Palm Grove Village [2012] QBCCMCmr 197 (3 May 2012)

Last Updated: 10 May 2012

ADJUDICATOR’S ORDER

Office of the Commissioner

for Body Corporate and Community Management

ORDERS MADE:

REASONS FOR DECISION

Introduction

[1] By-law 13 of the scheme by-laws provides (in part) the occupant of a lot must not, without the body corporate’s written approval, bring or keep an animal on the lot or common property.

[2] The applicants own and reside in Lot 14. They keep a dog on the lot. At the extraordinary general meeting held on 6 February 2012 (EGM), the applicants sought body corporate permission to keep a dog. The applicants’ Motion 2 was not passed.

[3] The applicants ask that the body corporate allow them to the keep their dog “Gidget” and that it give fair and reasonable consideration to requests by current and future owners to keep pets.

Procedural matters

[4] After receiving the application, the commissioner invited the committee and the other lot owners to make submissions about the matters raised (s 243, Act). Submissions were made by six owners. Four owners support the application, two oppose it. The applicants made a reply to submissions.

[5] The commissioner then referred the application to departmental adjudication (s 248, Act).

Jurisdiction

[6] The applicants question voting on Motion 2 at the EGM and whether the body corporate acted reasonably making the decision.

[7] The body corporate must hold and conduct general meetings in the way stated in the Standard Module (s 104, Act). It must act reasonably making a decision at a general meeting (s 94, Act).

[8] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed contravention of the Act or about the exercise of powers under the Act (s 276(1), Act). Also, if I am satisfied the decision was unreasonable, I may give effect to the motion as proposed or a variation of the motion as proposed (s 276(3) and s 24, schedule 5, Act).

Analysis

The EGM

[9] The applicants provided a copy of the minutes of the EGM which indicate Motion 2 was lost by ordinary resolution (9 yes and 9 no votes). The motion proposed:

“That approval be granted for Nino & Silvana Presutti of Lot 14 to keep their dog on the scheme subject to the following conditions:

1. that the dog be contained within the applicants’ lot and not roam on common property or other owners’ lots;
2. that when passing through common property the dog will be carried;

100. the permission granted is for this dog only and does not transfer to any replacement or subsequent animal;

4. the keeping of this dog shall be done in such a way so as not to cause nuisance or hazard, not to interfere with the use or enjoyment of another lot or a person who is lawfully on the common property. This includes, but not limited to:
   1. the dog will not make unreasonable noise; and
   2. the dog will not go to the toilet on common property.”

[10] The applicants submit two votes were not accepted because they were told the votes were received when the meeting had closed. The owner of Lot 20 submits his vote in favour of Motion 2 was not counted as the voting paper arrived late.

[11] As the motion required an ordinary resolution, it was lost on the minuted voting result (s 108(3), Act). The applicants refer to two votes that were not counted, one of which has been identified as being from Lot 20.

[12] The body corporate must hold and conduct general meetings in the way stated in the Standard Module (s 104, Act). A voting paper (other than one given at the meeting) must be given to the secretary before the start of the meeting (s 86(2), Standard Module). Voting on Motion 2 had to be based on the persons voting personally at the meeting, the proxies (if any) and those who had properly cast a written vote (ss 86 and 87, Standard Module). The person chairing the meeting had to declare the result of voting on the motion on the basis of the properly cast votes (s 93, Standard Module).

[13] It would seem both voting papers were not discovered until after the meeting. There is nothing to suggest either or both voting papers were given to the secretary before the start of the EGM. It is not demonstrated these votes should have been counted before the result of voting on Motion 2 was declared. In this circumstance, the way each person voted is not a relevant consideration.

[14] I am not persuaded it is just and equitable to give regard to a voting paper that arrived late or had been given to the secretary after the result of voting on Motion 2 had been declared. I do not consider there is a doubt about the voting conducted on Motion 2. Given submissions and the requirements of the Act, I am satisfied the motion was not passed.

By-law 13

[15] However, this is not the end of the matter. The applicable By-law 13 is permissive in nature. An occupier may keep an animal on the person’s lot with body corporate approval.

