Shaw v Euen [2023] NSWCATCD 68

Shaw v Euen [2023] NSWCATCD 68

The Tribunal was satisfied on the balance of probabilities that Desmond Euen extensively, frequently and persistently smoked cigarettes in the courtyard of Lot 7 with Dan Mei permitting that use; that smoke, fumes and odour from that smoking entered Lot 20 through its balcony and bedroom windows; and that this substantially and unreasonably interfered with Haydn Shaw's use and enjoyment of Lot 20, aggravated his asthma and wellbeing, and created a serious risk of harm. The conduct was contrary to s 153(1)(a) of the Strata Schemes Management Act 2015 (NSW) as both nuisance and hazard, and justified an order under s 241 requiring the respondent Lot Owner and Occupant not to cause or permit...

Jurisdiction
Australia
Judgment Date
29 June 2023
Procedural Posture
Application for an Order Under S 241 of the Strata Schemes Management Act 2015 (nsw) Requiring Compliance With S 153(1)(a) Concerning Alleged Nuisance or Hazard From Tobacco Smoke Transmission Between Strata Lots / Final Hearing; Principal Judgment
Outcome
Application allowed; Dan Mei joined as a respondent and smoking of tobacco products in the courtyard of Lot 7 prohibited.
Legal Topics
['strata Nuisance' 'hazard' 'tobacco Smoke Transmission Between Lots' 'orders to Do or Refrain From Doing Specified Acts in Relation to a Strata Scheme' 'joinder of Respondent']
['land Law' 'strata Title'] ['strata Nuisance' 'hazard' 'tobacco Smoke Transmission Between Lots' 'orders to Do or Refrain From Doing Specified Acts in Relation to a Strata Scheme' 'joinder of Respondent']

Case Brief

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Procedural Posture

Application for an Order Under S 241 of the Strata Schemes Management Act 2015 (nsw) Requiring Compliance With S 153(1)(a) Concerning Alleged Nuisance or Hazard From Tobacco Smoke Transmission Between Strata Lots / Final Hearing; Principal Judgment

Legal Issues

  1. 1 ['Whether Dan Mei should be added as a respondent to the application' 'Whether the respondent Lot Owner and Occupant cause or permit the use of Lot 7, particularly its courtyard, to smoke tobacco products' 'Whether tobacco smoke, fumes and odour from Lot 7 enter the airspace of Lot 20 and its interior' "Whether the smoke transmission constitutes a substantial and unreasonable interference with the applicant's ordinary use of Lot 20 and therefore a nuisance under s 153(1)(a) of the Strata Schemes Management Act 2015 (NSW)" 'Whether the smoke transmission constitutes a hazard under s 153(1)(a) of the Strata Schemes Management Act 2015 (NSW)' 'What remedy should be ordered under s 241 of the Strata Schemes Management Act 2015 (NSW)']

Ratio Decidendi

The Tribunal was satisfied on the balance of probabilities that Desmond Euen extensively, frequently and persistently smoked cigarettes in the courtyard of Lot 7 with Dan Mei permitting that use; that smoke, fumes and odour from that smoking entered Lot 20 through its balcony and bedroom windows; and that this substantially and unreasonably interfered with Haydn Shaw's use and enjoyment of Lot 20, aggravated his asthma and wellbeing, and created a serious risk of harm. The conduct was contrary to s 153(1)(a) of the Strata Schemes Management Act 2015 (NSW) as both nuisance and hazard, and justified an order under s 241 requiring the respondent Lot Owner and Occupant not to cause or permit...

Court Disposition

Application allowed; Dan Mei joined as a respondent and smoking of tobacco products in the courtyard of Lot 7 prohibited.

Orders

  • ['Dan Mei is added as a respondent to the application.' 'The respondent Lot Owner, Dan Mei, and occupant, Desmond Euen, must not cause or permit the smoking tobacco products in the courtyard of their Lot (Lot 7).']