VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
OWNERS CORPORATIONS LIST	VCAT REFERENCE NO. OC631/2019
CATCHWORDS	
Order to repair fence by specified date not complied with - renewal of proceedings by respondent to vary orders; application by applicant under section 120A of the Victorian Civil and Administrative Tribunal Act 1998 to vary orders. 	

APPLICANT	Monica (Ming) Zhang	
RESPONDENT	Owners Corporation RP4292	
WHERE HELD	Melbourne	
BEFORE	A Treble, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	19 November 2020	
DATE OF ORDER	9 December 2020	
DATE OF REASONS	9 December 2020	
CITATION	Zhang v Owners Corporation RP4292 (Owners Corporations) [2020] VCAT 1352	

OrderS

1.	The Tribunal grants leave to the applicant to apply under section 120A to reopen the orders dated 2 December 2019.

2.	The Tribunal varies order 1 of the orders dated 2 December 2019 as follows:

The Tribunal orders that:

a)	By 30 March 2021, the owners corporation must take all steps necessary to repair the north-west boundary fence on the common property so that it is made safe. 

b)	By 30 November 2022, the owners corporation must take all steps as are necessary to replace the north-west boundary fence on the common property. This order does not apply to any portion of the fence that was replaced in 2016.

3.	The Tribunal revokes order 2 of the orders dated 2 December 2019.

Dr A Treble
Member
APPEARANCES by telephone:		
For Applicant 	Jason Markerink, Daniel Novakovic	
For Respondents 	Andrew Bonwick, Owners Corporation Manager	

Reasons

Background
1	Ms Zhang is the owner of Units 3 and 13/199 Brighton Road, Elwood. There are two buildings on the property. The main building is a three-storey block of 12 units built in the early 1970’s. The second building is a single-story car parking area containing 10 accessory units. The units are affected by Owners Corporation PS4292. 
2	On 15 March 2019, Ms Zhang lodged an application seeking various orders relating to fencing. Relevantly in relation to the current proceedings, she sought orders relating to fencing along the north-west boundary that forms part of the common property. The adjoining property on the north-west boundary is 197 Brighton Road Elwood, which is another block of units involving an owners corporation. 
3	Ms Zhang raised two issues. Firstly, she claimed that the fence on the north-west boundary is in the wrong position as it sits 200 mm away from the correct common boundary between 197 and 199 Brighton Road, Elwood. Secondly, she claimed that the portion of the fence that is common property on the north-west boundary is in a state of disrepair.
4	Following a hearing on 11 October 2019, on 2 December 2019 the Tribunal made the following orders:
1.	The Tribunal orders that by 30 June 2020 the owners corporation take such steps as are necessary to replace the north-west boundary fence on the common property. This order does not apply to any portion of the fence that was replaced in 2016.
2.	Leave is granted to the owners corporation to renew this proceeding and seek a variation to the above order if the time frame specified cannot realistically be achieved.
3.	All other claims are dismissed.
5	The Tribunal determined that it was unable to make orders as to the location and placement of any new boundary fence, as it did not have the power to do so. Rather that was a matter to be determined by agreement between the adjoining property owners or in the absence of such agreement, by way of a Magistrates’ Court order.

The renewal application
6	On 31 July 2020, the owners corporation renewed the proceedings on the basis that they wished to repair rather than replace the fence. 
7	On 18 September 2020, the Tribunal made orders listing the matter for a hearing and requiring the parties to file with the Tribunal and serve on each other all documents they intended to rely on at the hearing, by 23 October 2020. No documents were received.
8	I note two things about the application to renew these proceedings by the owners corporation. Firstly, the purpose of Order 2 made on 2 December 2019 (as shown in paragraph 4 above) was to enable the owners corporation to apply for a longer period of time in which to take the steps necessary to replace the fence if such additional time was needed, given that they had to negotiate with the adjacent property owner. Leave was not given for the purpose of renewing the proceedings to achieve a variation of the substantive order, which was to take such steps as were necessary to replace the fence. 
9	Secondly, it would be expected that an application for an extension of time would be made before 30 June 2020, but that did not occur. 
10	Nevertheless, in my view these difficulties are now moot, given that Ms Zhang subsequently filed an “Application to reopen an order for Enforcement Reasons” which was also dealt with at the hearing on 19 November 2020.
The application to reopen an order for enforcement reasons
11	On 26 October 2020, Ms Zhang filed an “Application to reopen an order for Enforcement Reasons” in which she stated “Because the order is non-monetary, it is nearly impossible to enforce. The onus should have been on the respondent to comply with the law and follow the ruling. The applicant believes that they have no other alternative other than to apply to VCAT or the Supreme Court to enforce the order.” The new orders sought by Ms Zhang were:
1.	VCAT to appoint an administrator for the owners corporation under section 173-174 of the Owners Corporation Act.
2.	The owners corporation to replace the north-west boundary fence on the common property by 30 March 2021.
3.	The appointment of the administrator for the owners corporation is to cease once the north-west boundary fence on the common property has been replaced as per point 2.
4.	Applicant is seeking costs for VCAT fee of ‘Reopen an order for enforcement reasons’.

