Q1 [2007] QBCCMCmr 180 (28 March 2007)

Last Updated: 12 April 2007

REFERENCE: 0210-2007

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	34498
Name of Scheme:	Q1
Address of Scheme:	QUEENSLAND

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

the body corporate

I hereby order that the application for interim orders is dismissed. The application for final orders remains outstanding. There will be an opportunity for persons likely to be affected by any final orders to provide submissions regarding the application for final orders in due course.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0210-2007

"Q1" CTS 34498

Interim Application

Q1 Community Titles Scheme (Q1) is a 526 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module).

This is an application for interim orders. It arises out of an application by the body corporate for Q1 (applicant) against the occupiers and owners of lot 1104 (respondents).

The body corporate says that the occupiers are keeping a fully grown Alsatian estimated to weigh around 40 to 50 kilograms which is allowed in the lift and common areas. Concerns are expressed that the dog may become agitated and attack a small child. It is submitted that following a complaint about the dog barking the owner walked the dog through the reception area and the dog appeared to be in some form of distress and defecated on the floor of the reception area.

A submission has been received from the owners of lot 1104. This submission is to the effect that the occupiers of lot 1104 do not own an Alsatian. It is submitted that the tenants do have a poodle cross golden retriever estimated to weigh 20 to 24 kilograms. However, it is submitted that this dog does not bark, does not defecate on floors and is carried at all times on common property except when the tenant is by herself and needs to put the dog down to operate the lift and then picks it up again. Finally, the submissions indicate that the lease of unit 1104 will be terminated within the next few weeks.

Interim Orders Sought

The applicant seeks an interim order to have the dog removed from the lot immediately pending a final order regarding whether the dog should be removed.

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).

In determining whether it is just and equitable to grant interim relief it is relevant to briefly consider whether the application raises any serious questions for final determination.

It is also relevant to consider whether any inconvenience likely to result from the interim order is outweighed by the potential detriment alleged in the application. Any evidence that an interim order is necessary to prevent serious or irreparable harm will be significant.

Matters for consideration

The submissions satisfy me that, if the matter does proceed to final determination, there is a serious legal question to be determined regarding whether the occupiers of lot 1104 failed to obtain permission to keep a dog and whether a dog exceeding ten kilograms in weight can be kept at the scheme.

However, there is significant contradiction in the evidence provided and this raises questions about whether the dog the subject of the present application is in fact the dog owned by the occupiers of lot 1104. The evidence does not satisfy me that the dog owned by the occupiers of lot 1104 poses any immediate and significant threat to other occupiers. If further evidence to the contrary is obtained then a further interim order can be made. However, I am not presently satisfied that it would be just and equitable to require the occupiers of lot 1104 to remove their dog immediately without proper consideration of the matters requiring determination.

Order

For these reasons, the application for interim orders is dismissed.

If the body corporate is satisfied that the dog will be removed from lot 1104 in the next few weeks then the body corporate may wish to withdraw the application for final orders. Otherwise, the application will be allowed to proceed to submissions and a final determination in the normal course.