De Gruchy v The Owners - Units Plan No. 3989
[2020] ACTSC 65
•27 March 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | De Gruchy v The Owners – Units Plan No. 3989 |
Citation: | [2020] ACTSC 65 |
Hearing Dates: | 29-31 October, 1-2 November, 3-5 December 2018 |
| Submissions last received: Decision Date: | 21 December 2018 27 March 2020 |
Before: | McWilliam AsJ |
Decision: | See [239] |
Catchwords: | NUISANCE – nuisance by noise – whether unreasonable interference with enjoyment of premises – whether plaintiff has title to sue – whether defendant adopted or continued the nuisance – whether damages an adequate remedy – whether plaintiff entitled to aggravated damages |
Legislation Cited: | Court Procedures Act 2004 (ACT) Unit Titles (Management) Act 2011 (ACT) |
Cases Cited: | Andreae v Selfridge & Company Ltd [1937] 2 All ER 255 Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; 58 CLR 479 |
Parties: | Rayne de Gruchy (Plaintiff) The Owners – Units Plan No. 3989 (Defendant) |
Representation: | Counsel Mr G Sirtes SC with Mr B Buckland (Plaintiff) Mr A McInerney SC with Ms S Tame (Defendant) |
| Solicitors Ashurst (Plaintiff) Clyde & Co (Defendant) | |
File Number: | SC 506 of 2016 |
McWilliam AsJ:
According to the famed writer, F. Scott Fitzgerald, the worst thing in the world is to try to sleep, and not to. The plaintiff in these proceedings, Ms Rayne de Gruchy, brings a claim in tort for nuisance. She has purchased an apartment spanning part of the top two floors of what is commonly referred to as the Nishi Residential Building, in which she had hoped to live with her family. However, at various intervals throughout the day and night, the plaintiff says that the expansion and contraction of the roof and walls of the building creates noise in her apartment at an unacceptable level. Ranging from creaking and cracking to booming and shuddering, the noise interferes with her quiet enjoyment of the apartment, including disrupting her sleep at night in the place where one would reasonably expect to be able to sleep: the bedroom. The noise has been so unbearable for the plaintiff that she has moved out of the apartment.
The defendant to the claim is the Owners – Units Plan No. 3989, also referred to as the Owners Corporation. The defendant did not construct the Nishi Residential Building but now owns the common property in it, which includes the roof, walls and slabs that are the source of the noise. The plaintiff wants the defendant to abate the noise. This will require costly works to the rooftop of the building to reduce the thermal load. The defendant, acting primarily through the conduct of its executive committee (Executive Committee), has so far not undertaken any works to the building in response to the plaintiff’s repeated complaint. This is what brings the parties to Court.
Plaintiff’s Claim
The plaintiff claims that at all material times since mid-September 2014 (when the plaintiff commenced residing in the apartment), movement of the common property or defined parts of the building, or both, has caused and continues to cause a nuisance.
The nuisance alleged is structure-borne noise, which is heard everywhere in the plaintiff’s apartment during the day and night. The plaintiff complains that the noise is intrusive, impulsive and intermittent as follows:
(a) Intrusive, in that it is noticeable during the day and loud enough to wake a normal person from sleep during the night;
(b) Impulsive, in that it manifests as a high peak of short duration or a sequence of peaks, often followed by reverberations, and then stops; and
(c) Intermittent, in that the noise is not continuous and occurs at irregular time intervals, sometimes as short as six minutes.
The noise is said to be caused by the differential thermal expansion between the roof of the building and the lower level walls and slabs. This creates a slip-stick or stick-slip effect as the building expands and contracts. By way of a brief explanation now, given its importance to the claim, the strain energy built up in the pre-cast panels of the walls builds up over a period of time (the stick), and then the strain energy finally overcomes static friction forces and energy is released (the slip). The sudden slip and stick movement during the expansion or contraction of the walls at their interface with the slabs and roof produces the noise. It also affects the plasterwork and windows, which are the parts of the building that the plaintiff hears reverberate loudly at times.
The plaintiff alleges that, although the defendant did not create the noise that constitutes the nuisance, it has since adopted or continued the nuisance through its knowledge of the noise since at least November 2014, and the failure to do anything effective (or anything at all) to abate it.
The plaintiff primarily seeks an injunction restraining the continuation of the nuisance, or in the alternative, a mandatory injunction to compel the defendant to take steps to stop the nuisance. She also seeks damages in respect of past and future interference with her use and enjoyment of the apartment and for consequential losses incurred by her as a result of the noise, costs and interest. Declaratory relief was also sought in the Originating Claim.
The plaintiff makes a further claim for aggravated damages, relying in essence on the defendant’s failure to acknowledge the noise as a nuisance and take any appropriate steps to abate the noise for almost four years.
The Issues
The defendant does not admit that the noise was a nuisance, used in the sense of an unreasonable interference with the plaintiff’s use and enjoyment of the apartment. The defendant further submits that the plaintiff has not proven that any nuisance found is ongoing.
10. If the Court finds otherwise, the defendant argues it is not liable in the tort of nuisance. It argues that first, it did not create the noise. That is, it had no role in the design or construction of the Nishi Residential Building which has created the defect that is causing the noise. Second, the legislation governing the defendant provides for exclusively statutory remedies in respect of any non-compliance with a duty to maintain common property, and the plaintiff has not elected to pursue those remedies. Third, once it became aware of the noise, the defendant took reasonable steps in dealing with the issue, and so did not continue or adopt the nuisance. As part of that argument, the defendant says that the reasonableness of the defendant’s conduct must take account of the nature of the works that would be required to abate the noise, the limited financial capacity of a newly created owners corporation and the statutory framework the defendant was obliged to follow in terms of obligations to all unit holders, and the necessity for budgets to be approved at an Annual General Meeting (AGM).
11. The defendant also argues that the plaintiff has no title to sue for any damage after she moved out of the apartment because she has not suffered any permanent injury to her reversionary interest, and further, because she did not plead any reversionary interest.
12. As to any remedy, the defendant says it is simply not practicable to order the defendant to abate the noise, due to the uncertainty of a solution and the expense involved. An injunction must be in specific terms so that a party subject to such an order knows precisely what it must do. Further, any remedy by way of damages would be modest, in line with the authorities. As the defendant does not accept its conduct was in any way unreasonable, it further disputes that any award of aggravated damages would be appropriate.
13. These arguments, and a number of other pleading or evidentiary points raised by the defendant, are conveniently dealt with as part of a consideration of broadly three key issues:
(a) First, whether there was/is a nuisance, actionable by the plaintiff;
(b) Second, whether the defendant has continued or adopted the nuisance; and
(c) Third, whether the plaintiff is entitled to the relief she seeks.
14. As part of that third issue, further questions for consideration are:
(a) whether the plaintiff has suffered or will suffer damage as a result of the nuisance, such as to be entitled to compensatory damages;
(b) whether injunctive relief should be granted and if so, in what terms; and
(c) whether aggravated damages should be awarded.
1. Is there a nuisance?
15. First, it is necessary to examine whether there was or is a nuisance, and if so, to determine the extent of the nuisance. Once those facts are established, the Court can consider the argument about whether the plaintiff has title to sue in respect of any nuisance found.
1.1 Applicable principles
16. A nuisance has been described as an ‘unlawful interference with a person’s use or enjoyment of land or a right in connexion with it’: Hargrave v Goldman [1963] HCA 56; 110 CLR 40 (Hargrave) at 59 per Windeyer J.
17. For a nuisance to arise, there must be a material or substantial interference, beyond what is reasonable in the circumstances, with the plaintiff's use or enjoyment of land or of the plaintiff's interest in the land: Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; 58 CLR 479 at 504, 515-516, 524; Sedleigh-Denfield v O'Callaghan [1940] UKHL 2; AC 880 (Sedleigh-Denfield) at 903; Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 768; Elston v Dore [1982] HCA 71; 149 CLR 480 (Elston) at 487-488. These authorities were more recently cited in Brown v Tasmania [2017] HCA 43 per Gordon J at [385].