12	Section 120A of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) enables a person in whose favour an order of the Tribunal is made to apply to the Tribunal for review of the order to remedy a problem with enforcing or complying with the order. 
13	The application must be made in accordance with, and within the time limits specified by the Victorian Civil and Administrative Tribunal Rules 2018. Rule 4.24A states that an application for review of an order under section 120A of the Act must be made within 3 months after the order is made or a later date with the leave of the Tribunal. As it was not feasible for Ms Zhang to seek a variation to the orders of 2 December 2019 until the date 30 June 2020 had passed, I considered it was appropriate to grant leave and deal with her application under section 120A at the hearing on 19 November 2020, as requested by Ms Zhang.
The request for VCAT to appoint an administrator
14	Section 120A provides that the Tribunal may vary an order, or revoke an order and make any other order that the Tribunal could have made in the proceeding in which the order was made, if the Tribunal is satisfied that there are problems with enforcing or complying with the order; and having regard to those problems, it is appropriate to vary the order, or revoke the order and make another order (as the case requires). 
15	I note that section 120A limits the Tribunal’s power to the making of orders that could have been made in the original proceedings. Section 174 of the Owners Corporation Act 2006 gives the Tribunal the power to appoint an administrator on an application under section 173 by an owners corporation, a lot owner, a creditor of an owners corporation or any person with a sufficient interest in land affected by an owners corporation. There was no application before the Tribunal under section 173 seeking that such an appointment be ordered in the original proceedings heard in October 2019. Therefore, I cannot now make such an order. It follows that I cannot make the proposed orders 1 and 3 in Ms Zhang’s Application to Reopen an order for Enforcement Reasons.
The request for the respondent to pay the application fee
16	I further note that no fee was paid for the Application to reopen an order for Enforcement Reasons. I was advised by Registry staff that no fee had or would be charged. As no fee was paid, I will not make the proposed order 4 in Ms Zhang’s Application to reopen an order for Enforcement Reasons.
The request for the respondent to replace the fence by 31 March 2021 
17	In relation to proposed order 2 in Ms Zhang’s Application to reopen an order for Enforcement Reasons, the issues I need to decide in this matter are:
•	Whether there are problems enforcing or complying with the orders made on 2 December 2019; and
•	Whether it is appropriate to vary an order, or revoke an order and make another order, having regard to those problems.
Are there problems enforcing or complying with the orders of 2 December 2019?
18	It was common ground that no work had been done to the fence on the north-west boundary as at the date of the hearing. Mr Bonwick said that he obtained two quotes in February 2020 for the work to be done. Both fencing contractors said that the fence did not need replacement, only repair. Nevertheless, a notice to fence was sent to the owners corporation of the adjoining property at 199 Brighton Road, Elwood. No response was received. Mr Bonwick tried to contact them by telephone several times but no one answered and the messages he left were not returned. Their website was down. Mr Bonwick said he had not been able to locate an email address for the owners corporation of the adjacent property. No further action was taken, as the committee resolved that it wanted to repair rather than replace the fence. 
19	Mr Bonwick said a special resolution was required before action could be taken in the Magistrates’ Court against the owners corporation at 199 Brighton Road, Elwood regarding the fence. He did not know whether the owners corporation could legally remove and replace the fence without the agreement of the adjoining property owner or a Magistrates’ Court order.
20	Mr Bonwick also said that the fence was impacted by large trees on the adjoining property, which were pushing over the fence. The fence is not currently situated on the correct common boundary between 197 and 199 Brighton Road, Elwood, probably due to the trees growing at that boundary. If the fence was replaced while the trees remained, the fence line would encroach further into the driveway of 199 Brighton Road Elwood, as the trees had grown since the fence was installed. 
21	Mr Bonwick was aware that adjoining property owners could agree on a fence line that was not on the common boundary if the boundary was obstructed, but the owners corporation could not obtain such an agreement when there was no response from the adjoining owner. Mr Bonwick also said that council permission would be required for the adjoining property owner to remove the substantial trees.
22	Mr Bonwick did not think that the owners corporation would pass a special resolution to take action in the Magistrates Court to resolve these problems. Further, he was concerned that if there was a unilateral decision by the owners corporation to replace the fence in its current position or should the fence encroach further into 199 Brighton Road, Elwood, Ms Zhang and her representatives would take further court action to have the fence placed on the correct boundary. He was concerned that the owners corporation would then be liable to replace the fence twice, if Ms Zhang was successful. 

