Newport v Pittman [2022] NSWCATAP 150

Newport v Pittman [2022] NSWCATAP 150

The Tribunal's reasons were inadequate because they did not identify the specific evidence critical to contested issues supporting the findings that tobacco smoke from the appellants or their invitees caused a nuisance or unreasonable interference, and the Appeal Panel could not locate material justifying the finding that inhalation of second-hand smoke was a health hazard. That inadequacy constituted an error of law, so the appeal was allowed, the decision set aside, and the proceedings remitted for reconsideration.

Jurisdiction
Australia
Judgment Date
10 May 2022
Procedural Posture
Internal Appeal From Civil and Administrative Tribunal Consumer and Commercial Division Strata Scheme Proceedings / Appeal Panel Decision
Outcome
Appeal allowed; Tribunal decision set aside; proceedings to be reconsidered by the Tribunal either with or without further evidence.
Legal Topics
['smoking in Strata Scheme' 'smoke Drift' 'nuisance or Hazard Under Strata Schemes Management Act 2015 (nsw) S 153' 'ncat Internal Appeal' 'adequacy of Reasons' 'question of Law' 'redetermination']
['strata Management' 'administrative Law' 'civil Procedure'] ['smoking in Strata Scheme' 'smoke Drift' 'nuisance or Hazard Under Strata Schemes Management Act 2015 (nsw) S 153' 'ncat Internal Appeal' 'adequacy of Reasons' 'question of Law' 'redetermination']

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Procedural Posture

Internal Appeal From Civil and Administrative Tribunal Consumer and Commercial Division Strata Scheme Proceedings / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the appellants raised a question of law for the purposes of an internal appeal under Civil and Administrative Tribunal Act 2013 (NSW) s 80(2)(b).' "Whether the Tribunal gave adequate reasons and identified the evidence supporting findings that smoking on the appellants' balcony constituted a nuisance or hazard or unreasonable interference under Strata Schemes Management Act 2015 (NSW) s 153." "Whether the Tribunal's decision and orders should be set aside and whether the Appeal Panel should substitute a decision or remit the proceedings for reconsideration."]

Ratio Decidendi

The Tribunal's reasons were inadequate because they did not identify the specific evidence critical to contested issues supporting the findings that tobacco smoke from the appellants or their invitees caused a nuisance or unreasonable interference, and the Appeal Panel could not locate material justifying the finding that inhalation of second-hand smoke was a health hazard. That inadequacy constituted an error of law, so the appeal was allowed, the decision set aside, and the proceedings remitted for reconsideration.

Court Disposition

Appeal allowed; Tribunal decision set aside; proceedings to be reconsidered by the Tribunal either with or without further evidence.

Orders

  • ['The appeal is allowed.' 'The decision of the Tribunal delivered on 1 December 2021 is set aside.' 'The proceedings be reconsidered by the Tribunal either with or without further evidence.']