Cuvee [2002] QBCCMCmr 45 (30 January 2002)

RA MeekREFERENCE: 0482-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5637
Name of Scheme:	Cuvee
Address of Scheme:	50 Galloway Drive ASHMORE QLD 4214

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

Michelle Anne Smith, the owner of lot 2


RA MeekI hereby order that the body corporate is responsible to effect repairs to the boundary fence, as required.

I further order that the body corporate shall effect repairs to the fence within three (3) months of the date of this order.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0482-2001

“Cuvee” CTS 5637

The applicant, Michelle Anne Smith, the owner of lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I am seeking that an order be given to the body corporate to replace the termite damaged section of the fence located behind my unit (measuring approx. 18 meters long) and that the body corporate pay for these repairs out of the sinking fund.

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)).

I consider this application to be a relatively simple one to determine, particularly in view of the fact that I do not intend to make comment on any of the personal asides and other statements made by all parties to the dispute in their material.

There are in essence, two questions to be determined. The responsibility of the making of repairs to the fence, and secondly, the extent of those repairs. Consequent upon the resolution of these questions, there are some practical considerations which I will comment on.

Responsibility for repairs to the fence.

The scheme is registered under a building unit plan (now a building format plan). In a building format plan, the boundary of the lot with other lots, or the common property is determined by the plan. I have noted the plan for this scheme and observe that the boundary of each lot with common property is the boundary walls of the buildings containing each lot. The only exception to this is boundary of each lot is also the common wall which it shares with any adjoining lot. This is the only instance where the boundary is not a common property one.

I note from the plan that no wall of any lot is located on an external boundary. This means that the entire boundary (comprising all fences and other barriers (if any)) are the responsibility of the body corporate to maintain since the fences are common property (see section 109(1) of the standard module).

Even if exclusive use of common property had been granted to lots up to the external boundary line, I would still find that the fence itself continued to be common property, the responsibility of the body corporate to maintain, on the basis of section 258 of the Act, which deems the body corporate to be the owner of scheme land for the purposes of the Dividing Fences Act 1953.

The extent of repairs required to the fence.

With her reply, the applicant has provided some photographic evidence of the condition of the fence. It is clear from those photos that the fence posts shown therein have been badly affected by termite infestation. The fence palings however do not appear to be so effected. The condition of the railings supporting the palings is less clear, though certain of the photos suggest that repair (by replacement) is required.

The duty of the body corporate under section 109 is to maintain the common property “in good condition”. I suggest that what this requires in this case is that the body corporate obtain a quote (or quotes depending on the level of expenditure – see section 104 of the standard module) for the repair of the fence on the basis that the fence posts, and possibly the fence railings require replacement. However, the quote should be provided on the basis that fence palings, where possible, are to be re-used. I consider this to be a relatively easy basis on which to proceed. A reasonably quick assessment could be made of the state of the fence palings, and the number likely to need replacing, and a quote provided accordingly. I will leave the practicalities of this to the body corporate committee to implement.

Comments

It is for the body corporate, via its committee to ensure the repairs are effected. Firstly, the committee needs to obtain a quote for the repairs of the fence. If it appears that the cost of repairs will exceed $1800, then a minimum of two quotes will be required.

If the expenditure is between $900 and 1800, then only one quote need be obtained. However in both instances, the matter will need to be determined by the body corporate in general meeting.

If the expenditure is less then $900 in total however, then the committee can authorise the repairs on the basis of its jurisdiction to incur expenditure up to $100 per lot.

I have given the body corporate three months in which to implement this order. This is to allow reasonable time for the body corporate to obtain suitable quotes, to submit the same to a general meeting (if required), and finally, to appoint a contractor and have the repairs effected.

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