MacGregor Mews [2007] QBCCMCmr 18 (12 January 2007)

Last Updated: 15 January 2007

REFERENCE: 0773-2006

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 that the Applicants may keep an Italian Toy Greyhound known as ‘Max’ on or about Lot 14 of the scheme.

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 authorised to keep an Italian Toy Greyhound known as ‘Max’ (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 on or about Lot 14 of the scheme.

On 10^th October 2006, I made an interim order in this matter that the Applicants be permitted to keep the dog in and on Lot 14 pending final determination of this application.



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)).



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.

In that letter the Applicants stated that the dog was "primarily an indoor dog" and should not cause any disturbance to neighbours. They finished the letter "Should there be any problem, we would of course be willing to find alternative accommodation for the dog."

The then committee held a meeting on 24^th April 2004 at which it considered the Applicants’ request. The committee minutes enclosed in the application, which do not list which members were present, or if any members voted by proxy, record that the committee was unanimous in its denial of the Applicants’ request. However, the committee took no further action about the dog.

The Applicants made no attempt to conceal the dog, and the dog was seen by contemporary committee members on numerous occasions.

Two years later, the Applicants received a letter dated 24^th March 2006 from Prudential Body Corporate Management Pty Ltd (the body corporate manager), pointing out that the applicant’s were infringing "By-law 11 of the Community Management Statement" and asking the Applicants to remove the dog from the complex immediately.

The Applicants did not remove the dog. On 21^st August 2006, the Applicants were sent a Notice of Contravention of By-law by the body corporate committee. The notice stated that they were in breach of By-law 11 and required the Applicants to remove the dog within 7 days of receiving the notice. The Notice did not set out the text of By-Law 11 but refers to a copy of the "by-law attached." (There was a no copy of the by-law attached in the bundle of documents in the application.)

The Applicants say that such action is unreasonable, and that the committee has acted contrary to section 94(2) Act which requires that the body corporate must act reasonably in anything it does. It would now be "harsh and inequitable" to remove the dog.

They further say that the committee of March 2004 had no authority to refuse the Applicants’ application to keep a dog because such an application could only be considered "by the Body Corporate in a General Meeting pursuant to section 26 of the Standard Module."

They submit that the body corporate is mistaken in its understanding of its by-laws since a "MacGregor News" newsletter advises lot owners that the by-laws for the scheme permit no pets, which is erroneous. The by-laws allow the body corporate to exercise its discretion on a case-by- case basis and the committee therefore erred in March 2004 in making no decision on the merits of the application but mistakenly exercising a policy which is not part of the scheme.

In the alternative, they argue that the body corporate has acquiesced and implicitly consented to the keeping of the dog since it took no steps to enforce its by-laws for two years, and even then, did not act with any urgency in sending the contravention notice.

The Applicants provide in their material a document headed "Macgregor Mews By-Laws" which the Applicant Mr Pleml says was handed to him as representing the scheme by-laws when he purchased his Lot in 1999. By-Law 11 of that document states as follows –

"11. KEEPING OF ANIMALS

Subject to section 30(12) a proprietor of a lot shall not without the approval in writing of the body corporate keep any animal upon his lot or common property."

The Applicants have tried to put a motion to keep the dog before a general meeting, but a motion dated 20^th September 2006 sent to the body corporate manager was considered by the current committee to have arrived too late for inclusion in the Annual General Meeting on 26^th September 2006.

In accordance with section 243(2)(b) Act, all lot owners have now been invited to make submissions in respect of the final order sought by the Applicants.

Chairman Patrick McGrath and Secretary Carmel Toscano made a submission on behalf of the body corporate on 14^th October 2006.

They say that the then committee considered the Applicants’ request to keep a dog at the committee meeting of 24^th April 2004, and the application was rejected unanimously by the committee. The Applicants were well aware that they needed body corporate permission to keep the dog in accordance with the scheme’s by-laws and they said in their application that if there was any problem they would be willing to find alternative accommodation for the dog.

The Committee say that this dispute is triggered by the owners of Lot 22 now asking to keep a dog, and that " after it was brought to the attention of the Committee that there were now 2 unauthorised dogs in the Complex", the committee asked the body corporate manager to seek removal of both of them.

