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[Lady Penelope]

Without seeing the plans of your lot Q2 is difficult to make a comment on.

In my opinion the stairwell balustrade would not be classified as a ‘fence’ as it is not on a lateral boundary, and therefore would probably not be your responsibility to maintain.

What ​​​is​​ ​​a ​​dividing fence?

A dividing fence is a structure that separates neighbouring properties. It will usually be on the common boundary between the two properties. A dividing fence can be made out of all sorts of materials, for example bricks, metal or wood. It may also be a ditch, embankment or vegetation, for example, a hedge. It does not include a retaining wall, unless the wall is needed to support and maintain the fence.

See the following article:

https://jamesons.com.au/blog/repairs-fences-dividing-neighbours-strata-scheme/

In answer to Q1 ….. Unless you can identify the culprit and can prove, with evidence, that another person damaged the fence then you would be liable for 50% of the replacement costs, with the OC providing the remaining 50%.

If you can prove that the upstairs tenants contributed to the damage then you should mention that to the OC and perhaps the OC can follow up on it and request some sort of contribution from the upstairs tenant. If the upstairs tenant was to contribute, lets say 20% of the cost, then you and the OC would share 50 -50  the remaining 80%.

I don’t like your chances of success though …. and you could find your yard being ‘trashed’ from all sorts of nasty ‘things’ from the now angry tenants above you. Is it worth it? Only you can decide. 

If it was me I would just split the replacement fence with the OC on a 50 – 50 basis, and hope that the stronger new fence keeps the upstairs tenants out of your property. 

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