Raby Bay Villas [2003] QBCCMCmr 219 (13 November 2003)

Last Updated: 17 May 2005

REFERENCE: 0259-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20978
Name of Scheme:	Raby Bay Villas
Address of Scheme:	134 Middle Street, CLEVELAND QLD 4163

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Leila May Jones, the owner of lot 13

I hereby order that resolution 14 purportedly carried by the body corporate at the AGM held on 25 February 2003 headed "Fences" is invalid and of no effect, and shall not be implemented.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0259-2003

"Raby Bay Villas" CTS 20978

The applicant, Leila May Jones, the owner of lot 13 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

I would wish to see the resolutions passed at the 2003 annual meeting ... invalidated. I would also wish to see the money used to pay for repairs that were the responsibility of individual lot owners repaid to the sinking fund (or) a guarantee be made that no more money be spent in contravention of the ... by-laws.

This office sought clarification from the applicant of the order sought and was advised –

The resolutions I wished to see in validated were those moved by Ms Janet Harrigan in the minutes listed as no. 14 and are as follows:

1. Fence between visitor parking and unit one;
2. Fence between walkway and unit seven;
3. Fence between walkway and unit ten.

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

(c) a claimed or anticipated contractual matter about-

(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 SCHEME

Raby Bay Villas community titles scheme consists of 14 lots and common property. The community management statement for Raby Bay Villas indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 applies to the scheme.

SUBMISSIONS

Under section 243 of the Act, a copy of the application was provided to the respondent body corporate and to all owners, with an invitation to the committee and all owners to respond to the matter of dispute raised in the application. Submissions were received from 3 of the owners, and the body corporate manager "for and on behalf of the body corporate".

INSPECTION

In correspondence received from the body corporate secretary, it is stated –

We are of the opinion it would be beneficial if we could have an adjudicator inspect the fences in question and discuss the matter with us prior to a decision being made. ...

It is for me as the adjudicator to determine how I will undertake the investigation of an application. In doing so, I must comply with the requirements of section 269 of the Act. Whilst the secretary has sought an inspection of the fences and discussion of the matter, I do not consider that such an inspection is necessary in the circumstances. I consider that I have sufficient information to determine the matters in dispute, and further, consider that the current backlog of applications does not permit me to expend approximately half a day at an inspection which is not necessary to a determination of the dispute.

DETERMINATION

The application requires a determination of the responsibility for repair and maintenance of fences in the scheme. In particular, it seeks the invalidation of resolution 14 carried at the AGM of the body corporate held on 25 February 2003 which resolved that –

I would like to see the work done by J+D in accordance with then quote, especially as specified in No. 3 quote to do with rotten fences. ...

The motion was resolved carried by 7 votes in favour with 1 abstention.

To my mind, the intent of the resolution is not clear. As the body corporate submission notes, the resolution does not specify who is to be responsible for payment of the cost. As well, the terms of the resolution do not specify what is to be undertaken or done. The applicant’s amended order sought does appear to clarify somewhat what the intent of the resolution was. The body corporate in its submission has stated that the resolution has not been "carried out to this date" (01 July 2003).

I note that there were two other motions dealing with fences at the AGM; namely motions 10 and 11, both of which were carried. The applicant appears not to take issue with the validity of these two resolutions.

I have obtained a copy of the relevant plan of subdivision for the scheme. The scheme is recorded under a standard format plan of subdivision (formerly a group title plan). From the plan, there are four possible fence scenarios to be considered. These are -

1. A fence between two adjoining lots;
2. A fence between a lot and common property;
3. A boundary fence between common property and adjoining parcels of land;
4. A boundary fence between a lot and adjoining parcels of land.

Section 311 of the Act is relevant to a determination of responsibility.

311 Body corporate to be taken to be owner of parcel for certain Acts etc.
(1) The body corporate for a community titles scheme is taken to be the owner of the scheme land for the following Acts--
• Dividing Fences Act 1953
• Land Act 1994.
(2) For applying subsection (1) to a layered arrangement of community titles schemes, the body corporate for the principal scheme for the arrangement, and not the bodies corporate for the community titles schemes that are subsidiary schemes for the principal scheme, is taken to
be the owner of scheme land for the principal scheme.
(3) However, for the Dividing Fences Act 1953, owners of adjoining lots included in a community titles scheme are taken to be the owners of adjoining land.
Examples--
A layered arrangement of community titles schemes consists of a principal scheme ("scheme A") which in turn includes 2 basic schemes ("scheme B" and "scheme C"), and, of course, the common property for scheme A.
• If a matter under the Dividing Fences Act 1953 concerns a boundary between scheme land for scheme A and a lot ("lot X") that is not scheme land for scheme A or another community titles scheme, the owners are the body corporate for scheme A and the registered owner of lot X.
• If a matter under the Dividing Fences Act 1953 concerns a boundary between scheme land for scheme B and scheme land for scheme C, the owners are the body corporate for scheme B and the body corporate for scheme C. This will apply even if the length of boundary that is of concern happens also to be the boundary between a lot included in scheme B and a lot included in scheme C.
• If a matter under the Dividing Fences Act 1953 concerns a boundary between a lot ("lot Y") included in scheme B and another lot ("lot Z") included in scheme B, the owners are the owner of lot Y and the owner of lot Z.

I shall now consider each of the above scenarios in turn.

A fence between two adjoining lots

The responsibility for maintenance of a fence between two adjoining lots is governed by the provisions of section 311(3) of the Act (see above). The two adjoining lot owners are deemed to be the relevant owners for the proposes of the Dividing Fences Act 1953, and consequently, are jointly responsible for maintenance of the fence dividing these lots.

A fence between a lot and common property

The responsibility for maintenance of a fence between a lot and common property of the parcel are the lot owner on the one hand, and the body corporate on the other. Consequently, the body corporate and the respective individual lot owners are jointly responsible for maintenance of the fence dividing the relevant lot and common property of the parcel.

A boundary fence between common property and adjoining parcels of land;
A boundary fence between a lot and adjoining parcels of land.

In both these scenarios, the responsibility for maintenance of fences is the same. The body corporate is deems to be the owner of the land for the purposes of the Dividing Fences Act 1953. This is so notwithstanding that the land adjoining the boundary fence might be part of a lot in the scheme. The distinguishing feature is the fact that the fence in question is a boundary fence of the parcel. If this is the case, then the body corporate is responsible for maintenance of the fence, together with the adjoining owner.

In the case of this body corporate, I note that the northern and southern boundary of the parcel abut a roadway. In this situation, there will be no adjoining owner, and consequently, the body corporate will be solely responsible for repair of fences on these two boundaries. In contrast, the eastern and western boundaries have adjoining owners, and consequently, the body corporate will be jointly liable with the adjoining owners for the maintenance of fences on these two boundaries.

In the circumstances, I intend to invalidate resolution 14 as in my view it is simply too vague. In my view, the resolution fails to properly resolve anything. I consider the body corporate should reconsider the issue of maintenance of fences on the basis of the above guidelines which I have set out.
As for the second part of the order sought by the applicant; namely that the money used to pay for previous repairs that were the responsibility of individual lot owners be repaid to the sinking fund, I do not intend to order to his effect. I conclude that the above guidelines should be implemented in respect of all future fence repairs in the scheme, but that there should not be any review of previous repairs.