Hull River [2004] QBCCMCmr 59 (30 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0536-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19972
Name of Scheme:	Hull River
Address of Scheme:	16 Hollywood Place, STUDIO VILLAGE QLD 4210

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

Body Corporate for Hull River

I hereby order that within one (1) month of the date of this order, the owners of lot 2, Andrew Lance Wruck and Lance Ralph Wruck shall submit to the secretary of the body corporate a motion seeking approval of the body corporate to the keeping by them of two dogs on their lot. I further order that at its next general meeting, the body corporate shall consider the motion submitted by the owners of lot 2, Andrew Lance Wruck and Lance Ralph Wruck, requesting approval of the body corporate to the keeping of their two dogs. This motion shall be determined by ordinary resolution, and if considered appropriate the body corporate may impose conditions on the approval, if given. I further order that if the owners of lot 2 fail to submit the relevant motion, or if the body corporate resolves not to approve the keeping of the two dogs by the owners of lot 2, then the owners of lot 2, Andrew Lance Wruck and Lance Ralph Wruck shall, within one (1) month of the date of the meeting at which the question of approval is determined, remove and keep removed the dogs presently being kept by them from the lot, and the parcel generally.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0536-2003

"Hull River" CTS 19972

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

Dogs to be removed from complex. Owners must obey the by-laws.

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 scheme

The scheme is a subdivision of 19 lots recorded under a standard format plan of subdivision.

The application and submissions

The application, made by the body corporate, seeks an order for the removal of 2 dogs presently being kept on lot 2 by the owners of that lot, Andrew Lance Wruck and Lance Ralph Wruck (the respondents), allegedly in contravention of the by-laws.

The relevant by-law applicable to this dispute is by-law 11 headed Keeping of animals. It provides –

1.	The occupier of a lot must not, without the body corporate’s written approval-
a.	Bring or keep an animal on the lot or the common property; or
b.	Permit an invitee to bring or keep an animal on the lot or the common property.
2.	The occupier must obtain the body corporate’s written approval before bring, or permitting an invitee to bring, an animal onto the lot or the common property.

The by-law was recorded on 17 December 1999.

The grounds to the application state in part –

• No approval was sought by the respondents for the two dogs "prior to purchasing / moving into unit";
• A contravention notice was sent to the owner of lot 2 on 12 June 2003;
• "Since October 2001, the committee have not approved dogs. All agents / owners etc have been notified of this at the time plus it is sent and kept with the by-laws".

The respondents have made a submission in response to the application. They state -

At the time of inspecting the unit prior to purchase, we were aware that there were dogs resident in the complex. ... Our two dogs ... are fox terriers. They are not large animals. They are contained wholly within my lot and we consider that they are quite (sic) and inoffensive.

We know that there are other dogs resident at the complex and, since moving in to the complex, we are aware that visitors to the complex have brought their dogs. We were mislead by the prior owner and the real estate agent who effected the sale into believing that dogs would be permitted at the premises. Had we been aware of the body corporate’s restriction on dogs we would not have proceeded with the purchase.

We now sincerely request that the body corporate relax its by-law to allow our dogs to stay and that the relaxation only extend to the dogs which we currently have. We understand that if those dogs die we will not be allowed to keep other dogs or pets on the premises without body corporate consent.

Submissions have been received from 4 of the remaining 18 owners. One submission supports the respondents and states that "any resident should be allowed to have pets" provided they do not cause a nuisance. The other three submissions support the application, and oppose the keeping of pets.

Determination

The first issue is to clarify the requirement for an occupier which includes the owner 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. 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 respondents.

The respondents claim that there are other dogs at the complex, and that visitors to the complex have bought their dogs. However this is explainable on the basis that the body corporate once allowed animals to be kept. This policy changed in 2001, and at that time, owners of existing animals were given permission to keep those animals, but not to replace them on their death. Moreover, no further approvals were apparently to be given. It is a legitimate right of a body corporate to change its policy on animals. This change of policy would explain there being existing animals at the scheme which the respondents observed when purchasing. I understand that there are currently 3 "existing" animals at the scheme.

The respondents further claim that they were mislead by the prior owner and the real estate agent who effected the sale into believing that dogs would be permitted at the premises. Had we been aware of the body corporate’s restriction on dogs we would not have proceeded with the purchase.
This is not the fault of the body corporate. I have already pointed out the requirement of owners to comply with by-laws. The relevant by-law was in existence at the time of the respondent’s purchase. The by-laws are discoverable by search. The respondents should have noted the by-law and made further enquiries, and at the very least, sought the written permission of the body corporate prior to their purchase. The body corporate is not bound by the representations of others (eg. former owners, real estate agents etc).

I conclude that the terms of the by-law are clear and apply to the respondents. I intend to order that at its next general meeting, the body corporate shall consider a motion to be submitted by the owners of lot 2, Andrew Lance Wruck and Lance Ralph Wruck, requesting approval of the body corporate to the keeping of their two dogs. This motion must be determined by ordinary resolution. If the owners of lot 2 fail to submit the relevant motion, or if the body corporate resolves not to approve the keeping of the two dogs by the owners of lot 2, then the terms of this order will require that the owners of lot 2, within one (1) month of the date of the meeting at which the question of approval is determined, remove and keep removed the dogs presently being kept by the owners of lot 2 from the lot, and the parcel generally.