Magnolia Lane [2003] QBCCMCmr 519 (20 May 2003)

Last Updated: 10 September 2007

REFERENCE: 0316-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28868
Name of Scheme:	Magnolia Lane
Address of Scheme:	179 Ocean Drive, MUDJIMBA

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

Kelvin John McCONOCHIE, as the owner of Lot 7,



I hereby order that the resolution passed in respect of Motion 4 at the extraordinary general meeting held on 6 May 2003 (refusing approval to the owner of Lot 7 to keep a cat) is void, and that Kelvin McConochie, the owner of Lot 7, may bring the cat known as "Simone" onto the scheme and keep it on Lot 7 for the term of its natural life, subject to the following conditions –

(a) The animal must be kept under control by a responsible person at all times and must not cause a nuisance to other residents.

(b) The animal must not be taken to the swimming pool area.

(c) The exemption applies to the specified animal only.

(d) The Body Corporate reserves the right to rescind the exemption following justifiable complaints regarding the animal’s behaviour.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0316-2003

"Magnolia Lane" CTS 28868

The applicant, Kelvin McConochie of Lot 7, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"That Simone (our cat) can continue to accompany us, as she has done for the past 2.5 years on our infrequent visits to Magnolia Lane apartment. We have had approval from May 2001 (see Other Matters in Minutes May 2001) when approval for existing animals at the complex was given. The cat now in dispute is the very same cat that existed the."

The applicant has also made application for the following interim order of an adjudicator –

"We are seeking an interim order so that Simone (our cat) can accompany us to our apartment, as she has done for the past 2.5 Years. We plan to visit our apartment on the weekend of 24^th and 25^th of May 2003. As stated, from May 2001 (see Other Matters in Minutes May 2001) approval was given for existing animals at the complex. This tacit approval has been in force since then (and all at that meeting understood what was implied) and as such, we have greatly enjoyed the companionship of our precious pet during this time and wish to continue so."

JURISDICTION:
This is a dispute between an owner (the applicant McConochie) and the body corporate (the respondent), concerning the keeping of a cat, on infrequent visits by the applicant, on the scheme. This is a matter falling within the disputes resolution provisions of the legislation (see sections 227, 228 and 276 of the Act).

While section 279(1) of the Act provides that an adjudicator may make an interim order if satisfied on reasonable grounds that an interim order is warranted because of the nature or urgency of the circumstances, there is nothing in the legislation to prevent an adjudicator, in appropriate circumstances, from making a final determination of the dispute by proceeding directly to a final order.

I consider this course is appropriate in this instance because: the facts of the matter are relatively simple and clear; a copy of the application was made available to the body corporate secretary (Anne Clements) and later a teleconference was held with her and the applicant on 19 May 2003 to confirm evidence submitted; sufficient information is available to determine the matter; and a prompt resolution of the dispute is in the interests of all parties.

Accordingly, this order will be the only order made in respect of the application – the parties, of course, retain their appeal rights against the order made, and my having dispensed with the making of an interim order does not diminish those rights.

General powers of an Adjudicator in making an order:

Section 276(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 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).

APPLICATION AND SUBMISSIONS:

Under section 243 of the Act, a copy of the application was provided to the respondent body corporate (secretary) prior to a teleconference with her (Clements) and the applicant McConochie. A submission was not sought from the committee as, from my reading of them, sufficient evidence is contained in the copies of the minutes of relevant meetings attached to the application, and all that was necessary was a confirmation by the secretary as to the authenticity of the minutes. From the copy of the application faxed to her, the secretary was able to do this.

The brief facts of the matter are as follows. The applicant states that he has been taking his cat with him on infrequent visits to the lot over the past two and a half years.

The first reference to animals being kept on the scheme is contained in the minutes to the annual general meeting held on 25 May 2001. The relevant minute reads –

"Advise all owners through the minutes of the meeting that the Body Corporate By-laws are to be strictly adhered to regarding animals and that no animals presently at the complex can be replaced after the term of its natural life without the following procedures as set out in the by-laws."

At that time the applicant had been bringing the cat onto the scheme, and all persons at the meeting understood the approval given.

