Casa Del Rey [2010] QBCCMCmr 489 (26 October 2010)

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

I hereby order as follows –

1. Motion 12 of the annual general meeting held on 9th January 2010 was invalid for the reasons particularised in the reasons for decision attached;

2. Motion 13 of the annual general meeting held on 9th January 2010 was invalid for the reasons particularised in the reasons for decision attached;

3. That Pablo a Chihuahua dog belonging to Joy Ransley-Smith and/or Philip Ransley- Smith may be kept at or in Lot 3 and/or may visit Lot 3 and may be taken onto the common property of the scheme provided that when on common property he is either carried or kept on a lead.

In all other respects, this application is dismissed.

This is an application dated 15th June 2010 but not lodged with this Office until 22nd June 2010 by Joy Ransley-Smith and Philip Ransley-Smith (the Applicants) two of the co-owners of Lot 3, against the body corporate for Casa del Rey CTS 26387 (the body corporate) for orders as follows -

“Casa del Rey” CTS 26387 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 10 lots in the scheme created under a Building Format 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

(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 242 Act requires that an application which seeks to void a motion of a body corporate must be made within three months of that motion. I note that the Applicants made an application to this Office for conciliation of a dispute on 28th January 2010, and whilst I have no knowledge of, or access to any documents or information used in any conciliation session which followed, which information cannot be used in an adjudication application, I am satisfied that the provisions of section 242(3) Act have been met.

The Applicants sought the authorisation of the body corporate to keep a dog, Pablo, at Lot 3 and on scheme land. The body corporate “purported to give its consent”, but the conditions of keeping the dog imposed by the body corporate are not acceptable to the Applicants. The body corporate required evidence that Pablo was a certified assistance dog. The Applicants say that there is no by-law or “other law” which requires an assistance dog to be certified as such.

The Guide, Hearing and Assistance Dogs Act 2009 enables a dog to be certified as an assistance dog, but that legislation is not relevant. It is the Disability Discrimination Act (Cth) which the Applicants say is the relevant legislation. If the dog was certified under the Guide, Hearing and Assistance Dogs Act 2009, then no permission would be required from the body corporate.

The annual general meeting held on 9th January 2010 considered at Motion 12 – that the body corporate shall approve the Owner of Lot 3 to house a dog specifically a Chihuahua, within the building scheme. The vote was taken by secret ballot and the recorded results were 5-3 against with 2 abstentions.

Motion 13, which was also taken by secret ballot, was to record a new by-law about the keeping of animals, in lieu of the previous By-law 11. The motion was as follows –

The Applicants say that this motion was unreasonable and unfair since it prohibits even an assistance dog. The motion should be ruled invalid.

Pablo is a well-trained Chihuahua, and required by Philip Ransley-Smith, who is Joy Ransley-Smith’s son, for his physical and mental well-being and medical treatment. The Applicants provide letters from a medical practitioner, neurologist, physiotherapist and a vet who all state that Philip’s condition will improve if he is allowed to have Pablo in his living environment.

The body corporate’s refusal to allow Pablo unless he is certified as an assistance dog is discriminatory to Mr Ransley-Smith. Pablo has been trained to assist Philip with his disability “to alleviate the effect of the disability”. There is also one other dog permitted by the body corporate in the scheme, and at one stage there were five pets permitted in the scheme. Pablo is also very small, easily controlled, well behaved and in good health, and is no threat or imposition to others. Pablo has been in the complex for some time with no complaints about him.

The body corporate must act reasonably. The Applicants say that the issue of the contravention of by-law notice was really about things allegedly done by Joy Ransley-Smith and not about the dog.

The Applicants applied to the committee for permission to keep Pablo, but the committee, without holding a meeting, decided to put the matter to a general meeting, and by secret ballot. It is nowhere minuted that that the committee decided to hold the motion by secret ballot. There was also no returning officer present, although it appears that the chairperson acted as returning officer which is prohibited. At the meeting, Mrs Ransley-Smith in fact counted the votes as 4 -4, but the minutes show 5 – 3 against. She does not accept that this was an accurate count.

