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austlii:qld/QBCCMCmr/2026/13
General information, not legal advice.
QBCCMCmr
2026-01-27
Original judgment source is linked above.
Amity Apartments [2026] QBCCMCmr 13
Body Corporate for Amity Apartments (respondent)
Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(b) and 229(3)(a)
MAINTENANCE - whether the body corporate has failed to maintain a boundary fence - COSTS - where the body corporate did not participate in conciliation - whether the body corporate should reimburse the applicant for the application fees.
[1] This application is about the maintenance of boundary fencing. It seems the fencing in question runs along the western boundary of the scheme land, bordering two adjacent properties.[1] The current fencing is a chain wire style.
[2] The applicant says the fencing is unsafe and a hazard. She says this prevents her family from using the common property in that area. She says the body corporate has breached its legal obligation to maintain the common property in good condition.
[3] The first part of the fence is adjacent to a property with a pool. The applicant says the neighbour modified the fence, without the body corporate's approval, by adding wire mesh and other materials using sharp, rusted wire ties on the scheme's side. She says she asked the adjoining owner to remove the objects from the fence and restore it, but he refused.
[4] The second part of the fence is adjacent to another property with dogs. The applicant says the fence contains rusted, broken and protruding wire, and uncapped and corroded posts, and is unstable. She says wire, rope and canvas have been added to the fence to keep it attached to the posts, and sharp metal strips and wood have been added to the bottom. She is also concerned about the reactive dogs seeing and being seen through the fence.
[5] The applicant obtained quotes to replace the fencing. She wants a colourbond fence. To date the body corporate has not agreed to replace the fence. It was suggested that contributions from the neighbouring property owners be obtained first but as yet that has not been achieved. The applicant acknowledges the financial constraints for the scheme, but says safety must take a priority.
[6] The applicant wants the body corporate to replace the fence immediately. She does not want that delayed by any dispute about the neighbours' contributions. She wants that to be pursued separately. The applicant also seeks reimbursement of the application fees she paid. I will consider the body corporate's obligations and whether orders are warranted.
[7] Amity Apartments community titles scheme 6007 (Amity Apartments) is an 8-lot scheme at Woody Point. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as building units plan 9308.
Order 1. The Body Corporate proceed with the immediate replacement of the boundary fence to eliminate the present safety risk, as delay could result in harm or liability;
Order 2: The replacement not be delayed pending resolution of any dispute regarding the adjoining neighbour's contributions;
Order 3: The Body Corporate pursue the adjoining neighbour's contributions separately through the QCat process;
Order 4: Under Section 280 of the ACT: I request reimbursement of the conciliation and adjudication fees under 239 (1) (c).
[9] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[2] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[3]
[10] The applicant originally applied for conciliation of this dispute in July 2025.[4] A conciliation session was scheduled in August. However, the conciliator ended the conciliation on the basis that the body corporate did not make a reasonable attempt to conciliate.
[11] This application was lodged on 27 August 2025.
[14] The application was referred to department adjudication.[9]
[15] I have now investigated the dispute, including reviewing the application and submissions.[10] I also sought clarification and further information from the applicant on several matters.
[16] The applicant says she raised the issue of replacing the fencing in February 2025 with the body corporate manager (BCM). She requested a motion be considered at the annual general meeting (AGM), and subsequently submitted quotes.
[17] The submitted quotes from obtained by the applicant from Spartan Fencing Pty Ltd and are dated 22 January. The application includes 3 quotes:
[18] The AGM was held on 19 February 2025, pursuant to a notice dated 28 January. A motion about the fencing was not included on the agenda. But the issue was discussed at the meeting. The AGM minutes indicate there was discussion on various issues by those present, including "Lot 8 to investigate fence proposal. Committee will consider post AGM".
[19] The applicant says there was support at the AGM to replace the fence, subject to the neighbours' contributions being obtained first. The applicant said she could organise that through the Queensland Civil and Administrative Tribunal (QCAT). The applicant believed she then had body corporate approval to pursue the neighbours' contributions.