The matter was not raised again until a committee meeting on 20 March 2003 when a specific reference was made to the applicant’s cat (hereafter "the cat"). The minute records that there was an existing "non-specific approval" for the applicant to keep the cat for the term of its natural life. The committee resolved that the applicant should apply to it for confirmation of the approval. The minutes also contain the significant observation, "The Committee understood the periodic keeping of the cat had not created any problems"

On 9 April 2003, the applicant made application to the committee to formalise approval to bring the cat onto the scheme during visits. The committee put a motion to the extraordinary general meeting of the body corporate held on 6 May, for the approval, subject to four conditions –

(e) The animal must be kept under control by a responsible person at all times and must not cause a nuisance to other residents.

(f) The animal must not be taken to the swimming pool area.

(g) The exemption applies to the specified animal only.

(h) The Body Corporate reserves the right to rescind the exemption following justifiable complaints regarding the animal’s behaviour.

The motion was defeated on a vote of 13 votes in favour, 15 against and 2 abstentions. The applicant was of the belief that the motion was a formality only, and has made this application for an order that the resolution be overturned.

DETERMINATION:

"Magnolia Lane" was registered as a building format plan on 18 June 2002, and comprises 48 lots in stage developments.

It is clear from the minutes of 25 May 2001, and subsequent minutes, that the applicant had approval to bring the cat onto the scheme. The committee’s categorisation of the approval as being "non-specific" is difficult to understand. During the teleconference, I put the question to the secretary whether the category of non-specific related to the periodical nature of the cat’s presence on the scheme. It is her belief that the description did not relate to this, but related to the expansion of the body corporate to include stage-two owners who had not had a say in the general animal policy and this, and any other approval, given.

Before considering this matter further, I will describe what is the general approach of adjudicators regarding disputes involving animal and animal by-laws, by quoting from my Reasons to another dispute I have previously dealt with –

"Most bodies corporate have by-laws preventing the keeping of animals except with the consent of the committee. Adjudicators are continuously being approached with requests for orders seeking either that an animal be removed, or alternatively, that the refusal of a body corporate (committee) for an owner to keep an animal, be overturned. Often these owners claim there are "special circumstances" why they should be allowed to keep an animal. The view of adjudicator’s, as with the Referee, is that the by-law regarding animals, like all other by-laws, is there to be observed. It should not be afforded any special significance simply because it is often the subject of much emotion.

General practice is therefore to either order compliance with the by-law (where removal is sought by the committee) or to dismiss the application (where an owner wants the committee's refusal overturned), except where the owner can establish one of two things to the satisfaction of the adjudicator -

•

Firstly, that there has been acquiescence on the part of the body corporate in not taking steps to remove the animal for a reasonable period of time. For example, the body corporate has failed to act on the matter for some time causing the owner to assume implicit approval for keeping the animal. The basis for this exception is that it would be harsh and inequitable for a owner to have to remove an animal that they have been allowed to keep over a period of time.

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Secondly, that the body corporate is acting in a discriminatory manner in seeking to remove the animal. Discrimination in this context can take various forms. The clearest example is where the committee refuses the request of one owner to keep an animal but grants approval to another, and there is no logical or reasonable basis for the distinction to be made. An alternative example is where the body corporate seeks an order against one owner keeping an animal when there are one or more other owners who are also keeping animals on the scheme, again with no logical or reasonable basis for the different treatment. The basis for this exception is obviously that bodies corporate must treat all owners equally."

Relating these general rules to this dispute, I consider that acquiescence to the presence of the cat is a sustainable ground in favour of the applicant. However the circumstances of the cat go beyond mere acquiescence (when there may or may not be approval present), to a consideration of an approval already given to the applicant. If indeed the categorisation of this approval as non-specific was based on it having been given when only stage-one owners existed, then that was an incorrect decision. The body corporate is a separate legal entity and continues regardless of changes in ownership of lots, including the expansion of numbers resulting from the development of a further stage of the scheme (see Part 2 of Chapter 2 of the Act). That is, a decision of the body corporate remains a decision of the body corporate despite changes in the composition of its members (owners).

The Dispute Resolution provisions of the legislation provide that an adjudicator may make orders that are just and equitable in the circumstances to resolve a dispute (see section 276 of the Act). This dispute is a clear case where fairness and equity require the intervention of an adjudicator to overturn a resolution of a body corporate that seeks to, (a) remove an approval previously given without there being any evidence of nuisance or adverse complaint, and (b) allowing a state of affairs, namely the presence of the cat, to exist for a period of over 2 years and then, without good reason, determining to put an end to it.

I have therefore ordered that the resolution is void and that the prior approval for the cat continues, subject to the conditions that the committee has determined as being reasonable, with which I concur.