Thorngate Park [2002] QBCCMCmr 85 (15 February 2002)

RA MeekREFERENCE: 0547-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19368
Name of Scheme:	Thorngate Park
Address of Scheme:	23 Thorngate Drive KERRYDALE QLD 4226

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

RA MeekI hereby order that the application by the body corporate for an order that the adjudicator order the removal of the cat from lot 52, is approved.

I further order that within six (6) weeks of the date of this order, the owner of lot 52, Faye Louise Downs, shall remove and thereafter keep removed from her lot and the parcel generally, the cat presently being kept by her at the lot. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0547-2001

“Thorngate Park” CTS 19368

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

That the adjudicator order the removal of the cat from lot 52.

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 owner of lot 52 was notified ... on 12^th January 2001 that a cat was noticed on lot 52, and advised the owner in writing that this was in breach of the by-laws and that the cat be removed.

On 31^st January 2001 the owner sought to have a motion placed on the agenda of the AGM to allow the cat to be kept.

The motion was submitted on 18^th April 2001 and, lost 18 No 2 Yes. ...

The owner of lot 52, Faye Louise Downs (Downs), has responded to the application by way of submission. In that submission, Downs states that at the time of purchase in April 2000, she was provided with a copy of the by-laws which stated –

Item 11 Keeping of Animals

Subject to local authority requirements a proprietor or occupier of a lot may keep one small domestic animal upon his lot or any property for which he has exclusive use.

Downs attaches a copy of these by-laws with her submission. Downs further notes contacting the secretary “to obtain a copy of the current by-laws and advice in relation to resolving the issue” including a request for a motion to be placed on the agenda of the AGM. Downs basis for seeking a resolution that the cat be allowed to stay was stated to be:-

• The information provided by the building manager at the time of purchase of lot 52;

• The existence of various animals species residing at Thorngate Park;

• The emotional attachment formed with the cat;

• The purchase of the lot and the cat in good faith.

I am informed by the body corporate that Downs motion was lost by a vote of 18 to 2 against her being permitted to keep the animal.

Downs further refers to correspondence from the building manager to her of 23 March 2001 wherein he denies the statements which she attributes to him. The letter states in part –

Firstly I have never advised you that any Dog or Cat currently resides at Thorngate Park, as this is a totally false and misleading statement as no animals resided at Thorngate Park at the time of your purchase.

Secondly I clearly stated to you during your inspections prior to your purchase of lot 52 that animals such as Dogs or Cats are no longer permitted under our By-laws.

Thirdly to say that these animals do reside at Thorngate Park is baseless and could only be based on Here Say and rumour and should be treated as so. ... (the letter goes on in this vein).

Finally Downs states that her submission to oppose this application is based on the grounds –

• The distribution of incorrect By-Laws by the Building Manager, in particular the By-law relating to the keeping of animals;

• The presence of other animals (with or without the approval and / or acknowledgement by the body corporate and / or Building Manager) and the singling out of the presence of my cat;

• The request for inclusion of my cat as per by-law 12.2 is not unreasonable based on factual information.

In note that under by-laws recorded for this scheme on 8 February 1995, the following by-law headed “Keeping of Animals” was included as number 11 –

Subject to local authority requirements a proprietor or occupier of a lot may keep one small domestic animal upon his or any property for which he has exclusive use.

However on 9 June 1999, a new set of by-laws was recorded, which included by-law 12 headed “Keeping of animals”. That by-law provided –

12.1 Subject to section 143 of the Act, an owner or occupier of a lot shall not bring or keep any animal or permit an invitee to bring or keep any animal upon his lot or the common property.

12.2 And (sic) owner or occupier who currently has possession of an animal is permitted to keep that animal upon his lot, but upon the death of such animal, shall no be entitled to replace the said animal with any other animal.

Downs became the registered owner of her lot on 19 June 2000 according to departmental records. The latter by-laws relating to keeping of animals applies to her. Under this by-law, the owner is not permitted to bring or keep an animal upon her lot or the common property. There is an exception for animals existing at the time of the by-law being recorded. Downs was not an owner at this time, and consequently this exception could not apply to her.

I am not satisfied of the accuracy of any or all of Downs statements, in particular those which she attributes to the building manager. In particular, I am not prepared to accept the allegation that she was provided with a statement of the original by-laws by the manager. These are simply allegations, which in any event are denied by the manager. Downs provides no further corroboration to support the truth or accuracy of her statements. This is the central contention of Down’s basis for keeping the cat.

Downs then appears to claim that she should now be allowed to keep the cat as, she alleges, it does not cause damage to the common property or lots, make noise or interfere with the peaceful enjoyment or comfort of other lots, or act as a nuisance or hazard. This application will not be determined based on the cat’s alleged habits. The keeping of the cat by Downs is contrary to the by-laws by which Downs is bound. I am satisfied that Downs was aware of the correct by-laws when she purchased. In any event this is irrelevant as by-laws are binding on owners and occupiers irrespective of knowledge for the practical reason that if it were otherwise, persons alleged to be in contravention would simply deny knowledge, as is the case here.

Downs was not permitted under the by-laws to bring or keep an animal upon her lot or common property. I intend to order the removal of the cat from the lot and the parcel generally.
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