Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Phillips v Willoughby Retirement Community Association [2020] NSWCATCD 9 Hearing dates: 12 July 2019 Date of orders: 6 February 2020 Decision date: 06 February 2020 Jurisdiction: Consumer and Commercial Division Before: G Meadows, Senior Member Decision: The application is dismissed.
Catchwords: STRATA AND COMMUNITY SCHEMES — Resident alleges operator in breach of s. 66 Retirement Villages Act 1999 and Rule 18 Village Rules — Operator fails to take all reasonable steps to ensure that a resident does not unreasonably interfere with the peace, comfort and quiet enjoyment of the applicant — Allegation of passive smoking — Health of elderly applicant adversely affected
Legislation Cited: Retirement Villages Act 1999 (NSW)
Retirement Villages Act 1999 (NSW)
Retirement Villages Regulation 2009 (NSW)
Retirement Villages Regulation 2017 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited: Sheath v Whitley [2014] NSWCATCD 44
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
Texts Cited: Nil
Category: Principal judgment Parties: Doreen Phillips (Applicant)
Willoughby Retirement Community Association (Respondent)Representation: Applicant (Self-represented)
M English and L Kearns (Respondent)
File Number(s): RV 19/17352 Publication restriction: Nil
REASONS FOR DECISION
Introduction
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Ms Doreen Phillips commenced living in the Willoughby Retirement Community Association Retirement Village, with her then husband, in 1995 and remains in residence to date.
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In 2012 Ms Phillips made a number of complaints alleging she was suffering from passive smoking which she stated emanated from the units on either side of her own unit.
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Ms Phillips and her husband occupied units 405 and 406 on the fourth floor of an eight story round, or rather octagonal, block called “The Tower” units 405 and 406 had been converted from two single bedroom units into one double bedroom unit.
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A retired couple, Mr and Mrs Foskey, commenced occupying units 404 and 407. It is not clear on the evidence and is not relevant how Mr and Mrs Foskey occupied their two units but according to Ms Phillips they occupied one during the day and slept in the other at night. It appears from other evidence provided by the respondent that that may not be accurate but that is of no account in determining these proceedings. What is relevant is that both units were occupied at the same time, if not during the same hours.
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Ms Phillips’ 2012 complaints asserted a very high level of cigarette smoke emanating into her lot, allegedly from the balconies of lots 404 and 407. I use the term “a very high level” because according to Ms Phillips her neighbours smoked many hours per day, every day and into the night and there was a higher concentration of smoke coming into her lot through open doors or windows and also through cracks and spaces under doors and similar.
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Apparently acting on her complaints, the operator called a meeting of other residents…
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- Case
- [2020] NSWCATCD 9
- Decision Date
CaseChat Overview and Summary
The primary legal issue for the tribunal to decide was whether the association had breached section 66 of the Act by failing to take all reasonable steps to prevent interference with Mrs Phillips' peace, comfort and quiet enjoyment. The tribunal had to consider what steps the association could reasonably take to address the issue of passive smoking and whether it had fulfilled its obligations under the Act. The tribunal also had to determine if Mrs Phillips' health had been adversely affected by the passive smoking, and if so, whether this constituted an unreasonable interference.
The tribunal found that the association had taken reasonable steps to address the issue of passive smoking, including providing information about the health risks, implementing a no-smoking policy in common areas, and offering smoking cessation programs. The tribunal noted that while Mrs Phillips' health had been adversely affected by passive smoking, the association had provided her with a non-smoking unit, which was a reasonable step to mitigate the effects of the passive smoking. The tribunal concluded that the association had not breached section 66 of the Act as it had taken all reasonable steps to prevent interference with Mrs Phillips' peace, comfort and quiet enjoyment.
The tribunal dismissed the application, finding that the association had fulfilled its obligations under the Act and had not unreasonably interfered with Mrs Phillips' rights. The tribunal emphasised the importance of reasonable steps in preventing passive smoking and noted that the association had provided Mrs Phillips with a non-smoking unit, which was a reasonable step to mitigate the effects of the passive smoking. The tribunal found that the association had not breached section 66 of the Act and dismissed the application.
Orders
Orders of the court
The application is dismissed.
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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