Mrs Ransley-Smith is a member of the committee and did not have notice of any committee meeting. The decision to issue a by-law contravention notice did also not eventuate from a committee meeting, but by a “flying minute” in which Mrs Ransley-Smith was not invited to take part, even though she would have had to absent her vote because she would have been a position of conflict.

The Applicants quote section 9 Disability Discrimination Act 1992 (Cth) which states that an assistance dog is one trained to assist a person with a disability “to alleviate the effect of the disability and to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.” They say that the dog does not have to be trained by an accredited person. The letter from the vet Dr Geoff Wilson, says that the dog is well trained and easily managed

The letter from the doctor, Dr Arthur Belthikiotis, explains that Philip Ransley-Smith, who is 33, “suffers from a progressive degenerative disorder of his brain” and that a small dog would be beneficial to his rehabilitation and general well-being.

The letter from the neurologist, Dr Max Williams, says that Mr Ransley-Smith has a rare chronic neurological condition characterized by slurring speech, unsteadiness of gait, in-coordination of upper limbs, difficulty with visual tracking, double vision and focusing. He has undergone intensive rehabilitation but this cannot continue long-term. He must continue exercising the coordination of all his limbs and vision and an assistance dog would help his ability to focus his eyes help his gait and especially when alone, his speech. His morale would also enhanced.

The letter from the physiotherapist, Sherree Erwin, says that Philip suffers from a rare condition which affects his balance, endurance, co-ordination and functional abilities. He needs an extensive maintenance program to address his core stability, balance and cardio vascular fitness. A dog would be a welcome addition to his ongoing program to provide motivation to keep up the balance and cardio vascular fitness.

On 22nd January 2010 the body corporate sent to two of the owners of Lot 3 a notice of continuing contravention of a body corporate by-law notice (the notice). The notice set out the “former” By-law 11 and stated –

“The owner of a lot must not without the body corporate’s written approval

The notice said that although permission had been sought, the body corporate at a general meeting had denied the request, and the owners had “blatently (sic) disregarded” this decision and brought an unauthorized animal onto scheme land. The body corporate gave the owners 16 days in which to cease the contravention.

In accordance with section 243(2)(b) Act, submissions were invited from all lot owners.

Harry and Carmen Coleman, owners of Lot 8, say that Mr Coleman has been chairman since 2003, and that the application for small dog was submitted to a secret ballot to allow an unbiased result. The committee previously understood that Mrs Ransley-Smith had started the process of having Pablo registered as an assistance dog, and the committee therefore granted consent with this condition. The body corporate remains unaware for what purpose the dog has been trained. Philip Ransley-Smith is often seen alone waiting for someone to collect him at the front gate, or boarding a bus. He has also been seen driving a car, on each occasion without Pablo. He has also now moved out of the scheme.

They say that there are no animals now in the scheme. They deny any inference of a vendetta against Mrs Ransley-Smith. They have nothing against dogs but they are not suitable in small units, and the body corporate has now voted for a by-law change to “NO ANIMALS.”

Allan Simpson, owner of Lot 7, says that the Applicants brought a dog onto the scheme although they knew that the body corporate had just refused approval for it at the general meeting at which Mrs Ransley-Smith was present. The body corporate would be willing to grant her request if it can be demonstrated that the dog is registered as a “carer-dog”. The body corporate has acted reasonably and fairly. The resolution of the matter is in her hands.

David and Gloria Brennan, owners of Lot 9, say that they object to dogs within the scheme. There have been problems in the past with dogs and the owners decided some time ago, that when existing dogs died, there should be no more pets. They themselves own dogs but do not take them to Casa Del Rey. Mrs Ransley-Smith could live in another of her properties with the dog if it is vital for her to have the dog living with her.

