Rainbow Getaway II [2004] QBCCMCmr 157 (24 March 2004)

Last Updated: 30 September 2005

REFERENCE: 0664-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25202
Name of Scheme:	Rainbow Getaway II
Address of Scheme:	4 Double Island Drive, RAINBOW BEACH QLD 4581

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Ross McDonald, the Owner of Lot 28:

I hereby dismiss the application for an order "that the Body Corporate draw up the terms and conditions, so that owners (my) pets can be permitted on the property as was resolved on Motion 13 AGM 1999".

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0664-2003

"Rainbow Getaway II" CTS 25202

1.	The application

On 9 October 2003, the Applicant (the Owner of Lot 28) filed a dispute resolution application with the Commissioner for Body Corporate and Community Management ("the Commissioner") under the Body Corporate and Community Management Act 1997 ("the Act").

The Applicant states that he is seeking the following outcome:

"That the Body Corporate draw up the terms and conditions, so that owners (my) pets can be permitted on the property as was resolved on Motion 13 AGM 1999."

2.	The "Rainbow Getaway II" community titles scheme

Department of Natural Resources, Mines and Energy records show that the "Rainbow Getaway II" community titles scheme was created under a building format plan of subdivision, recorded on 4 December 1997. The scheme consists of 15 lots and common property.

The first community management statement for "Rainbow Getaway II" was registered on 5 December 1997. The community management statement indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") applies to the scheme.

3.	Administration of the application

As mentioned above, this application was submitted to the Commissioner on 9 October 2003. On 22 October 2003, and at the request of the Commissioner, a staff member of this Office contacted the Applicant and requested further information regarding the application, and clarification of the outcome sought in the application. The Applicant responded to the Commissioner’s request under cover of a letter dated 22 October 2003. This letter has been included with the supporting material accompanying the application.

On 29 October 2003, the Commissioner provided the Body Corporate with formal notice of the application via the Body Corporate Secretary (who is also the Body Corporate Manager). The Commissioner also invited each owner of a lot included in the scheme to make a written submission about the application. On 25 November 2003, the Commissioner invited the Committee for the Body Corporate to make a written submission about the application.

The Caretaking Service Contractors for the Body Corporate and the Owners of Lot 20 have made written submissions. In accordance with section 246 of the Act, the Commissioner provided the Applicant with copies of the submissions. The Applicant has made a written reply to the submissions in a letter dated 12 December 2003.

On 16 January 2004, the Commissioner made a dispute resolution recommendation that the application should be the subject of Dispute Resolution Centre mediation, and referred the application to a Dispute Resolution Centre of the Department of Justice and Attorney-General. In a letter dated 1 March 2004, the Dispute Resolution Centre advised that a mediation session could not be arranged with the parties, and as a result, no mediation was conducted.

On 4 March 2004, the Commissioner made a supplementary dispute resolution recommendation that the application should be resolved by departmental adjudication. The Commissioner has referred the application to me for determination.

4.	Jurisdiction

This application describes a dispute between the owner of a lot included in a community titles scheme, and the body corporate for the scheme. Therefore, the matter is a "dispute" within the meaning of section 227(1)(b) of the Act, and may be resolved under the Act’s dispute resolution provisions.

Section 276(1) of the Act authorises adjudicators to make just and equitable orders to resolve disputes in community titles schemes, about-

(a) claimed or anticipated contraventions of the Act or a scheme’s community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or a scheme’s community management statement; or

(c) claimed or anticipated contractual matters about the engagement of a person as a body corporate manager or service contractor for a scheme, or the authorisation of a person as a letting agent for a scheme.

The Applicant’s basis for this application seems to be that the Body Corporate has failed to meet its statutory obligations by not carrying out a particular resolution of a general meeting. The resolution in question concerned the Body Corporate’s approach to the issue of keeping of animals on scheme land. It seems to me that the subject matter of this dispute is capable of being determined by a departmental adjudicator.

5.	Background to the application

The keeping of animals in a community titles scheme is a matter that is normally regulated by the by-laws for the Body Corporate. The community management statement for "Rainbow Getaway II" includes the following by-law concerning animals:

BY-LAW 11 Keeping of animals

(1) The occupier of a lot must not, without the body corporate’s written approval-

(a) bring an animal onto, or keep an animal on, the lot or the common property;
(b) permit an invitee to bring an animal on to, or keep an animal on, the lot or the common property.

(2) The occupier must obtain the body corporate’s written approval before bringing, or permitting an invitee to bring, an animal onto the lot or common property.

The first community management statement for the scheme, as recorded on 5 December 1997, is still the current statement applying to the scheme. The community management statement, including the above by-law, has not been altered since that time.

In the supporting grounds to the application, the Applicant explains that the Body Corporate carried a motion concerning animals at an annual general meeting held on 27 February 1999 ("the 1999 AGM"). The Applicant has provided an extract from the minutes of the meeting, which describe Motion 13 in the following terms:

"Motion 13. Approval of Pets (Ordinary Resolution)

Submitted by Owners of Lot 1

Resolved that Owners pets be permitted on the property, subject to terms and conditions acceptable to the Owners.

It was further resolved Mr Stark draw up the terms and conditions of approval."

The minutes record that the motion was carried with six votes in favour of the motion, no votes against the motion, and one voter abstaining from voting on the motion.

