MacGregor Mews [2006] QBCCMCmr 509 (10 October 2006)

Last Updated: 19 December 2006

REFERENCE: 0773-2006

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20517
Name of Scheme:	MacGregor Mews
Address of Scheme:	70 Delfin Drive MACGREGOR QLD 4109

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

Gunther Pleml & Barry Wong, the owner and occupier respectively of lot 14

I hereby order as follows – 1. that pending final determination of this application, the Applicants be permitted to keep an Italian Toy Greyhound known as "Max" in and on Lot 14. 2. The application in the alternative - "Further, and in the alternative, the Applicants be permitted to keep the (dog) in or about Lot 14 pending the body corporate calling an Extraordinary General Meeting as soon as practicable and the motion authorising the Applicants to keep the (dog) be tabled and voted on at that meeting," is therefore dismissed I further order that this interim order expires when a further interim order is issued, or when the application is finally determined or discontinued, or upon the expiry of 12 months from the date of this order, whichever is the earliest.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0773-2006

"MacGregor Mews" CTS 20517

APPLICATION

This is an application dated 21^st September 2006 and amended on 25^th September 2006, by Gunther Pleml and Barry Wong, (the Applicants) owner and occupier respectively of Lot 14 in the scheme, against the body corporate for the scheme (the body corporate) for an order that the Applicants be allowed to keep an Italian Toy Greyhound (the dog) at Lot 14 subject to any reasonable and necessary conditions, and in the alternative for a declaration that the body corporate is deemed to have given its consent to the Applicants keeping the dog at Lot 14.

The Applicants also seek interim orders that pending a vote at an Annual General Meeting on 26^th September 2006 authorising the Applicants to keep the dog, the Applicants be permitted to keep the dog at Lot 14; and further or in the alternative, that pending determination of this application, the Applicants be permitted to keep the dog at Lot 14.

Since the motion to keep the dog was not proposed to the Annual General Meeting by the procedure required by the legislation or within the timeframe detailed in the legislation, ( ie. handed to the Secretary before the end of the financial year and sent to all lot owners with Notice of the Annual General Meeting at least 21 days before the date of the Annual General Meeting) the application for an interim order was amended to read –

"Further, and in the alternative, the Applicants be permitted to keep the (dog) in or about Lot 14 pending the body corporate calling an Extraordinary General Meeting as soon as practicable and the motion authorising the Applicants to keep the (dog) be tabled and voted on at that meeting."


JURISDICTION

"MacGregor Mews" Community Title Scheme 20517 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module). There are 22 lots in the scheme created under a Group Title Plan of subdivision.

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)).

Section 247(3) of the Act allows the Commissioner to refer an application to an adjudicator for consideration for an interim order even though proper notice of the application has not been given to the body corporate or other affected persons, and despite the fact that parties to the application have not been given an opportunity to make a submission about the matters in dispute. It seems to me that the Act allows this process because applications for interim orders often relate to emergency or otherwise urgent circumstances, where it is simply impractical or impossible to allow a period for submissions prior to the consideration of the application for interim orders. It is also relevant that generally the purpose of an interim order is to simply maintain the "status quo" of a situation, and not to finally resolve the matters in dispute.

Section 279(1) of the Act allows an adjudicator to issue an interim order in response to an application "if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates". Read together with section 247(3), section 279(1) appears to allow an adjudicator to issue an interim order without any reference to other parties to the dispute.

Notwithstanding that the Act allows for interim orders to be issued without reference to other parties, I am of the view that when possible, it is far preferable and more consistent with the principles of natural justice, to allow affected persons to make a submission about an application (even if the time allowed for submissions is necessarily brief) prior to the determination of an application for an interim order.

For this reason I sought submissions from the committee albeit with very short notice to the committee.


SUBMISSIONS

The Applicants have kept a dog which was given to them as a gift at Lot 14 since early March 2004. On 15^th March 2004, they requested permission from the body corporate committee to keep the dog in accordance with the scheme by-laws as they understood them. The committee held a meeting on 24^th April 2004 at which it considered the Applicants’ request. The committee was unanimous in its denial of the request, but took no action against the Applicants.

The Applicants made no attempts to hide the dog.

The Applicants next received a letter dated 24^th March 2006 from the body corporate manager, exactly two years after the committee meeting at which the committee refused permission to keep the dog, asking the Applicants to remove the dog from the complex immediately.

