the secretary must send a copy of this order and reasons to each owner. I have also ordered that the decision will be by simple majority (providing a quorum of four owners vote) and that it can be undertaken by a voting paper being forwarded to each owner (with the order) containing a suitable motion regarding the dog. Both the respondents and the body corporate (committee) will be allowed to include an explanatory note with the voting paper, in each case not to exceed two hundred (200) words. This method will avoid the inconvenience of calling a special meeting for the purpose of deciding a motion on the issue. I have also ordered that owners should be given not less than three weeks to return their vote.

The order will be self-executing, that is, if approval is not given then the respondents must remove any dog and keep them removed; if it passes then the respondents will be able to keep the dog on the lot.