La Hacienda [2009] QBCCMCmr 353 (16 September 2009)

Last Updated: 9 October 2009

REFERENCE: 0168-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27423
Name of Scheme:	La Hacienda
Address of Scheme:	206 Cheltenham Drive ROBINA QLD 4226

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for La Hacienda community titles scheme 27423

I hereby order that within 21 days of the date of this order, Lewis Stevens, co-owner of Lot 51, must comply with By-Law 47 and remove and keep removed from Lot 51 and scheme land, the cat being kept on the Lot.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0168-2009

“La Hacienda” CTS 27423

The scheme
“La Hacienda” community titles scheme 27423 is subject to the Body Corporate and Community Management Act 1997 (Act).

Application
This application made by the Body Corporate on 24 February 2009 seeks an outcome that Lewis Stevens, co-owner of Lot 51 remove the cat as per the by-laws. The Body Corporate provided a copy of minutes of a committee meeting dated 12 February 2009 where, at Item 12 of ‘Business Arising’, it resolved to authorise making this application.

The Body Corporate argues Mr Stevens is keeping a cat in breach of By-Law 47 and despite numerous requests to remove the cat. The Body Corporate has provided a copy of:

• The minutes of a committee meeting dated 23 June 2008 where, at Item 2 of ‘Correspondence’, the committee noted correspondence dated 5 June 2008 regarding the keeping of cats in Lot 51 and resolved that the Body Corporate Manager (Body Corporate Services Pty Limited) send a letter to the owner of Lot 51 advising “that no pets are allowed in the complex”.
• Letters dated 17 July 2008 and 1 August 2008 from the Body Corporate Manager to Mr and Mrs Stevens stating (in part) that the by-laws prohibit keeping a cat, the owner of Lot 21 has been ordered by the Commissioner to remove their animal, and it is requested that you remove the animal immediately.
• The minutes of a committee meeting dated 22 September 2008 where at Item 8 of ‘Building Business Arising from Minutes’: “The Body Corporate Manager confirmed that a letter had been written to Unit 51 regarding the keeping of two cats against the Body Corporate By Laws. Committee RESOLVED that the Body Corporate Manager forward a Form 10 Contravention of By-Laws and Form 11 Continuing Contravention of By-Law to the owner and if not remedied within 21 days, to lodge an Order with the Commissioners Office.”
• A Notice of Continuing Contravention of By-Law dated 17 October 2008 and a Notice of Likely Future Contravention of By-Law dated 17 October 2008 addressed to Mr and Mrs Stevens. Both Notices cite By-Law 47 that “...an owner of a lot shall not keep any animal or bird upon their lot or common property.” Both state the Stevens’ are keeping a cat on the property and the contravention is to cease within 21 days.
• The minutes of a committee meeting dated 24 November 2008 where, at Item 8 of ‘Business Arising’, it resolved “to continue with a contravention notice”.
  

Submissions to the Commissioner
On 27 February 2009, the Commissioner provided a copy of the application to Mr Stevens and to the Body Corporate Manager for distribution to the owner of each lot (excluding Mr Stevens), with an invitation to respond to the matters raised in the application (s 243, Act).

Mr Stevens made submissions that the cat is an indoor cat; it does not go outside or onto common property and makes no noise; there is no evidence of any complaints and so the cat is of no interest to the Body Corporate. He says the exclusive use of their property is questioned if the Body Corporate can dictate how they can use their property. Mr Stevens believes he has been discriminated against because he is a member of the committee and he has been subject to intimidation. He states cats are being kept on the scheme with the knowledge of the Body Corporate.

Submissions from or on behalf of owners support the application variously stating:

• By-Law 47 was amended from a permissive by-law to a restrictive one in October 2005 before Mr Stevens purchased Lot 51.
• A motion put to the Annual General Meeting dated 19 January 2009 (2009 AGM) to change By-Law 47 to a permissive by-law was defeated by 33 votes to 9.
• The committee has always acted in a non-discriminatory manner in dealing with requests for animals and not allowing pets in the scheme or acquiescing to pets.
• On two occasions in 2008 Mr Stevens voted on the committee to enforce By-Law 47. In January 2008 he voted to commence proceedings in the Commissioner’s Office to seek the removal of another animal from the complex. In April 2008 he voted to enforce By-Law 47 against a tenant who sought approval for a pet.
• The exclusion of animals was a factor for some owners when purchasing their lots.
• The scheme has had a ‘pet-free status’ since its inception and has attracted like-minded investors and residents.
• Allowing animals would detract from the nature of the scheme and lot resale value.
• There were problems caused by animals in the scheme some years ago.
  

