Temamere Gardens [2002] QBCCMCmr 295 (14 May 2002)

C G YOUNGREFERENCE: 0128-2002

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, unless the body corporate committee is sooner satisfied that the dog being kept by Anthony and Geraldine Hutchinson of Lot 3 falls within the provisions of section 143 of the Act as a guide dog and therefore may by law be retained by them on the lot, 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 3, Anthony and Geraldine Hutchinson, 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 3, Anthony and Geraldine Hutchinson, 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. C G YOUNG 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0128-2002

“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. This owners solicitors were notified in writing & by telephone that animals were not permitted in units prior to purchase of the property. Copy of advice attached, By-laws CMS No. 19441 Standard Module. The residentshave been advised verbally that pets are not permitted and this advice has been disregarded.”

JURISDICTION:
This is a dispute between the body corporate, the applicant, and the occupiers of a lot, Anthony and Geraldine Hutchinson of Lot 3, 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 being the owners of Lot 3, Jill Phillips and Graham Bates, whereas the dog is being kept by the occupiers Anthony and Geraldine Hutchinson. It is the occupiers who are in breach of the by-law, not the owners, and therefore the correct respondents are the Hutchinsons. I shall proceed with the application on this basis.

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. 127-2002 against the residents of Lot 4. Many of the general comments made in these reasons are 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 has attached a copy of a note (undated, but evidently sometime in the latter half of January 2002) sent to the solicitors acting for the purchasers of Lot 3, Bruce Gleeson, which asks that he inform his clients that, “no dogs are permitted – is a rule of the By-laws and is upheld”.

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.

Anthony Hutchinson has made a submission, stating that they moved into Lot 3 on 30 January 2002. He states that the real estate agent said that there was already a dog in Lot 4 and therefore they should have no problem. He further states that they have been unable to give an explanation of their reasons to the committee on keeping the dog. The dog was purchased for therapy reasons, on medical advice, after his wife Geraldine suffered a nervous breakdown, and it was only after obtaining the dog that there was an improvement in her mental health. He is certain that removal of the dog would undo that good.

Additionally, she suffers a substantial hearing loss in both ears and has had an operation to insert plastic aids to her inner-ear function. He then states –

”The dog acts as her ears when I am away from the house for any period of time, this is reassuring for her and makes her feel safe in her own home.”

For the above reasons the respondents (Hutchinsons) 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.”

Under the major amendments of 3 October 1988, section 30(12) of the BUGT Act made all animal by-laws subject to the Guide Dogs Act 1972 and that is repeated in section 143 of the current Act. Section 5 of the Guide Dogs Act 1972 allows a person the absolute right to be accompanied by a guide dog, both for blind and deaf persons, and section 143(3) of the Act states that a by-law cannot interfere with that right.

The amendments of 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”, subject of course to the guide dog provision.

The respondent’s argument concerning reassuring comments by the real estate agent has no legal merit in opposing the application. Nor does the fact that the committee acted without first seeking any explanation from them. In regard to the therapeutic value of the dog as a pet for Geraldine Hutchinson, though an adjudicator can be sympathetic of that reason, the policies of the owners must also be given recognition and effect too. That is, there is a heavy onus on potential purchasers to know the rules of a body corporate before they settle their purchase. 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. Except for the third reason, these are the same as those given in my reasons to Order 127-2002.

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.

Thirdly, providing Geraldine Hutchinson can show that her hearing disability is such that she falls into that category of person given rights under the Guide Dogs Act 1972 and section 143 of the Act to keep a guide dog, then she has an absolute right to keep the dog despite the by-law. She will need to obtain convincing proof of that to show the committee. If so, they will be bound to allow the dog to stay; if they do not then a brief application accompanied by the necessary proof will establish her rights.

I will now repeat the reasons given to Order 127-2002 based on the foregoing reasons.

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 keep the dog on the lot.