[16] Decisions made by bodies corporate about this issue have been the subject of many disputes. In Breakers North [2012] QBCCMCmr 437, the adjudicator outlined considerations which are, given submissions, relevant to this dispute. The adjudicator stated:

“[52] Many bodies corporate have by-laws requiring written approval for the keeping of animals, and adjudicators have dealt with innumerable disputes about the application of such by-laws. There are a range of factors that adjudicators consider in such matters.

[53] One of the most important questions is whether the body corporate considered the specific request, or just automatically refused the request because they don’t want any animals. Adjudicators have consistently determined that bodies corporate cannot apply blanket policies prohibiting pets under a permissive by-law. It is appropriate to have clear and reasonable policies to guide the exercise of the discretion in the by-law, and this can include a preference against pets. But it is not reasonable for a body corporate to rigidly apply a ‘no pets’ policy without consideration of individual circumstances.

[54] The primary issue for a body corporate in considering any pet application is whether there is any genuine likelihood of an adverse impact on common property or any person. Where there are genuine concerns, the imposition of reasonable conditions on the keeping of the pet may be more reasonable than outright refusal for the pet. In addition the legislation specifically prohibits an occupier from using or permitting the use of a lot in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of another lot or common property (s 167, Act).

[55] The issue of creating a precedent is a common concern for bodies corporate. However if a decision to approve a pet is based on the particular circumstances of a request it would not automatically entitle others in different circumstances to also have a pet. Any other requests must similarly be considered on their merits.”

Reasonableness

[17] Given the terms of By-law 13, the body corporate had to act reasonably deciding Motion 2 (s 94(2), Act). As I stated at [8], I may allow the motion if I am satisfied the decision was unreasonable.

[18] In determining reasonableness, the question is not whether the decision was “correct” but whether the decisions were objectively reasonable in all the circumstances (Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 and Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; (1997) 150 ALR 1 pp34, 38).

[19] The applicants submit it is the right of any owner to keep a small and trained in-house dog for health and companion purposes. The applicants provided a medical certificate dated 23 July 2011 from Dr Shanil Rupnarain certifying “that Mr Nino Presutti needs to have a dog for medical reasons”.

[20] The owner of Lot 1 states the by-laws say that no pets are allowed. The owner submits no one wants cats hunting wildlife nor a dog which barks as its natural instinct. The owner states that in the years she has been in the complex the same question has been unsuccessfully put to general meetings. The owner says the applicants were aware before buying the lot that the complex was not pet friendly.

[21] The owner of Lots 6 and 34 submits the applicants are responsible pet owners. The owner is concerned if approval is granted to the applicants it would open the floodgates to allowing pets. The owner states this application should be a “one-off” and that the body corporate can continue to stipulate “no animals”.

[22] The owner of Unit 49 submits when she has visited the applicants the dog has never barked or made any noise.

[23] For the reasons stated in Breakers North, it was not reasonable for the body corporate to oppose the applicants’ request to keep the dog because of: a “no pets policy”; a personal view about the natural instincts of cats and dogs; previous body corporate decisions about keeping animals; or a concern about precedent. The body corporate had to consider the applicants’ request on its merits. There is nothing to suggest the body corporate did so.

[24] This should not count against the applicants. The applicants sought body corporate approval to keep the dog on four conditions. In the absence of any submissions to the contrary, I am satisfied the conditions are reasonable. There is no evidence the applicants’ or the dog could not meet, or were likely not to meet, each of the conditions. The dog has been kept on the lot. There is no evidence it has caused a nuisance or done anything else which would justify opposing the applicants’ request.

Conclusion

[25] In conclusion, I am satisfied the decision on Motion 2 was unreasonable. For this reason, I have given effect to the motion as proposed.

[26] The applicants also sought an outcome that the body corporate gives fair and reasonable consideration to requests by current and future owners to keep pets. The problem with this outcome is that there is no dispute about any other requests to keep pets. There cannot be a dispute when the body corporate has not been asked to make a decision to keep another pet (K.G. Tully & Anor. V The Proprietors The Nelson Body Corporate [2000] QDC 031 at [3]. For this reason, the outcome sought is dismissed.