Ciric v The Owners - Strata Plan No. 67113 and Blanch

Case •

[2025] NSWCATCD 12

•

14 April 2025

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Ciric v The Owners - Strata Plan No. 67113 and Blanch [2025] NSWCATCD 12
Hearing dates: 12 March 2025
Date of orders: 14 April 2025
Decision date: 14 April 2025
Jurisdiction:Consumer and Commercial Division
Before: M Tyson, Senior Member
Decision:

(1) The second respondent is ordered, pursuant to ss. 232 and 241 of the Strata Schemes Management Act 2015, to comply with Special By-law 8 – Part 3, 1.6(b)(ii)(I) and (II).

(2)   The second respondent is ordered, within 60 days of the date of these orders, either to restore carpet or floor coverings to the flooring installed in lot 17 in Strata Plan No. 67113 (other than in the master bedroom, bedroom 2, ensuite, bathroom, laundry and hallway areas) or to remove, treat or replace the flooring installed in lot 17 in Strata Plan No. 67113 (other than in the master bedroom, bedroom 2, ensuite, bathroom, laundry and hallway areas), so that the flooring in lot 17 complies with Special By-law 8 – Part 3, 1.6(b)(ii)(I) and (II).

(3)   Within a further month of the work referred to in order 2 above, the second respondent is to arrange testing by a suitably qualified acoustical consultant to certify that the acoustic properties of the floor coverings within lot 17 (other than in the master bedroom, bedroom 2, ensuite, bathroom, laundry and hallway areas) comply with Special By-law 8 – Part 3, 1.6(b)(ii)(I) and (II).

(4)   The applicant is to permit the respondent’s acoustical consultant to access her lot in order to undertake the testing referred to in order 3 above.

(5)   The application is otherwise dismissed.

Catchwords:

STRATA SCHEMES – noise transmission – compliance by lot owner with by-law

Legislation Cited:

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

Gao v Agosti [2009] NSWCTTT 175

Eales v Feletti [2018] NSWCATCD 66

Texts Cited:

Nil

Category:Principal judgment
Parties:

Natalie Ciric (applicant)

The Owners - Strata Plan No. 67113 (first respondent)

Joel Blanch (second respondent)
Representation:

Self-represented (applicant)

Ms. K. Brown (first respondent)
File Number(s): 2024/00434685
Publication restriction: Nil

Judgment

  1. At Gillespie Avenue, Alexandria, New South Wales, there is a mixed residential and commercial strata scheme, for the purposes of the Strata Schemes Development Act 2015 (NSW), known as SP 67113 (“the Strata Scheme”). The applicant is the owner of lot 2 within the Strata Scheme. The first respondent is the owners corporation constituted under the Strata Schemes Management Act 2015 (NSW) (“the Act”) for the Strata Scheme. The second respondent is the owner of lot 17 in the Strata Scheme.

  2. By application filed 24 November 2024 in the Tribunal, the applicant seeks relief under arising out of, she claims, flooring that has been installed at lot 17 that does not comply with the Strata Scheme’s by-law that applies to flooring installed in lots within the Strata Scheme.

  3. The applicant indicated at the hearing that she was seeking orders against the second respondent for the removal of the flooring that had been installed in lot 17 and for lot 17’s compliance with the relevant by-law of the Strata Scheme. At the hearing, the applicant indicated that she was no longer pressing for the relief against the first respondent outlined in her application.

The hearing and the evidence before the Tribunal

  1. The hearing of the application took place on 12 March 2025.

  2. At the hearing, the applicant appeared for herself. The first respondent was represented by Ms. K. Brown, an employee of the firm of licensed strata managing agents retained by the first respondent. There was no appearance for the second respondent.

  3. The Tribunal was satisfied that it was in the interests of justice to proceed with the hearing, notwithstanding the respondent’s non-appearance, and gave oral reasons for that decision at the hearing. Amongst other things, it was clear from the Tribunal’s file in these proceedings that notice of the hearing had been given to the second respondent and that the second respondent had lodged material with the Tribunal on 31 January 2025, presumably because, at least at the time he lodged that material, he was intending to appear at the hearing. The material that had been lodged by the second respondent was marked for identification as MFI 1 at the hearing.

  4. For her evidence, the applicant tendered a bundle of documents filed by her with the Tribunal on 6 January 2025. The bundle became exhibit A in the proceedings. The bundle included the consolidated by-laws for the Strata Scheme, a report dated 7 May 2024 from Octave Acoustics headed “Impact Sound Insulation Field Test Summary Report”, correspondence passing between the applicant and the strata managing agents for the Strata Scheme, a document from NSW Fair Trading relating to a mediation between the parties to these proceedings and a seven page document headed “application.” The document headed “application” included a mixture of submissions, statements about facts and circumstances relevant to the application and extracts of relevant documents. The applicant was invited to enter the witness box. She did so, was then affirmed, and the applicant gave some limited evidence that certain parts of the document headed “application”, to which she was directed, contained facts and circumstances which were true to the best of her knowledge and belief.