18. The tort of nuisance has been described as being ‘uncertain in its boundary’ and ‘may comprise a wide variety of situations, in some of which negligence plays no part, in others of which it is decisive’: Overseas Tankship (U.K.) Limited v. The Miller Steamship Co. Pty. Limited (Wagon Mound (No. 2)) [1966] UKPC 1; (1967) 1 AC 617.
19. While negligence is not essential to a claim in private nuisance, fault of some kind is almost always necessary: Elston at 487-8 and Sutherland Shire Council v Becker [2006] NSWCA 344 (Becker) at [119] and the cases there-cited.
20. The present case concerns private nuisance. There are three types of private nuisance (see Hunter v Canary Wharf Ltd [1997] AC 655 at 695B (Hunter)):
(a) Nuisance by encroachment on a neighbour’s land;
(b) Nuisance by direct physical injury to a neighbour’s land; and
(c) Nuisance by interference with a neighbour’s quiet enjoyment of her (in this case) land.
21. The plaintiff’s claim falls under the third category.
22. Whether an interference with land is unreasonable will very much depend on the circumstances in which it occurs: Sturges v Bridgman; St Helen’s Smelting Co v Tipping (1865) 11 H.L.Cas 642 at 650. The interference must be substantial: Walter v Selfe (1851) 4 DeG & Sm 315 (Walter) at 322, 344; Hargrave at 60.
23. The test has been described as the Court assessing what is reasonable according to the ordinary uses of mankind living in society, or more correctly in a particular society: Sedleigh-Denfield at 903.
24. The inconvenience against which the Court will grant protection must be something that interferes with the ordinary comfort physically of human existence, not merely according to ‘elegant or dainty modes and habits of living’: Walter at 322.
25. More recently in Gales Holdings Pty Ltd v Tweed Shire Council (2013) NSWCA 382 85 NSWLR 514 (Gales Holdings) Emmett JA stated at [138] (Leeming JA and Sackville AJA agreeing):
Regard must be had to the character of the locality in which the inconvenience is created and the standard of comfort that those in the locality may reasonably expect.
26. The earlier decision of Oldham v Lawson (No. 1) [1976] VR 654 (Oldham) is to similar effect, where Harris J stated (at 655) that what amounts to a substantial degree of interference must be decided according to what are reasonable standards for the enjoyment of the particular premises. His Honour went on as follows:
…What are reasonable standards must be determined by common sense, taking into account relevant factors, including what the Court considers to be the ideas of reasonable people, the general nature of the neighbourhood and the nature of the location at which the alleged nuisance has taken place, and the character, duration and time of occurrence of any noise emitted, and the effect of the noise.
27. Harris J then explained that the above extract was intended to encapsulate what had been decided in the authorities, which his Honour cited. Having regard to the extracts and statements of principle drawn from the cases just mentioned, I respectfully agree. His Honour’s summary is a useful explanation of the task which the Court undertakes.
28. A further example of the above principle in the context of noise is Munro v Southern Dairies [1955] VLR 332 at 335, where a horse stable was built next to the wall of the plaintiffs’ house. Sholl J held that the loss of a single night’s sleep may amount to such a substantial interference with personal comfort as to constitute a nuisance, citing Andreae v Selfridge & Company Ltd [1937] 2 All ER 255 at 261.
Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514, [138]:
‘Regard must be had to the character of the locality in which the
inconvenience is created and the standard of comfort that those in the
locality may reasonably expect.
Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514, [138]:
‘Regard must be had to the character of the locality in which the
inconvenience is created and the standard of comfort that those in the
locality may reasonably expect.
Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514, [138]:
‘Regard must be had to the character of the locality in which the
inconvenience is created and the standard of comfort that those in the
locality may reasonably expect.
Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514, [138]:
‘Regard must be had to the character of the locality in which the
inconvenience is created and the standard of comfort that those in the
locality may reasonably expect.
1.2 Is the noise heard in the plaintiff’s apartment an unreasonable interference with the plaintiff’s enjoyment of her property?
29. I am satisfied that there was, and continues to be, a nuisance in the form of structure-borne noise heard in the plaintiff’s apartment, which was substantial enough to constitute an unreasonable interference with the plaintiff’s enjoyment of the apartment, or her rights in connection with the apartment.
30. There are three bases for that factual finding: the plaintiff’s lay evidence, the plaintiff’s expert acoustic evidence, and the evidence of three structural engineers.
31. First, the plaintiff gave evidence and was cross-examined on the noise that she experienced when living in the apartment. She said that the noise was loud and impulsive. Overnight, at times it occurred every five to seven minutes. The nature of each sound was different. Sometimes it occurred as a very loud bark like a crack or a gunshot. Other times it was experienced as a reverberation of sound, like a shudder, followed by a sound like the cracking of plaster. Another variation heard by the plaintiff was a deeper sound, more like a cannon firing. Sometimes the noises caused the windows to shake.
32. I accept that evidence. None of the Executive Committee of the defendant disputed the plaintiff’s experience in her own apartment.
33. The plaintiff’s evidence with regard to the noise was corroborated by the complaints of other residents in the Nishi Residential Building. This included a detailed email written by Peter and Megan Hinchley, who resided in the apartment adjoining that owned by the plaintiff, as early as December 2014. It was also supported by one of the tenants who had lived in the apartment after the plaintiff moved out, namely Mr Henri Strachan. He recalled waking up numerous times during the night due to hearing the noise, and stated that he was ‘pretty well sleep deprived for the majority of the time’ he lived in the apartment. He heard a large echoing noise a couple of times a night, sporadically but on an ongoing basis, which became frustrating for him. At other times the noise was a loud shudder, which again woke him up.
34. The second part of the evidence supporting the finding that the noise was an unreasonable interference with the enjoyment of the apartment is that of the plaintiff’s acoustic expert, Mr Darren Jurevicius of Resonate Acoustics. That evidence included a recording of the sounds in the plaintiff’s apartment. The noise and vibration events were at times recorded every five to seven minutes in the apartment. Approximately 50 noise events occurred between 1:00am and 7:00am. These were at decibel levels significantly above the World Health Organisation (WHO) criterion for waking up at night.
35. Mr Jurevicius played the recordings of the noise in the courtroom. The plaintiff’s expert took care to ensure that the noise heard in the courtroom was played at a decibel level that was identical to the level heard when the noises were originally recorded in the apartment.
36. Having heard the various noises, they are not mere creaks or cracks that might be commonly experienced and tolerated in any ordinary residential dwelling. The noises are loud. They are at times booming. They are of varying kinds and there is no doubt that they would disturb more than just the light sleepers and insomniacs of Canberra. Even the reasonably sound sleeper would at times be woken up.
37. The defendant argued that the WHO standards do not form part of Australian law. I accept the defendant’s argument, but it does not matter here, because the authorities set out above make clear that there is no one standard of reasonableness for interference from noise (as applied to this case) – it changes depending upon the circumstances. Even if the WHO standard was taken as a starting benchmark for what might be considered reasonable when it comes to interference with sleep, the legal test embraces more than that standard. It includes the locality, time of day, frequency of occurrence and so forth.
38. For example, if the plaintiff’s apartment was located next to an airport runway at Heathrow in the United Kingdom, with planes taking off and landing every six minutes, it is unlikely that cracks in the apartment at the same time intervals which were in excess of the WHO standard for comfortable sleep at night would give cause for complaint.
39. Here, the plaintiff’s apartment is located in a city and overlooks a busy and thus noisy road. The defendant submitted that the noise from the traffic was relevant to whether there was a substantial interference with the plaintiff’s enjoyment of the apartment. In that regard, the defendant sought to rely upon a late served affidavit sworn on 29 November 2018 by Ms Marion Burgess. The affidavit annexed a draft report, prepared by Ms Burgess in 2015 as advice for the plaintiff (before this litigation), concerning noise levels arising from the traffic along Parkes Way. The affidavit was relevant to the level of traffic noise which could be heard in the apartment. I rejected the application to lead the evidence at the time and indicated that I would include the reasons for doing so in the substantive judgment, in case the defendant later wished to challenge the ruling.
