Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: McElhone v Artemisia Nominees Pty Ltd [2025] NSWCATCD 65 Hearing dates: 15 January 2024; 20 August 2024; submissions to 11 November 2024 Date of orders: 27 June 2025 Decision date: 27 June 2025 Jurisdiction: Consumer and Commercial Division Before: G Sarginson, Deputy President Decision: (1) The application is dismissed.
(2) No order as to costs, with a view that each party bears its own costs.
(3) If any party seeks to vary order (2), the following orders apply:
(a) Costs applicant is to file and serve costs submissions and documents by 14 days from the date of these orders.
(b) Costs respondent is to file and serve costs submissions and documents by 28 days from the date of these orders.
(c) Costs applicant is to file and serve costs submissions in reply by 35 days from the date of these orders.
(d) Any party can apply to vary the procedural timetable for the filing and serving of costs submissions and documents by way of an application in writing to the Tribunal and the other parties by no later than the date of compliance with the relevant timetable obligation.
Catchwords: LAND LAW – strata title – Strata Schemes Management Act 2014 (NSW) – amended by-law – whether amended by-law should be revoked – s 148 Strata Schemes Management Act 2015 (NSW) – noise transmission from lots – interference peaceful enjoyment – breach of by-laws – nuisance – s 153 Strata Schemes Management Act 2015 (NSW)
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Evidence Act 1995 (NSW)
Strata Schemes Management Act 2015 (NSW)
Cases Cited: Beechwood Homes (NSW) Pty Ltd v Hassos [2024] NSWCATAP 184
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Chua v The Owners-Strata Plan No 36156 [2022] NSWCATAP 48
Cooper v The Owners Strata Plan No 58068 (2020) NSWLR 160; [2020] NSWCA 250
Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147
Felcher v The Owners-Strata Plan No 2738 [2017] NSWCATAP 219
G v H [1994] HCA 48; (1994) 181 CLR 387
Gambotto v WCP Ltd (1985) 182 CLR 432
Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425
Harris v The Owners-Strata Plan No 34056 [2022] NSWCATAP 111
Hogan v Stebnicki [2022] NSWCATCD 63
Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386
James v The Owners Strata Plan No SP 11478 (No 4) [2012] NSWSC 590
Jiang v Sui [2023] NSWCATCD 127
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kaye v The Owners-Strata Plan No 4350 [2022] NSWSC 1386
New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231
Nowak v Pellicciotti [2018] NSWCATCD 9
O’Riordan v Chu [2023] NSWCATCD 61
Owners of Strata…
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- Case
- [2025] NSWCATCD 65
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to resolve was whether the amended by-law should be revoked. This required the court to consider the statutory provisions of the Strata Schemes Management Act 2015 (NSW) and assess the balance between the rights of lot owners to peaceful enjoyment and the need to manage noise issues. The court also needed to determine if the amended by-law was consistent with the Act and if it was necessary to prevent interference with the peaceful enjoyment of the lots.
The NCAT found that the amended by-law was necessary to address the noise issues and to prevent interference with the peaceful enjoyment of the lots. The court held that the by-law was consistent with the provisions of the Strata Schemes Management Act 2015 (NSW) and did not constitute an invalid exercise of power. Therefore, the application to revoke the by-law was dismissed. The court also made orders regarding the costs of the application, specifying that each party bear its own costs unless a party seeks to vary this arrangement, in which case a detailed timetable for the submission of costs documents is to be followed.
Orders
Orders of the court
(1) The application is dismissed.
(2) No order as to costs, with a view that each party bears its own costs.
(3) If any party seeks to vary order (2), the following orders apply:
(a) Costs applicant is to file and serve costs submissions and documents by 14 days from the date of these orders.
(b) Costs respondent is to file and serve costs submissions and documents by 28 days from the date of these orders.
(c) Costs applicant is to file and serve costs submissions in reply by 35 days from the date of these orders.
(d) Any party can apply to vary the procedural timetable for the filing and serving of costs submissions and documents by way of an application in writing to the Tribunal and the other parties by no later than the date of compliance with the relevant timetable obligation.
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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