The applicants lived above the respondents in an apartment complex. The respondents were heavy smokers. The applicants alleged that smoke from the respondents' unit drifted into their apartment causing them distress, in breach of s167 of the Body Corporate and Community Management Act which prevents an occupier using his or her lot (property) in a way that creates a nuisance or interference with another occupier.
The Adjudicator found that s167 would only be breached if the applicants could establish that the cigarette smoke was of such a volume or frequency that it would interfere unreasonably with the life of another lot owner of "ordinary sensitivity". Because the applicants tendered no evidence of the extent of smoke emanating from the respondents' lot, the Adjudicator dismissed the application.
Note: for a similar case, see Admiralty Towers  QBCCMCmr 264 (23 June 2011).