Blackwood Place [2004] QBCCMCmr 55 (29 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0521-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5061
Name of Scheme:	Blackwood Place
Address of Scheme:	12 Blackwood Road MITCHELTON QLD 4053

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

I hereby order that the occupier of lot 4, Gertrude Seiser of Club Global shall immediately remove and keep removed from the lot and the parcel generally the dog presently being bought onto the lot and common property by her on a regular basis, and thereafter not return the dog to the lot or common property at any time without the permission of the body corporate having first been obtained.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0521-2003

"Blackwood Place" CTS 5061

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

The occupier of lot 4 be ordered to comply with "By-law 9" keeping of animals; to remove and keep removed the dog that is kept in lot 4 and not to bring any other animal onto the lot or the common property.

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 order sought is against the occupier of unit 4, 12 Blackwood Street, Mitchelton – "Gertrude – Club Global". There are 8 lots in the scheme.

The grounds state that the occupier of lot 4 "has been notified several times that the dog is not permitted on the property. It is removed for short periods but is then brought back and kept in the lot during working hours of the business".

A notice of continuing contravention has been given to the occupier of lot 4 regarding the dog. The body corporate states that "despite this notice the occupier of lot 4 continues to keep the dog within the lot on a continuing basis". A copy of the continuing contravention notice is included with the application. The notice refers to by-law 9 headed Keeping of animals, quote –

Subject to section 30(12) of the Act, a proprietor or occupier shall not keep any animal upon his lot or the property after notice to that effect from the committee.

The occupier of lot 4, Gertrude Seiser of Club Travel has responded to the application by way of submission. Mrs Seiser states –

We have never received a copy of the by-laws from the owner or the body corporate. The statement saying that we were sent a notice of continuing contravention of a body corporate by-law on 23 March 2003 is false. When we rented the office ... we told the owner we would be bringing the dog into the office for security concerns. We were given his permission at this time prior to signing the lease. We have had a Brisbane City Council and the Health Department both out to inspect the premises and have received permission to have the dog in the office by both departments.

Submissions to the application have been received from 5 of the remaining 7 owners of lots in the scheme. All are supportive of the application, and seek that the occupier of lot 4 comply with the by-law.

Determination

The first issue is to clarify the requirement for an occupier of a lot to comply with by-laws. Section 59 of the Act provides –

59 Taking effect of community management statement
(1) A community management statement takes effect under the Land Title Act, section 115L(3).14
(2) The community management statement for a community titles scheme is binding on--
(a) the body corporate; and
(b) each member of the body corporate; and
(c) to the extent that paragraphs (a) and (b) do not apply to bind a person--
(i) each person who is a registered proprietor of a lot included in the scheme; and
(ii) each person who is a registered proprietor of common property; and
(d) to the extent that paragraphs (b) and (c) do not apply to bind a person--
(i) each person who is the occupier of a lot included in the scheme; and
(ii) each person who is an occupier of common property.
(3) Subsection (2) has effect as if--
(a) the community management statement included mutual covenants to observe its provisions entered into by each person bound by it; and
(b) each person bound had signed the community management statement under seal.

I have bolded the relevant provisions. The statement, which includes the relevant by-laws, is binding on all occupiers, not just owners. The basis on which it is binding is set out in (3). I conclude that the by-laws of the scheme are binding on the occupier of lot 4.

The occupier of lot 4 denies receiving a copy of the continuing contravention notice. I do not accept this. A copy of the contravention notice has been provided as part of the application. In my view, there is no reason why this notice would be produced but not sent. I note that it has been addressed to the occupier at the correct address.

The occupier claims that she has the permission of the owner, the BCC and the Health Department to the keeping of the dog on the lot. The owner of the lot is not entitled to give permission to the keeping of a dog or other animal. It is the permission of the body corporate, not the owner, which is required. If the occupier considers that the owner of the lot has made a misrepresentation to her in this regard, then she will need to take action against the owner. However, the permission of the owner allegedly given is in no way binding on the body corporate. Nor is that of the BCC or the Health Department.

I conclude that the terms of the by-law are clear and binding on the occupier of lot 4. Further, I am satisfied that relevant notice was given to the occupier. I intend to order that the occupier of lot 4, Gertrude Seiser of Club Global shall immediately remove and keep removed from the lot and the parcel generally the dog presently being bought onto the lot and common property by her on a regular basis.