McElwaine v The Owners - Strata Plan No 75975

In the case of McElwaine v The Owners – Strata Plan No 75975, the applicant sought to strike out the defendant's defence on the basis that the Strata Schemes Management Act 1996 (Qld) precludes the operation of common law nuisance claims. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The applicant claimed that the defendant's activities caused significant noise and light pollution, which interfered with the applicant's use and enjoyment of their property. The defendant, however, maintained that the applicant's claims were barred by the provisions of the Strata Schemes Management Act.

The central legal issue before QCAT was whether the statutory framework of the Strata Schemes Management Act operates to preclude a common law action in nuisance. The court was tasked with interpreting the statutory provisions and determining whether they provide an exclusive remedy for the resolution of disputes between strata lot owners. The court also needed to consider the extent to which the statutory provisions operate to exclude the application of common law principles.

QCAT held that the statutory provisions of the Strata Schemes Management Act do not preclude a common law action in nuisance. The court found that the Act provides a statutory cause of action for nuisance, but does not exclude the application of common law principles. The court emphasised that the statutory provisions are to be read in a way that gives effect to both the statutory and common law remedies. The court further held that the statutory provisions do not provide an exclusive remedy for the resolution of disputes between strata lot owners. The court found that the statutory provisions provide a framework for the resolution of disputes, but do not preclude the operation of common law principles where appropriate.

The orders made by QCAT were that the application to strike out the defence was dismissed. The court held that the applicant's claims for nuisance were not precluded by the statutory provisions of the Strata Schemes Management Act. The matter was remitted to the Registrar for further directions.