Noosa River Quays [2005] QBCCMCmr 189 (7 April 2005)

Last Updated: 5 July 2005

REFERENCE: 0219-2005

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27379
Name of Scheme:	Noosa River Quays
Address of Scheme:	2-10 Blakesley Street, TEWANTIN QLD 4565

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

Michael and Evelyn Freeman, the Owner(s) of lot 17

I hereby order that the application for interim orders, including orders to the effect that the body corporate be precluded from altering its by-law 11 pending a final determination of this dispute, is dismissed. This is an interim order and will remain in effect for a period of not longer than six months. It is the responsibility of the applicants to apply to extend this order if no final determination has been made within that period. This order will automatically lapse upon a final order being made or this application being withdrawn.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0219-2005

"Noosa River Quays" CTS 27379

Interim Application

Noosa River Quays Community Titles Scheme (Noosa River Quays) is a 20 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). The scheme is designed for residential purposes.

This is an application for interim orders. It arises out of an application by Michael Freeman and Evelyn Freeman, owner of lots 17 (applicants) seeking orders against the body corporate for Noosa River Quays (respondent).

The dispute concerns whether the body corporate should be required to approve the applicants’ application to keep a cat and whether the body corporate should be restrained from amending its by-laws to prevent the keeping of any pet.

Interim Orders Sought

The applicant seeks an interim order to stop the body corporate proceeding with an extraordinary general meeting at which a motion has been put forward to amend the by-laws to prevent the keeping of any pet. Alternatively, the applicants seek an order that the meeting proceed but owners be prohibited from voting on the motion proposing the change to the by-laws.

Submissions

The applicants have provided submissions to the effect that:

• The applicants purchased their unit on 10 October 2004 and, at the time, by-law 11 allowed the keeping of pets with the body corporate’s written approval;
• By letter dated 25 October 2004, the applicants sought approval to keep a cat on their lot pursuant to by-law 11;
• The body corporate committee refused this permission, stating at the annual general meeting of 10 December 2004 that the committee were aware that there was only one approved cat remaining in the complex and that they did not wish to approve any further applications for animals;
• The body corporate has previously granted lot owners approval to keep pets on their lots and it is discriminatory for the body corporate to refuse approval to the applicants;
• The body corporate has received a legal opinion to the effect that the body corporate must act reasonably and that decisions which are discriminatory have been consistently overridden by adjudicators. However, the body corporate committee then proposed a new by-law to the effect that no owners can keep pets and refused to consider the applicants’ further application pending a vote on this motion;
• A by-law must not discriminate between types of occupiers and it is discriminatory to make this by-law where the body corporate has previously approved the keeping of animals on lots; and
• It is unreasonable to replace a by-law with the specific intent of frustrating an owner’s application to keep a pet.

Submissions on behalf of the body corporate committee are to the effect that:

• The only current approvals are for lot 11 to keep a cat and for lot 12 to keep an elderly dog that only stays occasionally when the owner is in residence. The committee has recently rejected unanimously an application for approval to keep two dogs in lot 20;
• The last approval for keeping a pet was over three years ago through a full meeting motion when the developer still owned approximately half the lots. The committee is aware that a large number of owners wish to have a pet free complex and a change of by-laws will ensure a clear understanding by everyone and avoid disputes or ill-feeling;
• The committee feels it is fair to put forward a motion to change by-law 11 to give every owner the right to vote on the issue; and
• The extraordinary general meeting needs to continue as there are urgent issues including the issue of painting the complex and roof repairs.

Decision

Urgent interim relief

An interim order will not be granted unless is it necessary due to the nature or urgency of the circumstances to which the application relates (Act, 279). Further, any orders granted must be just and equitable in the circumstances (Act, 276).

The applicant is seeking an interim order to stop the body corporate voting on a motion proposing to change by-law 11 to absolutely prohibit the keeping of pets. To assist me in determining whether it is just and equitable to grant relief at this stage, before full and final consideration of all the issues raised, I consider it relevant for me to briefly consider whether the application raises any serious legal question.

If the application raises a serious legal question then it may be appropriate to preserve the existing state of affairs pending the final determination. It is relevant to consider whether the likely inconvenience should no interim order be granted outweighs any inconvenience likely to result from the interim order. In particular, it is relevant to consider whether an interim order is necessary to prevent something occurring that cannot be adequately redressed by final orders.

Serious legal question

The applicant’s submissions satisfy me that there is a serious legal question about whether the committee has acted unreasonably in refusing to allow the applicants to keep a cat. The present by-law 11 gives the body corporate a discretion to approve the keeping of a pet. The applicants propose that the cat will remain in the unit and not cause any nuisance to any other owners. They say that if the cat needs to leave the lot it will be on a lead or in an appropriate carrier. The submissions from the committee indicate that the committee have simply adopted a general policy that no pets should be approved rather than considering the application for approval of a cat on its merits. The applicants have also raised the issue of whether it is unreasonable for one owner to be allowed to keep a cat but another owner be refused permission (Act, 94(2)).

Inconvenience from an interim order

In considering whether to grant the interim order sought, it is relevant to balance the inconvenience caused by an interim order against inconvenience caused by waiting until a final determination to grant any necessary orders.

It would obviously create significant inconvenience for the body corporate if I granted an interim order that prevented the extraordinary general meeting from going ahead and prevented the body corporate from dealing with important matters including painting and roof repairs. Similarly, even preventing owners from voting on the disputed motion to change by-law 11 would be inconvenient in the sense that owners would be delayed in the opportunity to decide that particular issue. This may have consequences including that future purchasers of lots in the scheme may be uncertain regarding whether or not pets may ultimately be allowed in the scheme.

The applicants have not shown they will suffer any significant prejudice if no interim order is made. Owners are entitled to vote to change the by-laws for their scheme and the applicants should have been aware of that when they became owners in the scheme. In any event, the applicants are challenging a decision made under the current by-law 11 and any final determination on the issue can be made with respect to the wording of the current by-law. If, in the meantime, the by-law is changed to prohibit the keeping of pets altogether then this may raise additional issues regarding pets approved pursuant to the old by-law. In particular, it may be unreasonable for the body corporate to enforce the new by-law against owners who have already obtained permission to keep pets under the old by-law. However, I am not satisfied that it is necessary to grant the interim orders sought as any relevant issues can be dealt with by further submissions and final orders.

Order

For these reasons, interim relief is declined.

The application will be allowed to proceed to submissions and a final determination in the normal course.