The body corporate manager Brisdon Body Corporate Service (Brisdon) says that the Applicants suggest that the vote on Motion 12 was not as recorded, but it confirms that the voting was as minuted.

Ian Leslie, owner of Lots 1 and 2, and also the operating manager of Brisdon, denies that there is any personal vendetta against Mrs Ransley-Smith. The committee has reconsidered the Applicants’ proposal to keep a small dog and has agreed that if the dog is certified (as an assistance dog) then the dog would be “welcome at the property without reservation.” The body corporate does not want dogs in the scheme and has voted as such. It is not a personal matter but the wish of the majority. He says that the Applicants previously owned dogs which were the cause of some complaint but the body corporate shielded these complaints from the Applicants.

Mrs Ransley-Smith denies that she has ever agreed that the dog would be certified as an assistance dog. She maintains that the dog is an assistance animal by virtue of the definition in the commonwealth legislation because it is a “disability aid.”

She denies that there were problems with the previously owned dog. There is no evidence of these alleged complaints.

In respect of the proposal that she could live in another property owned by her, she says that she is unable to move, that her son has lived with her during his illness and needs her to be on hand during his medical treatment, and it is not a good time to be selling. Philip does not currently stay with her since the keeping of the dog is in dispute.

In respect of the observation that Philip has been seen without the dog, she says that there are obviously times when Philip is away from the dog. The medical value of the dog remains clear.

She provides a further letter from a professor of neuroscience Professor Elsdon Storey which says that given that Philip sometimes lives alone, a small dog unlikely to knock him over would be beneficial for his psychological wellbeing and would assist with coordination and normal living skills. I have not taken this letter into account as the body corporate has not had an opportunity to make submissions in respect of it, and in my view it merely adds to views already expressed by Mr Ransley-Smith’s other medical advisors.

In this matter the facts are largely not in dispute, save for the allegation that Mrs Ransley-Smith told or intimated to the committee that she was seeking to have the Chihuahua Pablo registered as an “assistance dog” for her son Philip. Mrs Ransley-Smith denies this. Philip’s condition is not challenged by the body corporate, nor does it challenge the submissions made on his behalf by his medical advisors. It seems that the body corporate would “welcome” Pablo if he was certified as an “assistance dog”.

I find that there is no allegation whatsoever of nuisance or problem behaviour against Pablo, but that the body corporate has decided that it no longer wishes to have any animals in the scheme.

Outcome sought 1 – Motion 13
On 9th January 2010, the body corporate voted to change its by-law from the “permissive” by-law that the body corporate might give written permission to keep an animal, to a “prohibitive” by-law that no animals were to be brought onto or kept in the scheme by occupiers or invitees.

I have some concerns with the technical processes adopted for this motion. All motions are required to state what sort of resolution is required to carry them, and motion 13 did not. (Section 71(4)(b) Standard Module). The motion is required to state that it was a motion of the committee, and Motion 13 did not (Section 71(5)(a)(iii) Standard Module). A motion to change a by-law may be made by special resolution of the body corporate, save for a motion to change an exclusive use by-law which must be made by a resolution without dissent. (Section 62(3) Act) The voting on the motion was 7 – 2, which achieves the requirements for a special resolution in any event, that is two-thirds of those voting, vote in favour, and not more than 25% of lot owners in the scheme against. An abstention is not counted as a vote.

However, votes taken by secret ballot must be handed directly to an appointed returning officer, who may not be a lot owner in the scheme (Section 91(4)a) Standard Module.) The body corporate must appoint a retuning officer for a secret ballot. (Section 91(1) Standard Module.)