[20] On 20 February the applicant wrote to one of the neighbours. The letter objected to their additions to the fence and alleged they had breached legislation. It said they were thinking of a 6-foot colorbond fence. It said they sought a 25% contribution (with them paying 50% and the other neighbour paying 25%). The letter was signed by the applicant and was not clearly written on behalf of the body corporate. The letter referred to a QCAT notice to contribute to fencing work and a quote. The attached notice was signed by the applicant, did not refer to the body corporate, and referred to the parties contributing 50% each.
[21] The applicant also wrote to the other neighbour. A first letter on 22 January said the applicant wanted to install a 6-foot colorbond fence, provided a quote, and said the other neighbour would be expected to contribute. A further letter was sent on 20 February. It said the dogs breached local laws, so a fence was required. The letter said 'we' would pay for half but did not refer to the body corporate. The letter referred to a QCAT notice to contribute to fencing work and a quote. The attached notice was signed by the applicant, did not refer to the body corporate, and referred to the parties contributing 50% each.
[22] The applicant advised the BCM that she had written to the neighbours on 20 February. She says the neighbours ignored the letters.
[23] On 31 March the applicant filed a minor civil dispute form regarding dividing fences in QCAT, apparently believing she was doing so on behalf of and with the approval of the body corporate. The application named the applicant and the BCM as applicants and the two neighbours as respondents. The property where the fence was to be located was identified as the applicant's address and the two neighbouring properties. The application was signed by the applicant in her capacity as chairperson of Amity Apartments.
[24] The applicant wrote to the body corporate on 2 April seeking its support to replace the boundary fence and to contribute to funding and managing it. She said if the body corporate did not, she would continue through the Commissioner's office or QCAT against it.
[25] Four motions were then considered at an extraordinary general meeting (EGM) on 5 June regarding the Spartan Fencing quotes:[12]
[26] None of the motions passed. After the EGM, the applicant asked the body corporate to reconsider but says she was ignored.
[27] It appears the QCAT application was dismissed or discontinued on 21 July because the body corporate had not agreed to replace the fence or had not agreed to the application.[13]
[28] The applicant contacted the City of Moreton Bay City about the condition of the fence. She provides an email from the council dated 9 July which noted the matter relates to a dividing fence and so fell outside the council's jurisdiction. It referred the applicant to QCAT.
[29] There does not appear to have been further consideration of fencing by the body corporate.
[30] A submission from the new owners of Lot 7 agree the existing fence is beyond repair and in need of replacement. Not being aware of all the history of the current situation, the submitters seek clarification on various matters. These queries include whether there needed to be quotes from different suppliers, the type of fence being proposed, the negotiations with the neighbouring properties including what sort of fence they want and would pay for, why it is necessary to pursue the neighbours through QCAT, and whether any other work will be necessary for the fencing work to proceed. The submitters say all further action should be the result of consensus with all owners in concert with the BCM. They also say neighbour contributions are a priority given the state of the sinking fund. They do not want further legal steps that would involve more cost without minuted consent.
[31] The applicant's response to the submission includes:
[32] The primary question in this application is the obligation on the body corporate to replace the western boundary fencing. Further issues then arise about when that should occur, other works, and whether the applicant should be reimbursed for her costs.