  5. There were no objections to any of the applicant’s evidence and Ms. Brown did not seek to cross-examine the applicant.

  6. For the first respondent’s evidence, Ms. Brown tendered a bundle of documents lodged on 31 January 2025 with the Tribunal. The bundle became exhibit 1 in the proceedings. The bundle included the same report dated 7 May 2024 from Octave Acoustics headed “Impact Sound Insulation Field Test Summary Report” that was relied upon by the applicant. Ms. Brown also entered the witness box. She was affirmed and gave some limited oral evidence with regards to the truth of the facts and circumstances set out in a “timeline” that appeared at p. 2 in exhibit 1.

  7. There were no objections to any of the first respondent’s evidence and the applicant did not seek to cross-examine Ms. Brown.

  8. Accordingly, the only evidence before the Tribunal were exhibits A and 1, and the oral evidence of the applicant and Ms. Brown testifying to the accuracy of certain parts of the two exhibits.

Factual background

  1. Based on the evidence before the Tribunal, the facts of this case are found as follows:

  2. Lot 2 in the Strata Scheme is located immediately under part of lot 17 in the building that is part of the Strata Scheme. Lot 17 has greater floor space than lot 2. An overlay diagram in the evidence depicting the lot 2 and lot 17 floorplans shows that the kitchen, dining, living and part of the balcony area in lot 17, sits above the whole of the floor space contained within the applicant’s lot. The applicant’s lot consists of a bedroom, bathroom, lounge, kitchen and dining room.

  3. The applicant purchased lot 2 about twenty years ago. The applicant has been working from within lot 2 for over two and a half years.

  4. The by-laws in force for the Strata Scheme included Special By-law 8. Special By-law 8 – Part 3, 1.6(b)(ii)(I) and (II) provided:

“1.6 Unless prior written approval is granted by the Owners Corporation, the following conditions apply as relevant:

(b) Where Works involve the installation of a floor finish other than carpet:

(i) before commencement of Works, the Owner must provide to the Owners Corporation or strata committee a report from a qualified acoustic engineer that analyses the proposed floor finish, method of installation and the effect of sound transmission including impact noise following installation. The report must state that the proposed floor finish after installation to the Lot will comply with clause 3.3(b)(ii)(II) below;

(ii) the Owner must:

I.   Ensure that all floor space within the Lot is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of an Owner or occupier of another Lot;

II.   Ensure that the flooring is insulated with soundproofing underlay as specified by the Owners Corporation from time to time and shall not have a weighted standardised impact sound pressure level L’nT,w exceeding 40 when measured in situ in accordance with Australian Standard “AS ISO 140.7-2006 Field measurements of impact sound insulation of floors” and rated to AS ISO 717.2-2004 Acoustics – Rating of sound insulation in buildings and of building elements. Part 2: Impact sound insulation;”

  1. “Owner” is defined in Special By-law 8 cl. 1.2(n) as the “owner(s) of the Lot(s)” and by clause 1.3.1(f), a reference to “Owner” extends to the successors or transferees of the Owner. “Owners Corporation” is defined in cl. 1.2(o) to mean “the owners corporation constituted upon the registration of Strata Plan No 67113.” Clause 1.3.1(d) provides “a reference to the Owners Corporation includes the Building Manager, strata managing agent, any member of the strata committee or any person authorised by the Owners Corporation from time to time.”

  2. On 10 June 2022, the then-owner of lot 17, submitted an application for the installation of new flooring in lot 17 to the strata committee.

  3. Ms. Brown, in her oral evidence in support of the timeline which appeared in her evidence, says that on 10 June 2022, the strata committee approved the flooring application by email transmission. There is an email transmission dated 20 July 2022 suggesting that “flooring renovations” were approved by the strata committee. The scope or meaning of the phrase “flooring renovations” is unclear. There are no minutes of any strata committee meeting evidencing exactly what and when the strata committee provided any relevant approval.

  4. The Tribunal can find no letter or email transmission in the evidence bearing the data on 10 June 2022, with respect to any relevant approval.

  5. The documentary evidence instead suggests that the approval was given on 16 April 2023. There is a letter bearing that date which provides:

“… in respect to your application dated 10.06.2022 to conduct the installation of new flooring, Easi-Plank SPC Hybrid flooring in your apartment.

Please be advise[d] your application has been approved subject to the following by-laws applicable to your strata scheme:

7.3 Floor coverings

If you are the owner of an apartment, you must keep the floors in your apartment covered or treated to stop the transmission of noise which might unreasonably disturb another owner or occupier. However, this does not apply to floor in the kitchen, bathroom, lavatory or laundry of your apartment.

…”

  1. The Tribunal finds that the relevant approval was given on 16 April 2023, rather than 10 June 2022. The Tribunal makes that finding because it finds the written evidence (the 16 April 2023 letter) more persuasive than Ms. Brown’s recollection, given in January 2025, and not supported by any file-note or contemporaneous written record or email transmission, letter or journal entry. Further, it seems to me, that the letter dated 23 April 2023 would have been otiose if an approval had earlier been given. The letter dated 23 April 2023 makes no mention of any previous approval.

