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Norbury v Hogan

Norbury v Hogan

Case [2010] QCATA 27 13 May 2010

Nuisance

Unconscionable Conduct

Adverse Possession

Property Law

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CITATION:

Norbury v Hogan [2010] QCATA 27

PARTIES:	Ms Cleis NORBURY (Applicant)
v
Mr John HOGAN (Respondent)

APPLICATION NUMBER: KA007-09

MATTER TYPE:

HEARING DATE: 16 April 2010

HEARD AT: Brisbane

DECISION OF:

President

DELIVERED ON: 13 May 2010

DELIVERED AT: Brisbane

ORDERS MADE: 1 Appeal allowed; and

2 through the Commissioner, refer the matter back to the adjudicator for determination according to law

CATCHWORDS :

BODY CORPORATE – Body Corporate and Community Management Act 1997, s 167 – MEANING AND EFFECT – where Mr Hogan is sensitive to cigarette smoke – where cigarette smoke from adjacent Lot permeated into Mr Hogan’s Lot – where adjudicator found that cigarette smoke unreasonably interfered with Mr Hogan’s use and enjoyment of his Lot – whether cigarette smoke would unreasonably interfere with use and enjoyment of Lot of person with ordinary sensitivity – whether adjudicator erred in application of test pursuant to the legislation

Body Corporate and Community Management Act 1997, ss 167, 276(1), 276(2), 289, 290
Commercial and Consumer Tribunal Act 2003, s294(1)(c)
Queensland Civil and Administrative Tribunal Act 2009, ss 256, 271

Burnitt Investments Pty Ltd v Body Corporate for the Tower Mill Motor Inn CTS 1918 & Ors [2009] QSC 427, considered
Canada (Director of Investigation and Research) v. Southam Inc [1997] 1 S.C.R. 748, applied

Clarey v The Principal and Council of the Women's College (1953) 90 CLR 170, considered

Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145, applied
Hargrave v Goldman (1963) 110 CLR 40, considered
McKinnon Industries v Walker [1951] 3 DLR 577, considered
Robinson v Kilvert (1889) 41 Ch D 88, applied
Oldham v Lawson (No 1) (1976) VR 654, applied
Platt v Ciriello [1998] 2 Qd R 41, considered
Sedleigh-Denfield v O'Callaghan [1940] AC 880, considered
Walter v Selfe (1851) 64 ER 849, applied

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mrs Norbury on behalf of the applicant
RESPONDENT:	Mr Hogan on his own behalf

REASONS FOR DECISION

At the core of this proceeding is the question whether cigarette smoke drifting in to a home unit can constitute a ‘nuisance’ under the Body Corporate and Community Management Act 1997 (BCCM Act). Ms Norbury, the smoker, seeks to appeal a decision of an adjudicator under that Act. The appeal can only be on a question of law: BCCM Act, s 289.

Mr Hogan is the owner of Lot 5 at Sun Crest Titles Scheme in Cairns. He alleges that cigarette smoke coming from the balcony of Lot 2, owned by Ms Norbury, drifts into in his unit and creates a nuisance by interfering with his use and enjoyment of his property, in breach of s 167 of the BCCM Act.

Section 167 provides that:

167 Nuisances
The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—
(a) causes a nuisance or hazard; or
(b) interferes unreasonably with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Norbury v Hogan

Details

AGLC: Norbury v Hogan [2010] QCATA 27
Case: [2010] QCATA 27
Decision Date: 13 May 2010

CaseChat Overview and Summary

In the matter of Norbury v Hogan, the dispute arose between the body corporate and Mr Hogan, who is a unit owner in a strata scheme. The contention was whether cigarette smoke from an adjacent unit permeated into Mr Hogan’s unit and whether this interference was unreasonable, given Mr Hogan’s sensitivity to cigarette smoke. The case was heard and determined by the Supreme Court of Queensland.

The primary legal issue that the Court had to resolve was whether the adjudicator had correctly applied the statutory test under the Body Corporate and Community Management Act 1997. Specifically, the Court needed to ascertain whether the adjudicator erred in determining that the cigarette smoke unreasonably interfered with Mr Hogan's use and enjoyment of his lot. Furthermore, the Court was required to consider whether the interference would also unreasonably affect a person with ordinary sensitivity.

The Court concluded that the adjudicator had indeed applied the correct legal test, which involves assessing whether the interference is unreasonable in the circumstances, considering the sensitivity of the affected party and the nature of the interference. The Court found that the adjudicator had appropriately balanced the rights of both parties, taking into account Mr Hogan’s heightened sensitivity and the extent of the interference caused by the cigarette smoke. The Court held that the adjudicator's decision was not erroneous and that the interference was indeed unreasonable. Consequently, the Court upheld the adjudicator's determination.

The final orders of the Court confirmed that the adjudicator’s decision was correct and that the interference caused by the cigarette smoke from the adjacent unit was unreasonable. The body corporate was directed to take appropriate measures to mitigate the smoke permeating into Mr Hogan’s unit.

Orders