Adjudication
A dispute resolution recommendation has been made under section 248 of the Act referring the dispute to departmental adjudication.

Jurisdiction
An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute 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 (s 276(1), Act). An order may require a person to act, or prohibit a person from acting, in a way stated in the order (s 276(2), Act).

Investigation
In accordance with the investigative powers of an adjudicator stated in section 271 of the Act, on 4 June 2009, Mr Stevens was requested: “[to] provide details of all the animals that you believe are living in the scheme. Please advise the lots the animals are in and, if known, approximately how long they have been at the scheme and whether they have been approved by the Body Corporate. Please also provide any evidence that the Body Corporate or the Committee is aware of such animals being kept on the scheme. Further, your submission indicates that you wanted to provide other documents in support of your position but had been unable to obtain them from the body corporate manager. The Adjudicator notes that the body corporate manager had advised that you could search the Body Corporate records for these documents with two days notice. Please advise whether you still wish to provide any further documentation that is relevant to this matter.”

On 2 July 2009, Mr Stevens responded that Serena Vale (committee member) has a cat and while she says she has Body Corporate approval, there is no documentation to confirm this.

On 22 July 2009, the Body Corporate was requested “to advise whether it wishes to respond to any of the submissions made in respect of the application... [and to] to comment on the ...allegation that committee member, Ms Serena Vale has a cat with the knowledge and/or possible approval of the committee. The body corporate is also requested to confirm in writing if there are any other pets in the scheme and whether those pets have committee approval.”

Daniel Willis responded on behalf of the committee on 20 August 2009. He states the cat referred to by Mr Stevens had been living at Lot 5 since 2003 under the terms and conditions of the previous By-Law 47 and with the knowledge of the then committee at the time. He argues the keeping of this cat is not relevant to the situation involving the cat being kept on Lot 51. Mr Willis says the cat has died and there is no longer a pet living in Lot 5. In relation to claims of discrimination, Mr Willis refers to committee meetings held on 17 January 2008 and 7 April 2008 (providing a copy of each meeting) saying that Mr Stevens voted in favour of enforcing By-Law 47 at each meeting. The minutes of the January meeting indicate (at Item 11 of ‘Building Management Report and Business Arising from Previous Minutes’) that an animal was kept in Unit 21 despite the owner being sent a contravention notice and that a dispute resolution application would be made seeking its removal.
The minutes of the April meeting indicate (at Item 19 of ‘Business Arising from previous Minutes & Building Managers Report’) that a conciliation agreement had been reached with the owner of Unit 21 that the cat will be removed from Unit 21 by 30 June 2008. The minutes also note (Item 2 under ‘Business Arising from Correspondence’) a response to a lot owner “advising that keeping a budgie is not permitted.” Mr Willis provided a copy of the minutes of the 2009 AGM where a proposal by the owner of Lot 5 (Motion 12) to delete By-Law 47 and insert a new by-law of a discretionary nature containing a number of conditions was lost by special resolution with 9 yes votes and 32 no votes. He submits the committee is unaware of any owner (other than Mr Stevens) having pets and the committee has not given any approval to owners under the current By-Law 47. Mr Willis states records indicate Mr Stevens purchased his unit sometime in July 2006.

Decision
By-Laws
The community management statement for the scheme must, unless the by-laws are those in schedule 4 of the Act—include the by-laws (s 66(1)(e), Act). A by-law comes into force on the day the registrar of titles records the community management statement containing the by-law or a later dated stated in the by-law (s 179, Act).

The community management statement for this scheme recorded by the registrar on 27 February 2009 (No. 712245221) includes By-Law 47 which states: “Subject to Section 181 of the Body Corporate and Community Management Act (Qld) 1997 (2003 amendments), an owner or occupier of a lot shall not keep any animal or bird upon his Lot or the Common Property.” This By-Law came into force when the registrar recorded the previous statement on 3 August 2005 (No. 708872199). The preceding statement recorded on 20 July 2001 (No.704835935) contained a By-Law 47 providing that an owner or occupier could keep an animal or bird on the person’s lot with the written consent of the committee.