The body corporate enclosed minutes of a committee meeting on 16^th September 2006, wherein the committee voted that By-Law 11 be upheld, although there is no note of the actual voting tally.

At the interim stage of this application, the Committee 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’ application to this Office was tabled at the Annual General Meeting on 26^th September 2006, but the Chairman addressed the meeting, 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.

The document records that at the Annual General Meeting, individual lot owners expressed sympathy for the Applicants but "indicated that MacGregor Mews was not a complex which should allow the keeping of animals, and even though some lot owners had kept animals at previously owned detached dwellings, they did not consider it appropriate that animals should be allowed at MacGregor Mews."

At the interim stage of this application, the body corporate also provided a copy of the contravention notice sent to the Applicants. This had attached to it a copy of "By-Law 11" as taken from Schedule 4 of the Body Corporate and Community Management Act 1997.

The committee says that it did not receive a copy of the Applicant’s motion to be tabled at the annual general meeting until 3^rd October 2006.

There were no submissions from any lot owners.

The Applicants exercised their right of Reply, through their lawyers Short Punch and Greatorix.
They re-iterate points made in the application.

With regard to the motion not being received in time for the annual general meeting, they agree that the motion was circulated to all lot owners on 3^rd October 2006, and that it still stands and should be put to an extraordinary general meeting. They maintain that the issue can only be approved or not by the body corporate at a general meeting, since it is a restricted issue for the committee.

They further submit that the actions of the owners of Lot 22 are irrelevant to this application.


DETERMINATION

The pertinent facts in this matter are not in dispute.

The law relating to this scheme is the starting point for the resolution of this dispute, and as stated in the interim order, I am not satisfied that the body corporate is exercising the applicable by-laws.
Following consideration of the by-laws, the next question of law is whether the committee has the power to act for the body corporate in the circumstances, or whether this matter is a restricted issue as argued by the Applicants, so that it can only be decided by resolution of the body corporate at a general meeting.

From my research into the by-laws recorded in the Land Title Registry, I find that the applicable by-laws are those produced by the Applicants, and not those copied from Schedule 4 of the Body Corporate and Community Management Act 1997, as produced by the body corporate committee. The ‘Schedule 4’ by-law states:

"11 Keeping of Animals

(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 common property..."

This distinction may in fact be academic as the wording of each is very similar.

The scheme was registered in 1990 and took the eleven "standard" by-laws as set out in Schedule 3 of the Building and Group Title Act 1980. By law 11 concerned keeping of animals and stated

"11. KEEPING OF ANIMALS

Subject to section 30(12) a proprietor of a lot shall not without the approval in writing of the body corporate keep any animal upon his lot or common property."

The body corporate amended its by-laws in August 1990, when it added by-laws 12 – 24; in April 1991 when it added exclusive uses (by-law 25) ; in April 1992 when it deleted by-laws 13 and 19 – 23, made a new by-law 8 and new by-law 13, and re-numbered by-law 24 to be by-law 19; and in October 1994, it added by-laws 20 and 21 ( concerning insurance and painting respectively.)

The amalgamation of the amendments is the document produced by the Applicant Mr Pleml, and which he says was given to him in 1999.

"Section 30(12)" mentioned in By-Law 11 of that document, refers to section 30(12) of the Building and Group Titles Act 1980 which refers to guide dogs for the blind and hearing dogs for the deaf.

The Body Corporate and Community Management Act became law in July 1997. However, the by-laws at Schedule 4 did not automatically apply to all schemes. They are merely a template for schemes who wish to adopt them. In July 2000, the Registrar recorded a "standard" community management statement for all schemes which had not registered a community management statement as provided for under the new legislation. Macgregor Mews is one such scheme. In that standard statement, the by-laws are stated to be whatever they were as at 15^th July 2000.

The body corporate is therefore mistaken in its belief that By-law 11 of the Body Corporate and Community Management Act 1997 (also about animals) is the applicable by-law for this scheme. The by-laws were ‘frozen in time’ in July 2000, and at that time they were the same by-laws as given to Mr Pleml in 1999. In fact, the scheme has had the same by-laws since October 1994.