40. The reasons for the rejection were that the evidence was evidence of an expert’s opinion, not lay evidence. It therefore had to specify that the expert agreed to comply with the Expert Witness Code of Conduct in Schedule 1 to the Court Procedure Rules 2006 (ACT) (Rules), and it did not. Ms Burgess had not prepared her draft report, which she later adopted as her opinion, with a conscious appreciation of the obligations of that Code. During argument, I was taken to Investmentsource Corp v Knox Street Apartments [2007] NSWSC 1128, where McDougall J discussed whether to admit evidence that had not been prepared in accordance with the Code at [44]-[50]. In particular, at [49], his Honour referred to the real difference between the role of an expert retained to advise a client and the role of an expert engaged to give evidence. The former owes his or her primary obligation to the client; the latter owes his or her primary obligation to the Court.
41. Further, r 1241 of the Rules permits the tendering of late expert evidence only in exceptional circumstances. The test for exceptional circumstances was discussed by Mossop AsJ (as his Honour then was) in Pryce v Dunlap [2016] ACTSC 338 at [10]-[13], and I respectfully adopt his Honour’s discussion of the relevant principles. It is unnecessary to repeat them again here. The more recent decision of Murrell CJ in Steed v McDougall and Anor [2018] ACTSC 233 (Steed) is to similar effect.
42. Applying those authorities to the evidence in the present case, I did not consider there were exceptional circumstances, for similar reasons to those given by the Chief Justice in Steed. If the defendant wished to argue that the effect of traffic on the noise in the apartment had an impact on whether there was an unreasonable interference with the plaintiff’s quiet enjoyment of the apartment, and on the plaintiff’s decision to move out of the apartment (discussed below with regard to the plaintiff’s title to sue), it had an opportunity to obtain and serve an expert report well before the middle of a final hearing.
43. If the affidavit and report had been admitted for the hearsay purpose intended (it was already admitted in the proceedings as a document received by the plaintiff), the proceedings would have had to be further adjourned in order for the plaintiff to respond to the late evidence. The hearing had already been adjourned once before at the defendant’s request, and it was done so ultimately with the plaintiff’s acquiescence, but on the condition that the proceedings were still able to be heard within a few months of the original listing. I was of the view that the plaintiff would be prejudiced by a further delay and the significant further costs that would be incurred as a result. Such costs would have been disproportionate to the significance of the evidence sought to be led. Applying s 5A of the Court Procedures Act 2004 (ACT), I declined to exercise the Court’s discretion to allow the defendant to adduce the evidence.
44. However, the defendant did not need an expert report to establish that the plaintiff’s apartment faces out to Lake Burley Griffin and that Parkes Way runs between the two. Further, given that it is the road linking the Tuggeranong Parkway with the city, I consider that I am entitled to take judicial notice of the amount of traffic that proceeds along Parkes Way every day (see s 144(1)(a) of the Evidence Act 2011 (ACT)) and the traffic noise that would emanate as a result.
45. The character of the locality is nevertheless relatively quiet. That is so, even if the relevant locality is taken to be as specific as a single building, namely those living in the Nishi Residential Building, above a busy road. The nature of the structure-borne noise is very different from the ordinary noise which an occupier of the apartments in that building may expect, such as traffic. It is sudden, loud, variable in type and irregular in timing.
46. Further, noise such as traffic can be blocked out or at least significantly reduced by keeping the doors of the apartment and windows shut. The noise of the slip-stick mechanism cannot be blocked out, even with custom made earplugs. It produces a truly unbearable intrusion for the reasonable person sitting in the plaintiff’s apartment, let alone trying to sleep.
47. Considering in particular that the noise continued through the night and in fact became more frequent in the early hours of the morning, the evidence is overwhelming that the noise constitutes a significant interference, beyond what would be considered reasonable, with the general level of comfort and convenience expected by those living in apartments in the Territory.
48. The third part of the evidence supporting the finding that there is a nuisance is the expert evidence of the structural engineers, Mr Mal Wilson, Mr Leigh Appleyard, and Mr Robert Herbertson. Their evidence is relevant in many ways, one of which is a finding that the noise is ongoing.
49. The defendant argues that there was no evidence establishing that the noise had continued to the present day, or that it was still as significant now as it was when previously recorded or heard by the plaintiff or her tenant. The submission is that new buildings sometimes creak as they settle down and that it is possible that ‘grinding’ has had an effect or will in the future have an effect of diminishing the extent of the noise issue. The ‘grinding’ of a building is a wearing or smoothing of the surfaces at which the sticking and slipping is occurring.
50. The three structural engineers were jointly cross-examined. They were each impressive in their knowledge, experience, professionalism, cooperation and efforts to provide the independent assistance that the Court required in this case. The experts all agreed that the noise was structure-borne and that it was the result of the slip-stick effect of thermal differentiation. They further agreed that there is an excessive thermal load on the roof of the Nishi Residential Building. Presently, there is only a bituminous membrane protecting the roof. This is plainly inadequate given the level of expansion and contraction that is occurring and the differential thermal loads as a result.
51. A further issue pointed out by the experts is that the design of the building does not include separation joints or gaps to accommodate the slip-stick phenomenon. That is a fact, not a criticism of the building design, for the original design of the building as approved also provided for a metal roof to be installed over the roof slab.
52. The design was later amended to remove the metal roof and instead provide that the thermal load on the roof would be absorbed by photovoltaic cells (solar panels) over a concrete roof. The change was apparently related to a reconfiguration of one-bedroom apartments into two-bedroom apartments. Whatever brought it about, that change appears to have been approved. However, those cells have not been installed either.
53. Once a decision was made not to install solar panels, the evidence does not disclose whether the membrane currently covering the roof was approved by any planning authority over the years, although there may have been further material explaining the position which was not before the Court. The evidence also does not deal with whether any structural engineer considered the compatibility of what was ultimately constructed on the roof of the Nishi Residential Building with a design that did not include separation joints to accommodate any slip-stick movements.
54. Many questions might arise about how the roof of the building came to be in its present state and who might share in the responsibility for what was constructed on the roof, but none of them warrant consideration in the present proceedings. Whether the membrane on the roof was approved or not does not matter for the purposes of establishing any nuisance, because the Court is dealing with the building as inherited by the defendant and that building has a structural defect which is causing a nuisance to certain residents, who include the plaintiff. The history of the development is nevertheless useful background information, if only because a consideration of what remediation work might be feasible in the future from a planning perspective might have been assisted by what had been already been approved at the site.
55. To the extent that Mr Herbertson’s expert report of 22 March 2018 was relied upon to found the defendant’s argument that the noise may have lessened over time (reference was made to a possibility for ‘grinding’ to occur at [7.23] of that report), I note that Mr Herbertson’s recommendation in his expert report, in the joint expert report and in the witness box was to take action to reduce the thermal load on the roof, not to wait and see whether ‘grinding’ might fix the problem. His opinion was that the most effective option for achieving a reduction in thermally induced differential movement was to install an insulated metal sheeted roof over the existing roof slab. An alternative remediation method also recommended was to install an insulation mat directly on top of the existing roof slab. Neither Mr Appleyard nor Mr Wilson were of the view that ‘grinding’ might assist with abating the noise.
56. I accept the clear expert evidence as to the cause of the noise being a structural defect attributable to the thermal load on the roof and possibly exacerbated by some of the dowels in precast panels not being grouted (as to which further detail is provided below). That cannot be characterised as a mere creak in a new building that will settle down, or that will abate over time through ‘grinding’ to ‘within tolerance levels’. I reject that submission as wishful thinking by the defendant.
57. Even absent the expert structural engineering evidence, there is sufficient evidence to demonstrate that the nuisance is ongoing. The plaintiff experienced the noise for a year before moving out in 2015. A subsequent tenant of the apartment, who resided there in 2016 and up to October 2017 experienced the same noise. The expert acoustic evidence of Mr Jurevicius from Resonate in January 2017 established that the noise was present through his testing at an unacceptable level. Mr Herbertson heard the noises when he visited the property in October 2017, albeit he was unable to say whether they were as loud as when originally heard three years earlier.
58. The clear inference to be drawn from the combination of that evidence is that the noise has not yet naturally subsided, and further that it is highly unlikely to abate naturally or ‘grind’ to a point where it is less intrusive in the plaintiff’s apartment to a reasonable level in the near future or a level ‘within tolerance’ as submitted by the defendant. On the contrary, all indications are that the noise will continue at its current level and frequency unless substantial remediation works are undertaken.
