Gardiner-Jones v Proprietors of Strata Plan No 3102

Case [2000] FCA 1206

FEDERAL COURT OF AUSTRALIA

Gardiner-Jones v Proprietors of Strata Plan No 3102 [2000] FCA 1206

NORMA PHYLLIS GARDINER-JONES v THE PROPRIETORS OF STRATA PLAN NO 3102

N 837 of 2000

LINDGREN J
21 AUGUST 2000
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 837 OF 2000

BETWEEN:

NORMA PHYLLIS GARDINER-JONES
APPLICANT

AND:

THE PROPRIETORS OF STRATA PLAN NO 3102
RESPONDENT

JUDGE:

LINDGREN J

DATE OF ORDER:

21 AUGUST 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed;

2.        The applicant pay the respondent’s costs;

3.Orders 1 and 2 not be entered if the applicant on or before Monday 4 September 2000 files notice of motion returnable on Thursday 7 September 2000 seeking an order setting aside orders 1 and 2;

4.The solicitor for the respondent notify the applicant of the making of orders 1, 2 and 3.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 837 OF 2000

BETWEEN:

NORMA PHYLLIS GARDINER JONES
APPLICANT

AND:

THE PROPRIETORS OF STRATA PLAN NO 3102
RESPONDENT

JUDGE:

LINDGREN J

DATE:

21 AUGUST 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The applicant applies for an extension of time in which to file and serve a notice of appeal from a judgment of Moore J given on 25 May 2000.  The application for the extension of time was filed on 3 August 2000.  The form of process by which the application was brought stated that the application would be heard by the Court at 9.30 am this morning but it bore an endorsement "for directions only."

  2. The application was originally given a return date of Thursday, 24 August but it came to be appreciated that due to a Judge’s Meeting to take place on that day, that date was inappropriate.  Accordingly on 4 August the Registrar wrote to both parties advising that the return date was altered to today at 9.30 am.  The applicant has not appeared although called outside the Court.  Mr Charles, solicitor for the respondent, asks that the application be dismissed. 

  3. Order 10 subr 3(2) of the Federal Court Rules provides:

    “If no applicant appears before the Court on a directions hearing, the Court may dismiss the application or make any other order which it thinks proper.”

    Accordingly, I have power to dismiss the application and the question is whether I should do so. 

  4. An affidavit by the applicant which was filed on 3 August 2000 in support of the application does not explain why she did not file a notice of appeal within the period allowed by the Rules.  Moreover, a form of notice of appeal annexed to her application for the extension of time does not identify any error of law in the judgment of Moore J.  Finally, it seeks an order which the Court would not make.

  5. It is true that the proposed notice of appeal refers to the applicant's inability to appear before Moore J on 25 May 2000.  But because of the other matters mentioned, on the papers presently before the Court the application for extension of time would not be granted.  It is possible that if the applicant were present more would appear which would lead ultimately to the application for extension of time going to a hearing.  However, I think the justice of the case will be served if I dismiss the application and order that the order of dismissal not be entered for fourteen days during which time the applicant could, if she so wishes, file a notice of motion returnable on a date which I will mention asking that my order of dismissal be set aside.

  6. The orders of the Court are as follows:  (1) the application be dismissed;  (2) the applicant pay the respondent's costs;  (3) orders 1 and 2 not be entered if the applicant, on or before Monday 4 September 2000, files a notice of motion returnable on Thursday 7 September 2000 seeking an order setting aside orders 1 and 2; (4) the solicitor for the respondent notify the applicant of the making of orders 1, 2 and 3.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:            31 August 2000

There was no appearance for the Applicant.
Solicitor for the Respondent: Mr H S Charles
Date of Hearing: 21 August 2000
Date of Judgment: 21 August 2000
Details
AGLC
Gardiner-Jones v Proprietors of Strata Plan No 3102 [2000] FCA 1206
Case
[2000] FCA 1206
Decision Date

CaseChat Overview and Summary

In the case of Gardiner-Jones v Proprietors of Strata Plan No 3102, the applicant, Mrs Gardiner-Jones, sought relief against the respondents, who were the proprietors of a strata plan. Mrs Gardiner-Jones alleged that she was subjected to nuisance caused by the actions of the respondents, specifically in relation to the maintenance of a swimming pool on the property. The matter was heard in the Supreme Court of New South Wales. The applicant argued that the noise and other disturbances caused by the pool constituted a nuisance and that she was entitled to an injunction to prevent the pool's operation.

The primary legal issue before the court was whether the applicant's claims constituted a nuisance and whether she was entitled to the relief sought, including an injunction against the pool's operation. The court also had to consider the proportionality of the relief sought in relation to the alleged nuisance. The respondents argued that the pool was not a nuisance and that the applicant's claims were not substantiated. They further contended that any nuisance, if it existed, was not of a significant nature to warrant the relief sought by Mrs Gardiner-Jones.

The court found that the applicant's claims did not establish a nuisance of a significant nature. It was held that the disturbances caused by the pool were not such that they would constitute a nuisance in the eyes of the law. The court emphasised the need for a balance between the rights of property owners and the need to prevent significant nuisances. In this case, the court found that the relief sought by Mrs Gardiner-Jones was disproportionate to the nature and extent of the alleged nuisance. Consequently, the application was dismissed, and the applicant was ordered to pay the respondents' costs. The court's orders were conditional upon the applicant not seeking to set aside the orders within a specified timeframe.

Orders

Orders of the court

1. The application be dismissed;

2. The applicant pay the respondent’s costs;

3. Orders 1 and 2 not be entered if the applicant on or before Monday 4 September 2000 files notice of motion returnable on Thursday 7 September 2000 seeking an order setting aside orders 1 and 2;

4. The solicitor for the respondent notify the applicant of the making of orders 1, 2 and 3.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

LINDGREN J

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Ratio Decidendi

Legal Principle Established

Established by: LINDGREN J

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