[33] The body corporate has a statutory obligation to maintain common property in a good and structurally sound condition.[14]
[34] The Queensland District Court has considered a body corporate's statutory duty to maintain. It said:
The statutory duty imposed ... is one which obliges it to remedy any defect as soon as any of the building parts covered by the duty fall into disrepair or were not operating properly. Failure to do so, once aware, gave rise to a breach of its duty.[15]
[35] A body corporate must undertake the maintenance it is responsible for when the need for it arises. It cannot avoid or defer required work because it has not budgeted for the work, has insufficient funds, or has other priorities. If a liability arises for which the body corporate has made insufficient provision in its budget, the body corporate should, by ordinary resolution, fix a special contribution to be levied on owners to meet the liability.[16]
[36] It is relevant to note that maintenance includes repairs or "...the replacement of something already there, which has become dilapidated or worn out ... albeit that it is a replacement by its modern equivalent...".[17] Additions or changes that are not necessary to maintain property are considered an improvement even if they are associated with maintenance, unless it is incidental.[18] The body corporate can resolve to make improvements to common property.[19]
[37] The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (ND Act) sets out, in part, the responsibilities for dividing fences between neighbours and the resolution of disputes about dividing fences.[20] I will note some relevant provisions in the ND Act for the information of parties but it is not my role to interpret or apply the ND Act. The body corporate may wish to seek legal advice about its rights and obligations under the ND Act.
[38] A dividing fence under the ND Act generally means a fence on the common boundary of adjoining lands.[21] But largely the ND Act does not apply to a fence, or a part of a fence, that is a barrier of a regulated pool.[22] The ND Act also does not affect the common law under which a dividing fence separating adjoining land is, to the extent it is on the common boundary, owned equally by the adjoining owners.[23] The ND Act says that, unless otherwise expressly provided for, it does not affect the operation of another Act or law.[24]
[39] Adjoining owners may be liable to contribute to carrying out fencing work for a sufficient dividing fence.[25] A 'sufficient dividing fence' is between 0.5 and 1.8m high and substantially consists of prescribed materials, or any other fencing that is agreed or decided to be sufficient.[26] Unless it is contrary to a relevant local law, chain wire is a prescribed material that a sufficient dividing fence can be made from. Fencing work, under the ND Act, includes replacement, repair and maintenance of all or part of a dividing fence.[27] If one owner wants fencing work of a greater standard than is sufficient, they are liable for any higher costs.[28]
[40] It seems that liability for fencing work is only enforceable (unless urgent) if the neighbours agree to carry out the fencing work or QCAT has ordered the fencing work be carried out. If a body corporate wants a neighbour to contribute to fencing work, it must give notice in the approved form.[29] The notice must include the type of fencing work proposed, the estimated cost, at least one written quote, and the proposed contribution. If the owners do not agree within 1 month, either may apply to QCAT for an order within 2 months. Until the adjoining owners have agreed about the proposed fencing work and their contributions, neither may undertake fencing work unless it is urgent.[30] There are separate process for urgent work.[31]
[41] It is evident from the survey plan that the boundary fencing in question is on common property, except to the extent that any part of it is on the neighbouring properties. Accordingly, the body corporate must maintain its fencing in good condition.
[42] I am satisfied from the submitted material (including the photographs, videos, and other owner submission) that the fencing along the western boundary of the scheme is currently not in good condition. Moreover, based on the submitted evidence and in the absence of evidence or submissions to the contrary, I am satisfied that the fencing must be entirely replaced (rather than simply repaired) to be returned to the required good condition.
[43] The fact that the body corporate may have limited funds or wishes to seek contributions from neighbouring property owners to fencing works does not entitle it to defer or delay the work. Moreover, the ND Act does not displace the body corporate's statutory obligation to maintain the fencing on common property.
[44] As soon as the fencing ceased to be in good condition, the body corporate should have proactively engaged with the neighbours about its repair or replacement. I do not consider the body corporate would be acting reasonably,[32] if it did not pursue the rectification of the fencing just because there is as yet no agreement about fencing or the recovery of a contribution with its neighbours.
[45] However, the only obligation on the body corporate under its maintenance duty is to replace the existing fencing with fencing of the same type.[33] The body corporate could decide to replace the chain wire fence with a different type of fencing. It could, for example, choose colorbond, or the type of fencing used elsewhere in the scheme, or a type agreed to with the neighbours. But changing the type of fencing (unless the current fencing type was no longer available or could not lawfully be installed) would constitute an improvement to the common property rather than simply maintenance. Also, if the neighbours do not agree to an alternative fencing type, the body corporate may be liable for any additional cost of any alternative to the existing chain wire.