What then is the effect of a motion which was flawed as to process in this way? In Body Corporate for Aleutian at Seaforth & Ors v. The Lot Owners for Each of the Applicant Bodies Corporate & Ors [2009] QDC 52 (10 March 2009) , the District Court , without making a finding on the effect of such non-compliance, said that it was not the point that a special resolution had been achieved, where the body corporate had failed to comply with the provision to state in the motion that a special resolution was required. The court said –

“...The apparent purpose of the regulations is so that owners may know prior to a motion coming before the meeting the voting required for the motion to pass or fail. That knowledge may have a bearing on what they may do, for instance, lobbying other owners, voting at the meeting.

[29] The regulations are in imperative terms. In the absence of compliance with the process legislated it is not to the point that ...... the resolutions passed with the majority required by a special resolution.”“

In trying to determine the effect of non-compliance with a mandatory requirement, an adjudicator needs to look at the purpose of the legislation including “the language of the relevant provision and the scope and object of the whole statute”.[1]

I am not of the view that a failure to specify the type of resolution required, and the failure to state that the motion is a motion of the committee, are fatal flaws. As Boulton DCJ said -

“The very detailed provisions of the standard module regulation .......make it almost inevitable that from time to time there will be non-compliance. Equally though the provisions of the Act make it clear that non-compliance of an insubstantial nature will not be allowed to imperil the actions of bodies corporate or their committees, particularly in the instance of committees where actions are taken bone fide.”[2]

However, I am of the view that the failure to appoint a returning officer to oversee a secret ballot is not “of an insubstantial nature.” The “language of the ....provision and scope and object of the whole statute” points to a measure of detail to be observed so as to ensure that a secret ballot is not interfered with in any way, nor might be perceived to have been so interfered with.
The legislation is clear that no lot owners, nor a body corporate manager nor associate are to be appointed as the returning officer, and that there must be an independent presence in the room whose role it is to oversee the conduct of the secret ballot. The votes are to be given into his safekeeping and to no-one else acting as an intermediary.[3] I am satisfied that for this reason alone, Motion 13 must be ruled invalid.

However, Motion 13 is in my view invalid also as to content, apart from its failure as to process. On 21st September 2010, the Queensland Civil and Administrative Tribunal (QCAT) delivered an appeal decision in McKenzie –v- Body Corporate for Kings Row Centre CTS 11632[4] which prevents bodies corporate from making by-laws which approve a blanket prohibition on all animals, or even on specific animals such as “cats and dogs.” Such wording was held by Tribunal Member Kenneth Barlow to be unreasonable in itself since each animal, which might be something as innocuous as a goldfish, should be considered on its merits and the body corporate has no power to take away the freedom of a person to own an animal, for companionship or otherwise, unless it can mount a reasoned objection to that particular animal, based on relevant circumstances.

I therefore declare that Motion 13 was invalid. From a search of the Land Title Records however, I note that the body corporate has not in fact recorded a new community management statement since 2nd March 1993, and the former By-law 11, which is the “permissive” by-law, and which was quoted with approval in McKenzie, is still in force.

Outcome sought 4
Section 179 Act says that a by-law only has effect from the day on which it is recorded in the community management statement, and section 65 Act that a request to record a new community management statement might only be made within three months of the general meeting at which the by-law was approved by the body corporate. Even if the content of the proposed new by-law 11 was not invalid, it would now be of no effect as being out of time.

The Applicants’ fourth outcome sought is therefore not relevant in the circumstances, and I dismiss this outcome sought.

Outcome sought 1 – Motion 12
Section 94 Act requires the body corporate to act reasonably in all things which it does for the administration of the scheme and in performing its functions under the Act. On 9th July 2010, by motion 12, the committee put Mrs Ransley-Smith’s application to keep Pablo at Lot 3 to a vote at a general meeting. There was in my view no reason why it should not have done this. Whilst by-law 11 and the legislation gives the committee the power to make such a decision, the committee is entitled to open up the motion to all owners.

However, apart from the minor failures to comply with the legislation as discussed above, the decision to decide the motion by secret ballot required an independent returning officer to be appointed. Since there was no returning officer appointed, as discussed above, I am of the view that this motion also was invalid.

