The Oval [2025] QBCCMCmr 380 (30 October 2025)

Act, ss 94(2), 100(5), 311; Accommodation Module, ss 150(2)(a)(i), 152(1)(a), 162(1)(c), 170(1), 200, 201(3), 202; Neighbourhood Disputes (Dividing Fences) Act, s 11(2); Dividing Fences Act 1953, s 6(1).

• [1] When the body corporate lodged a claim for damage to boundary fences and retaining walls in the wake of Cyclone Alfred in March 2025, its insurer found that some of the damage was due to a failure of maintenance rather than the storm and declined to cover it. The body corporate resolved to have that damage repaired at body corporate expense at an extraordinary general meeting (EGM) on 24 July.
• [2] When the contractor was carrying out the work, sunken concrete was discovered that needs to be removed so work to restore a retaining wall may be completed. A further $37,947.68 is required beyond what was approved at the EGM. The work is urgent, as the house on lot 27 is insufficiently supported after the excavation that has already been carried out. The builder explains:

Time is of the essence on this job because the house is sitting on the hill with minimal support to its heavy brick outer shell. Should we have significant rain or movement, there is a reasonable chance the house may suffer serious slippage or cracking. Unfortunately many items are required to be lined up for the task to be completed, therefore any delay or slowdown will have a knock on effect to the safe and timely measures to prevent damage to structures.

• [3] As the additional expenditure exceeds the committee's spending limit, the body corporate seeks an order authorising it on the basis that it is required to meet an emergency.[1]
• [4] However, the further work that is required is along the western boundary of lot 27 that separates it from neighbouring land not part of The Oval. There is no common property in that location.
• [5] The general rule is that the body corporate is responsible for the maintenance of the common property,[2] while each lot owner is responsible for the maintenance of their lot.[3] While bodies corporate at schemes created under building format plans of subdivision have some additional responsibilities that may be relevant to retaining walls,[4] The Oval was created under a group titles (now standard format) plan.[5]
• [6] I asked The Oval's body corporate manager how the body corporate concluded that it was responsible for the retaining wall. She explained that the body corporate considered the wall to be a boundary structure as it is on the boundary of scheme land.
• [7] That may once have been significant when retaining walls were considered dividing fences and the body corporate was taken to be the owner of scheme land for the purposes of the former Dividing Fences Act 1953.[6] But retaining walls are excluded from the current versions of those provisions.[7] There now do not appear to be any special arrangements for the maintenance of retaining walls. They are covered by the general provisions outlined above.
• [8] I cannot authorise the body corporate to spend circa $38,000 of common funds on the maintenance of lot 27. The work is not necessary to meet an emergency afflicting the body corporate. It is an emergency for lot 27. If something is not done soon, it is the owner of that lot who may suffer substantial damage to their property.
• [9] The body corporate manager asked whether the expenditure might be permissible pursuant to section 202 of the Accommodation Module:

202 Body corporate may carry out work required of owners and occupiers - Act, s 161 [SM, s 212]

(1) This section applies if the owner or occupier of a lot included in the community titles scheme does not carry out work that the owner or occupier has an obligation to carry out under -

(a) a provision of the Act or this regulation, including a provision requiring an owner or occupier to maintain a lot included in the scheme...

(2) The body corporate may carry out the work, and may recover the reasonable cost of carrying out the work from the owner of the lot as a debt.

• [10] But there is no indication the owner of lot 27 is unwilling to have the necessary work carried out. Rather, the body corporate assumed it was responsible for the work and took carriage of it from the outset.
• [11] While section 202 does not say an owner must be unwilling to carry out the work before the body corporate can act, the section must be interpreted in its statutory context and subject to the body corporate's obligation to act reasonably when exercising its discretion under the section.[8] Primary responsibility for the condition of lot 27 rests with the owner of the lot. That owner should be given the opportunity to meet that responsibility and decide how best to restore the condition of the retaining wall before being divested of it and forced to cover the body corporate's costs. Similarly, owners who have paid contributions for the maintenance of common property should not lightly have them diverted to pay for the maintenance of a lot.[9]
• [12] The body corporate can engage someone to provide a maintenance service to a lot owner, but it must try to ensure that the cost is recovered from the owner, which can only occur with the owner's agreement.[10] Understandably, the body corporate does not have an agreement with the owner of lot 27 as it did not realise that maintenance of the retaining wall was the owner's responsibility. I will not authorise the body corporate to spend the money on lot 27 in the absence of any arrangement to recover it from the owner.
• [13] Consequently, while I appreciate the urgency to resolve the issue, I cannot authorise the body corporate to spend a further $37,947.68 on it. The application must be dismissed.

[5] Group titles plan 104412; Act, s 331(3).

[6] Dividing Fences Act 1953, s 6(1), "fence" & "dividing fence"; Act (as originally enacted), s 258.

[7] Neighbourhood Disputes (Dividing Fences) Act, s 11(2); Act, s 311.

[9] Accommodation Module, ss 150(2)(a)(i) & 152(1)(a).