McElwaine v The Owners - Strata Plan 75975

The appellant, McElwaine, brought proceedings against the respondent, The Owners - Strata Plan 75975, seeking damages for common law nuisance. The primary judge had dismissed the proceedings, finding that Chapter 5 of the *Strata Schemes Management Act 1996* (NSW) excluded a claim for common law damages. The appeal was heard in the Court of Appeal of New South Wales by Basten and White JJA and Sackville AJA.

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.