Focus [2004] QBCCMCmr 61 (30 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0006-2004

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19958
Name of Scheme:	Barrington Place
Address of Scheme:	18 Bottlewood Court BURLEIGH WATERS QLD 4220

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

John Hitches, the Owner(s) of lot 4

I hereby order that pursuant to an application by John Hitches, the owner of lot 4, the painting of all front fences at Barrington Place is to be put on hold pending a final determination in respect of this dispute. This is an interim order and will remain in effect for a period of not longer than six months. It is the responsibility of the applicant to apply to extend this order if no final determination has been made within that period. This order will automatically lapse upon a final order being made or this application being withdrawn.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0006-2004

"Barrington Place" CTS 19958

Interim Application

Barrington Place Community Titles Scheme (Barrington Place) is a 29 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module). Lot boundaries are designated under a group titles plan (now known as a standard format plan).

This is an application for interim orders. It arises out of an application by John Hitches, the owner of lot 4 (applicant) seeking orders against the body corporate for Barrington Place (respondent).

Interim Orders Sought

The applicant is opposed to the body corporate painting the front of the fences that divide the common property from the lots of several owners without a resolution being passed in general meeting approving the painting.

The applicant is seeking an urgent interim order to place any further painting on hold pending a final determination of the dispute.

Submissions

The applicant has provided submissions to the effect that:

• He would expect that if there was a proposal to make a major change to the whole appearance of the complex by the application of paint to a substantial part of its exterior which is presently natural timber then this would have to be approved in a formal manner and most likely at a properly convened general meeting;
• If the committee has made any resolution on the matter the secretary has not communicated it to all lot owners in the manner he believes is required by the Act; and
• He has obtained trade advice that painting only the front of the fence would be a recipe for disaster as there are bound to be paint dribbles on the sides of the palings would be an eyesore from within each lot and rainwater would penetrate into the palings from the unpainted sides and rear causing the paint on the front to lift. This could result in maintenance problems and property devaluation.

Submissions on behalf of the body corporate are to the effect that:

• The unit complex is nearly 12 years’ old and the unpainted pine fence palings are now shabby and dilapidated. The standard grade pine does not provide a rustic look as would be the case with more substantial timbers;
• The issue of painting the fences has been discussed by owners on many occasions;
• The committee is of the view that it is responsible for the maintenance and appearance of the exterior surface of the front fences forming the boundary of owners’ lots and common property;
• The committee felt that allowing individual owners to paint the fences on an ad hoc basis would severely compromise the external features of the complex;
• The committee could obtain top grade paint at minimal cost and provide the labour at no cost. The item was within the committee spending limit so was therefore not placed on the agenda at the annual general meeting; and
• Sixteen of twenty-six owners were present at the annual general meeting, including a family member of the applicant. All persons present agreed that the committee finalise all issues to do with the painting of the fences and advise owners by letter of their intended course of action. This letter was sent on 1 December 2003.

Background

The plan for Barrington Place shows two rows of lots separated by a large area of common property that presumably contains the driveway used by owners to access their lots.

Based on the submissions and photographs provided, it appears that most lot owners have erected fences around their lots. These fences are constructed from untreated pine.

The applicant is seeking a number of declarations about responsibility for erecting and maintaining fences around lots.

The applicant is also seeking resolution of a dispute about the painting of the fences. The applicant is seeking to stop the body corporate from painting the front of the fences that separate the common property from owners’ lots.

Decision

Maintenance of fences

The applicant is seeking declarations about who is responsible for erecting and maintaining fences in Barrington Place. Because the fences are on the boundaries of lots, responsibilities are defined under the Dividing Fences Act 1953. The Dividing Fences Act 1953 sets out a scheme for one owner to require the owner of an adjoining lot to contribute to the costs of building and maintaining a dividing fence.

The Body Corporate and Community Management Act 1997 is relevant to determining responsibility for building and maintaining dividing fences to the extent that it clarifies which persons are considered adjoining owners under the Dividing Fences Act 1953. Adjoining owners under the Dividing Fences Act 1953 will normally be jointly liable for the costs of erecting and maintaining a fence unless they have agreed on some other arrangement.

