McElhone v Artemisia Nominees Pty Ltd

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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

Lo v Aree [2024] NSWCATAP 159

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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Details
Case
[2025] NSWCATCD 65
Decision Date

CaseChat Overview and Summary

In the case of McElhone v Artemisia Nominees Pty Ltd, the dispute involved the validity of an amended by-law under the Strata Schemes Management Act 2015 (NSW) concerning noise transmission from lots. The application was brought before the NSW Civil and Administrative Tribunal (NCAT) to seek the revocation of the amended by-law, which was introduced to address noise complaints from the applicant, Mr McElhone. The respondent, Artemisia Nominees Pty Ltd, argued against the revocation, claiming the by-law was necessary to ensure the peaceful enjoyment of lots and to prevent nuisances.

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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