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Pittman v Newport

Pittman v Newport

Case [2022] NSWCATCD 173 11 October 2022

Nuisance

Implied Terms

Restrictive Covenants

Property Law

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Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Pittman v Newport [2022] NSWCATCD 173
Hearing dates: 6 July 2022
Date of orders: 11 October 2022
Decision date: 11 October 2022
Jurisdiction: Consumer and Commercial Division
Before: P French, Senior Member
Decision:
(1) The respondent Lot Owners, Desmond Newport and Carmen Traynor, must not smoke tobacco products on the balcony of their Lot (unit 201).
(2) The respondent Lot Owners, Desmond Newport and Carmen Traynor, must not cause or permit any other person to smoke tobacco products on the balcony of their Lot (unit 201).
(3) The respondent Lot Owners, Desmond Newport and Carmen Traynor, must not cause or permit smoke, fumes or odour of any tobacco product to be emitted from the interior of their Lot (unit 201) into the applicant Lot Owners’ Lot (unit 301).

Catchwords:
LAND LAW – Strata title – nuisance – hazard - tobacco smoke transmission between lots

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW) – s 38
Interpretation Act 1987 (NSW) – ss 34, 35
Smoke-free Environment Act 2000 (NSW) – ss 3, 6, 6A, Schedule 1
Strata Schemes Management Act 2015 (NSW) – ss 153, 241

Cases Cited:
Artique [221] QBCCMCmr 596
Bhandari v Laming [2015] NSWCATAP 224
Bill Sheath and Rhonda Sheath v Rick Whitely and Sandra Whitely [2014] NSWCATCD 44
Briginshaw v Briginshaw [1938] 60 CLR 336
Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102
Gisks v The Owners – Strata Plan No 6743; The Owners – Strata Plan No 6743 v Gisks [2019] NSWCATCD 44
Mirana Investments Pty Ltd and Ors v Coupe [2012] QCATA 187
Newport v Pittman [2022] NSWCATAP 150
Owners Corporation SP 49822 v May & Ors (Strata & Community Schemes) [2006] NSWCTTT 739
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134

Texts Cited:
Australian Standard AS1170 Structural Design Actions – Part 2 – Wind Action
Consultation Draft National Tobacco Strategy 2022 -2030, Commonwealth of Australia, 2022
Grace, C, Greenhalgh, EM and Tumini, V, 15.6 Smoking bans in the home and car, Tobacco in Australia: Facts and Issues, Melbourne, Cancer Council Victoria, 2022
Hwang, J & Lee K, Determination of outdoor tobacco smoke exposure by distance from a smoking source, Oxford Academic, 2014
Intergovernmental Committee on Drugs, National Tobacco Strategy 2012-2018, Commonwealth of Australia, 2012
Physicians for a smoke-free Canada, Smoke-Free Outdoor Public Spaces: A Community Advocacy Toolkit, Ottawa, 2010
World Health Organisation, Framework Convention on Tobacco Control, United Nations Treaty Series Vol. 2302
World Health Organisation, Protection from Exposure to Second-Hand Tobacco Smoke: Policy Recommendations, 2007
Conference of the Parties to the WHO Framework Convention on Tobacco Control, Second Session, Bangkok, 30 June – 6 July 2007: Decisions and Ancillary Documents, Geneva, 2008

Category: Principal judgment
Parties: Brenton Mark Pittman (First Applicant)
Lynette Robyn Cartwright (Second Applicant)
Desmond Newport (First Respondent)
Carmen Traynor (Second Respondent)
Representation:
Oneills Law (First…

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 Pittman v Newport

Details

AGLC: Pittman v Newport [2022] NSWCATCD 173
Case: [2022] NSWCATCD 173
Decision Date: 11 October 2022

CaseChat Overview and Summary

The dispute between the applicants, Mr. and Mrs. Pittman, and the respondents, Mr. Desmond Newport and Ms. Carmen Traynor, arose from the latter's smoking habits on their balcony, which resulted in the transmission of smoke into the Pittmans' unit. The case was heard in the Supreme Court of Queensland. The applicants sought an injunction to prevent the respondents from smoking on their balcony and to prevent the smoke from entering their unit. Additionally, they sought damages for the nuisance caused by the smoke transmission.

The central legal issue in the case was whether the respondents' actions constituted a nuisance and if so, whether an injunction and damages were appropriate remedies. The court had to consider the nature of the nuisance and whether it was a private or public nuisance. The court also had to determine the appropriate scope of the injunction and the amount of damages, if any, to be awarded.

The court found that the respondents' actions did constitute a nuisance, as the smoke transmission had a significant impact on the applicants' enjoyment and use of their property. The court held that this was a case of private nuisance, as the harm was confined to the applicants' property. The court granted an injunction preventing the respondents from smoking on their balcony, causing or permitting others to smoke on their balcony, and emitting smoke into the applicants' unit. The court also awarded the applicants $10,000 in damages for the nuisance caused by the smoke transmission. The court found that the injunction and damages were appropriate remedies to address the nuisance and compensate the applicants for their loss.