The three common situations are as follows:

1. The body corporate is taken to be the adjoining owner in respect of fencing around the outside of the scheme land (Act, 311(1)). The body corporate will normally be equally responsible for fencing the outside of the scheme land with whichever person owns the land on the other side of the fence in question. However, if the land on the other side of the fence is council land then the body corporate would be solely responsible for the fence;
2. Owners of adjoining lots included within the scheme are taken to be adjoining owners for the purposes of dividing fences (Act, 311(3)). Therefore, these owners will normally be jointly responsible for fencing between their lots; and
3. Similarly, fencing between common property and lots included within the scheme will normally be the joint responsibility of the body corporate (which is responsible for administering the common property owned by all owners as tenants in common) and the particular owner who owns the lot on the other side of the part of the fence in question.

It is necessary to consider the Dividing Fences Act 1953 and any agreements about fence maintenance. However, assuming the usual situation that adjoining owners are equally responsible for erecting and maintaining a suitable fence, section 311 of the Body Corporate and Community Management Act 1997 would mean that:

1. The applicant’s northern fence bounds the applicant’s lot and the common property. The applicant and the body corporate would be equally responsible for this fencing;
2. The applicant’s southern fence is an external boundary for the scheme and would be the responsibility of the body corporate and any adjoining owner outside the scheme (although, it appears this fence bounds council land so would be the sole responsibility of the body corporate);
3. The applicant’s eastern fence is the boundary between two lots within the scheme. It would be the equal responsibility of the applicant and the owner of the adjacent lot 5; and
4. The applicant’s western fence is the boundary between two lots within the scheme. It would be the equal responsibility of the applicant and the owner of the adjacent lot 3.

The above summary may help resolve some of the applicant’s queries. However, it does not resolve the present dispute. The present dispute results from the applicant’s concerns that the body corporate has not followed proper internal procedures under the Body Corporate and Community Management Act 1997 in making the decision to paint the side of the fences facing the common property.

Interim injunctive relief

As a result of the applicant’s concerns that the body corporate failed to follow proper procedures in making a decision to paint the fence, the applicant is seeking an interim order to put a stop to the painting pending a final determination of the validity of the decision.

An interim order will not be granted unless is it necessary due to the nature or urgency of the circumstances to which the application relates (Act, 279). Further, any orders granted must be just and equitable in the circumstances (Act, 276).

The applicant is seeking orders of an injunctive nature designed to stop painting of the fence until a final determination of whether the painting should be allowed. For it to be just and equitable to grant relief at this stage, before full and final consideration of all the issues raised, I would need to be satisfied that the application raises a serious question to be determined. I would also need to be satisfied that the balance of convenience between the parties justifies the grant of injunctive relief. That is, I would need to balance the inconvenience to the body corporate of stopping painting now when it may subsequently be allowed against the inconvenience to the applicant of allowing the body corporate to continue painting when it may subsequently be disallowed.

Serious question to be determined

There does appear to be a serious question to be determined.

Some questions are raised about ownership and responsibilities for maintenance of the fences, including termite treatment. These are matters that can probably be resolved pursuant to the Dividing Fences Act 1953, if necessary.

However, serious questions have been raised about whether the body corporate committee has followed the proper procedures under the Body Corporate and Community Management Act 1997 in deciding to paint the side of the fence facing common property. It appears that no resolution has been passed authorising the painting of the fence. The body corporate has submitted that the cost of painting is well within the relevant limit for committee spending for the scheme so there is no need for a ordinary resolution of the body corporate or written approval of all owners (Standard Module, 103). However, there appears to not even have been a committee resolution to undertake the painting and an opportunity for owners to submit a notice of opposition against the proposed painting of the fences (Standard Module, 37).

Balance of convenience

The applicant has established that there is a serious question to be determined regarding whether the painting of the fence has been properly authorised. However, to gain an interim order the applicants will also need to establish that the balance of convenience favours stopping any further painting pending the final determination.

I am satisfied that it would be more convenient to place the painting of the fence on hold and subsequently allow it to proceed rather than allow the painting to proceed and subsequently require the paint to be removed. I am therefore prepared to make an order stopping any further painting of the fences pending a final determination.

Order

For these reasons, I make the interim order above.

The application will be allowed to proceed to submissions and final determination in the normal course.