Vojkovic v Savva [2023] NSWCATCD 141

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Vojkovic v Savva [2023] NSWCATCD 141 Hearing dates: 16 October 2023 Date of orders: 27 October 2023 Decision date: 27 October 2023 Jurisdiction: Consumer and Commercial Division Before: D Robertson, Senior Member Decision: (1) The application is dismissed. Catchwords: LAND LAW – Strata title – Obligations of owners and occupiers – Keeping of pets – Nuisance – Whether barking of dog shown to constitute a nuisance or unreasonable interference with the enjoyment of another lot LAND LAW – Strata title – Owners corporation – Strata committee – Whether respondent should be removed from the strata committee Legislation Cited: Strata Schemes Management Act 2015 (NSW) ss 54, 153, 158, 238 Cases Cited: Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102 Linney v The Owners - Strata Plan No. 11669 [2021] NSWCATCD 123 Lockrey v Rosewall [2022] NSWCATCD 27 The Owners - Strata Plan No. 56587 v White [2021] NSWCATCD 67 Category: Principal judgment Parties: Darko Vojkovic (Applicant) Andrew Savva and Georgina Savva (Respondents) The Owners – Strata Plan No 94579 (Other Party) File Number(s): SC 23/13745

REASONS FOR DECISION

Introduction 1. The applicant in these proceedings is an occupant of Lot 2 in Strata Plan No 94579, a multi-storey building in Brighton Le Sands. He states that his wife is the owner of Lot 2, but he brings these proceedings in his own right and not on behalf of his wife. 2. The applicant seeks orders against the respondents who are the owners of Lot 3. 3. Lots 2 and 3 are on the ground floor of the building and each has a courtyard at street level forming part of the lot. 4. The first order sought by the applicant is that, pursuant to s 238 of the Strata Schemes Management Act 2015 (NSW) (SSMA), Mr Savva be removed from the Strata Committee of Strata Plan No 94579. 5. The second order sought by the applicant is that, pursuant to s 158 of the SSMA, the respondents be required to take action to terminate a nuisance arising from the respondents keeping a dog on their lot. 6. The applicant filed a folder of documents on 29 May 2023. He filed a further bundle of documents on 12 October 2023 and, at the hearing, sought to file a further 11 pages constituted by two tax invoices issued to the owners corporation of Strata Plan No 94579 by JS Mueller & Co Lawyers on 28 April and 30 June 2023. 7. The respondents filed a bundle of documents on 15 June 2023. 8. All of the documents were admitted in evidence. 9. Each of the applicant and Mr Savva took an oath and verified the contents of the various statements contained in their bundles of documents. Each was given the opportunity to ask questions of the other. 10. Sections 158 and 238 of the SSMA provide: 158 Order for removal of an animal permitted under by-laws (1) The Tribunal may, on application by an interested person, make an order against a person who is keeping an animal on a Lot or common property in accordance with the by-laws for a strata scheme, if the Tribunal considers that the animal causes a nuisance or hazard to the owner or occupier of another Lot or unreasonably interferes with the use or enjoyment of another Lot or of the common property. (2) The Tribunal may order that the person— (a) cause the animal to be removed from the parcel within a specified time, and be kept away from the parcel, or (b) within a time specified in the order, take such action as, in the opinion of the Tribunal, will terminate the nuisance or hazard or unreasonable interference. 238 Orders relating to strata committee and officers (1) The Tribunal may, on its own motion or on application by an interested person, make any of the following orders— (a) an order removing a person from a strata committee, (b) an order prohibiting a strata committee from determining a specified matter and requiring the matter to be determined by resolution of the owners corporation, (c) an order removing one or more of the officers of an owners corporation from office and from the strata committee. (2) Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has— (a) failed to comply with this Act or the regulations or the by-laws of the strata scheme, or (b) failed to exercise due care and diligence, or engaged in serious misconduct, while holding the office. 1. It is also relevant to note s 153 of the SSMA which relevantly provides: 153 Owners, occupiers and other persons not to create nuisance (1) An owner, mortgagee or covenant chargee in possession, tenant or occupier of a Lot in a strata scheme must not— (a) use or enjoy the Lot, or permit the Lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other Lot (whether that person is an owner or not), or (b) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other Lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or (c) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other Lot by the occupier of the Lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the Lot. 1. Applications pursuant to ss 158 and 238 of the SSMA may be made by "an interested person". "Interested person" is defined in s 226 of the SSMA to include: "(d) an owner of a Lot in the scheme, a person having an estate or interest in a Lot or an occupier of a Lot". 1. I accept that the applicant is an interested person for the purposes of making an application to the Tribunal pursuant to each of sections 238 and 158 of the SSMA.