The Applicants received a notice of contravention of by-law on 21^st August 2006. The notice stated that they were in breach of by-law 11 of the scheme and required the Applicants to remove the dog within 7 days of receiving the notice. There is no copy text of the by-law attached to the copy by-law contravention notice in the Applicant’s application.

In the Applicants’ bundle of documents a copy of the by-laws is enclosed headed " Macgregor Mews By-Laws" (Document 1.)

The Applicants proposed a motion to the Secretary for authorisation to keep the dog on 20^th September 2006. This motion was intended to be put to the Annual General Meeting on 26^th September 2006.

The Rev. S.M. Seymour, who does not advise me what position he holds on the committee, made a submission, firstly concerning the time constraints allowed to him to make a submission. He also says that whilst the Applicants were given the dog as a gift, "we hoped that over a period of time the matter would be resolved in one way or another in an amicable manner and that the dog would have been removed, but this did not happen." He explains that the situation has arisen because there are new owners in Villa 22 who also want to keep a dog and the Applicants’ dog is setting a precedent in the scheme.

The Committee also provided a copy of a document headed " Resolution passed at MacGregor Mews Body Corporate Annual General Meeting on Tuesday 26^th September 2006." This document is undated, but says that the Applicants’ motion to keep the dog was in fact tabled at the Annual General Meeting, but the Chairman addressed the meeting, explained this application had been made, and there was evidently some discussion. A new motion appears to have been put that the " meeting ratify and strongly endorse the actions of the Committee in requiring the removal of the animals and the new committee elected at the meeting continue to require the removal of the animals as a matter of priority." The vote on this motion was 9 in favour of removing the dog and 1 abstention.

Chairman Pat McGrath and Secretary Carmel Toscano, enclosed details of motions passed at a committee meeting on 16^th September 2006. The committee voted that By-Law 11 " re- the keeping of animals be upheld." They also say that the owners of Lot 22 have brought a dog into the complex and said they did not know of the existence of the by-law 11. The body corporate manager has in fact been asked to send by-law contravention notices to both the Applicants and the owners of Lot 22, on 27^th May 2006, 22^nd July 2006, and 19^th August 2006. The committee has received letters from both the Applicants’ solicitors and from the owners of Lot 22’s solicitors. They further point out that when the Applicants first asked permission to keep a dog, which was refused, they said in their application: "Should there be any problem, we would of course be willing to find alternative accommodation for the dog."

The copy of the by-law contravention notice sent to the Applicants and supplied with the submission from the Chairman and Secretary has attached to it a copy of the by-laws from the Body Corporate and Community Management Act 1997.


DETERMINATION

The facts of this matter are not in dispute.

I am not satisfied from the material before me that this scheme knows what by-laws apply to it. Both by-laws taken apparently from the former Building and Group Title Act 1980 and the Schedule to the Body Corporate and Community Management Act have been submitted to me as demonstrating that MacGregor Mews is "not a complex which should allow the keeping of animals." (Committee submission)

Further investigation will be required a) to find out what by-laws apply to this scheme; and b) whether those by-laws permit the keeping of animals.

This is not a matter of what should or should not be, or what the body corporate would like to be the case. The by-laws are part of the registered documents lodged with the Registrar of Title in the Land Title Registry. In older schemes, it may indeed be difficult to ascertain what the by-laws are if there is no Community Management Statement lodged, but those by-laws will still be binding on the body corporate until such time as they are changed. Therefore, this matter may be more complex that it first appears.

Further, I am not satisfied that the motion purportedly passed at the Annual General Meeting on 26^th September 2006, can be valid or have any effect unless all lot owners were present and unanimously waived their right to the notice period of 21 days. (Section 43 Standard Module). Since only 10 persons had their votes recorded, I find this unlikely.

An agenda for an Annual General Meeting is fixed. (Section 45 Standard Module) Whilst the lot owners may take the opportunity of discussing other business, no resolutions can be made following such discussion unless a motion has been sent to all lot owners and all lot owners given the opportunity to vote, by post if necessary, as set out in the legislation.

For this reason, I allow the interim outcome sought, that pending determination of this application, the Applicants may be permitted to keep the dog in and Lot 14.

This matter will now continue to further submissions on the final outcome sought in the usual way. I hope that the Committee will feel that it has enough time to address any further points if I allow three weeks for submissions. I also invite submissions from all lot owners. The Applicants then have a right to reply.

I also ask the Committee to note that this matter concerns only an application for dispute resolution brought by the Applicants and that whilst I am aware that the owners of Lot 22 have been issued with a by-law contravention notice, I will not be determining the matter in respect of the owners of Lot 22.