Pee Wee Court [2009] QBCCMCmr 19 (21 January 2009)

Last Updated: 19 February 2009

REFERENCE: 0052-2009

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10514
Name of Scheme:	Pee Wee Court
Address of Scheme:	9 Sunbird Street BURLEIGH WATERS QLD 4220

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

Gordon Barnett & Ekaterina Fedorova, the co-owners of lot 4

I hereby order that Gordon Barnett and Ekaterina Federova may keep and maintain the two dogs currently residing with them in the premises of Lot 4, on the premises of Lot 4 until final determination of this application. 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 0052-2009

“Pee Wee Court” CTS 10514

CORRECTION OF STATEMENT OF REASONS

The purpose of this re-statement of adjudicator’s reasons is to correct typographical errors wherein I had referred to the Applicants’ lot as “Lot 2”, in lieu of Lot 4, in some paragraphs.

The Order dated 21st January 2009 itself remains unchanged, and is not re-issued.

APPLICATION

This is an application dated 20th January 2009 by Gordon Barnett and Ekaterina Fedorova (the Applicants) owners of Lot 4 against the body corporate for Pee Wee Court (the body corporate) for an order that the Applicants may keep two dogs currently residing at Lot 4.

The Applicants meanwhile seek an interim order that they may keep the dogs until the final outcome of this application.

JURISDICTION

“Pee Wee Court” Community Title Scheme 10514 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 2008 (Standard Module). There are four lots in the scheme created under a Building Unit 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 simply to maintain the “status quo” of a situation, and not finally to 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. Since the Applicants say that they have been given until 21st January 2009 to remove the dogs, Brian Gadd (Mr Gadd), described as secretary of the scheme in the application, was contacted and invited to make a submission on behalf of the body corporate, by 12 noon on 21st January 2009.

SUBMISSIONS

The Applicants say that they purchased Lot 4 on 12th December 2008 but before that they were tenants of the same lot. The Applicants have kept one dog on the lot since November 2007, and other owners in the scheme also kept cats and a dog. Towards the end of April 2008, the Applicants were given a second dog.

At the end of May 2008, the applicants received a by-law contravention notice, stating that by-law 11 “Keeping of Animals” was being contravened. There was no prior notice from the body corporate that the dogs were unwelcome. The Applicants contacted the body corporate manager who advised them to write a letter (via the body corporate manager) seeking permission to keep the dogs. The Applicants did this, and received no further correspondence from the body corporate until a notice of a dispute resolution application lodged with Office was given to them on 17th October 2008.

The Applicants ( who were tenants at the time) obtained signed statements from the owners of Lot 4 ( their landlords); Lot 1 ( Kilea Wilson) and Lot 3 (William La Mude) that they had no objection to the keeping of the two dogs.

At an extraordinary general meeting held on 22nd December 2008, Motion 2 was that the owner of Lot 4 be permitted to keep two small dogs on their premises. There were two votes from Lot 3, one saying “ no” and one saying” yes”. Mr La Mude has since written a statement on 7th January 2009 that the “no” vote was lodged by accident, and that he supports the keeping of the two dogs as per his previous statement.

The Applicants say that “the outcome of the EGM was for us to remove the dogs from the premises by 21/1/09.” The Applicants believe that the vote on Motion 2 after Mr La Mude’s explanation was 2 in favour and 2 against.

They say that the dogs are not aggressive, are well-kept and bark only occasionally.

Mr Gadd did not feel able to make a submission on behalf of the body corporate in the time available.

DETERIMINATION OF INTERIM ORDER

I understand that there may be no functioning committee of the body corporate in this scheme of four lots, which might have exacerbated this issue.

In this matter, there are certain matters which are not satisfactorily explained and will need further investigation. There is not, at this interim order stage, sufficient time available to explore the issue in detail.

My concerns are as follows –

• that it is not apparent that the wording of Motion 2 gave any time limit in which the dogs were to be removed if the vote was unfavourable to the Applicants. This appears to have come from discussion at the EGM on 22nd December 2008 and was, at best, an amendment put by Brian Gadd, co-owner of Lot 2. The Applicants appear to have been present at this meeting, but there is no evidence that the date of removal was a decision of the body corporate;
• there is some evidence that one lot owner voted mistakenly;
• I have not yet seen the by-laws for the scheme;
• there is no evidence of the behaviour of the dogs, save for the comments of Mr Gadd at the EGM which apparently arose from discussion after the vote on Motion 2 was taken;
• the minutes of the EGM show that Motion 2 was not passed. There were 2 votes “in favour” and 2 “against”. This would mean that the motion did not succeed.
  

In granting an interim order, one of the tasks of the adjudicator is to weigh up the balance of inconvenience to the parties. It appears that a dog has been kept on the premises of Lot 4 since November 2007 and the second dog since April 2008. The body corporate has therefore lived with any inconvenience caused by the dogs for some time. In my view this outweighs the inconvenience (and possible expense and distress) to the Applicants of removing the dogs. Maintenance of the status quo is required whilst this matter is further explored and all owners are invited to make submissions.

I therefore grant the interim order required by the Applicants.

I am aware that this matter has been through the conciliation process but I have no knowledge of what was said or done at conciliation which remains confidential. In an application for adjudication, the Applicants must plead their case anew.

This matter is now referred back to the Commissioner under section 279(4) Act.