1.3 The plaintiff’s title to sue
59. The defendant raises the title of the plaintiff to sue on the nuisance. The defendant submits that because of the nature of the nuisance (being noise, and not physical damage to the property) the plaintiff is only entitled to sue in respect of the period in which she was an occupier – namely August 2014 to July 2015. After the plaintiff moved out of the apartment in July 2015, the plaintiff’s use and enjoyment of the property ceased. She then had only a reversionary interest. There was no permanent injury to that interest and in any event, such an interest was not pleaded.
60. The starting proposition is that nuisance is a tort against land: Malone v Laskey [1907] 2 KB 141 at 151 (CA). It involves an infringement of the claimant’s interest in the property without direct entry by the defendant: Robson v Leischke [2008] NSWLEC 152; 72 NSWLR 98 at [42]-[43].
61. Due to the focus of nuisance being on harm to land, or the use and enjoyment of it, where an owner is not the occupier of the land affected, she can only sue in respect of her reversionary interest. The plaintiff must prove harm of a permanent character. Mere temporary interference is not enough, even if the reversioner shows that it is likely that similar future interference will take place: Simpson v Savage (1856) 1 CB(NS) 347; Cooper v Crabtree (1882) 20 Ch D 589. The legal principle relied on by the defendant is referred to in McCarty v the Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210 at 212-213, and the English authorities there-cited.
62. A nuisance or injury is of a permanent character when it will continue indefinitely unless something is done to remove it: Jones v Llanworst Urban District Council [1911] 1 Ch 393 (Jones) at 404 per Parker J, or where it must necessarily affect the reversioner’s interest when the property falls into possession: Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 (Shelfer).
63. I accept the principle, but it does not apply to defeat the plaintiff’s claim in this case because of the kind of nuisance in question here. Noise emanating from a neighbour’s activities can be temporary, such as frequent loud parties or the repeated use of power tools late at night. I can see why a landlord may not be able to bring a claim in nuisance for that type of intrusiveness, as the landlord is not occupying the premises to hear it. The person who is directly affected in that scenario is the tenant.
64. However, the type of noise in this case emanates from the structure of the building itself. It is intermittent in the sense that the noise is not continuous, but it nevertheless is a permanent feature (that is, it is the result of a defect) of the common property. The nuisance in the present case satisfies each of the tests in Jones and Shelfer. The noise in dispute here is intangible, but it is not temporary.
65. Having regard to the factual finding earlier in these reasons that the noise is a continuing nuisance, if the plaintiff moved back to the apartment tomorrow, her property will still be affected by the nuisance. The consequence is that although the type of nuisance in question is noise and in many cases that constitutes only a temporary nuisance, the noise here is sufficiently permanent to sustain a finding of damage to the plaintiff’s interest, first as occupier and now as reversioner.
66. In the event that there is subsequently a successful challenge to that finding, there is an alternative reason for arriving at the same conclusion, namely that I accept that the main reason the plaintiff and her family moved out of the apartment was because of the noise. There may have been other reasons making the apartment less attractive to the plaintiff – such as the inability to install air conditioning, meaning that residents had to leave doors and windows open, exposing them to the noise of the traffic below – but I accept that the substantive cause of the plaintiff leaving the apartment was the nuisance.
67. Such a finding establishes that the circumstances of the present case of nuisance are entirely distinguishable from those in the authorities dealing with reversionary interests. I do not regard the authorities regarding reversionary interests, to which reference has earlier been made, as precluding a plaintiff who was previously in occupation from obtaining relief where she has moved out of her property directly because of the nuisance. None of the cases to which I have been referred squarely address the facts of this case, where an owner occupier becomes a landlord during the course of a continuing cause of action as a result of the nuisance.
68. It cannot be the position at law that a plaintiff who has suffered a nuisance for almost a year, and obtained no satisfactory redress from a neighbour who is also aware of the nuisance but does not remedy it, must remain in occupation and suffer the nuisance for further years while the matter is litigated or else lose an entitlement to injunctive relief. It would be inconsistent with the principle of a plaintiff attempting to mitigate their loss. Further, if that were the legal position, then at the very least, the defendant ought to have raised the issue in its defence, and certainly well before the hearing (not in closing submissions), so that the plaintiff could take appropriate steps in response, including possibly returning to her apartment and seeking an expedited hearing.
69. As for the pleading point raised by the defendant, I do not accept that the plaintiff had to expressly plead a reversionary interest. She has pleaded the material facts that give rise to that legal consequence, the cause of action first arose when the plaintiff was occupying the apartment, and the plaintiff has pleaded that the cause of action is ongoing.
70. The conclusion therefore is that there is an ongoing nuisance, actionable by the plaintiff.
Did the defendant continue or adopt the nuisance?
71. An occupier of land upon which a nuisancehas been created by another will not be liable unless it (in this case) has continued the nuisance. It continues anuisance if, with knowledge or presumed knowledge of its existence, it fails to take any reasonable means to bring the nuisance to an end though with ample time to do so: Cartwright v McLaine & Long Pty. Ltd [1979] HCA 16; 143 CLR 549 At [6] per Gibbs ACJ citing Sedleigh-Denfield, at pp 894, 904-905, 913, 919; Torette House Pty. Ltd. v. Berkman [1940] HCA 1; 62 CLR 637, per Dixon J at 657.
72. Applying that principle, the question for consideration is: from the time that it knew about the noise issue, did the defendant reasonably conduct itself to remedy the problem without undue delay?
2.1 When did the defendant know of the noise issue in the plaintiff’s apartment?
73. The defendant admits it has known about the noise problem in the plaintiff’s apartment since November 2014.
74. The defendant raised what I understood to be a technical pleading point, arguing that because of the way the pleading was drafted, the case the defendant had to meet was knowledge of the underlying cause of the noise, including the location of the noise. The defendant argued that the defendant did not have actual or constructive knowledge of the defect causing the damage (being the noise), and therefore could not have adopted or continued the nuisance.
75. The argument places an unnecessary gloss on the element of nuisance. It is clear from the pleading that the nuisance alleged was noise in the apartment. The plaintiff went further in its pleading, and detailed the underlying cause of the noise, but that does not change the case to one that the defendant needed to know what the defect causing the noise was before it came under any duty to act to abate the nuisance.
76. Even if the pleading point were accepted, the argument does not assist the defendant. A report was obtained by the developer (discussed separately below) from SLR Consulting Australia Pty Ltd, dated 15 December 2014 (SLR Report), and provided to the Executive Committee around that time. It states as part of its conclusion:
The measurement results and subjective aural assessments of the noise audible within the Level 15/16 apartments and adjacent stairwell have indicated a thermal expansion induced stick slip mechanism is responsible.
77. The SLR Report includes a more detailed discussion and summary, including Appendix A which sets out the locations where the noise was recorded. The discussion also refers to the maximum rate of change of displacement occurring between 2.00am and 6.00am and between 10:00am and 1:00pm, stating:
Noise levels for each stick slip event are clearly distinguishable within the noise measurement results and clearly audible within the apartment. Typical impulsive noise events produce a maximum noise level in the order of 10 to 20dB above the prevailing ambient noise level.
78. The defendant was clearly on notice of the cause of the noise, including with some precision about the location of the source of the noise, from late December 2014.
79. That is not to say that understanding the cause of the noise was irrelevant – it is plainly relevant to what steps were reasonable for the defendant to take, which is addressed below following the factual findings as to the defendant’s conduct.
2.2 What action did the defendant take to bring the nuisance to an end?
80. There was a detailed chronology prepared setting out the relevant conduct in detail. It was cross-referenced to the evidence and then marked up with further inclusions by the defendant. This document was obviously the product of significant work by the legal representatives, and it was of great assistance in getting across and then navigating through the voluminous evidence.
81. The defendant’s conduct in this case is shaped primarily through the conduct of the Executive Committee. There were 14 members. The emails and minutes of meetings of the Executive Committee were in evidence. The evidence of the members of the Executive Committee was that no one felt any particular member was overbearing or more influential but the fact is that on the documentary evidence and the records of the minutes, some members were obviously more communicative and had stronger views or greater input into the decision-making than others.
