Myora Apartments [2005] QBCCMCmr 689 (7 December 2005)

Last Updated: 16 January 2006

REFERENCE: 0536-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28862
Name of Scheme:	Myora Apartments
Address of Scheme:	45 Deakin Street KANGAROO POINT QLD 4169

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Myora Apartments community titles scheme 28862

I hereby order that the application for an order by the body corporate for Myora Apartments community titles scheme 28862 seeking an outcome that Colin Taylor, the owner of Lot 48 remove the dog being kept on the Lot, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0536-2005

"Myora Apartments" CTS 28862

APPLICATION

This application is by the body corporate (applicant) against Colin Taylor, the owner of Lot 48 (respondent). The applicant is seeking an outcome that the dog is removed from Lot 48.

JURISDICTION

"Myora Apartments" Community Titles Scheme 28862 is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module).

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the respondent and to the body corporate manager for distribution to the owner of each lot (excluding the respondent). As the original notice of application was not distributed, the time for making a submission was extended and the body corporate manager was requested to distribute the application to all lot owners. A submission was received from a lot owner. The respondent did not make a submission to the application.

DETERMINATION

Given that the respondent did not make a submission to the application, unsuccessful attempts were made by this office to contact him. On 13 October 2005, a member of the Commissioner’s Office was informed by Michael Lovell from Ernst Body Corporate Management that the respondent may have moved out of Lot 48. Subsequently, Mr Lovell informed this office that the respondent no longer occupied the Lot, but that the body corporate still wanted an order to made. By letter to this office dated 1 December 2005, Alan Buckle of Ernst Body Corporate Management Pty Ltd advised that he was instructed by the chairperson to advise that the body corporate wish to pursue the matter even though the respondent no longer occupied the Lot for the reason that the Lot has only been leased for six months and the committee consider that the respondent will again occupy the Lot with the animal.

An adjudicator may make an order to resolve a dispute about a claimed contravention of the Act or the community management statement^[1], and the order may require a person to act or prohibit a person from acting in a way stated in the order^[2]. The meaning of dispute is prescribed in section 227 of the Act and includes a dispute between the body corporate and the owner or occupier of a lot included in the scheme^[3].

This dispute relates to the claim that the respondent was keeping a dog on Lot 48 in contravention of a body corporate By-Law. The body corporate has demonstrated that, after receiving complaints, it gave the respondent a notice pursuant to section 182 of the Act, and that the application to resolve a dispute was made after the respondent failed to comply with the notice. The body corporate has also shown that it properly resolved to make the application. Given these circumstances, it is apparent that, at the time the application was made, a dispute existed between the body corporate and the owner of Lot 48 as it was claimed that he was keeping a dog on the Lot in contravention of the relevant By-Law. However, it is clear that circumstances have fundamentally changed and the owner of the Lot is no longer occupying the Lot and consequently, the dog is no longer being kept on the Lot.
In my opinion, these circumstances clearly demonstrate that a dispute no longer exists between the body corporate and the owner of Lot 48. Even though the body corporate may consider that the owner of lot 48 may occupy the Lot at a later time and that he may keep a dog on the Lot, these possibilities do not constitute a dispute. Consequently, the application is dismissed.

^[1] Section 276(1), Act.
^[2] Section 276(2), Act.
^[3] Section 227(1)(b), Act.