Oasis Haven [2011] QBCCMCmr 7 (6 January 2011)

Number of Scheme:	20170
Name of Scheme:	Oasis Haven
Address of Scheme:	35 Holland Crescent CAPALABA QLD 4157

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

I hereby order that the application for an order “that the owners of Lot7/35 Holland Crescent Capalaba in “Oasis Haven” be allowed to keep their cat as per passed motion at committee meeting held 13/9/2010...” is dismissed.

In lieu I order that within six weeks of the date of this order that the body corporate convenes a general meeting in order to consider the Applicants’ motion for the keeping of a cat at Lot 7.

This is an application dated 22nd October 2010 and amended on 27th October 2010 by Peter Ward and Susan Ward (the Applicants) co-owners of Lot 7 against the body corporate for Oasis Haven CTS 20170 (the body corporate) for an order that the Applicants be allowed to keep their cat at Lot 7.

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)).

The Applicants say that they moved into Lot 7 in December 2009 with their cat. The committee gave them permission to keep the cat on 12th September 2010 by a motion as follows –

“The family of unit 7 be allowed to keep their cat knowing that at least two other residents in the complex have cats and that all cats be kept within the confines of their unit areas.”

This motion was “later overturned” because the body corporate manager “alerted the committee ... that a motion was passed in 2006 that such permission to keep an animal had to be passed by an AGM or EGM.”

The resolution had been made by the annual general meeting of 2006, and the body corporate manager became aware of this on 16th September 2010. The motion was: “No animals be allowed at the scheme without the approval of a General Meeting of the body corporate.” The body corporate manager had been looking only at the by-laws.

The by-laws for the scheme are said to be the Third Schedule by-laws of the Building and Group Titles Act 1980 – 1988. By-law 11 says -

“Subject to section 30(12) a proprietor or occupier of a lot shall not, without the prior approval in writing of the body corporate, keep any animal upon his lot or the common property.”

The Applicants are not able to call a general meeting on their own and must now wait for the annual general meeting to put a motion about their cat. Applicant Peter Ward is chairperson and asked the committee to call a general meeting at which the motion could be put. The committee meeting at which this proposal was to be put was scheduled for 23rd September 2010, but no committee members attended the meeting.

The Applicants removed the cat from the complex and boarded it with friends on 21st September 2010 and apologised to the body corporate for bringing it into the scheme.

On 24th September 2010, the Applicants received a “Form 1” from the body corporate written by owner Kel Morrison. The body corporate manager advised that he would have to send a contravention of by-law notice if the Applicants did not get permission at a general meeting. The body corporate sent them a contravention of by-law notice on 30th September 2010, quoting By-law 11 and the motion of the 2006 AGM. They were required to remove the cat from the scheme within 5 days, although it was no longer there.

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

Kelvin Morrison, owner of Lot 2 and his partner Valerie Howard made the sole submission. He says that the Applicants brought the cat into the scheme knowing of the by-laws of the scheme or they could have found them by due diligence. Owners tried to ignore the presence of the cat which was “common knowledge”. However, it continually roamed around day and night, and the Applicants denied “having a cat at all” and then said it was only let out at night. He says that Mr Ward voted at the committee meeting which allowed him to keep the cat.

He also says that he is unaware that there are any other cats living in the scheme. Until the Applicants moved in, there “was clarity on the pet issue” and no arguments. Most of the residents are elderly and do not want stress. Ms Howard says that she gave up her own cat in order to take up residence in the scheme and that the Applicants should not be allowed to breach the by-laws.

There was no submission from the body corporate which is the respondent to the application. On 17th December 2010, the body corporate manager confirmed to this Office that the committee would not be making a submission.

I sought further information from the body corporate concerning the register of reserved issues maintained by the body corporate pursuant to section 201 Standard Module.

Land Title Registry records show that the scheme was established in December 1991. There is only a “standard” Community Management Statement (CMS) recorded for the scheme in July 2000, so there are no written by-laws to be found for this scheme by a search in the Titles Office. The by-laws are recorded on the “standard” CMS simply by reference to them being whatever they were in 1997 when the Act commenced.

Prior to 1997, the legislation in force was the Building and Group Titles Act 1980 (BUGTA). BUGTA was amended in 1988 to incorporate a set of “standard” by-laws for use by bodies corporate. A scheme could add to or repeal the standard by-laws if it wished. If it did nothing, then pursuant to section 30(1) BUGTA the “standard” by-laws would be the by-laws for the scheme.

In 1991 when the scheme came into existence, the by-laws were the eleven by-laws as set out in Schedule Three BUGTA as amended, and quoted in the application. There is no evidence to be found that this scheme ever adopted any other by-laws.

“Subject to section 30(12) [of BUGTA] a proprietor or occupier of a lot shall not, without the prior approval in writing of the body corporate, keep any animal upon his lot or the common property.”

It is common ground that this by-law enables the committee to give or withhold the consent of the body corporate.