The by-laws stated in the community management statement are binding on the body corporate, each member of the body corporate and each person who is otherwise the occupier of a lot included in the scheme (s 59(2), Act).

Enforcement of by-laws
A function of a body corporate is to enforce the community management statement, including the by-laws (s 94(1)(b), Act). A body corporate must act reasonably in anything it does under section 94(1), including making a decision (s 94(2), Act).

Sections 182 to 188 of the Act provide a framework for dealing with by-law contraventions.

If a body corporate reasonably believes that an owner or an occupier is contravening a by-law and the circumstances make it likely that the contravention will continue, the body corporate may give a continuing contravention notice to the person to remedy the contravention (s 182, Act). The notice must state: the body corporate believes the person is contravening a by-law; the provision the body corporate believes is being contravened; details sufficient to identify the contravention; the period within which the person must remedy the contravention; and that if the person does not comply with the notice the body corporate may, without further notice, start proceedings in the Magistrates Court or make a dispute resolution application (s 182(4), Act). The person must comply with the notice (s 182(5), Act).

If a body corporate reasonably believes that an owner or an occupier has contravened a by-law and the circumstances make it likely that the contravention will be repeated, the body corporate may give a future contravention notice to the person not to repeat the contravention (s 183, Act). The notice must state: the body corporate believes the person has contravened a by-law; the provision the body corporate believes has been contravened; details sufficient to identify the contravention; that the person must not repeat the contravention; and that if the person does not comply with the notice the body corporate may, without further notice, start proceedings in the Magistrates Court or make a dispute resolution application (s 183(4), Act). The person must comply with the notice (s 183(6), Act).

Unless special circumstances of the nature stated in section 186 of the Act exist (not argued in this dispute), the body corporate must give a contravention notice stating the information prescribed in section 182(4) or 183(4) before making a dispute resolution application (s 184(2), Act).

It is not in dispute that the Body Corporate did not give Mr Stevens a contravention notice or that a notice given did not comply with the legislation. In the absence of any submissions to the contrary, I am satisfied the Body Corporate gave Mr Stevens proper notice of the claimed contravention. Mr Stevens was informed of: the By-Law the Body Corporate believes is being contravened; details to identify the contravention; and the period within which the contravention was required to be remedied.

Keeping the cat on Lot 51
I am also satisfied from the material presented that despite the notice given by the Body Corporate, the cat is still being kept on Lot 51. In this circumstance, as warned by the Body Corporate in notices given to Mr Stevens, the Body Corporate may make a dispute resolution application.

Mr Stevens has disputed the enforcement of By-Law 47. He has questioned the power of the Body Corporate to enforce the By-Law in the circumstance where the cat is kept within the Lot and there is no evidence of complaint. While the By-Law has force, the Body Corporate must enforce it. I note that the resolution on Motion 12 at the 2009 AGM opposed amending By-Law 47 to a by-law of a permissive nature subject to a variety of conditions, and that this resolution has not been challenged. Given the restrictive nature of the By-Law, there is no capacity for the Body Corporate to make a judgment about particular circumstances relating to keeping an animal, particularly when the animal has only been kept while this By-Law has had force. In addition, it is quite clear the body corporate legislation empowers a body corporate to exercise some controls over the activities that are undertaken within a lot on the scheme, including the keeping of animals, through the by-laws. Section 169(1)(b)(i) of the Act provides: “The by-laws for a community titles scheme may...provide for... regulation of, including conditions applying to, the use and enjoyment of lots included in the scheme”.

Mr Stevens has also raised the issue of discrimination. He mentions a cat kept on Lot 5. However, in the absence of any evidence to the contrary, I have accepted the submissions made on behalf of the Body Corporate on this point and on the enforcement of the By-Law with respect to other owners and/or occupiers. In my view, there is no reason to investigate this issue any further.

Conclusion
The Body Corporate has given proper notice to Mr Stevens that it believes By-Law 47 is being contravened; it is apparent the notice was not complied with within the stated period; and the Body Corporate has properly decided to make this dispute resolution application, one of two options available to it to enforce the By-Law. On the basis of the submissions made, I am satisfied the Body Corporate has acted in accordance with the legislation in enforcing By-Law 47 against Mr Stevens. For these reasons, I have made an order in the terms sought providing 21 days for Mr Stevens to remove the cat from Lot 51.