O'Riordan v Chu - [2023] NSWCATCD 61

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: O’Riordan v Chu [2023] NSWCATCD 61
Hearing dates: 30 May 2023
Date of orders: 08 June 2023
Decision date: 08 June 2023
Jurisdiction: Consumer and Commercial Division
Before: D Ziegler, Senior Member
Decision:
1. The application is dismissed.
2. If the respondent wishes to make a costs application, the respondent is to file and serve submissions and documents on the costs application by 14 days from the date of these orders.
3. If an application for costs is made by the respondent, the applicant is to file and serve submissions and documents on the costs application by 28 days from the date of these orders.
4. The respondent is to file and serve costs submissions in reply by 35 days from the date of these orders.
5. The costs submissions of the parties are to state whether the parties seek an oral hearing on the issue of costs, or consent to the costs application being determined on the papers in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
6. The Tribunal may determine it appropriate to deal with any costs application on the papers and without a further oral hearing.

Catchwords:
LAND LAW – strata title – obligations of owners and occupiers – By-Laws – Strata Schemes Management Act 1996 (NSW) s 153 - whether noise transmission creates a nuisance – exercise of discretion.

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Strata Schemes Management Act 1996 (NSW)
Strata Schemes Management Act 2015 (NSW)

Cases Cited:
Bayliss v Lea [1961] NSWLR1002
Cannell v Barton [2014] NSWCATCD 103
Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102
Gisks v The Owners – Strata Plan No 6743 [2019] NSWCATCD 44
Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425
Hargrave v Goldman (1963) 110 CLR 40
Sedleigh-Denfield v O’Callaghan [1940] AC 880
The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134

Category: Principal judgment
Parties: Padraig Alan O’Riordan (Applicant)
Yim Chu (Respondent)
Representation:
Counsel:
R Coffey (Applicant)
Solicitors:
Sarvaas Ciappara Lawyers (Respondent)

File Number(s): SC 23/04165
Publication restriction: Nil

REASONS FOR DECISION

This application involves a dispute between lot owners in a strata scheme.
The applicant is the owner of lot 202 and the respondent is the owner of lot 302. Lot 302 is directly above lot 202.
The applicant alleges that the respondent has breached s 153(1)(a) of the Strata Schemes Management Act 2015 (NSW) (the “Strata Act”) and by-laws 1 and 13 of the strata scheme’s by-laws.
There was some discussion during the hearing as to precisely what order was being sought by the applicant as this was not clear from the application form or from any of the other materials before me. Eventually the applicant’s counsel confirmed that the applicant seeks an order requiring the respondent to install a flooring system in the kitchen of lot 302…

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 O'Riordan v Chu

Details

AGLC: O'Riordan v Chu [2023] NSWCATCD 61
Case: [2023] NSWCATCD 61
Decision Date: 08 June 2023

CaseChat Overview and Summary

The applicant, O'Riordan, sought relief from the Civil and Administrative Tribunal (CAT) under the Strata Schemes Management Act 1996 (NSW) due to noise disturbances allegedly caused by the respondent, Chu, in an adjacent strata unit. The core issue pertained to whether the noise constituted a nuisance under the Act, and if so, whether the Tribunal should exercise its discretion to grant O'Riordan relief against Chu. The dispute also involved compliance with strata By-Laws and the application of general principles of nuisance and equity.

The Tribunal examined the evidence and the relevant statutory provisions, particularly section 153 of the Act, which deals with the management and control of strata schemes. It assessed the nature, frequency, and impact of the noise, as well as the reasonableness of the respondent's actions in the context of the By-Laws. The Tribunal determined that while the noise did create a disturbance, it did not rise to the level of a nuisance under the Act, and therefore the discretion was not exercised in favour of the applicant. The Tribunal also noted the importance of mutual tolerance and reasonable accommodation among strata owners and occupiers.

Consequently, the application was dismissed. The Tribunal outlined a procedural timeline for any potential costs application by the respondent, including deadlines for filing submissions and indicating whether an oral hearing or a determination on the papers was preferred. The decision underscores the need for a balanced approach in managing disputes within strata schemes, emphasising the importance of By-Laws and the equitable treatment of all parties involved.

Orders

Orders of the court

1. The application is dismissed.

2. If the respondent wishes to make a costs application, the respondent is to file and serve submissions and documents on the costs application by 14 days from the date of these orders.

3. If an application for costs is made by the respondent, the applicant is to file and serve submissions and documents on the costs application by 28 days from the date of these orders.

4. The respondent is to file and serve costs submissions in reply by 35 days from the date of these orders.

5. The costs submissions of the parties are to state whether the parties seek an oral hearing on the issue of costs, or consent to the costs application being determined on the papers in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

6. The Tribunal may determine it appropriate to deal with any costs application on the papers and without a further oral hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	O’Riordan v Chu [2023] NSWCATCD 61
Hearing dates:	30 May 2023
Date of orders:	08 June 2023
Decision date:	08 June 2023
Jurisdiction:	Consumer and Commercial Division
Before:	D Ziegler, Senior Member
Decision:	1. The application is dismissed. 2. If the respondent wishes to make a costs application, the respondent is to file and serve submissions and documents on the costs application by 14 days from the date of these orders. 3. If an application for costs is made by the respondent, the applicant is to file and serve submissions and documents on the costs application by 28 days from the date of these orders. 4. The respondent is to file and serve costs submissions in reply by 35 days from the date of these orders. 5. The costs submissions of the parties are to state whether the parties seek an oral hearing on the issue of costs, or consent to the costs application being determined on the papers in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 6. The Tribunal may determine it appropriate to deal with any costs application on the papers and without a further oral hearing.
Catchwords:	LAND LAW – strata title – obligations of owners and occupiers – By-Laws – Strata Schemes Management Act 1996 (NSW) s 153 - whether noise transmission creates a nuisance – exercise of discretion.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Strata Schemes Management Act 1996 (NSW) Strata Schemes Management Act 2015 (NSW)
Cases Cited:	Bayliss v Lea [1961] NSWLR1002 Cannell v Barton [2014] NSWCATCD 103 Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102 Gisks v The Owners – Strata Plan No 6743 [2019] NSWCATCD 44 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Hargrave v Goldman (1963) 110 CLR 40 Sedleigh-Denfield v O’Callaghan [1940] AC 880 The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134
Category:	Principal judgment
Parties:	Padraig Alan O’Riordan (Applicant) Yim Chu (Respondent)
Representation:	Counsel: R Coffey (Applicant) Solicitors: Sarvaas Ciappara Lawyers (Respondent)
File Number(s):	SC 23/04165
Publication restriction:	Nil