Cusak v Marais [2023] NSWCATCD 63

Cusak v Marais [2023] NSWCATCD 63

By-law 9 is intended to prohibit second-hand smoke from tobacco or similar inhaled substances, not smoke from outdoor cooking appliances. Outdoor cooking is an ordinary and natural use within a strata lot. The respondent's use of a BBQ smoker does not breach by-law 9 or constitute a nuisance under s 153 of the Strata Schemes Management Act 2015.

Jurisdiction
Australia
Judgment Date
13 June 2023
Procedural Posture
Application / Final Determination
Outcome
Application dismissed
Legal Topics
['nuisance' 'by Laws' 'outdoor Cooking']
['strata Law' 'residential Property Law'] ['nuisance' 'by Laws' 'outdoor Cooking']

Case Brief

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Procedural Posture

Application / Final Determination

Legal Issues

  1. 1 ["Does the respondent's use of a BBQ smoker breach by-law 9?" "Does the respondent's BBQ smoker use constitute a nuisance under s 153 of the Strata Schemes Management Act 2015?"]

Ratio Decidendi

By-law 9 is intended to prohibit second-hand smoke from tobacco or similar inhaled substances, not smoke from outdoor cooking appliances. Outdoor cooking is an ordinary and natural use within a strata lot. The respondent's use of a BBQ smoker does not breach by-law 9 or constitute a nuisance under s 153 of the Strata Schemes Management Act 2015.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.']