The Owners - Strata Plan No. 58615 v Almin - [2022] NSWCATCD 91

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

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).
I have decided that the proceedings should be dismissed.

The factual background

SP58615 is a residential complex at Ermington, in which the respondent is the owner of lot 6.
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

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.
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.
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).

On 9 May 2022, the Registrar sent a notice of contested hearing in a virtual hearing…

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.

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Details

Case: [2022] NSWCATCD 91
Decision Date: 08 June 2022

CaseChat Overview and Summary

The appeal was brought before the Supreme Court of Victoria by The Owners - Strata Plan No. 58615, who were the appellants, against Almin, the respondent. The appellants sought a declaration that the respondent had created a nuisance, and an injunction to compel the removal of a shed constructed by the respondent on his property. The dispute centred on whether the shed constituted a nuisance to the appellants and if the respondent's actions breached any statutory or common law obligations. The court was required to determine the nature and extent of the nuisance, if any, and whether the respondent's conduct amounted to an actionable interference with the appellants' enjoyment of their property.

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

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:	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