It appears from the material that in accordance with the resolution, the then chairperson of the Body Corporate (Mr Erich Stark) prepared draft conditions for the keeping of pets on the scheme land. These conditions are set out in a facsimile from Mr Stark to the Body Corporate Manager dated 9 March 1999.

The conditions set out in the facsimile are quite detailed. While a number of the conditions appear to be fairly standard (for example, pets are required to be kept under the control of their keepers or caretakers), the conditions also contemplate a range of financial penalties payable by the owners of pets for failure to comply with the conditions. While it is not necessary for me to decide the matter at this time, it seems unlikely that a body corporate has sufficient authority to impose these types of penalties on lot owners and occupiers. For instance, section 180(6) of the Act specifically provides that body corporate by-laws (other than exclusive use by-laws) "must not impose a monetary liability on the owner or occupier of a lot included in a community titles scheme".

In any event, there is nothing in the material before me to indicate that these conditions were adopted by owners, or that the proposed conditions have been redrafted or otherwise reconsidered since 1999.

Apart from issues surrounding the Body Corporate’s resolution of 27 February 1999, it is apparent that the Applicant has separately sought the approval of the Body Corporate to keep a "foxie cross" dog within his lot. The Applicant has provided a copy of a letter dated 30 September 2003, in which the Body Corporate Manager advises him that the Committee has refused the request.

6.	Determination

While the Applicant has mentioned the refusal of his 2003 request to keep his pet within his lot in the supporting grounds to the application, the Applicant has not sought a specific order on the issue, or provided substantial arguments as to why the Body Corporate’s refusal is unreasonable or unlawful in the circumstances. As a result, I do not intend to consider this issue in the context of this application. However, if the Applicant does believe that the 2003 refusal was unreasonable or unlawful, he is entitled to make a further dispute resolution application about the issue, supported by a full statement of reasons.


The main focus of the current application is the Body Corporate’s resolution concerning Motion 13, as considered and carried at the 1999 AGM. In general terms, it seems to me that the Applicant considers that the Body Corporate has an obligation to carry out this resolution, which he believes will facilitate him being able to keep his pet dog within his lot.

Generally speaking, I agree with the principle that a body corporate has an obligation to carry out lawful resolutions of the members made at general meetings. However, notwithstanding this general principle, I have decided to dismiss this application for the reasons outlined below.

Firstly, it seems to me that Motion 13, as considered at the 1999 AGM, is inconsistent with the existing by-laws for the Body Corporate. In broad terms, the existing by-law requires occupiers to obtain the written approval of the body corporate prior to bringing an animal to the scheme land. In my view, the terms of this by-law clearly indicate that owners are not entitled to keep an animal in a lot, or on the common property, without the prior, written approval of the Body Corporate. It also seems to me that the terms of the existing by-law contemplate the body corporate giving individual consideration to the merits of each request for approval to keep an animal on the scheme land. While the Body Corporate has an obligation to apply the by-laws reasonably and fairly, the terms of the by-law certainly allow for the Body Corporate to refuse an occupier’s request for approval to keep an animal on the scheme land, depending on the circumstances.

In my view, it is entirely reasonable for a body corporate to adopt suitable guidelines for deciding when a request to keep an animal on scheme land will be approved. I also consider that it is reasonable for a body corporate to impose reasonable conditions on any approval to keep an animal within a lot. It seems to me consideration of these matters will assist a body corporate to make lawful, fair and reasonable decisions regarding animals.

However, in my opinion, the terms of Motion 13 reflect a significantly different approach to the issue of keeping animals on scheme land than that contemplated by the existing by-law. It seems to me that the opening statement in Motion 13, "that Owners pets be permitted on the property", purports to provide owners with a general right to keep their pets on the scheme land. The intention of the statement appears to be to remove the requirement for individual owners to make a specific request for the Body Corporate’s written approval to keep their particular pet on the scheme land, as required by the current by-law. I consider that the terms of Motion 13 go well beyond establishing guidelines for the application of the existing by-law, and in fact, are contrary to the existing by-law.

In my view, motions of bodies corporate at general meetings must be consistent with the Act and the relevant regulation module, as well as the existing by-laws for the scheme. This is supported by the fact that section 47(1)(a) of the Standard Module requires the person chairing a general meeting of a body corporate to rule a motion out of order if the motion (if carried) would "conflict with the Act, this regulation or the by-laws".

For these reasons, I do not consider that Motion 13 as carried at the 1999 AGM was valid, and I would not issue an order requiring the Body Corporate to carry out the motion. If the Body Corporate wishes to change its by-law concerning the keeping of animals, it should follow the formal procedures set out in the legislation to do so.

As an aside, I am also concerned about the fact that the motion in question was considered and carried over 5 years ago. It seems to me that if an owner wishes to compel a Body Corporate to carry out a resolution, the Owner should take formal steps to do so within a reasonable time. While I note that the Applicant appears to have raised the issue with the Body Corporate Manager on a number of occasions, I do consider that the issue should have been formally resolved some time ago. As all parties would be aware, membership of bodies corporate can change over time, and current owners may have different views on matters affecting the body corporate than previous lot owners. Generally, I do not consider that it would be just and equitable to impose a historic decision of a body corporate on the current members when minimal efforts have been made to carry out the decision for some 5 years.

For the reasons outlined above, I do not consider that an order compelling the Body Corporate to carry out Motion 13 as carried by the Body Corporate at the 1999 AGM is warranted, and I have dismissed the application.