Gemini Towers [2002] QBCCMCmr 406 (21 June 2002)

DP GardinerREFERENCE: 0269-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14084
Name of Scheme:	Gemini Towers
Address of Scheme:	23 -27 Griffith Street NEW FARM QLD 4005

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

DP GardinerI hereby order that the respondent remove the dog being kept in his lot (lot 84) from scheme land.

I further order that the respondent is prohibited from bringing or keeping an animal or bird on to scheme land or his lot (lot 84).2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0269-2002

“Gemini Towers” CTS 14084

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

“Ira Smith comply with the by-laws and remove the animal being kept in his lot from the scheme land and not to keep any animal on his lot or the common property in future without the written approval of the body corporate.”

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 sets out in detail the history behind this dispute which I have summarised as follows:

• During the period 20 March 2000 to 4 October 2000, the body corporate committee formulated its policy in relation to the keeping of animals on scheme land, the policy being that as from 1 December 2000 animals and birds were prohibited with owners to be requested to effect removal of any animals that were on site by 30 November 2000.

• On 4 October 2000 a formal notice was issued to the respondent (as one of the residents who were believed to be keeping an animal or bird on site) requiring removal of his animal from his lot and scheme land.

• On 15 November 2000, the body corporate committee considered a request from the respondent for permission to keep a dog on his lot and resolved that the dog should be removed as recorded in the minutes sent to the respondent and all other owners.

• On 26 April 2001, the respondent advised that he would be living elsewhere for several months with the animal being removed from scheme land.

• On 15 August 2001, a likely future contravention notice was sent to the respondent at the request of the body corporate committee in light of the dog being kept on the premises after a continuing contravention notice had issued on 4 October 2000.

• In late 2001, the respondent resumed residence along with the dog. A verbal request made for removal of the dog does not appear to have been complied with by the respondent.

• Motions submitted by the respondent at an annual general meeting on 20 January 2002 essentially for the keeping of a dog on his lot were defeated by 19 votes to 3 and 16 votes to 3 respectively.

This application with which I am presently concerned appears to derive from an earlier determination by another adjudicator that an application may be made for removal or retention of the dog if there was a continuing dispute regarding the keeping of this animal on scheme land.

I have carefully read the submission from the respondent and all of the information he has provided. I appreciate the remarks made by a general practitioner, Dr. Gooch, and am sympathetic to the respondent’s circumstances and the medical condition that the respondent has experienced.

I do not consider the actions of the body corporate to have been beyond power nor do I consider there has been a denial of natural justice. Whatever significance may attach to the ‘principle of double effect”, I do not consider it to be of moment here in especially in light of the voting at the annual general meeting on the motions submitted by the respondent.

This is a scheme to which the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies.

In my view, the relevant by-law provides that a proprietor shall not keep any animals on his unit or the common property after notice in that behalf from the council.

It is not disputed that the respondent has not obtained the approval of the body corporate or the body corporate committee for the keeping of this dog on scheme land. It is also very clear that the body corporate in general meeting has made it quite apparent that it is strongly opposed to the keeping of animals and birds on scheme land.

Further, the history of this matter is such that acquiescence on the part of the body corporate cannot be imputed to it, nor can it be said to have acted in a discriminatory manner as the body corporate is treating all owners equally in respect of the issue of keeping animals and birds on scheme land.

In the result, the order I make is that the respondent remove the dog being kept in his lot from scheme land within 14 days of the date of this order and that the respondent is restrained from bringing or keeping any animal or bird on to scheme land or on to his lot.

2n