Contrary to the view expressed by Mr Morrison, and perhaps generally held by the body corporate, this by-law has long been understood to be “permissive” of allowing animals into a scheme. That is, animals may be brought into a scheme if the body corporate gives permission. It is not a prohibition on bringing an animal into a scheme, which in any event has been held to be an unreasonable expression of a by-law.[1]

Generally, it would not be reasonable for a body corporate with By-law 11 to refuse an owner the keeping of cat where there is nothing noted to the cat’s detriment, as is the case here. There are no complaints about the behaviour of the cat, only that it has been seen on scheme land without the requisite permission. The body corporate has a duty to act reasonably in any decision it makes.[2]

On 29th March 2006 at the annual general meeting, the body corporate resolved “that no animals be allowed at the scheme without the approval of a general meeting of the body corporate.” Whilst not elegantly expressed, this appears to be a move by the committee to make a decision about bringing animals into the scheme a “restricted issue” for the committee and a “reserved issue” pursuant to section 42(1)(c) Standard Module which says as follows –

(1) A decision is a decision on a restricted issue for the committee if it is a decision—

(c) on an issue reserved, by ordinary resolution of the body corporate, for decision by ordinary resolution of the body corporate; or...

Issues reserved, by ordinary resolution of the body corporate, for decision by ordinary resolution of the body corporate, must be recorded in a register—see section 201 (Register of reserved issues).

(1) A body corporate must keep a register of reserved issues if the body corporate, by ordinary resolution, reserves an issue for decision by ordinary resolution of the body corporate.
(2) The following details about each reserved issue must be included in the register—

(b) the date of the ordinary resolution of the body corporate reserving the issue.

(3) When notice of an annual general meeting for the body corporate is given, the notice must be accompanied by a copy of the register of reserved issues.

The body corporate provided a copy of a document headed “Ongoing – Motions/ Approvals/ Guidelines” which records the motion to the annual general meeting on 29th March 2006, as well as the approval to erect a shed for Lot 15 given on 3rd May 2007.[3] Section 201 Standard Module requires that the register describes the issue and gives the date of the ordinary resolution of the body corporate when the issue was reserved. The document provided, though simple, seems to me to fulfil the requirements of the register of reserved issues. The principal object of the register is that someone searching body corporate records or registers could find the reference.

It is a requirement of section 201(3) Standard Module, that a copy of the register is circulated with the notice for the annual general meeting. The body corporate says that since there was no issue about the cat at the time of the last annual general meeting, as far as it is aware, the register was not included in the paperwork.

On 12th September 2010, the committee, following by-law 11, gave the Applicants permission to keep their cat. The vote, which included the Applicant Peter Ward as chairperson, was 3 – 1. In my view Mr Ward should not have voted since he clearly had a “direct interest in the issue” contrary to section 53(2) Standard Module. However, the vote would still have been 2 - 1 in favour. This consent is now said to be invalid, but there has been no formal rescission of the committee’s resolution of 12th September 2010. The consent is said to be invalid because the body corporate has formerly decided that the keeping of animals was to be a “reserved issue”, and has recorded this on a register of reserved issues. On 21st September 2010, an owner complained that by-law 11 was being breached. The body corporate on 30th September 2010 sent a notice of contravention of by-law 11 to the Applicants giving them 5 days in which to remove the cat. The notice was signed by the body corporate manager.

Section 182 Act says that the body corporate must within 14 days after receiving the complaint about a breach of by-law, give a contravention notice if it “reasonably believes” that a by-law is being contravened and will continue to be so.

There is no evidence of a committee meeting being held, or a vote outside a committee meeting being taken, between the complaint being made on 21st September 2010 and the contravention notice being sent out on 30th September 2010. I am therefore not satisfied that the committee held the “reasonable belief” that a by-law was being breached. Further, the body corporate manager has no legislative power to send out such a notice without the direction of the committee, even if the action of sending a contravention notice is physically within the remit of his contract.

Neither the body corporate, nor any committee members, have made a submission in this matter.

It seems to me that the committee erred on 12th September 2010, believing it had the power to allow the Applicants to keep a cat. Since that power is reserved to the body corporate at a general meeting, then it must be the body corporate at a general meeting which makes the decision. In the meantime however, it seems to me unreasonable and unfair that the committee condoned, if it did condone, the sending of a contravention notice only 18 days later. The committee had not formed the requisite intent either to rescind its motion, or to issue a contravention notice. The error seems to have been acted upon solely by the body corporate manager without any direction by the committee.

I understand that the scheme financial year end is 31st January, so that the annual general meeting must be held before end April 2011. I consider that such a period of time is too long for this dispute to continue. I therefore order that the scheme shall hold an extraordinary general meeting within six weeks of the date of this order. Other motions may be submitted for the agenda of that extraordinary general meeting in the usual way.

[1] McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57
[2] Section 94 Act
[3] There does not seem to be a need for such approval for a shed on an owner’s property in a GTP however.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Oasis Haven [2011] QBCCMCmr 7 (6 January 2011)