Xanadu North [2002] QBCCMCmr 405 (21 June 2002)

RA MeekREFERENCE: 0268-2002

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 application by Paul James Marquet, the owner of lot 106 for an order that he be granted permission to have a small Pomeranian dog in his apartment, is dismissed.

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

“Xanadu North” CTS 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.

On 10 May 2002, the following interim order was made -

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kept by the owner of lot 106, Paul James Marquet, at that lot, until a final order has been made, this application is withdrawn, or this order is of no effect by operation of law.

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 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 he 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 including an article which apparently appeared in the Gold Coast Bulletin on Saturday 5 May 2001 which identifies “Xanadu” as allowing pets.

The body corporate secretary has responded to the application on behalf of the body corporate committee, opposing the application.

The submission indicates that “a number of purchasers had approval to keep an animal as a condition of their Sale Contract with the original owner”. The submission then notes that the body corporate committee were not advised of any such approval in the case of the owner of lot 106.

I outline the contents of the body corporate submission as follows –

• At a committee meeting held on 20 June 2001, the owner of lot 141 sought approval to keep a dog. The committee resolved to refer the matter to the body corporate in general meeting “with the decision to give the committee a direction on future applications”. The applicant was apparently in attendance at this meeting;

• On 19 July 2001, the committee received written application to keep a dog from the owner of lot 106. This letter indicates that the dog was yet to be purchased;

• At the AGM held on 16 August 2001, the motion in respect of the keeping of a dog by the owner of lot 141 was lost;

• A decision by the committee on the request by the applicant to keep a dog was deferred at a committee meeting held on 15 October 2001 “as not all committee members were in attendance”;

• At the committee meeting held on 1 February 2002, the applicant tabled correspondence dated 26 October 2001 to him from the solicitor for the original owner which stated –

Body Corporate consent to a pet dog (Pomeranian)

We confirm that all requests for consent to a dog were referred by our office to the body corporate shortly after registration of the relevant Strata Plan.

We confirm Eunice Arden-Woods advice that had you sough permission at the time for your dog it would have been granted by the body corporate.

• The committee submission states that on the basis of this correspondence and the fact that a motion for the owner of lot 141 to have approval to keep a dog within that lot was lost at the AGM, the committee resolved that approval not be given to the owner of lot 106 to keep a dog;

• The submission concludes that “the owner appears to be seeking retrospective approval via the original owner to keep a dog. We refer to Meriton Apartments Pty Ltd correspondence addressed to the owner of lot 106 dated 10^th April, 2002. Meriton Apartments no longer has authority to grant such approval”.

I agree with the committee’s submission that the circumstances of this application indicate that the applicant did not originally seek permission to keep a dog from the original owner, but is now seeking to obtain body corporate approval on this basis, probably in the knowledge that the application by the owner of lot 141 to keep an animal had been refused.

I intend to dismiss the application was being without merit. I conclude that the decision of the body corporate committee refusing the applicant permission to keep a dog to be a reasonable one.






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