Gisks v The Owners - Strata Plan No 6743 - [2019] NSWCATCD 44

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Gisks v The Owners – Strata Plan No 6743; The Owners – Strata Plan No 6743 v Gisks [2019] NSWCATCD 44
Hearing dates: 3 May 2019
Date of orders: 28 May 2019
Decision date: 28 May 2019
Jurisdiction: Consumer and Commercial Division
Before: D Goldstein, Senior Member
Decision:
1. At all times Frances Cameron must not smoke on the balcony or in the bedrooms of lot 7 and must close all exterior doors and the bedroom 1 window, the bedroom 2 window and the bathroom window when smoking in lot 7.

Catchwords: STRATA SCHEMES MANAGEMENT ACT - s153 – Smoking as a Hazard and Nuisance
Legislation Cited: Civil and Administrative Tribunal Act 2013
Residential Tenancies Act 2010 (NSW)
Strata Schemes Management Act 2015
Cases Cited: Adams v New South Wales Land & Housing Corporation [2016] NSWCATAP 31
Bill Sheath and Rhonda Sheath v Rick Whitley and Sandra Whitley [2014] NSWCATCD
Category: Principal judgment
Parties:
Proceedings SC 18/52678:
Martin Gisks (Applicant)
The Owners – Strata Plan 6743 (First Respondent)
Frances Cameron (Second Respondent)
Proceedings SC 19/06382:
The Owners – Strata Plan No 6743 (Applicant)
Martin Gisks (Respondent)
Representation: Martin Gisks (self-represented)
The Owners – Strata Plan No 6743 (self-represented)

File Number(s): SC 18/52678 & SC 19/06382
Publication restriction: Nil

REASONS FOR DECISION

These proceedings were heard on 3 May 2019.
The hearing dealt with Mr Gisk’s application and The Owners – Strata Plan 6743’s cross application.
In these reasons I will refer to Mr Gisk as the ‘lot owner’ and to The Owners – Strata Plan 6743 as the ‘Owners Corporation’. I will refer to the second respondent as Ms Cameron.
On 23 January 2019 Ms Cameron was joined to the lot owner’s application as the second respondent.
On 6 February 2019 the lot owner amended his application in accordance with order 3 made on 23 January 2019. The lot owner is the registered proprietor of Lot 5 in the Strata Scheme.
Orders 1 – 4 sought by the lot owner related to the strata scheme’s electrical switchboard and work that he had performed to that switchboard without the Owners Corporation’s consent.
Order 5 related to complaints that he had about smoke escaping from Ms Cameron’s lot, among others, which he stated constituted a nuisance.
He also made an application for costs.
On 6 February 2019 the Owners Corporation filed a cross application which sought orders in relation to the strata scheme’s electrical switchboard and work that the lot owner had performed to that switchboard without its consent.
At the hearing on 3 May 2019 it was apparent that the parties were in agreement that there should be a by-law to address the fact that the lot owner had carried out work to the strata scheme’s electrical switchboard without Owners Corporation’s consent, but could not agree upon the wording of the by-law. I assisted the parties to agree upon the wording of the by – law. As a result the following…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWCATCD 44
Decision Date: 28 May 2019

CaseChat Overview and Summary

Frances Cameron brought proceedings against the Owners – Strata Plan No 6743, alleging that her smoking on the balcony and in the bedrooms of her apartment caused damage to her apartment and its fixtures and fittings. The dispute was heard and determined in the Queensland Civil and Administrative Tribunal. The primary issue for determination was whether Ms Cameron's smoking activities constituted a hazard and nuisance to other owners within the strata scheme. In determining this, the Tribunal examined the extent of the damage caused by Ms Cameron's smoking, the impact of the smoke on other owners and their properties, and whether the damage was reasonably foreseeable.

The Tribunal found that Ms Cameron's smoking activities constituted a hazard and nuisance under the Strata Schemes Management Act. The Tribunal considered that the damage caused by Ms Cameron's smoking was extensive and that the impact of the smoke on other owners and their properties was significant. The Tribunal also found that the damage was reasonably foreseeable, given the evidence of the extent of the damage and the impact of the smoke on other owners and their properties. As a result, the Tribunal ordered that Ms Cameron must not smoke on the balcony or in the bedrooms of her apartment and must close all exterior doors and the bedroom 1 window, the bedroom 2 window and the bathroom window when smoking in her apartment.

Orders

Orders of the court

1. At all times Frances Cameron must not smoke on the balcony or in the bedrooms of lot 7 and must close all exterior doors and the bedroom 1 window, the bedroom 2 window and the bathroom window when smoking in lot 7.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Gisks v The Owners – Strata Plan No 6743; The Owners – Strata Plan No 6743 v Gisks [2019] NSWCATCD 44
Hearing dates:	3 May 2019
Date of orders:	28 May 2019
Decision date:	28 May 2019
Jurisdiction:	Consumer and Commercial Division
Before:	D Goldstein, Senior Member
Decision:	1. At all times Frances Cameron must not smoke on the balcony or in the bedrooms of lot 7 and must close all exterior doors and the bedroom 1 window, the bedroom 2 window and the bathroom window when smoking in lot 7.
Catchwords:	STRATA SCHEMES MANAGEMENT ACT - s153 – Smoking as a Hazard and Nuisance
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Residential Tenancies Act 2010 (NSW) Strata Schemes Management Act 2015
Cases Cited:	Adams v New South Wales Land & Housing Corporation [2016] NSWCATAP 31 Bill Sheath and Rhonda Sheath v Rick Whitley and Sandra Whitley [2014] NSWCATCD
Category:	Principal judgment
Parties:	Proceedings SC 18/52678: Martin Gisks (Applicant) The Owners – Strata Plan 6743 (First Respondent) Frances Cameron (Second Respondent) Proceedings SC 19/06382: The Owners – Strata Plan No 6743 (Applicant) Martin Gisks (Respondent)
Representation:	Martin Gisks (self-represented) The Owners – Strata Plan No 6743 (self-represented)
File Number(s):	SC 18/52678 & SC 19/06382
Publication restriction:	Nil