In addition, even if the correct process had been adopted, the reasonableness of the body corporate might be successfully challenged in the event of there being no known detriment to Pablo being in the scheme. There is no complaint about this dog. It does not appear to have any propensities which could alarm members of the body corporate. Indeed, it is clear, and admitted by submitters, that it is only because the body corporate does not want any animals in the scheme, that Pablo is not “welcome” as he otherwise would be. Such a prohibition has been found in McKenzie, to be unreasonable.

The body corporate also does not challenge the evidence provided by Mr Ransley-Smith’s medical advisers that Pablo’s owner or keeper is a person who has profound physical and mental health problems, and that a small dog is a comfort to such an owner, as well as promoting his rehabilitation.

I find the question about whether or not Pablo is an “assistance dog” to be something of a red herring. The body corporate is required to act reasonably, and there is no reason other than the preference for a blanket prohibition, (which has been held not to be reason that can be supported) why Pablo should not live in Lot 3 with Mrs Ransley-Smith and/or with her son Philip, or visit the scheme with Philip, even if Philip did not have a medical condition. However, the fact of Philip’s disability is one of the circumstances which the body corporate should reasonably take into account in considering a request to keep an animal in the scheme.

Outcome sought 3
The Applicants seek an outcome that the body corporate is deemed to have consented to their request to keep/bring Pablo onto the scheme, that is, not only that Motion 12 was invalid, but that it was carried successfully. In the alternative, they seek a declaration that the body corporate is unable to prevent Pablo from being brought onto scheme land, since to do so would be discriminatory against Mr Ransley-Smith.

I am of the view that this dispute would only be extended by requiring that the body corporate votes again on the content of motion 12, in the light of this order and in the knowledge that Motion 13 was invalid.

There is some evidence that Mr Ransley-Smith has moved out of the scheme during the duration of the dispute or because of the present view of the body corporate. I therefore order that Pablo may be kept on or in Lot 3, or may be brought onto Lot 3 and the common property, provided in either instance that if he is taken onto common property that he is either carried, or taken on a lead.

Of course, when an animal is permitted to remain within scheme land, its owners are still subject to the provisions of section 167 Act that they must not within their lots or on common property cause a nuisance or interfere unreasonably with the use and enjoyment of another lot or the use and enjoyment of the common property by another person. The body corporate therefore has its safety net within the legislation.

Outcome sought 2
On 22nd January the body corporate sent a by-breach notice to Mrs Ransley-Smith and another co-owner of Lot 3. Since I have ruled that Motion12 was invalid, it follows that there was no decision of the body corporate that Pablo should not be permitted. However, the Applicants did not at that time have the permission of the body corporate to bring Pablo into the scheme, having asked for such permission, that is, not relying on their argument that no permission was required. Whilst the negative answer might have been invalid, the permission had not been given. In the circumstances, I dismiss this part of the application.

Finally, I find that there is no evidence whatsoever of a vendetta against Mrs Ransley-Smith.

Re: Assistance dog or animal
It may help the parties to explore the meanings given to “an assistance dog” in the state and commonwealth legislation, and the relationship to those pieces of legislation to the Act.

Section 181 Act states that “a person with a disability under the Guide, Hearing and Assistance Dogs Act 2009 who relies on a guide, hearing or assistance dog” has a right to bring that dog into the scheme, and that the body corporate cannot make a by-law restricting or excluding that right. The disability suffered by the person has the definition given under section 5 Guide, Hearing and Assistance Dogs Act 2009. ‘A disability’ is quite widely defined including –

(i) an intellectual, psychiatric, cognitive, neurological, sensory or physical impairment;

However, the Guide, Hearing and Assistance Dogs Act 2009, defines “an assistance dog” quite narrowly as one trained by an accredited trainer. The trainer must have fulfilled certain conditions, and is issued with an identification card which must be displayed. The handler of the dog is also issued with a handler’s identification card as is the dog, which must wear an identifying coat. Even an approved trainer may not certify his or her own dog. (Section 39). One of the objects of the act is to ensure the quality and accountability of guide, hearing and assistance dog training services, and to provide a system for approval of trainers.