82. The defendant was also represented by the managing agent, Mr Jarrod Smith of Civium Strata. He corresponded with the plaintiff and her neighbours on behalf of the defendant and with various experts in the course of investigating the noise issue, taking direction from the Executive Committee. There was no suggestion that anything he did or said was anything other than as a properly authorised agent of the defendant.
83. As to the defendant’s conduct, what follows is a summary of what the defendant did in the years after being notified of the noise issue. It is somewhat laborious, both to set out and to read, but in my view it is important to record what the defendant did and when, lest it be thought that the noise issue received little attention from the defendant. The claimed cause of action is taken to be complete when the statement of claim was filed, but it was also pleaded to be ongoing. Accordingly, it is relevant to review the defendant’s conduct at the point of what had occurred within the first two years after the plaintiff notified the defendant of the noise issue, and then what occurred subsequently. The distinction may have been important if the plaintiff’s interest and her title to sue was in question and a different finding had been reached in respect of the conduct at different times. In the result, however, there is no difference in the conclusion reached.
The first year after the noise issue was identified
84. The first thing the defendant did in 2014, following receipt of the plaintiff’s complaint, was refer the issue of noise in the plaintiff’s apartment to the developer and the entity handling the defects identified in the building, Nishi Residential Building Pty Ltd. There was a group of companies with various involvements in the Nishi development. It is not necessary to dissect the roles of each company for the purposes of this proceeding (none of them are parties). The only matter of significance is that Mr Jonathan Efkarpidis was a director in each of the companies in the developer group, including Nishi Residential Building Pty Ltd. He was also a member of the Executive Committee.
85. In late December 2014, the developer presented the SLR Report, which had been prepared on the instruction of Clayton Utz for Nishi Residential Building Pty Ltd. The developer asserted that the SLR Report demonstrated that the building complied with relevant building standards and refused to take any further responsibility or action. In fact, the SLR Report stated that none of the policy and regulatory framework reviewed was found to apply to a situation such as the structure-borne noise complained of by the plaintiff.
86. The production of the SLR Report by the developer had a significant impact on the defendant’s course of action, because it was relied upon by a number of people who were advising the defendant. Unfortunately, the content of the SLR Report had been the product of significant revision at the request of the developer’s lawyers. It was very much constrained by the questions that were asked by the developer, which limited SLR to reporting on whether the noise issue identified was a breach of any applicable noise or construction standard in the regulatory framework. That was the wrong question to ask in terms of noise arising from a structural defect that had an impact on neighbouring property and it was the subject of considerable disquiet by the authors of the report. I will return to this issue below in the context of addressing aggravated damages.
87. Next, the Executive Committee decided to consult a structural engineer and an acoustic engineer who were independent from the developer. There was some indecision about that. In April 2015, the Executive Committee was prepared to rely on the SLR Report. It also engaged Mr Aaron Hazelton from Indesco to provide structural engineering advice, and Mr Michael D’Elboux from D’Elboux Consulting Group (DCG) who then later sought the advice of Mr Ben White from Acoustic Logic, to carry out acoustic testing.
88. In May 2015, the Executive Committee sought legal advice from Bradley Allen Love Lawyers (BAL Lawyers) as to whether it was justified in spending money on investigating the noise complaint. On 21 May 2015, that advice was provided. The advice was very detailed and it included the following:
(a) The Owners Corporation was well placed to treat the problem as a ‘nuisance’ until it could be satisfied that the disturbance reasonably did not meet the threshold of what constituted a nuisance.
(b) The SLR report indicated that the measured levels of noise appear not to exceed levels that would normally and automatically compel the Owners Corporation to go further.
(c) The developers or related parties were considerable Unit Owners in the Owners Corporation and were not taking their stance from an entirely disinterested perspective.
(d) It is not the case that because there is a noise, that noise must be rectified as it is ipso facto a nuisance. If the threshold to create an obligation on the Owners Corporation to act is not met, another owner may equally complain about funds being expended to rectify the noise.
(e) From reading the SLR Report, BAL Lawyers could not see a case that would require the Owners Corporation to pursue an expensive ‘remediation’ of all suspect structural joints at that time. The legal advice considered that there was ‘something short of a nuisance’.
89. In June 2015, Mr Hazelton provided his report (Indesco Report) in which he recommended that grouting works be carried out to some of the dowels in the precast panels. That recommendation was consistent with that of Mr Alan Tingcombe from AWT, the structural engineer who was involved in the design that was approved, who made the recommendation to SLR and repeated the recommendation in September 2015. Importantly, that was recommended as a first step only, with re-monitoring of the noise to follow after that work had been carried out.
90. Acoustic Logic provided an acoustic review, which merely relied upon and confirmed the SLR Report’s conclusion that the noise levels were in compliance with the construction and noise standards as identified in the SLR Report. That result is unsurprising, as the brief DCG gave to Acoustic Logic was limited to reviewing the SLR Report, rather than independently carrying out testing and coming to a conclusion without reference to the SLR Report.
91. On 1 July 2015, the AGM occurred, with a resolution to undertake the grouting works being passed, to the effect that 3 quotations for the work would be obtained and then a General Meeting called, presumably to finalise the engagement of a contractor. The resolution was never implemented. I interpolate here that all three structural engineers were also of the view during the hearing before this Court that the grouting works initially specified ought to have been completed.
92. At the AGM, the defendant also resolved to seek further advice as to whether they would forego a right to seek compensation from the developer ‘should the work be carried out by the body corporate’ but ‘subsequently deemed to be a building defect’.
93. In August 2015, the Executive Committee met again and Mr D’Elboux attended. He advised not to proceed with obtaining quotes for grouting of the dowels, as this may potentially be the builders responsibility to rectify. The Executive Committee then agreed to a different course from that resolved at the AGM. It is unclear how it had the authority to do so, given that one of the functions of the Executive Committee is to carry out the decisions of the owners corporation made at general meetings (see s 35 of the Act. In any event, the Executive Committee decided to have an on-site meeting of a number of engineers and the managing agent. This included Indesco (Mr Hazelton), DCG (Mr D’Elboux) and AWT (Mr Tingcombe) who were the initial engineers for the development. The plan was for AWT to report on whether the areas of concern were within tolerances of the certified documentation against the building. Again, that was the wrong issue from the perspective of a case in nuisance.
94. Following receipt of the proposed AWT report, the Executive Committee intended to seek the legal advice that had already been the subject of resolution at the AGM.
95. That is what occurred. In September 2015, AWT recommended approaching the builder and requesting that it ‘look into’ the plans and respond as to whether they will undertake the grouting works.
96. In early October 2015, the Executive Committee received legal advice from Kerin Benson Lawyers, who advised that the defendant would not forego the right to sue the builder by undertaking the grouting works, but might compromise its ability to recover the full cost of the works. The ‘normal course’ was to invite the builder to come back and rectify within a reasonable timeframe and advise the builder that if the works were not carried out, the defendant would complete the rectification work and seek to recover the cost from the builder.
97. On 15 October 2015, the Executive Committee met again. It determined to write to the builder as suggested.
98. On 9 November 2015, the Executive Committee met again. It was seeking a formal advice from Kerin Benson Lawyers as resolved at the AGM and further was seeking documents from the ACT Planning and Land Authority as to the contracts in place before the original builder (referred to as PLY (ACT) Pty Ltd) went into administration, as well as the identity of the builder who then took over in March 2013 (namely Misenus Pty Ltd).
99. At this point, there is an email exchange which I think is telling of the Executive Committee’s general approach. It was between Mr Smith (the managing agent) and the plaintiff’s neighbour, Mr Peter Hinchley. Mr Hinchley wrote:
Jarrod,
It’s been over 11 months since I formally informed you and the Committee of the noise issue affecting Level 15 at Nishi. I’ve informed you that the issue has, and continues to cause us great stress. It wakes us at night and keeps [us] awake. Our neighbours literally abandoned their $1.5 million property because the issue was so distressing. Despite our complaints, and please for urgency, and repeated requests to be kept informed, I haven’t been provided with any updates since August. The manner in which this issue has been handled is totally unacceptable. In fact it is disgusting. For what it is worth, can you provide an update on this issue, and let me know what has been done to address our concerns.
