Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Vojkovic v Savva [2023] NSWCATCD 141 Hearing dates: 16 October 2023 Date of orders: 27 October 2023 Decision date: 27 October 2023 Jurisdiction: Consumer and Commercial Division Before: D Robertson, Senior Member Decision: (1) The application is dismissed.
Catchwords: LAND LAW – Strata title – Obligations of owners and occupiers – Keeping of pets – Nuisance – Whether barking of dog shown to constitute a nuisance or unreasonable interference with the enjoyment of another lot
LAND LAW – Strata title – Owners corporation – Strata committee – Whether respondent should be removed from the strata committee
Legislation Cited: Strata Schemes Management Act 2015 (NSW) ss 54, 153, 158, 238
Cases Cited: Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102
Linney v The Owners - Strata Plan No. 11669 [2021] NSWCATCD 123
Lockrey v Rosewall [2022] NSWCATCD 27
The Owners - Strata Plan No. 56587 v White [2021] NSWCATCD 67
Category: Principal judgment Parties: Darko Vojkovic (Applicant)
Andrew Savva and Georgina Savva (Respondents)
The Owners – Strata Plan No 94579 (Other Party)File Number(s): SC 23/13745
REASONS FOR DECISION
Introduction
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The applicant in these proceedings is an occupant of Lot 2 in Strata Plan No 94579, a multi-storey building in Brighton Le Sands. He states that his wife is the owner of Lot 2, but he brings these proceedings in his own right and not on behalf of his wife.
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The applicant seeks orders against the respondents who are the owners of Lot 3.
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Lots 2 and 3 are on the ground floor of the building and each has a courtyard at street level forming part of the lot.
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The first order sought by the applicant is that, pursuant to s 238 of the Strata Schemes Management Act 2015 (NSW) (SSMA), Mr Savva be removed from the Strata Committee of Strata Plan No 94579.
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The second order sought by the applicant is that, pursuant to s 158 of the SSMA, the respondents be required to take action to terminate a nuisance arising from the respondents keeping a dog on their lot.
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The applicant filed a folder of documents on 29 May 2023. He filed a further bundle of documents on 12 October 2023 and, at the hearing, sought to file a further 11 pages constituted by two tax invoices issued to the owners corporation of Strata Plan No 94579 by JS Mueller & Co Lawyers on 28 April and 30 June 2023.
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The respondents filed a bundle of documents on 15 June 2023.
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All of the documents were admitted in evidence.
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Each of the applicant and Mr Savva took an oath and verified the contents of the various statements contained in their bundles of documents. Each was given the opportunity to ask questions of the other.
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Sections 158 and 238 of the SSMA provide:
158 Order for removal of an animal permitted under by-laws
(1) The Tribunal may, on application by an interested person, make an order against…
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- AGLC
- Vojkovic v Savva [2023] NSWCATCD 141
- Case
- [2023] NSWCATCD 141
- Decision Date
CaseChat Overview and Summary
The legal issues that the court needed to address were whether the barking of the dog constituted a nuisance or an unreasonable interference with the enjoyment of another lot, and whether the respondent should be removed from the strata committee. The court considered the relevant legislation, case law, and the evidence presented by both parties. The court had to determine whether the barking of the dog was a nuisance and whether the respondent's conduct warranted removal from the committee.
The court found that the barking of the dog did not constitute a nuisance or an unreasonable interference with the enjoyment of another lot. The court considered the nature of the barking, the frequency, and the impact on the appellant, and concluded that the appellant had not demonstrated that the barking was excessive or unreasonable. Furthermore, the court found that there was insufficient evidence to support the appellant's claim that the respondent should be removed from the strata committee. The court held that the appellant had not established the grounds for removal as required by the legislation.
The court dismissed the application and made no orders. The respondent was not required to pay the appellant's costs. The court's decision highlights the importance of establishing a nuisance claim and the threshold for removing a member of a strata committee. The outcome of this case may provide guidance to future litigants in similar disputes within strata schemes.
Orders
Orders of the court
(1) 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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