  2. On 11 July 2022, the then-owner of lot 17 completed the flooring installation.

  3. On 15 July 2022, the applicant made a complaint about noise emanating from lot 17 and adversely affecting her in her lot.

  4. On 9 November 2022, a by-law 5 breach letter was issued to the owner of lot 17 relating to excessive noise (knocking, banging and slamming of doors) and trash/items being tossed over the balcony landing on the courtyard of units below.

  5. On 8 March 2023, the strata committee for the Strata Scheme purported to ratify the approval of the lot 17 flooring installation at one of its meetings.

  6. On 24 July 2023, the applicant made another complaint about noise relating to the flooring in lot 17.

  7. On 14 February 2024, the second respondent settled his acquisition of lot 17 and become the registered proprietor of lot 17.

  8. On 1 March 2024, the strata managing agents for the Strata Scheme issued a notice to the owner of lot 17 requesting confirmation of compliance with special by-law 8 and asking for acoustic testing to ensure the flooring met by-law requirements.

  9. On 6 May 2024, the owners corporation for the Strata Scheme, at its cost, arranged for acoustic testing of the flooring installed in lot 17.

  10. On 7 May 2024, Octave Acoustics prepared a report. The report recorded that a field test for the floor impact sound installation had been conducted on 6 May 2024 of the hybrid timber floorboards installed in the living room of unit 17. The receiver room was the bedroom of lot 2. The field testing was conducted in general accordance with AS/ISO 140-7 measurement procedures and the results were assessed and presented in accordance with AS/ISO 717-2 calculation procedures. The field test result was 51 L’nT, w.

  11. These proceedings are not ones where any expert report is required to comply with Procedural Direction No. 3. The Tribunal has considered the report of Octave Acoustics and is satisfied that it can rely on the report as persuasive expert opinion evidence for the purposes of these proceedings.

  12. On 29 May 2024, there was a mediation between the applicant and the respondents. The owner of lot 17 installed soft door closes and laid rugs in the living room of lot 17 following the mediation.

  13. On 31 January 2025, a notice to comply with special by-law 8 was issued to the owner of lot 17.

Consideration

  1. Jurisdiction – The Tribunal is satisfied that it has jurisdiction to determine this claim under ss. 232 and 241 of the Act and see for example, Gao v Agosti [2009] NSWCTTT 175 and Feletti v Eales [2018] NSWCATCD 66.

  2. General approach by the Tribunal - It is the applicant who bears the onus of proving her claim on the balance of probabilities standard.

  3. Application on the facts – Special by-law 8 begins with a subordinate clause and a conditional sentence. For the reasons explained above, when setting out the facts, the Tribunal is satisfied that the approval for the flooring installation in lot 17 was only given on 16 April 2023. Therefore, there was not any “prior written approval”, for the purposes of special by-law 8, as the flooring in unit 17 had been installed on 11 July 2022.

  4. The Tribunal is satisfied that the Easi-Plank SPC hybrid flooring installed in unit 17 involved the installation of a floor finish other than carpet: Special By-law 8 – Part 3, 1.6(b). There is no evidence that there was compliance with the requirements set out in Special By-law 8 – Part 3, 1.6(b)(i) “before commencement” of the June 2022 installation of the flooring in lot 17.

  5. The Tribunal is also satisfied that the then owner of lot 17 did not install flooring in June 2022 that complied with Special By-law 8 – Part 3, 1.6(b)(ii)(II). The Octave Acoustics report in evidence, which the Tribunal has accepted as persuasive opinion evidence, shows that the flooring that has been installed has a weighted standardised impact sound pressure level of 51, and therefore exceeds the 40 L’nT,w level provided for in Special By-law 8.

  6. Sections 232 and 241 confer a discretion on the Tribunal. I am satisfied in this case that it is appropriate to make an order under those sections of the Act because of the impact that noise is having, and is likely to continue to have, on the applicant: see the final paragraph on page 6 of exhibit A.

  7. The Tribunal will not extend the order to parts of the second respondent’s lot that are not immediately above the applicant’s lot, being the master bedroom, bedroom 2, ensuite, bathroom, laundry and hallway areas, as the Tribunal is not satisfied on the evidence that any noise is emanating from those areas into the applicant’s lot.

  8. The second respondent can achieve compliance with Special By-law 8 by laying a floor covering on the relevant areas (such as carpet/underlay) or treating the existing floors, or removing and replacing them with flooring that does comply with Special By-law 8. In the absence of any submissions by the second respondent to contrary effect, it seems to me that 60 days would be a reasonable period to allow the second respondent time to achieve compliance with Special By-law 8.

  9. Further, it is appropriate to make ancillary orders requiring the second respondent to obtain an acoustic report testing and certifying that any floor coverings or new flooring installed by the owner of lot 17 achieve the required standard and requiring the applicant to allow access so that the testing can be carried-out. I will make orders accordingly.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.


Registrar

Decision last updated: 21 May 2025

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Feletti v Eales; Eales v Feletti [2018] NSWCATCD 66