23	Ms Zhang’s representatives said that she would not agree to have the fence repaired rather than replaced and wanted the work to proceed as ordered. It was clear that Mr Novakovic in particular, was of the view that the fence had to be replaced on the correct common boundary despite the difficulties noted above. 
24	Taking the evidence presented by both parties into account, I was satisfied that there were a number of issues that affected compliance with my orders of 2 December 2019, most notably the lack of response from the adjoining property owner, in circumstances where their agreement in relation to the fence line and/or the potential removal of the trees affecting the fence line is at issue.
Should the order to replace the fence be varied, taking into account the problems with compliance, and if so in what way?
25	It is evident that the orders made on 2 December 2019 have not been complied with and must now be varied. The question is in what way? The owners corporation seeks to vary the orders so that they can repair rather than replace the fence, while Ms Zhang wants the fence replaced by 30 March 2021.
26	In the original proceedings, Ms Zhang referred to an invoice from a fencing contractor dated 4 February 2013 which stated that the contractor had refitted and secured fence rails and loose palings on the drive side fence and said: “Note – this fence will be a continuous maintenance issue as the nails that were used are too short, as the timber dries the palings are coming off.” She also provided minutes from a 2015 Annual General Meeting at which a discussion took place in relation to trees at 197 Brighton Road Elwood and the damage they were causing to the fence. The minutes include the statement “the fence is being pushed over by the trees”. She noted that the fencing issue was discussed again at the 2016 Annual General Meeting. In 2016, a different boundary fence collapsed in the wind. Ms Zhang surmised that both fences may have been erected by the same contractor and indicated that both were of poor quality. 
27	Ms Zhang provided a series of email communications between the owners corporations at 197 and 199 Brighton Road, Elwood, dated 2016. The owners corporation of 199 Brighton Road, Elwood were of the view at that time that “the whole fence needs to be replaced not just a repair of the section that has fallen over”, while the owners corporation at 197 Brighton Road, Elwood disagreed and only wanted to replace a particular section that had been removed.
28	Photographs were also provided by Ms Zhang to show that there are sections of the north-west boundary fence on the common property that are significantly bowed, possibly because of trees on the adjoining property. 
29	At the hearing on 19 November 2020, Ms Zhang again provided emails dated 4 April 2016 and 30 November 2018 in which Committee members of the owners corporation acknowledged the need to replace the fence.
30	In its original points of defence, the owners corporation stated that they had considered the possibility of replacing and moving the fence but it would provide minimal change to the property boundary and would require removal of trees at 197 Brighton Road, Elwood at significant cost. The owners corporation believed there were more pressing matters that funds should be directed toward. Mr Bonwick said that he did not know when the fence was last replaced. He said that a tradesperson had indicated the fence was not immediately in need of replacement and there were spots that could be “patched up”. The tradesperson felt that it could last another 12 months. 
31	At the hearing on 19 November 2020 Mr Bonwick said that the owners corporation had obtained two quotes for the replacement of the fence in February 2020 and each of those tradespersons had verbally told him that the fence could be repaired, he believed at minimal cost. He did not have any written reports or evidence he was able to provide and could not say how long repairs would last.
32	In response, Ms Zhang’s representative said that he believed the fence was in a dangerous state and liable to fall over, although he did not have any written reports or evidence he could provide. He said that the owners corporation had rights under the Fences Act 1968 that it could pursue, in order to comply with the orders dated 2 December 2019. 
33	In the absence of reports from relevant tradespersons regarding the state of the fence at the time of hearing on 19 November 2020, I remained satisfied that the fence required replacement and that I should maintain the order for the owners corporation to take such steps as are necessary to replace the fence. I then considered whether such work was required immediately, in the near future or in the longer term. Again, in the absence of reports from tradespersons, I could not be satisfied that the fence was in a dangerous state or in such a state of disrepair that it could not be made safe on a temporary basis with some repair works, while a longer and more realistic time frame is allowed for the replacement of the fence.
34	I note that the Fences Act 1968 sets out the procedure for notifying adjoining property owners of the need to replace a fence, and the procedure for determining the placement of a fence along a boundary. The parties were aware that if adjoining property owners do not agree, an application can be made to the Magistrates’ Court for appropriate orders. The Fences Act 1968 also sets out the procedure to be followed if an adjoining owner does not respond to a fencing notice or cannot be located. Section 19 provides that the owner seeking to fence can commence the work, while section 21 sets out the 

procedure for recovering contributions from an adjoining owner for works commenced under section 19. In circumstances where there is an issue with substantial trees on the adjoining property and the location of the replacement fence, I consider that taking unilateral action to do the fencing works is not a realistic or practical option for the owners corporation of 199 Brighton Road, Elwood. Further, orders under section 21 can be challenged by an adjoining landowner if regarded as inequitable.
35	At some point, the owners corporations of 197 and 199 Brighton Road, Elwood will have to deal with the issue of a replacement fence and the impact of the trees situated at 197 Brighton Road, Elwood. However, it is evident that further time is required to enable meaningful negotiations to take place and to hopefully find a workable long-term solution.  If the adjoining property owners need to resort to the Magistrates’ Court to resolve fencing issues, it is common knowledge that there is now a significant back-log in all courts due to the impact of COVID-19 restrictions, so that any such dispute is unlikely to be quickly resolved in that forum.
36	Accordingly, I concluded that it was appropriate to vary the orders made on 2 December 2019, so that works are conducted to repair the fence in the short term so that it is safe, and to allow a longer time frame of two years for replacement of the fence. Given the lengthy time frame allowed for replacement works, I will revoke order 3 of the Tribunal’s orders dated 2 December 2019.

Dr A Treble
Member

9 December 2020