[46] While the applicant would prefer colorbond fencing, she has not yet established that the body corporate has a legal obligation to replace the current chain wire fence with colorbond.
[47] Bodies corporate can only act (including to incur expenditure) on the basis of validly passed and minuted resolutions, either at a general meeting or by the committee.
[48] I appreciate the applicant has made genuine and undoubtedly well-intentioned endeavours to progress this issue with the body corporate. However, the steps she has taken have not necessarily followed the requirements for the body corporate to make valid decisions.
[49] When the applicant raised the issue of fencing in February 2025, it was already too late to submit a motion for inclusion on the agenda for the 2025 AGM. Motions must be submitted before the end of the body corporate's financial year to be included on an AGM agenda.[34] Also, notice of a general meeting including the motions on the agenda must be issued at least 21 days before the meeting.[35] The applicant raised the issue after the AGM notice was issued and less than 21 days before the AGM. The issue still could be discussed at the AGM (as it was), but the body corporate could not make a binding decision on any proposal relating to the fencing without a motion that was on the agenda and voted on.[36]
[50] To the extent that the application to QCAT was purported to be brought by the body corporate, it was not properly authorised. Taking action in QCAT is a legal proceeding. If a body corporate wishes to start a legal proceeding of that nature, it must be authorised by a special resolution at a general meeting.[37] That did not occur.
[51] I do not consider the June 2025 EGM motions about the fencing (both in the form the applicant submitted them and the way they were listed in the agenda) were sufficiently clear as to exactly what was being proposed and how the expenditure would be funded to enable the body corporate to make a valid decision on them.[38]
[52] Also, the total cost of the fencing related work proposed at the EGM was, based on the listed amounts in the motions, $8,807.05.[39] That raises further issues.
[53] If a motion is proposing to incur expenditure that is above its major spending limit, two quotes for the proposal must be obtained and the motions for the quotes must be set out as a group of same issue motions.[40] And if a serious of proposals form a single project, the cost of carrying out any one of the proposals is taken to be above the major spending limit if the cost of the project as a whole is above that limit. If in exceptional circumstances, it is not practicable to obtain more two quotes, one quote must be obtained and considered.
[54] The major spending limit for this body corporate is $8,800, and it appears the body corporate has not resolved to change that.[41] I am satisfied that all of the quotes put to the EGM by the applicant related to a single project. Although Spartan Fencing's estimate was spread across multiple quote documents, there was essentially only one quote for each component of the project. The applicant says only one quote was obtained because it is difficult to obtain quotes. But she has not evidenced that there were exceptional circumstances that meant two quotes could not be obtained. Indeed, she concedes a second quote could be obtained if the work proceeds. Accordingly, I am satisfied that EGM motions were also deficient because two quotes for the works were not considered.
[55] Also, to the extent that the EGM motions proposed improvements to common property, further procedural requirements applied. Depending on the cost of improvements (including a series of projects that forms a single project), the regulations require different decision-making.[42] As the total cost of the project was within the 'ordinary resolution improvement range', as defined in the regulations,[43] the body corporate could resolve to approve the project by ordinary resolution but only if it had not already passed an ordinary resolution to approve improvements to common property in the financial year. If it had already passed such a resolution, a special resolution would have been required to approve the project.
[56] By her first order, the applicant wants the body corporate to immediately proceed with the replacement of the fence to remove the safety risk.
[57] As noted above, I am satisfied the fencing requires replacement to meet the body corporate's statutory responsibility to maintain the common property in good conditions. Although the applicant does not provide any independent report or other supporting evidence showing the fencing is currently a safety risk, I am satisfied that is likely from the level of disrepair evident in the submitted material. Accordingly, I am of the view that the fence should be replaced as soon as reasonably practicable. However, the applicant has not established that the fencing work is necessarily urgent or an emergency.
