Capella [2007] QBCCMCmr 40 (23 January 2007)

Last Updated: 9 February 2007

REFERENCE: 0973-2006

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9327
Name of Scheme:	Capella
Address of Scheme:	7 Markham Avenue RUNAWAY BAY QLD 4216

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Barry Pitman and Jacquleen Courtney-Pitman, the owner of Lot 1

I hereby order that the application for an interim order made by Barry Pitman and Jacquleen Courtney-Pitman, the owner of Lot 1 that Miles and Debra Synnott, the owner of Lot 2 keep their dog off the common property until the final determination is made, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0973-2006

"Capella" CTS 9327

APPLICATION

This application is by Barry Pitman and Jacquleen Courtney-Pitman, the owner of Lot 1 (applicants) against the body corporate. Miles and Debra Synnott, the owner of Lot 2 have been named as persons who would be affected by the outcome sought.

The applicants are seeking an interim order that Miles and Debra Synnott keep their dog off the common property until the final determination is made. One of the final outcomes being sought is that Miles and Debra Synnott remove the dog from the scheme.

JURISDICTION

"Capella" Community Titles Scheme 9327 is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement.

In accordance with section 247 of the Act, the Commissioner for body corporate and community management (Commissioner) has referred the application to me to decide whether the nature or urgency of the circumstances of the application warrant an interim order being issued. The commissioner has referred the application to me even though affected persons have not been given notice of the application, or afforded an opportunity to make submissions about the application (section 247(3), Act).

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to Miles and Debra Synnott. Miles Synnott made a submission regarding the interim order application.

DETERMINATION

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application. In any consideration of an application which seeks the making of an interim order, it is necessary to determine at the outset whether, because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate. The examples included in the Act under section 279(1) are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters which might be the subject of an interim order is not capable of definition, the applicants do need to establish that the circumstances of the application warrant the making of an interim order.

The applicants seek an interim order that the dog kept by Miles and Debra Synnott not utilise the common property. The applicants have not stated any grounds to support the interim outcome being sought or which indicate why an interim order is necessary because of the nature or urgency of the circumstances of the application.

Miles Synnott submitted that the dog is fifteen years old, that they have lived in Lot 2 for nine years, and that there has never been a complaint about the dog until now. It is submitted that the dog spends most time inside the Lot and that he never excretes on the common property. Mr Synnott also described the current condition of the dog.

By-Law 11 of the scheme by-laws states that the occupier of a lot must not without the approval of the body corporate bring or keep an animal on the lot or common property. The scheme by-laws are stated in the community management statement which is binding on the body corporate, each member of the body corporate (each owner) and on each person who is otherwise an occupier of a lot in the scheme (section 59, Act).

The only indication of body corporate consideration of this matter provided by the applicants is in the minutes of the Annual General Meeting dated 1 November 2006 where Motion 20 proposed by the applicants and stating that no pets be allowed to utilise common property unless restrained was not passed given the dissent from the Synnotts. The applicants have not shown that body corporate approval has not otherwise been given to the Synnotts, or that if it has been given, the dog’s use of the common property has been to their detriment.

Conversely, Mr Synnott has provided an excerpt of minutes of a meeting dated 8 September 2003 with a previous owner of Lot 1 which stated generally that only present owner occupiers be allowed to keep pets. Mr Synnott has also submitted that the dog has been kept on the property for many years without complaint until now.

In my view, the applicants have not raised any serious legal questions or otherwise provided any basis to warrant the interim order being sought. Therefore, the application for an interim order is dismissed.

While there has not been any material presented to suggest that problems have occurred consequential to the dog being on the common property, the owner of Lot 2 should be mindful that the animal does not cause a nuisance as stated in section 167 of the Act:

167 Nuisances

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that--

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

This application will now be administered in accordance with the Act and the normal processes of this Office. The application will be finally determined in due course.