Grand Mariner [2002] QBCCMCmr 79 (14 February 2002)

D P GardinerREFERENCE: 0597-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4264
Name of Scheme:	Grand Mariner
Address of Scheme:	12 Commodore Drive PARADISE WATERS QLD 4215

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

Mrs Vanderbent

D P GardinerI hereby order that the application for an order that the owners of Lots 1 and 2 be 2n
entitled to keep a small dog within Lots 1 and 2 and the courtyards allocated to each of those lots be dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0597-2001

“Grand Mariner” CTS 4264

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

“that the owners of lots 1 & 2 be entitled to keep a small dog within Lots 1 and 2 and the courtyards allocated to each of those lots”

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 light of the facts as presently explained in the application, the submissions and supporting documentation, it appears to me that the application is premature as there has as yet been no determination by the body corporate regarding the keeping of a small dog by the applicant on lots 1 & 2.

As a result, there is no decision capable of being reviewed and therefore the application must be dismissed.

It seems that the appropriate course that ought to be adopted is for the applicant to request that an extraordinary general meeting be called to consider a motion seeking approval for a small dog to be kept by the applicant on lots 1 & 2. In the event that the secretary or another member of the committee of the body corporate do not for whatever reason do not call an extraordinary general meeting within 21 days of being requested to do so, the applicant is authorised pursuant to s, 38 (c ) of the Body Corporate and Community Management ( Accommodation Module ) Regulations 1997 to call such a meeting.

The information provided with the application clearly indicates that the keeping of other animals is occurring in other lots, in particular lots 156 and 180. The keeping of the animal in lot 156 was the subject of an order by another adjudicator, a copy of the reasons for decision in that case being enclosed.

In dealing with the issue of a small dog being permitted in lots 1and 2, I am confident that the body corporate will be heedful of the remarks made above and the remarks made in the reasons for decision in the case involving lot 156 that the Body Corporate cannot discriminate between lot owners.

Lastly, I do not consider that the resolution of this issue necessarily requires the change of a by-law and therefore question whether a new Community Management statement is needed

Whilst I have dismissed the application, I have made the subsequent comments to assist the applicant and the body corporate and to facilitate an effective resolution of this matter without the need for further recourse to this Office.




2n