Alexandra Villas [2000] QBCCMCmr 22 (20 January 2000)

P G DanielsREFERENCE: 0606-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20451
Name of Scheme:	Alexandra Villas
Address of Scheme:	47 Windemere Road ALEXANDRA HILLS QLD 4161

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

William Daniel WYNNE, a co-owner of lot 4

P G DanielsI hereby order that the application for an order:

Seeking a ruling regarding who is responsible for the repair and maintenance of the various sections of retaining walls within the complex.

is dismissed.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0606-1999

“Alexandra Villas” CTS 20451

The applicant, William Daniel WYNNE, a co-owner of lot 4, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

Gives a ruling on who is responsible for the repair and maintenance of the various sections of retaining walls within the complex.

Section 223(1) 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 this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

There are a number of retaining walls on scheme land for this Body Corporate. The applicant states that the Body Corporate is expending $4,000 from the sinking fund to repair damage due to rot and termite attack. The applicant questions whether Body Corporate funds should be used for all of these repairs.

It seems to me that a retaining wall could be located in any of the following six locations:

1.	Entirely within a lot;
2.	Entirely within the common property;
3.	Boundary of a lot and another lot;
4.	Boundary of a lot and the common property;
5.	Boundary of a lot and land not part of scheme land;
6.	Boundary of common property and land not part of scheme land.

I will consider who is liable to maintain a retaining wall in each of these categories.

1.	Entirely within a lot.

An owner is responsible for maintaining a retaining wall entirely within a lot.

This responsibility arises from section 120(1) and (2) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation) which provides as follows:

ú

Obligations of owners and occupiers—Act, s 122

120.(1) An occupier of a lot included in the scheme must keep the parts of the lot readily observable from another lot or common property in a clean

and tidy condition.

(2) The owner of a lot included in the scheme must maintain the lot in good condition.

2.	Entirely within the common property.

The Body Corporate is responsible for maintaining a retaining wall entirely within the common property.

This responsibility arises from section 109(1) of the Regulation which provides as follows:

ú

Duties of body corporate about common property—Act, s 114

109.(1) The body corporate must maintain common property in good

condition, including, to the extent that common property is structural in

nature, in a structurally sound condition.

3.	Boundary of a lot and another lot.

Section 120 of the Regulation (see above) would apply. Both owners are liable to maintain that part of the retaining wall on their respective lots.

4.	Boundary of a lot and the common property.

Section 109 and 120 of the Regulation (see above) would apply. The Body Corporate and an owner are liable to maintain that part of the retaining wall on their respective land.

5.	Boundary of a lot and land not part of scheme land.

Section 109 of the Regulation (see above) would apply. An owner is responsible for maintaining that part of the retaining wall on their lot.

6.	Boundary of common property and land not part of scheme land.

Section 120 of the Regulation (see above) would apply. The Body Corporate is responsible for maintaining that part of the retaining wall on the common property.


Order

It is clear from what I have stated above that the Body Corporate is only responsible for maintaining retaining walls that are on the common property. This includes walls that are wholly on the common property or partially on the common property. It should not be maintaining nor expending money on the maintenance of walls that do not come within this category. Of course, the facts of each case would have to be considered. For example, where a retaining wall is on the boundary of common property and land not part of scheme land, the owner of the other land may not be willing to pay to have the retaining wall on his/her land repaired. In such a case it may be necessary for the Body Corporate to repair the whole wall and subsequently seek recompense from the adjoining owner. Such a possibility could arise if it was impossible or impractical to repair only that part of the wall on the common property.

I will refrain from making a formal order as the application is based in very general terms. I have not been provided with minutes of Committee meetings or general meetings of the Body Corporate that approved the work. I do not know the precise nature of the work to be done or indeed what work has actually been done. In these circumstances it would be inappropriate to make an order. The applicant only sought an order ruling on the matter rather than an order restraining the Body Corporate. The reasons I have given above do give direction about the matter.