Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: McElwaine v The Owners - Strata Plan 75975 [2017] NSWCA 239 Hearing dates: 25 July 2017 Decision date: 20 September 2017 Before: Basten JA at [1];
White JA at [5];
Sackville AJA at [73]Decision: 1. Appeal allowed.
2. Set aside the order made on 10 November 2016 that the plaintiff’s proceedings be dismissed with costs.
3. Order that the question ordered for separate determination on 13 May 2015, namely:
“Whether the legal effect of Chapter 5 of the Strata Schemes Management Act is that the plaintiff has no remedy against the defendant in common law nuisance in respect of the claim pleaded in the proposed Further Amended Statement of Claim?”,
be answered, no.
4. Remit the proceedings to the Equity Division for determination of the appellant’s claim.
5. Order that the respondent pay the appellant’s costs of the determination of the separate question and of the appeal.
6. Grant the respondent a certificate pursuant to the Suitors’ Fund Act 1951 (NSW) in respect of the costs of the appeal if qualified.Catchwords: REAL PROPERTY — Strata title — General matters — whether Ch 5 of the Strata Schemes Management Act 1996 (NSW) has the effect of excluding a claim for common law damages — construction of s 226 of the Strata Schemes Management Act 1996 (NSW) — whether appellant has a right or remedy arising “apart from this Act” — whether appellant’s right to sue at common law is preserved by s 226 Legislation Cited: Real Property Act 1900 (NSW), s 3
Strata Schemes (Freehold Development) Act 1973, ss 6, 21
Strata Schemes Management Act 1996 (NSW), ss 61, 62, 138, 226
Strata Schemes Management Act 2015 (NSW), Sch 3, Pt 2, cl 7
Supreme Court Act 1970 (NSW), s 103Cases Cited: Balog v Independent Commission Against Corruption (1990) 169 CLR 625; [1990] HCA 28
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32
Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36
Chief Commissioner of State Revenue v Smeaton Grange Holdings Pty Ltd [2017] NSWCA 184
Doughty v Martino Developments Pty Ltd (2010) 27 VR 499; [2010] VSCA 121
Gumana v Northern Territory (2007) 158 FCR 349; [2007] FCAFC 23
Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67
Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290; [2001] HCA 14
McElwaine v The Owners – Strata Plan No. 75975 [2016] NSWSC 1589
Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34
National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1989) 17 NSWLR 223 at 235, 240
Owners – Strata Plan 21702 v Krimbogiannis [2014] NSWCA 411
Owners – Strata Plan No 43551 v Walter Construction Group Ltd (2004) 62 NSWLR 169; [2004] NSWCA 429
Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63
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- Case
- [2017] NSWCA 239
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether Chapter 5 of the *Strata Schemes Management Act 1996* (NSW) had the effect of excluding a claim for common law damages, specifically in nuisance, and whether section 226 of the Act preserved the appellant's right to sue at common law. The court was required to determine if the appellant's right to sue for nuisance arose "apart from this Act" as contemplated by section 226.
The Court of Appeal reasoned that section 226 of the *Strata Schemes Management Act 1996* (NSW) was intended to preserve rights and remedies that exist independently of the Act. The court found that the right to sue in nuisance is a common law right that arises independently of the statutory scheme governing strata schemes. Therefore, the statutory scheme did not exclude the appellant's common law claim. The court allowed the appeal, set aside the order dismissing the proceedings, and answered the separate question in the negative, meaning the appellant did have a remedy in common law nuisance. The proceedings were remitted to the Equity Division for determination of the appellant's claim, and the respondent was ordered to pay the appellant's costs.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order made on 10 November 2016 that the plaintiff’s proceedings be dismissed with costs.
3. Order that the question ordered for separate determination on 13 May 2015, namely:
“Whether the legal effect of Chapter 5 of the Strata Schemes Management Act is that the plaintiff has no remedy against the defendant in common law nuisance in respect of the claim pleaded in the proposed Further Amended Statement of Claim?”,
be answered, no.
4. Remit the proceedings to the Equity Division for determination of the appellant’s claim.
5. Order that the respondent pay the appellant’s costs of the determination of the separate question and of the appeal.
6. Grant the respondent a certificate pursuant to the Suitors’ Fund Act 1951 (NSW) in respect of the costs of the appeal if qualified.
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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