Mr Smith then sent two emails in response. The first is as follows (emphasis added):
I understand this is less than acceptable, however the delays in getting this resolved is now down to proving the issue as a defect to the builders in order to have the works completed without the Body Corporate paying for the works and giving up their chance to seek compensation from the builder thereafter.
We have been chasing the builder for a response and an application is going to be made for an urgent rectification order to move this along a lot quicker as we are getting nothing at the present moment.
The Committee wish to proceed with this but it can only be done by the builder unless the owners pay which means they have accepted responsibility over the issue and nothing further can be done. If the issues still continues from there then the owners will struggle to get the builder to respond as they have taken responsibility already from previous issues.
I agree this is unacceptable but we are in a position where without a response we are forced to take action which can potentially lead to further delays as it becomes a legal process.
Once again [I] sincerely apologise for this situation occurring the way it has although when it does happen this way, we must follow a process in order to seek a resolution.
Two days later, Mr Smith sent a second email in response to further correspondence from Mr Hinchley, which includes the following extract (emphasis added):
The issue is locating the representative of the building company that took over from PLY before they went into administration to discuss this issue with and seek a resolution as soon as possible.
We have previously gone to the Developers and also the engineer who has basically come back and said they aren’t required to fix it but believe it we wish to proceed then the Body Corporate should go ahead and do it. The response was not sufficient enough to cause action so we went back again to the engineer and got the same response, worded differently.
So the delays and difficulties we face at the moment are due to the fact that no-one wants to own up to the issue and the Body Corporate do not want to pay to fix something that isn’t their responsibility in the first place to fix.
All we can do [is] push further with the Builder and await their response then take action through ACAT for an urgent rectification order should we have clear enough grounds for it being a builders responsibility.
The second year after the noise issue was identified
Time marched on and between November 2015 and February 2016, the Executive Committee continued the course of seeking to pursue the builder and awaiting the receipt of legal advice, which had now been expanded to advice about the rights of the defendant in suing builders and developers in negligence. From the perspective of the defendant taking any steps to remedy the noise issue itself, nothing happened.
On 23 March 2016, the defendant received detailed legal advice. The advice stated under the heading ‘Nuisance’:
As the owners have previously obtained specific advice on the potential for an action in nuisance, we do not propose to address this action.
Options
There are broadly three options available to the Owners to deal with the complaints by [the plaintiff]. They are:
- Do nothing
- Make an offer of settlement; or
- Offer to purchase [the] unit
…
Ultimately this is a commercial decision rather than a legal one. However, we believe the ‘Do Nothing’ option is probably the most appropriate in the circumstances.
An AGM occurred in April 2016. The plaintiff attended and put the defendant squarely on notice that, because of its inaction to date, she was considering costly legal action. She was prepared to delay taking that course if an arbitrator with relevant skills and experience was appointed to achieve an action plan acceptable to her.
The resolution at the AGM was to the following effect:
(a) An independent arbitrator would be appointed to address the noise issue.
(b) The arbitrator would be chosen by the Executive Committee and the owners of any apartments affected by the noise who wished to participate in the arbitration.
(c) Within 30 days of the AGM (or such longer time as agreed by the parties to the arbitration), an action plan would be prepared to address the noise problem.
(d) If the arbitrator is not able to achieve agreement on the action plan within the time agreed, the Owners were to be informed why agreement could not be reached.
(e) If the action plan in written form was agreed by the parties, the Executive Committee would call a General Meeting to put the plan to the Owners Corporation for resolution to proceed with implementation.
The resolution also included requiring the Managing Agent (Mr Smith) to write to the owners of apartments potentially affected within seven days, and up to $10,000 was allocated to appoint the arbitrator.
Between mid-April and June 2016, the arbitrator was appointed, namely Mr Mal Wilson of Advanced Structural Designs (ASD). The affected owners were surveyed and submissions were received.
Over 5-15 June 2016, the arbitrator provided a preliminary but firm assessment, which was that there was a failure to adequately account for loads to the precast walls caused by thermal loads on the top slabs. The Report by ASD was finalised in August 2016 and provided to the Executive Committee. The arbitrator concluded that it was definitely worth grouting the dowels that were un-grouted and in the same orientation as the thermal load, and the works were relatively inexpensive to undertake. However, that was likely to be only part of the solution.
If the grouting of the dowels was ineffective in eliminating the noise problem, additional work that could be undertaken was to:
(a) Construct a metal deck roof over the existing concrete roof; or
(b) Install a slip joint to allow the roof slab and the region of shaft above the slip joint to move independently; or
(c) Strengthen the structural connections in areas that are slipping.
This prompted a response from Mr Efkarpidis. Part of what he wrote is as follows:
Hi guys
I’m not comfortable with directionless, one sided view [sic], and to be frank a very biased process. Information is handed over and then immediately it seems like it’s never enough.
There seems to be some very vague generalisations.
Mal, you should produce your final report with your findings as this [was] what was agreed at the AGM. Then the OC will have an opportunity to review and ask further clarification if it needs to and propose its way forward.
The Executive Committee met at the end of August 2016. Instead of adopting the arbitrator’s report and proceeding to formulate an action plan, the Executive Committee determined to undertake a ‘peer review’ of the report. Once again this was a departure from the AGM resolution and it is not clear what authority the Executive Committee had to take that course. The Executive Committee asked AWT and Indesco to ‘give us your thoughts’ on whether the opinions of the arbitrator were ‘justifiably based’ on observations and calculations.
On 14 September 2016, the chair of the Executive Committee, who by that stage was Mr John Mihailaros, wrote to the members of the Executive Committee. He still believed that the noise was ‘within tolerable parameters’ based on the SLR report and advocated ‘a solution that would not clear out the Treasury’.
On 16 September 2016, upon learning that the Executive Committee was now pursuing a peer review process, the plaintiff instructed her solicitors to commence these proceedings.
Also in September 2016, the ‘peer review’ by AWT confirmed that the dowels should be grouted, but disagreed with installing insulation on the roof, or constructing a metal roof over the concrete slab.
In October 2016, ASD provided an action plan. It recommended, in summary:
(a) Grouting the panels in the affected units that have not been grouted. If the noise problem persists, instrument all exposed wall junctions to quantify movement in each.
(b) Detail the three rectification options for pricing by a quantity surveyor.
(c) Make a decision on which rectification option is to be pursued.
(d) Proceed with the selected rectification option.
Between October and December 2016, no substantive further action was taken by the Executive Committee, although this may have been due to awaiting the upcoming AGM. In the meantime, on 11 November 2016, the plaintiff filed the statement of claim commencing these proceedings.
The third and fourth years after the noise issue was identified
In December 2016, a General Meeting was held and the defendant resolved (again) to approve the grouting works, this time with a cost of $23,641 specified.
A further couple of months passed with no activity towards abating the noise.
On 7 March 2017, Alison Wright (another owner in the Nishi Residential Building) wrote to the Managing Agent. Her email included the following:
I think the affected parties deserve an official explanation as to what is happening, what legal measures are taking place and the timeline for the work to be done.
Meanwhile the noise issue has increased in my apartment. We went through an entire year of meetings and still nothing which is most disappointing.
Throughout 2017, the defendant acted on advice to wait until it received a report from a structural engineering expert briefed in the litigation (Mr Appelyard). The defendant also identified an issue as to the length of the dowels (which had been identified by ASD months earlier). It believed that issue required further investigation before carrying out the grouting works.
In March 2018, Mr Wilson provided a supplementary report and action plan.
Between March and August 2018, nothing occurred to progress a remedy.
On 14 August 2018, a General Meeting was held and the defendant resolved to obtain quotations for a protected membrane roof and a metal roof, with both options to include from a qualified quantitative surveyor a lifecycle plan with respect to maintenance.
As at 22 October 2018, a week before the hearing of these proceedings commenced, the defendant was still in the process of obtaining quotes for the remediation options and was yet to approve either course.
2.3 Was the defendant’s conduct in attempting to remedy the problem reasonable conduct to abate the nuisance without undue delay?
