Helensvale Villas [2003] QBCCMCmr 279 (9 December 2003)

Last Updated: 17 May 2005

REFERENCE: 0341-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7889
Name of Scheme:	Helensvale Villas
Address of Scheme:	11 Lindfield Road HELENSVALE QLD 4212

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

the Body Corporate for Helensvale Villas

I hereby dismiss the application for an order to remove an unapproved pet from Lot 19.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0341-2003

"Helensvale Villas" CTS 7889

APPLICATION

This application was made by the Body Corporate for Helensvale Villas (applicant) on 28 May 2003 under the Body Corporate and Community Management Act 1997 (Act) pursuant to a committee resolution on 7 May 2003. The applicant sought an order against Kay Blackburn, owner of lot 19 (respondent) to "remove an unapproved pet (cat) from the scheme".

Helensvale Villas community titles scheme (Helensvale Villas) consists of 32 lots and common property. The community management statement for Helensvale Villas indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme.

PROCEDURAL MATTERS

Under section 243 of the Act, a copy of the application was provided to the respondent and to all owners, with an invitation to respond to the matters raised in the application. A submission was made by the respondent. The applicant did not avail itself of the opportunity to inspect the submissions received or make a written reply (see sections 246 and 244 of the Act).

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

JURISDICTION

This is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228, 276 and Schedule 5 of the Act).

Section 276(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 the Act or the community management statement; or
(c) a claimed or anticipated contractual matter about -

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

MATTERS IN DISPUTE

The application relates to the respondent’s keeping of a cat which the applicant asserts is contrary to the by-laws of the scheme. The facts of the dispute, as outlined in the application and submissions, can be summarised as follows.
On 1 June 2002 the applicant received a facsimile from the respondent advising that she was purchasing lot 19 and wanting to know the situation regarding pets. The body corporate manager responded shortly afterwards that the by-laws required prior written consent and that "The committee will not give consent for any more pets, those owners who presently have consent, have so only until the pets death." The relevant by-law is as follows:

"11 Keeping of animals

An owner or occupier of a lot shall, with the prior written consent of the Body Corporate, be permitted to keep household pets upon their lot or exclusive use area. Otherwise, an owner or occupier shall not:

(a) Bring or keep an animal on the lot or the common property;

(b) Permit an invitee to bring or keep an animal on the lot or common property."

The body corporate manager wrote again on 14 June 2002 advising that they were aware that there was a cat in lot 19 and explaining that this was a breach of the by-laws. The respondent wrote on 25 June 2002 requesting reconsideration and asking for a 3 month trial to "prove myself as a responsible pet owner". In August 2002 the secretary advised that the committee had approved a three month probation period and indicating that the situation would be reviewed after that time. The respondent received no further correspondence until February 2003, and apparently believed that this meant that ongoing approval had been given.

In February the body corporate manager wrote issuing a by-law contravention notice regarding the cat. The respondent wrote back disputing that she had breached the by-law because she had approval. The body corporate manager then advised that the matter would be considered at the next committee meeting, but that the August letter had not given any approval beyond 3 months and the committee had since resolved that no animals would be approved until the by-laws were changed at the next general meeting.

In her submission, the respondent advised that she had been trying to locate a suitable alternative home for her cat and that she had now found one, but that she required an extension until 30 September 2003 when the alternative home was able to take the cat.

DETERMINATION

Following my preliminary consideration of the material provided in the application and submissions, I requested further information from the applicant on a number of matters.

In particular, clarification was sought as to whether a cat still resided in lot 19, given the comments made in the respondent’s submissions. The secretary advised in writing that "The Committee have confirmed that the cat at Lot 19 has been removed...". On receipt of this advice a member of the Commissioner’s Office telephoned the secretary to query whether the application would be withdrawn. The officer was informed that although the committee did not believe the cat was in lot 19, they had received no communication from the owner of lot 19 that the cat had been removed and consequently did not wish to withdraw the application. A member of this Office then contacted the respondent who confirmed in writing that the cat had been removed permanently.

I am somewhat concerned that the applicant would purport to confirm in writing to this Office that the cat it was seeking an order to remove had in fact been removed, and then not withdraw its application apparently because it does not have confirmation that the cat has been removed. I note that the applicant bears the onus of establishing the basis of the order which it is seeking, including the presence of the cat it alleged is the subject of a breach of by-laws.

There being no evidence that a cat currently resides in lot 19, there is no basis for me to consider an order for the removal of a cat in lot 19. Accordingly I have dismissed this application.

This application was made at the same time as application reference number 0339-2003. As both applications sought the same order against a different respondent, and so raised similar issues, I adjudicated the two matters concurrently. Accordingly, I would refer the parties to the order made in 0339-2003 for a discussion of the issues relating to the keeping of pets at Helensvale Villas.