[58] But I do not consider in the current circumstances that I can make an order requiring the fence to be replaced immediately. Prima facie, the body corporate is entitled to decide on the type of fencing to replace the current fence with and to select a contractor. I do not consider that adequate motions on those matters have yet been put to the body corporate. I consider body corporate cannot reasonably refuse to replace the fence. But it is entitled to choose the fence type and contractor and it has not yet had a proper opportunity to do so. Also, where there is no agreement with the neighbouring property owners, the body corporate may not be entitled to unilaterally proceed with the work unless it is urgent.
[59] Notwithstanding that, I will make a declaration that the body corporate must replace the fencing as soon as reasonably practical. To do so, it would need to decide on the specifics of the proposed work, source sufficient current quotes, and choose a contractor.
[60] The body corporate should also seek agreement from the neighbouring property owners. The type of fence sought, the total cost, the views of the neighbours, the likely contribution that may be recoverable, and the cost of QCAT action, may all be factors for the body corporate in determining the approach it takes when negotiating with its neighbours.
[61] All those matters will need to be addressed before the body corporate will be in a position to undertake work to replace the fence.
[62] In order 2 the applicant wants the fence replacement not to be delayed while contributions are sought from neighbouring property owners.
[63] The body corporate cannot indefinitely defer essential maintenance if there is no agreement from its neighbours. It can pursue a dispute in QCAT. But unless the work is urgent (which is not clearly established at this time), the body corporate may relinquish its right to recover a contribution, or may be subject to legal action, if it undertakes fencing work without the neighbours' agreement. So, unless the body corporate resolves to fund the entirety of the fencing work and obtains the neighbours agreement to the work on that basis, it seems that the body corporate would need agreement to a neighbour contribution or a QCAT order before it could proceed. The applicant has not satisfied me that it is appropriate to require the body corporate to proceed with the fence replacement without that.
[64] By order 3, the applicant wants the body corporate to pursue contributions to the fencing from the adjoining neighbours through the QCAT process.
[65] I have some concerns about the appropriateness or adequacy of the attempts to date to negotiate with the neighbours on a contribution to new fencing. A more conciliatory and less combative approach that is clearly pursued on behalf of the body corporate may be more productive. If future attempts are unsuccessful, it is open to the body corporate to resolve to claim a contribution through QCAT under the ND Act. It is likely a new notice to contribute would be required within 2 months before any QCAT proceeding is commenced.
[66] At this stage, I am not satisfied that an order is warranted. A new QCAT application must be authorised by special resolution. To date, no motion has been put to a general meeting proposing the body corporate take action in QCAT. That should be pursued first before any order of the type sought could be considered.
[67] Next, the applicant seeks order 4 for her application fees to be reimbursed.
[68] The Act provides that, if asked, an adjudicator may order a respondent to pay the application fees for a conciliation application and adjudication application.[44] The order can only be made if the adjudication application was for the same dispute as a conciliation application which ended because the respondent failed, without reasonable excuse, to participate.
[69] I am satisfied from the conciliation certificate dated 17 August 2025 that the conciliator ended the conciliation for application 0730-2025 because the body corporate did not make a reasonable attempt to participate. I am satisfied the conciliation application was about the same dispute. As conciliation did not proceed, the applicant had to lodge this application, with a further fee, to pursue the dispute with the body corporate.
[70] Parties are generally expected to attempt to resolve a dispute internally and then by conciliation before a matter proceeds to adjudication. Participation in conciliation can assist disputes to be resolved more quickly, cheaply, and collaboratively. The failure of the body corporate to conciliate put the applicant to additional expense. While the committee may not have seen any utility in conciliation, that is not justification to disregard the statutory dispute resolution process. I understand the body corporate was put on notice that an adjudicator could require the body corporate to pay the application fees if they did not participate.