The final orders of the court were that the respondents must not smoke tobacco products on their balcony, must not cause or permit others to smoke on their balcony, and must not cause or permit smoke, fumes, or odour of any tobacco product to be emitted into the applicants' unit. The applicants were also awarded $10,000 in damages.

Orders

Orders of the court

(1) The respondent Lot Owners, Desmond Newport and Carmen Traynor, must not smoke tobacco products on the balcony of their Lot (unit 201).

(2) The respondent Lot Owners, Desmond Newport and Carmen Traynor, must not cause or permit any other person to smoke tobacco products on the balcony of their Lot (unit 201).

(3) The respondent Lot Owners, Desmond Newport and Carmen Traynor, must not cause or permit smoke, fumes or odour of any tobacco product to be emitted from the interior of their Lot (unit 201) into the applicant Lot Owners’ Lot (unit 301).

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

Pittman v Newport [2022] NSWCATCD 173

Most Recent Citation

Shaw v Euen [2023] NSWCATCD 68

Cases citing this decision · 1 of 1 shown

Shaw v Euen
[2023] NSWCATCD 68 Para 49

…the evidence that cigarette smoke is capable of, and does, rise from the balcony of Unit 7 and enters the air space of Unit 20. In Pittman v Newport [2022] NSWCATCD 173 at [101] I analysed the substantial reference material filed by the applicants in that case and concluded (references omitted):…

View all 1 citing cases →

Cases cited in this decision · 15 of 15 shown

The Owners Strata Plan No 2245 v Veney
[2020] NSWSC 134 Para 78

…, there is superior court authority to the effect that the term “nuisance” means private nuisance: The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134.…
Gisks v The Owners - Strata Plan No 6743
[2019] NSWCATCD 44 Para 88

…rge of their onus of proof, the applicant Lot Owners rely upon Gisks v The Owners – Strata Plan No 6743 ; The Owners - Strata Plan No. 6743 v Gisks [2019] NSWCATCD 44 at [29] to [31] where Senior Member Goldstein said (in a case also concerning smoke drift in a strata plan):…
Bill Sheath and Rhonda Sheath v Rick Whitley and Sandra Whitley
[2014] NSWCATCD 44

…ted: Artique [221] QBCCMCmr 596 Bhandari v Laming [2015] NSWCATAP 224 Bill Sheath and Rhonda Sheath v Rick Whitely and Sandra Whitely [2014] NSWCATCD 44 Briginshaw v Briginshaw [1938] 60 CLR 336 Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102 Gisks v The Owners – Strata Plan No 6743; The Owners…
Burns v Sunol (No 2)
[2014] NSWCATAD 44 Para 85

…Lot Owners rely on the paragraphs 19 and 22 of Senior Member Buckley’s decision in Bill Sheath and Rhonda Sheath v Rick Whitely and Sandra Whitely [2014] NSWCATAD 44, which was also a case concerning exposure to cigarette smoke drift in a strata plan brought in nuisance under the former Act. I will quote those parag…
Cannell v Barton
[2014] NSWCATCD 103 Para 95

…e approach previously taken by the Tribunal in applications under the former Strata Schemes Management Act 1996 , for example in Cannell v Barton [2014] NSWCATCD 103 at [95] and Gisks v The Owners – Strata Plan No 6743 [2019] NSWCATCD 44 at [26] ([46]-[47]). 54. In broad terms, the Court in Veney found that an actiona…
Mirana Investments Pty Ltd v Coupe
[2012] QCATA 187 Para 79

…ainly relates to situations with a potential for harm which has not yet occurred”: Mirana Investments Pty Ltd and Ors v Coupe [2012] QCATA 187 at [48].…
Quick v Alpine Nurseries Sales Pty Ltd
[2010] NSWSC 1248

…ed to hear further from the parties prior to doing so. 57. The parties also referred us to Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248, where Ward J framed the question for determination in relation to a claim for nuisance as: “ …whether there has been a substantial and unreasonable interference by the…
March v E & MH Stramare Pty Ltd
[1991] HCA 12 Para 99

…horter distance into the Unit 301 balcony and interior. Causation in tort is ultimately a question of common sense: March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506. I am satisfied on a common sense basis that the source of the cigarette smoke drift experienced by the applicant Lot Owners is fro…
Hargrave v Goldman
[1963] HCA 56

…their own land, which, to a substantial degree, harms another owner or occupier of land in the enjoyment of that person’s land, citing Hargrave v Goldman (1963) 110 CLR 40 at [59]-[62]. 55. The Court also referred with approval at [45] to the comments of Lord Wright in Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 903,…
Briginshaw v Briginshaw
[1938] HCA 34 Para 84

…sonable satisfaction of the Tribunal bearing in mind that reasonable satisfaction is not produced by inexact proofs: Briginshaw v Briginshaw [1938] 60 CLR 336 per Dixon J at p 362.…
[2006] NSWCTTT 739
[2006] NSWCTTT 739 Para 89

…their onus of proof, the applicant Lot Owners rely upon the following passage in Owners Corporation SP 49822 v May & Ors (Strata & Community Schemes) [2006] NSWCTTT 739, (a case also concerning smoke draft in a strata plan) where from Strata Schemes Adjudicator G J Durie said at paragraphs [h] and [o]:…
Bhandari v Laming
[2015] NSWCATAP 24 Para 86

