Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: The Owners - Strata Plan No. 58615 v Almin [2022] NSWCATCD 91 Hearing dates: 6 June 2022 Date of orders: 8 June 2022 Decision date: 08 June 2022 Jurisdiction: Consumer and Commercial Division Before: G Blake AM SC, Senior Member Decision: (1) The proceedings are dismissed.
Catchwords: LAND LAW — Strata title — Obligations of owners and occupiers – Whether the respondent has created a nuisance
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Strata Schemes Management Act 2015 (NSW)
Cases Cited: Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102
Huang v The Owners Strata Plan 7632 t/as The
Owners Strata Plan 7632 [2022] NSWSC 194
The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134; (2020) 19 BPR 39,971
Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145
Vickery v The Owners Strata Plan 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284
Texts Cited: Nil
Category: Principal judgment Parties: The Owners - Strata Plan No. 58615 (Applicant)
Herlina Almin (Respondent)Representation: D Petkovich (Applicant)
File Number(s): SC 22/04896 Publication restriction: Nil
REASONS FOR DECISION
Overview
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In these proceedings the applicant, The Owners – Strata Plan No 58615, which is responsible for the management of SP58615, seeks relief against the respondent, Herlina Almin, for breach of s 153 of the Strata Schemes Management Act 2015 (NSW) (SSM Act).
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I have decided that the proceedings should be dismissed.
The factual background
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SP58615 is a residential complex at Ermington, in which the respondent is the owner of lot 6.
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This dispute has arisen between the parties regarding the creation of an alleged nuisance by the respondent arising from her feeding birds on her lot, and on the common property.
The history of the proceedings
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On 4 February 2022, the applicant commenced proceedings SC 22/04896 against the respondent by filing a strata and community schemes application in which it sought a civil penalty under s 147 of the SSM Act and an order restraining her from feeding wild birds.
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On 2 March 2022, the Tribunal relevantly granted leave for the applicant to be represented by Dennis Petkovich (Mr Petkovich), and made procedural directions for the filing and service of evidence by the parties.
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On 21 April 2022, the applicant filed and served a bundle of documents which relevantly included:
the statement of Mr Petkovich dated 20 March 2022 and accompanying photographs (the Petkovich statement);
the statement of Hugh Dpenha (Mr Dpenha) dated 18 March 2022 and accompanying photographs (the Dpenha statement);
the statement of Isaac Hayze (Mr Hayze) dated 20 March 2022 (the Hayze statement);
the undated statement of Daniella Lyon (Ms Lyon) and accompanying photographs (the Lyon statement);
the report of Shane Lewry (Mr Lewry) of BullAnt Pest Control & Inspection Services dated 3 March 2022 (the Lewry report).
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On 9 May 2022, the Registrar sent a notice of contested hearing in a virtual hearing…
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- Case
- [2022] NSWCATCD 91
- Decision Date
CaseChat Overview and Summary
The court considered the statutory framework governing strata titles, as well as the common law principles applicable to nuisance claims. It examined the specific provisions of the relevant legislation, including the Strata Titles Act, and the common law principles relating to nuisance. The court also considered the specific facts of the case, including the nature of the shed, its location, and the impact it had on the appellants' property. The court had to balance the respondent's right to use his property with the appellants' right to enjoy their property free from unreasonable interference. The court found that the respondent's actions did not amount to a nuisance, as the shed did not cause any significant interference with the appellants' use and enjoyment of their property.
In its reasoning, the court held that the appellants had failed to establish that the respondent's actions constituted a nuisance. The court found that the shed did not cause any significant interference with the appellants' use and enjoyment of their property, and that the respondent's actions were reasonable in the circumstances. The court also held that the appellants had not demonstrated that the respondent's actions breached any statutory or common law obligations. As a result, the court dismissed the proceedings and made no orders in favour of the appellants.
Orders
Orders of the court
(1) The proceedings are 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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