Gisks v The Owners – Strata Plan No 6743; The Owners – Strata Plan No 6743 v Gisks [2019] NSWCATCD 44

Gisks v The Owners – Strata Plan No 6743; The Owners – Strata Plan No 6743 v Gisks [2019] NSWCATCD 44

Second hand tobacco smoke from Ms Cameron's lot 7 drifted into Mr Gisks' lot 5. That smoke drift was both a hazard and a nuisance under s153 of the Strata Schemes Management Act 2015 because it created health concerns and substantially and unreasonably interfered with the lot owner's use and enjoyment of his lot. An order restricting Ms Cameron's smoking and requiring windows and exterior doors to be closed when smoking in lot 7 was therefore appropriate under s241. No order was made against the Owners Corporation because the lot owner did not establish the existence of a by-law dealing with smoke penetration or drift so as to enliven ss146 and 147, and no costs order was justified under...

Jurisdiction
Australia
Judgment Date
28 May 2019
Procedural Posture
Strata Schemes Application and Cross Application / Principal Judgment After Hearing
Outcome
Order made against Frances Cameron restricting smoking-related conduct in lot 7; no order made against the Owners Corporation; no costs order made.
Legal Topics
['smoke Drift' 'nuisance or Hazard' 'use and Enjoyment of Lot' 'by Laws' 'costs']
['strata Schemes' 'property Law' 'nuisance'] ['smoke Drift' 'nuisance or Hazard' 'use and Enjoyment of Lot' 'by Laws' 'costs']

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Procedural Posture

Strata Schemes Application and Cross Application / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether second hand tobacco smoke drifting from lot 7 into lot 5 caused a nuisance or hazard to the occupier of lot 5 within the meaning of s153 of the Strata Schemes Management Act 2015.' 'Whether the lot owner established a by-law dealing with smoke penetration or drift so as to justify orders against the Owners Corporation under ss146 and 147 of the Strata Schemes Management Act 2015.' 'Whether a costs order should be made.']

Ratio Decidendi

Second hand tobacco smoke from Ms Cameron's lot 7 drifted into Mr Gisks' lot 5. That smoke drift was both a hazard and a nuisance under s153 of the Strata Schemes Management Act 2015 because it created health concerns and substantially and unreasonably interfered with the lot owner's use and enjoyment of his lot. An order restricting Ms Cameron's smoking and requiring windows and exterior doors to be closed when smoking in lot 7 was therefore appropriate under s241. No order was made against the Owners Corporation because the lot owner did not establish the existence of a by-law dealing with smoke penetration or drift so as to enliven ss146 and 147, and no costs order was justified under...

Court Disposition

Order made against Frances Cameron restricting smoking-related conduct in lot 7; no order made against the Owners Corporation; no costs order made.

Orders

  • ['At all times Frances Cameron must not smoke on the balcony or in the bedrooms of lot 7 and must close all exterior doors and the bedroom 1 window, the bedroom 2 window and the bathroom window when smoking in lot 7.' 'By Consent, in SC 18/52678 and SC 19/06382 Martin Gisks and The Owners - Strata Plan No. 6734...