Moreton Manors [2004] QBCCMCmr 54 (29 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0516-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25134
Name of Scheme:	Moreton Manors
Address of Scheme:	184 Radford Road, Manly West QLD 4179

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

body corporate for Moreton Manors

I hereby order that the application by the body corporate for Moreton Manors for an order that the resident owners of lot 18 remove the dog from the scheme, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0516-2003

"Moreton Manors" CTS 25134

The applicant, the body corporate for Moreton Manors has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

The body corporate is seeking an order that the resident owners of lot 18 remove the dog from the scheme.

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)).

The application seeks that the owners of lot 18, Christian Horia D’Helon and Carlota Cruz Chirinos (the respondents) remove their dog from the scheme. The basis for seeking the removal is that the committee have refused permission for the respondents to keep the dog for the reasons of "complaints received and excessive noise". The committee alleges that the respondents have refused to accept the complaints and will not remove the dog.

The respondents have made a submission in reply to the application. The respondents state that they did not seek permission for the dog as "its already agreed by the regulations of the body corporate to allow pets under 10kgs". The respondents do not accept the basis for the rejection of their application, stating that the complaint of excessive noise is without foundation and that the allegation of the dog being seen defecating on common property is "completely false" as the dog "lives strictly on our property and she does not disturb anyone. The barking is natural for a dog and categorically under the limit of excessive noise decided by BCC".

The body corporate seeks to rely on by-law 12 headed "Keeping of animals", quote –

Subject to the Act and regulation Module:

a) An owner shall not keep more that one animal and one bird upon his lot and, in any event, a dog in excess of 10 Kilograms weight;
b) It shall be the responsibility of an owner to remove any waste material from such animal and such bird and to keep his lot, all other parts of the common property free of such material at all times;
c) No owner shall permit an animal or bird of which he is the owner or over which he has control to enter upon the common property unless the animal is properly restrained.
d) The committee may by ordinary resolution order the removal of any animal or bird as aforesaid which becomes a nuisance.

The owners of 5 of the 73 lots in the scheme have replied to the application by way of submission. These five owners oppose the dog being kept and support the body corporate in its application. Some refer to a policy of no dogs at the scheme. There is no information before me, except from the respondents, that other pets are allowed. In this regard, the respondents state that "it is a natural reaction for a dog to bark when the many cats populating the complex come into our property".

Determination

I conclude that the body corporate is not entitled to succeed in this application.

The respondents are correct in stating that the by-law does not prohibit dogs. Rather, they are specifically permitted under the by-law. Consequently the bringing of the dog into the lot without seeking the permission of the body corporate is not contrary to the by-laws. If this body corporate wants to prohibit dogs, but allow other animals (eg. cats, birds etc) then the by-law will need to be a lot more clear in this respect. It might be argued that the current by-law in being interpreted in a discriminatory way; to refuse dogs, but to allow other animals.

As for the basis of removal of an animal, the by-law provides that "the committee may by ordinary resolution order the removal of any animal or bird as aforesaid which becomes a nuisance". This terminology is inconsistent with the legislation. Ordinary resolutions are a particular type of resolution of a body corporate in general meeting. In contrast, committees can pass any resolution simply on the basis of a majority. In the circumstances, I am concerned that the terms of the by-law are possibly inconsistent with the legislation, in requiring an ordinary resolution of the committee. I conclude that the requirements of the by-law are at the very least unclear. Given this, then I consider that the better interpretation is that any resolution seeking removal of an animal on the basis of nuisance under by-law 12(d) should be carried by an ordinary resolution of the body corporate in general meeting. A committee resolution will not suffice.