Applicable legal principles
Starting with what constitutes ‘reasonable conduct’, in Goldman v Hargrave [1967] AC 645 (Goldman v Hargrave), the Privy Council referred to the scope of the duty of occupiers to remove or reduce hazards to their neighbours. Part of the extract relied upon by the defendant is as follows (at 662-663) (emphasis added):
…the matter cannot be left there without some definition of the scope of his duty. How far does it go? What is the standard of the effort required? What is the position as regards expenditure? It is not enough to say merely that these must be “reasonable”, since what is reasonable to one man may be very unreasonable, and indeed ruinous, to another: the law must take account of the fact that the occupier on whom the duty is case has, ex hypothesi, had this hazard thrust upon him through no seeking or fault of his own. His interest, and his resources, whether physical or material, may be of a very modest character either in relation to the magnitude of the hazard, or as compared with those of his threatened neighbour. A rule which required of him in such unsought circumstances in his neighbour’s interest a physical effort of which he is not capable, or an excessive expenditure of money, would be unenforceable or unjust. …the standard ought to be to require of the occupier what it is reasonable to expect of him in the individual circumstances. Thus, less must be expected of the infirm than the able-bodied; the owner of a small property where a hazard arises which threatens a neighbour with substantial interests should not have to do so much as one with larger interests of his own at stake and greater resources to protect them: if the small owner does what he can and promptly calls on his neighbour to provide additional resources, he may be held to have done his duty: he should not be liable unless it is clearly proved that he could, and reasonably in his individual circumstances, should have done more.
The applicable principle is similarly set out in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1979] EWCA Civ 5; [1980] QB 485 (Leakey) Megaw LJ said at 524:
The defendant’s duty is to do that which it reasonable for him to do. The criteria of reasonableness include, in respect of a duty of this nature, the factor of what the particular man – not the average man – can be expected to do, having regard amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger to his means.
…where the expenditure of money is required, the defendant’s capacity to find the money is relevant. But this can only be in the way of a broad and not detailed assessment; and, in arriving at a judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the neighbour’s capacity to protect himself from damage, whether by way of some form of barrier on his own land or by way of providing funds for expenditure on agreed works on the land of the defendant.
The above passage in Leakey has been applied in Australia, see Blackburn & Anor v Logos Research Institute Pty Ltd [2015] SADC 175 at [60], Owners Strata Plan 4085 v Mallone [2006] NSWSC 1381 (Mallone) at [29] per Young CJ in Eq. and Yared v Glenhurst Gardens Pty Ltd [2002] NSWSC 11; (2002) 10 BPR 19,485 at [99]-[105] per Austin J.
Ward J (as her Honour then was) in Quick v Alpine Nurseries [2010] NSWSC 1248 relied on Goldman v Hargrave and Leakey in stating at [151] that the duty of care is not that of the reasonable man in negligence, but rather it is measured by the reasonable capabilities and circumstances of the defendant.
The defendant directed some submissions to whose onus it was to establish reasonableness, or lack thereof. However, the argument conflated the principles applicable to public and private nuisance. It also conflated cases where there is physical damage to land, and cases where the type of nuisance was the unreasonable interference with a neighbour’s enjoyment of her property. In the present case, negligence is not required to be established before the defendant will be held responsible for its conduct. Decisions concerning onus in negligence with regard to public authorities are, in my view, inapt here (such as those relied upon by the defendant, namely Swain v Waverley Municipal Council [2005] HCA 4 220 CLR 517 at [100]-[102]; and Becker at [136]).
As I understand the position, because one of the elements of the cause of action of the kind in this case is a failure to take reasonable steps to remedy the nuisance (thereby adopting the nuisance), the onus with regard to a lack of reasonable steps must start with the plaintiff. However, where the defendant asserts that in its particular circumstances its conduct was reasonable, that gives rise to at least an evidentiary onus on the defendant to support that defence. That includes an onus upon the defendant to show that it cannot, by reasonable steps, abate the nuisance, if that is its defence.
If that onus is not discharged, the appropriate order is an order that the party committing the nuisance should abate the nuisance: Long v Southwark LBC [2002] EWCA Civ 403 at [65]. That was a case dealing with public nuisance but the resulting order is the same.
The thoroughness with which each party approached the case means that this was not a case where, in my view, the onus (legal or evidentiary), was critical. In part, this was because the documentary evidence was complete and the necessary witnesses who could explain what action was taken and why were called and made available for cross-examination. The form of orders I have ultimately determined to make has also removed the need to make findings about matters which might have called for more specificity in the evidence by one party or the other.
The parties’ competing positions
The plaintiff submits that no building works had been undertaken to remedy the nuisance and no financial provision for possible remediation works had been made or considered, either by the Executive Committee or at a general meeting.
The defendant pleaded that it took reasonable steps in circumstances where it had limited ability to identify the noise and limited financial capacity to undertake investigative work and/or building work. It sought a response from the developer and was constrained by the formal processes under the Unit Titles (Management)Act 2011 (ACT) (hereafter, the Act) by which an owners corporation prepares and seeks approval for a budget and sinking fund plan, and approves resolutions, budgets and expenditure at the AGM.
In closing submissions, the defendant submitted that implementing either of the two remediation options proposed was not practicable having regard to the financial resources of the defendant, the unknown cost over an indefinite period, and the unknown inconvenience to the residents of the Nishi Residential Building. Moreover, the remediation options were only at a conceptual stage and may face difficulties such as maximum height restraints for buildings subject to the National Capital Plan.
Consideration
The plaintiff’s submission is correct as at the date of the filing of the statement of claim. Further, save for subsequently resolving to carry out grouting works of approximately $23,000 in December 2016, a resolution that was yet to be implemented as at the date of hearing, the defendant did not take any substantial, material or effective steps towards remedying the nuisance in almost four years.
The picture that emerges from setting out what the Executive Committee actually did in the four years that it knew about the noise issue is one of prevarication and general reluctance to commit to first finding any solution and then paying for it. The Executive Committee met almost monthly and discussed the noise issue every time. A lot of emails were sent and experts consulted, some more than once.
Late in 2018, the defendant was moving towards doing something that would result in the reduction of the noise, as it was obtaining quotations for remediation works, but by the time of the hearing, it had still yet to act, either by implementing earlier resolutions or by first resolving to undertake substantial remedial works and then implementing that resolution. The defendant, through the Executive Committee, may have felt that it was dealing with the problem, but it was not actually taking any step to abate the noise. Indeed, it is apparent that the defendant lacked any appreciation of any duty to directly act to remedy the noise. The question, then, is whether doing what amounted to nothing to abate the noise was reasonable in the defendant’s circumstances.
The answer to that question must be no. At the outset, I accept that:
(a) knowing the underlying cause of the nuisance was relevant to working out a solution to abate the nuisance;
(b) some initial engagement with third parties was a reasonable step to take;
(c) the defendant wanted to be cautious before spending large sums of money; and
(d) the duty on the defendant was not to fix the noise at any cost (that is, to take all necessary steps), but to do only what was reasonable to abate the nuisance.
The defendant asserts it had statutory obligations to all owners and the scope of any duty it may have in nuisance should be informed by the existence of those obligations. The prudent expenditure of funds on rectification works forms part of those responsibilities and that is why I have accepted that some degree of caution and consultation was reasonable. However, there is a limit, and an intention not to spend money needlessly can morph into a reluctance to spend money at all. Most importantly, when only a couple of apartments are affected by an issue, the defendant’s obligations to all unit owners does not mean that it has the right to do nothing. If the roof were leaking, there would be no question that the defendant should fix the roof so that the top apartments did not have water leaking through their ceilings. As it transpires, the roof is getting too hot, or more particularly heating and cooling at a different rate from the walls and the slab and that is affecting some of the apartments in the top levels quite significantly. In such a situation, the obligation on the defendant is the same. It cannot fail to address a significant issue which is inescapably expensive to fix by relying on an argument that it has a responsibility to all unit owners.
There are four key difficulties with the defendant’s conduct. The first is the defendant’s failure to accept that the noise level was sufficient to constitute a nuisance. Indeed, notwithstanding all the advice it had received and evidence served by the plaintiff, the defendant went to trial on a pleading that did not admit that there was any noise problem that was serious enough to constitute a nuisance.