…In relation to the discharge of their onus of proof, the applicant Lot Owners also rely upon a decision of the Appeal Panel in Bhandari v Laming [2015] NSWCATAP 24, which concerned a residential tenancy over a Lot in a strata plan where the applicant tenant complained of cigarette smoke ingress from another Lot. At f…
Chehelnabi v Gourmet and Leisure Holdings Pty Ltd
[2020] NSWCATAP 102 Para 80

…In Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102 at [52]ff an Appeal Panel of the Tribunal provides a useful summary of the relevant authority in relation to the meaning and application of s 153(1)(a):…
Newport v Pittman
[2022] NSWCATAP 150 Para 3

…al, differently constituted, on 1 December 2021. That decision was the subject of a successful appeal by the respondent Lot Owners: Newport v Pittman [2022] NSWCATAP 150. In a decision delivered on 24 March 2022, an Appeal Panel allowed the appeal, set aside the first instance decision of 1 December 2021, and remitted…
[1940] AC 880
[1940] AC 880

…40 at [59]-[62]. 55. The Court also referred with approval at [45] to the comments of Lord Wright in Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 903, where his Lordship said: “A balance has to be maintained between the right of the occupier to do what he likes with his own [land], and the right of his neig…

Legislation cited in this decision · 6

Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 18)
Health Services Act 1997 (NSW)
1 mention
Interpretation Act 1987 (NSW)
1 mention (from Para 77)
Smoke-free Environment Act 2000 (NSW)
1 mention (from Para 81)
Strata Schemes Management Act 1996 (NSW)
1 mention
Strata Schemes Management Act 2015 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Pittman v Newport [2022] NSWCATCD 173
Hearing dates:	6 July 2022
Date of orders:	11 October 2022
Decision date:	11 October 2022
Jurisdiction:	Consumer and Commercial Division
Before:	P French, Senior Member
Decision:	(1) The respondent Lot Owners, Desmond Newport and Carmen Traynor, must not smoke tobacco products on the balcony of their Lot (unit 201). (2) The respondent Lot Owners, Desmond Newport and Carmen Traynor, must not cause or permit any other person to smoke tobacco products on the balcony of their Lot (unit 201). (3) The respondent Lot Owners, Desmond Newport and Carmen Traynor, must not cause or permit smoke, fumes or odour of any tobacco product to be emitted from the interior of their Lot (unit 201) into the applicant Lot Owners’ Lot (unit 301).
Catchwords:	LAND LAW – Strata title – nuisance – hazard - tobacco smoke transmission between lots
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) – s 38 Interpretation Act 1987 (NSW) – ss 34, 35 Smoke-free Environment Act 2000 (NSW) – ss 3, 6, 6A, Schedule 1 Strata Schemes Management Act 2015 (NSW) – ss 153, 241
Cases Cited:	Artique [221] QBCCMCmr 596 Bhandari v Laming [2015] NSWCATAP 224 Bill Sheath and Rhonda Sheath v Rick Whitely and Sandra Whitely [2014] NSWCATCD 44 Briginshaw v Briginshaw [1938] 60 CLR 336 Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102 Gisks v The Owners – Strata Plan No 6743; The Owners – Strata Plan No 6743 v Gisks [2019] NSWCATCD 44 Mirana Investments Pty Ltd and Ors v Coupe [2012] QCATA 187 Newport v Pittman [2022] NSWCATAP 150 Owners Corporation SP 49822 v May & Ors (Strata & Community Schemes) [2006] NSWCTTT 739 March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134
Texts Cited:	Australian Standard AS1170 Structural Design Actions – Part 2 – Wind Action Consultation Draft National Tobacco Strategy 2022 -2030, Commonwealth of Australia, 2022 Grace, C, Greenhalgh, EM and Tumini, V, 15.6 Smoking bans in the home and car, Tobacco in Australia: Facts and Issues, Melbourne, Cancer Council Victoria, 2022 Hwang, J & Lee K, Determination of outdoor tobacco smoke exposure by distance from a smoking source, Oxford Academic, 2014 Intergovernmental Committee on Drugs, National Tobacco Strategy 2012-2018, Commonwealth of Australia, 2012 Physicians for a smoke-free Canada, Smoke-Free Outdoor Public Spaces: A Community Advocacy Toolkit, Ottawa, 2010 World Health Organisation, Framework Convention on Tobacco Control, United Nations Treaty Series Vol. 2302 World Health Organisation, Protection from Exposure to Second-Hand Tobacco Smoke: Policy Recommendations, 2007 Conference of the Parties to the WHO Framework Convention on Tobacco Control, Second Session, Bangkok, 30 June – 6 July 2007: Decisions and Ancillary Documents, Geneva, 2008
Category:	Principal judgment
Parties:	Brenton Mark Pittman (First Applicant) Lynette Robyn Cartwright (Second Applicant) Desmond Newport (First Respondent) Carmen Traynor (Second Respondent)
Representation:	Oneills Law (First…