[71] In the circumstances, I consider it appropriate to exercise my discretion and make an order that the respondent pay the application fees associated with this dispute. The applicant paid an application fee of $114.10 for each of the conciliation and adjudication applications. Accordingly, I consider the respondent should pay $228.20 to the applicant.
[[72] In her response to my request for clarification about the orders, the applicant identified a further order that is not clearly identified or explained in the application.
[73] The applicant says she wants an order to erect an internal fence (apparently a gate) from Amity Apartments to one of the adjacent properties because the common property is very close to the driveway. She says the gate would ensure children and pets using the common property are safe. She also says there is an old barbeque near the fence that must be removed to build a new fence.
[74] Because explicit orders about the gate and barbeque were not sought in the application, arguably the body corporate and other owners were not clearly put on notice that orders were being sought on those matters. Moreover, at this stage, I do not consider the applicant has provided sufficient detail or evidence to substantiate the need for those things or the basis for orders to be made about them. The application does not explain how the gate would make it safer to use the common property or why the barbeque should be removed. And if the gate is proposed to be installed in the boundary with an adjacent property to allow egress through that neighbouring property, I am unclear why the body corporate would be entitled to install the gate without the agreement of the neighbour or, potentially, without an easement allowing passage across that neighbouring property.
[75] On the limited information provided, installing a new gate where there is currently no gate, and removing an existing barbeque common property, would amount to improvements to common property. The applicant has not evidenced that these works are required to maintain the common property in good condition. The body corporate could potentially resolve to do those things, but at the EGM in June 2025 it declined to do so. The applicant has not argued or evidenced that the body corporate acted unreasonably or otherwise in breach of its statutory obligations by not passing those motions.
[76] For the reasons outlined, I will make a declaration that the body corporate must replace the western boundary fence as soon as reasonably practicable to meet its obligation to maintain the fence in good condition. Given the numerous things that must occur to before that work can be undertaken, I do not consider I can rationally place a timeframe on it. But I encourage the body corporate and its committee to have regard to the matters outlined above and to promptly progress all the necessary steps to facilitate that work.
[77] I will also order the body corporate to reimburse the applicant for the application fees, given its failure to participate in conciliation.
[78] However, for the reasons outlined, the application is otherwise dismissed.
[1] Shown as 2 RP 30285 C and 1 RP 52333 C on the survey plan
[3] Sections 227, 228, 276 and schedule 5 of the Act
[11] The applicant does not explain why the quote is for $1,430 if it relates to components that total $1,300.
[12] The reference numbers and amounts in the quotes do not correlate with the details in the motions. The applicant says the quotes were confused because the body corporate changed them.
[13] Although I asked the applicant to provide a copy of the final QCAT decision, I am unable to identify it in the material provided by the applicant.
[14] Section 180 of the Standard Module
[15] Searles DCJ in Klinger & Anor v Body Corporate for Costa D'Ora Apartments [2007] QDC 300 at 67
[16] Section 162(2) of the Standard Module
[17] Lord Denning in Morcom and Ors v Campbell-Johnson and Ors [1955] 3 All ER 264
[18] See the definition of 'improvement' in schedule 6 of the Act
[19] Section 186 of the Standard Module
[32] Noting its statutory obligation to act reasonably in section 94(2) and 100(5) of the Act
[33] Albeit ensuring that new fencing complies with any relevant regulatory requirements that might have become applicable since the original fencing was installed.
[34] Section 86(6) of the Standard Module
[36] Section 107(6) of the Standard Module
[38] I refer the parties to online information about drafting motions: www.qld.gov.au/law/housing-and-neighbours/body-corporate/committees-meetings/general-meetings/drafting-motions
[39] Noting that some amounts listed in the motions are lower than the amounts referred to in the quotes.
[40] Section 173 of the Standard Module
[41] See the definition of 'relevant limit for major spending' in schedule 1 of the Standard Module
[42] Section 186 of the Standard Module
[43] Being an amount between $2,400 and $16,000