The UOAQ published Newsflash#129 earlier this year involving an Adjudication where the body corporate decided Yes you can have a dog but only on the conditions mandated by our by-laws.  Two of these conditions – ie you cannot use the lifts… you have to use the stairs [to the 13^th floor] – were declared invalid by the Adjudicator:  see Trafalgar Towers  [2021] QBCCMCmr 469

There is a recent Adjudication in austLii.edu.au where another body corporate has lost the battle to stop  dogs in strata:  see Crown Towers  [2022] QBCCMCmr 220  (“the Crown Towers”).  Here, the committee simply said No… and seemingly left it at that.

Two very different scenarios, but with similar and fairly predictable outcomes.

Crown Towers: The Issue

The relevant By-Law 11 at Crown Towers requires ‘approval in writing … to keep an animal on the property’.

The applicants/owners ‘sought body corporate permission… and the committee refused that request.’   The applicants thought this unreasonable.

Reasons for Refusal by the Committee to Accept the Dog Owners’ Request

Seemingly, reasons were never provided:

• The body corporate’s notification of refusal to the applicants “… did not provide any indication of the factors that lead to the….decision. Neither did the committee demonstrate that it had considered the merits of the… request.”  (emphasis added)
• The applicants immediately responded to the body corporate, asking “.. the matter be discussed and reconsidered.” This request was followed shortly after by a letter from the applicants’ solicitors to the body corporate,  in support of their clients’ request to have a dog.  According to the Adjudicator “There is nothing to suggest the applicants are wrong to say the body corporate did not respond.”
• The Commissioner invited the committee “…to make submissions about the matter raised by the applicants. The committee did not make submissions.”

Adjudicator’s Findings

These findings – with emphasis added –  include:

• “… there is no evidence of any assessment by the committee of the circumstances or merits of the applicants’ request.”
• “… the absence of a willingness to explain its decision and the absence of a response to the applicant’s correspondence… are indicative of a committee not acting in good faith.”
• “… the applicants have established that the committee decision…did not reflect an objective consideration of the merits of their request.”
• “The applicants have shown that the committee did not have genuinely held concerns about the dog…”
• “…the committee did not act reasonably making the notified decision.”

Comment

Why the refusal:  Anyone reading this Adjudication could be forgiven for asking why the committee refused permission in the first place.  Obviously, there was little or no chance of this decision being upheld by the Commissioner’s Office – especially if reasons for the refusal are not provided to the applicants.

Conciliation: It is unfortunate that the dispute could not be settled at the formal conciliation:  “In October 2021, the applicants made a conciliation application to the Commissioner seeking body corporate approval to keep the dog.  An agreement was not reached at conciliation.”

Final orders in public domain:  Critically, it is difficult to understand why the committee persisted with the refusal –  including the committee’s apparent failure to even discuss and/or explain their reasons etc –  up to the point of final orders in favour of the applicants being made by the Adjudicator and then published in the public domain.

Unnecessary waste: The end result is a lot of wasted time, resources and money – the applicants’, the respondent’s, and the Commissioner’s – because of a seemingly non-defensible committee decision.

Costs and compensation:  Relevantly, the applicants were not in a position to properly ask for costs against the body corporate.  Section 270 costs orders under the BCCM Act can be awarded only against applicants – not against respondents, even if the Adjudicator were satisfied their conduct warrants some compensation being paid to the applicants.  If s.270 were to be expanded to include respondents, this would deter unnecessary disputes being caused by those respondents who know, or should know, they are wasting everyone’s time etc.

The UOAQ has written previously about the need for a full debate about the current swiss-cheese regime for costs etc in the BCCM legislation.  This need continues…