The question arises whether the reference to the Guide, Hearing and Assistance Dogs Act 2009 at section 186 Act is intended to do more than incorporate the definition of “disability”, and that is, also to incorporate that act’s definition of “assistance dog” despite the wording that it is the ‘disability’ which is “under the act” and not the ‘guide, hearing or assistance dog.’

It seems to me that there would be no need to mention the Guide, Hearing and Assistance Dogs Act 2009 at section 186, Act if the reference in that act was only intended to be to the definition of ‘disability’. The ‘disability’ must be taken to give rise to the need for the “assistance dog” defined by reference to the act. The accepted view would be that where an owner or visitor to a scheme has an ‘accredited assistance dog’, then the body corporate cannot prevent that dog from coming into the scheme. However, the point is certainly arguable, and in my view the section is unclear.

Under section 9 Disability Discrimination Act 1992 (Cth), an “assistance animal” is one accredited under a State law which provides for the accreditation of such animals; or an animal accredited by an animal training organization; or simply, an animal trained to assist a person with a disability to alleviate the effects of the disability, and to meet certain standards of hygiene and behaviour. It is therefore based on different criteria. Understandably, the commonwealth legislation is concerned that a disabled person who has with him or her an animal which has been trained to assist that person in a particular way, is not discriminated against. It is not concerned with the bona fides of the animal’s training.
The question of whether the animal has been trained to alleviate a disability, and trained to meet certain standards of hygiene and behaviour in public places, is one which can only be tested by evidence. In my view the question of reasonableness is also relevant. Under the Commonwealth legislation, without more, section 9 might refer to a horse, or even an elephant, specifically trained. It would not be reasonable to require the body corporate to house such an unsuitably large animal even if the criteria could clearly be demonstrated. The Disability Discrimination Act 1992 therefore encompasses reasonableness in its criteria. The act speaks of “reasonable adjustments” which may be made (by the alleged discriminator), subject to a claim of “unjustifiable hardship”, which includes a consideration of the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned. (Section 11(1)(a).)

In dealing with a request by a disabled person then, I am of the view that the Commonwealth legislation requires the body corporate to take that person’s disability into consideration, and make a reasonable decision in the circumstances. In this way, it imposes no different a requirement than that imposed by section 94 Act.

Finally, I am of the view that neither Pablo, nor any other dog, could be called “a disability aid” since that definition in the Commonwealth legislation appears to apply to a piece of “equipment.”[5]

[1] Held to be the “better test” for deciding if an act done in breach of the legislation should be invalid in Tasker v Fullwood [1978] 1 NSWLR 20 as approved and applied in Silva Care Australia Pty Ltd, Gunadam Pty Ltd & Sirichandra Pty Ltd v Body Corporate for Indigo Blue Beachside Residences CTS 30961 [2009] QCCTBCCM 23 (17 June 2009)

[2] Wei-Xin Chen v Body Corporate for Wishart Village 2001] District Court (Brisbane) 4080 of 2000

[3] Il Villaggio [2005] QBCCMCmr 342 (22 June 2005); Paradise Grove [2010] QBCCMCmr 117 (10 March 2010)

[4] McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 057 (10/APL056) Brisb Kenneth Barlow 28/09/2010

9(3) For the purposes of this Act, a disability aid , in relation to a person with a disability, is equipment (including a palliative or therapeutic device) that:

Number of Scheme:	26387
Name of Scheme:	Casa Del Rey
Address of Scheme:	305 Golden Four Drive TUGUN QLD 4224

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Casa Del Rey [2010] QBCCMCmr 489 (26 October 2010)