Cusak v Marais [2023] NSWCATCD 63

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cusak v Marais [2023] NSWCATCD 63 Hearing dates: 14 April 2023 Date of orders: 13 June 2023 Decision date: 13 June 2023 Jurisdiction: Consumer and Commercial Division Before: C Campbell, General Member Decision: 1. The application is dismissed Catchwords: Nuisance – Breach of By-Law Legislation Cited: Strata Schemes Management Act 2015 Category: Principal judgment Parties: Applicant: Paul Cusak

Respondent: Emma Marais Representation: Applicant: Self-represented. Respondent: Self-represented. File Number(s): SC 22/54125 Publication restriction: Nil

REASONS FOR DECISION 1. This is an application by a lot owner seeking an order the respondent complies with by-law 9 and are not use her BBQ smoker anywhere within her lot or on the common property of Strata Plan 81508. In the alternative the applicant alleges the respondent is in breach of s 153 of the Strata Schemes Management Act 2015 in so far as the smoke created by the cooker is a nuisance to the applicant and interferes with his enjoyment of his lot. 2. Both parties appeared in person and had complied with the procedural directions in relation to the exchange of their documentary evidence.

APPLICANT'S EVIDENCE 1. The applicant alleges the respondent is in breach of By-Law 9 which is in the following terms: (1) An owner or occupier or any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property (2) An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot. 1. The applicant and the respondent are next door neighbours. There are 22 lots in the scheme. The respondent has a Traeger wood pellet grill in her backyard. The cooking source comes from wood pellets, and it is this smoke which the applicant alleges interferes with his enjoyment of his lot. The applicant has kept a "smoke log" of the dates, time of day and hours the respondent has used the grill between 07 March 2021 and 10 December 2022. He says on average it is used every second weekend for a period of between 4- 6 hours. He ceased keeping the log after the 10 December 2022 as the respondent has used the grill less frequently since that date. 2. He said there is initially visible smoke which is emitted from the grill and thereafter there is no visible smoke, but it continues to emit an offensive odour during the cooking process which he said smells like a bush fire. 3. He has to go inside and shut his windows and doors whilst the grill is in use. This can extend for hours if the respondents are doing slow cooking. He has avoided having guests over. He is unable to leave his premises. He cannot hang out his washing. 4. There are 22 lots in scheme and many of the other lot owners have BBQs in their premises. He does not find the smell of the smoke emitted any other BBQs offensive. He also said they do not cook on them for hours at a time. His complaint is the length of time the respondents sometimes take to cook the food on their grill. In his opinion the respondent should limited to her cooking time to 30 minutes only as after that it becomes an imposition on him. 5. He does not rely on any statements from any other neighbours who may be affected by the respondent's grill. The grill is depicted in an advertisement. It has a chamber within which the food is contained, but the smoke does not stay within the chamber, there is a chimney on the top where the smoke escapes. 6. On the 12 March 2021 the strata managing agent sent a letter to the respondent informing her she was in breach of the by-law 9. No further action has been taken by the Owners' Corporation against the respondent since that date. 7. It is his submission that the by-law 9 relates not only to tobacco smoke but any other smoke including smoke caused from any cooking process. And the use of the respondent's grill is therefore a breach of by-law 9. 8. He submitted it is the odour emitted from the grill that is a nuisance rather than the smoke itself, which interferes with the use and enjoyment of his lot.