Whilst the wording of both ‘By-laws 11’ is similar, requiring that animals may only be kept with the permission in writing of the body corporate, the contravention notice sent to the Applicants would arguably have been invalid. That is perhaps a technical point.

The content of both by-laws 11 however, demonstrates that the body corporate envisages that applications about keeping of animals will be made to the body corporate, and that the body corporate has a discretion which it must exercise in granting a permit to those lot owners who wish to keep an animal. Such permit may provide for conditions in the keeping of an animal, for example.

The by-law could so easily state "No animals are permitted in this scheme," but it does not say that. However, this is how it has been interpreted by the body corporate who say in the MacGregor Mews News: "as per "Macgregor Mews" by-laws no pets are permitted."

I note that lot owners are recorded as saying at the annual general meeting on 26^th September 2006, that Macgregor Mews is a scheme where animals "should not be allowed." That may be the wish of lot owners, but it is not the current law of this scheme. Conversely, pets are allowed. Lot owners need only advise the body corporate and obtain approval in writing.

Of course, the body corporate could refuse such a permit, but in order to act reasonably in doing so, in accordance with section 94 Act, it must know something to the detriment of the animal which it is proposed is brought onto the scheme, eg. that it has a propensity to stray, or to bite, or to bark excessively.

The Applicant’s are quite correct in their argument that each application should be considered on a case- by-case basis. I note that there is no objection whatsoever to the Applicants’ dog by any lot owner. Its behaviour is not mentioned by the committee. Not one lot owner felt moved enough to make a submission, and there is no evidence against this animal. Further, since it has lived peacefully amongst lot owners for over 2 years prior to this application brought by its owners (and not by the body corporate which seeks its removal) I find it the body corporate has acquiesced in the animal being kept by the Applicants. It would be inequitable in the extreme for the Applicants to have to give up their dog after the body corporate has ignored its presence for so long.

The words of the Applicants of March 2004, that they would find alternative accommodation for the dog if there was any problem, are no longer standing. I find that those words related to the situation at the time when the Applicants had been unexpectedly given the dog. There was no "problem" for two years, and the Applicants are not bound by that sentence.

I am satisfied that the body corporate has only concerned itself with this matter since the application by the owners of Lot 22. The Rev. S.M. Seymour advised me of this in his submission, and I note the body corporate’s many references in their submissions to Lot 22. The animal proposed for Lot 22 is not relevant to this application. That is a matter for the body corporate. It may be argued by one lot owner that to allow an animal sets a precedent in his or her favour, but the merits of such an argument would be considered, again, in respect of the particular animal, its behaviour or characteristics, and the body corporate’s behaviour towards it eg. how long it has been there. That one lot has kept a small cat, would not set a precedent for a new owner to bring in two Rottweilers.

The Applicants argue that the committee alone could not make the decision it did in 2004 since such a decision was beyond its powers. I do not accept that submission. Section 100 Act enables the committee for the body corporate to make decisions for the body corporate unless a decision is required by the legislation to be made by resolution at a general meeting

100 Power of committee to act for body corporate

(1) A decision of the committee is a decision of the body corporate.

(2) Subsection (1) does not apply to a decision that, under the regulation module, is a decision on a restricted issue for the committee.

(3) .....

A matter is a "restricted issue" if it changes the rights, privileges and obligations of owners of lots included in the scheme. (Section 26(1) (b) Standard Module). Whether or not the Applicants can keep a dog does not change any legal right or privilege or obligation of the Applicants. The by-laws under which the Applicants must act remain the same. The committee is not, for example, trying to change the by-laws. In practice, it is usually the committee who make decisions about whether an owner may bring in a pet or not. If the owner ( or any other owner) is not happy with the committee’s decision, he can of course put the motion to a general meeting of the body corporate for a vote by all lot owners.
However, the Applicants are successful in their application without having to rely on this argument.
.
This body corporate might in future amend its by-laws and record a new community management statement. The wording of any by-laws about animals can be as specific as the body corporate wishes. It is suggested that if the scheme wants to introduce a "no pets by-law" that those owners lawfully keeping animals at the time of any changes be allowed to maintain their animals until the death of the animal and thereafter not keep another. Such provisions are fairly common in other schemes. Changes to by-laws must be made by special resolution at a general meeting.