The defendant (through the Executive Committee) appeared to rely heavily on the idea that because there was no applicable standard in the Territory that could be said to have been breached with regard to the noise, it was something to be tolerated by those in the affected apartments. However, as the SLR Report expressly stated, the problem fell outside the regulatory framework and the standards for noise, and it omitted any consideration of what might be an acceptable ‘standard’ in terms of sleep disturbance. That is hardly surprising, as the cause of the noise was a structural issue. It is plainly unnecessary for the regulatory framework to include a standard that developments should be designed and constructed so that the thermal load on the building is properly accommodated within the building when it is constructed. It is no answer to say that the building was designed or constructed according to a particular standard or regulatory framework when part of the common property is inflicting an injury to the plaintiff’s property.
The defendant also had initial legal advice which was to the effect that although the defendant should treat the issue as nuisance until it had been ruled out, on their reading of the SLR Report, no nuisance arose. Unfortunately, as stated above, the legal advice was given without the benefit of any report other than the SLR Report, which had been prepared for the developer and was directed to the wrong question as to compliance with existing noise standards. The issue of nuisance was not revisited in subsequent legal advice. None of the Executive Committee ever attempted to hear the noise for themselves (although the plaintiff does refer in email correspondence to Mr Efkarpidis having accessed her apartment). Had they done so, the discomfort that the noise was visiting upon those in the apartments affected would have been obvious, as would the necessity to act.
That coloured the defendant’s attitude towards the whole process of remediation. The defendant viewed its response as one where it was dealing with a defect, but not a nuisance. It was choosing to assist the owners affected, rather than being legally obliged to assist them because the nuisance was emanating from common property. Members of the Executive Committee referred to the plaintiff in emails as ‘De Grouchy’, and her request for action to abate the noise as a ‘charade’, rather than appreciating that the noise was of such interference that the plaintiff was legally entitled to an attempt at a remedy in a reasonable time frame.
The second unsatisfactory aspect about the defendant’s conduct was that for at least a year, the defendant pursued a course of attempting to have third parties such as the developer or the builder take responsibility for any remediation works. This included taking legal advice about whether the Owners Corporation taking remedial action would prevent recovery against such third parties, and whether the defendant could pursue those parties in negligence.
It is readily apparent from Mr Smith’s two emails to Mr Hinchley, the content of which has been set out with particular words emphasised above at [100] and [101], that the defendant did not view the issue as its responsibility to fix. What the defendant wanted was for someone else to find a remedy and for that person to pay for it – either the builder or the developer.
The defendant’s approach was understandable, but it shows a fundamental misunderstanding of the duty on the defendant once it was seized of the noise complaint. That duty was to take responsibility for the issue, investigate the appropriate course of action to remedy the nuisance, and then call upon the owners comprised in the Owners Corporation to fund the remedy whether it be through raising the levies, raising a special levy or borrowing money. Attempting to shift the cost to a third party or ensuring that it was not about to foreclose such an option was a logical and reasonable thing to do, but that should have been something occurring in tandem with the defendant taking positive action towards reducing or eliminating the noise itself.
That leads to the third problem. The defendant, by its Executive Committee, failed to implement the resolutions that were passed at AGMs, each of which would have resulted in some progress towards abating the noise. The plaintiff had to threaten litigation in order for the defendant to focus on finding a solution to remedy the nuisance itself. This resulted in the defendant following an arbitration process, from which it effectively withdrew once it saw the recommendations of the arbitrator. The defendant circled back to seeking advice from the engineer engaged by the developer as to whether what the arbitrator had found was justifiable.
As stated above, the first thing the Executive Committee did, when the plaintiff raised concerns about the noise, was refer the noise issue to the developer.
On 21 November 2014, SLR provided a draft report to the developer. It included the following passage (emphasis added):
Noise levels for each stick slip event are clearly distinguishable within the noise measurement results and clearly audible within the apartment. A typical noise event produced a maximum noise level in the order of 10dB above the prevailing ambient maximum noise levels. This level is likely to result in sleep disturbance (reference: World Health Organisation) particularly given the frequency of occurrence.
This draft report also contained a Recommendations section which included the following:
The measurement results and aural assessment of the noise within the stairwells and adjacent Level 15/16 apartments clearly indicate a structural stick slip mechanism that results in an audible impulsive noise within the Level 15/16 apartments (particularly those located directly adjacent to the stairwells). The noises sound louder within the apartments due to the presence of the light weight fit outs (ie light weight relative to the bare concrete within the stairwells).
The methods available …for consideration fall into two categories:
3.1 Control of the Roof Slab Thermal Expansion
Concrete has very low thermal resistance (ie is a very good conductor of heat). Typical R-values for a concrete slab similar to that used on the roof of the residential building vary between 1 and 1.5 By comparison, R values in the range of 4-10 are achievable for commonly used thermal insulation materials such as polyurethane foam …
Therefore, by introducing a well-designed insulation system to the roof slab it would be possible to stabilise the thermal uptake and release of the roof slab, thereby minimising the temperature change (in rate of change and absolute terms) and associated expansion. This temperature control would allow for the resulting internal displacements and associated noise events to be minimised.
An external roof insulation system would require some design and specification in terms of understanding the results achievable how a particular system could be optimised. This may require some thermal modelling and or testing. It is likely that the entire surface of the residential roof slab would require treatment. Numerous systems are available and some modular systems have the ability to incorporate photovoltaic cells, this may be advantageous given the sustainable intent of the building construction.
The SLR draft report then gave an example of such a system.
That option was similar to an option ultimately suggested by the defendant’s engineering expert, Mr Appleyard, when the matter came before the Court.
There followed a flurry of emails in November 2014 between SLR, Mr Tingcombe, the structural engineer from AWT involved in the original design of the Nishi Residential Building, and Mr Zdravko Tokic, who was the principal representative of Nishi Residential Building Pty Limited.
The emails include comments from SLR such as:
The mechanism causing the impulsive noise is definitely driven by differential thermal expansion between the continuous roof slab and lower levels.
…it is very clear that the vibration and noise impulses recorded are time coincident, i.e. the strain energy built up in the pre-cast panels builds up over a period of say 5 minutes, the strain energy finally overcomes static friction forces and energy is released (a miniature version of tectonic plate movement where energy is similarly released as tremors or quakes), the impulse produced is a source of structure-borne noise which is transmitted as a vibration pulse through the structure re-radiates as noise, this also explains the apparent subjective perception that the impulse seems to come from everywhere.
On 25 November 2014, Mr Tokic wrote to SLR, and included Mr Efkarpidis in the email. He said:
Steve,
I don’t see the point in you talking to AWT at this stage.
I think there has been some miscommunication or misunderstanding as to your brief and what we need to do. The first step is to measure the noise level. What we then need to know is as follows…
Mr Tokic then set out a series of dot points, asking SLR to state:
(a) whether the building complied with the Building Code of Australia (BCA);
(b) any noise standards in relation to noise levels in the ACT;
(c) what noise levels are measured in; and
(d) that the conclusion should identify any breaches of either the BCA or the noise legislation.
SLR was clearly concerned about this. An internal email between the engineer and acoustic consultant at SLR stated (emphasis added):
This is taking an interesting turn. Our offer of services does not align with Zdravko’s email below…Our brief was to work out the cause of the noise.
Of course we can assess the noise levels against any number of guidelines etc but I am sure that the result would be that it is not ok. …
On 11 December 2014, a further draft was provided, this time to Clayton Utz, who had by this stage separately instructed SLR.
These draft reports were not the report provided to the Executive Committee. The developer’s solicitor asked SLR to amend their report so that it did not contain either the passage extracted above about sleep disturbance or the critical recommendation of SLR for fixing the problem. The solicitor even asked SLR to remove the record stating which version of the report it was, stating that this was for SLR’s internal purposes only. The result was that the amended report appeared to the reader as the first and only version of the report.
The amended report was the SLR Report provided to the Executive Committee in December 2014.
The email correspondence from the author of the report states in part in response to the developer’s solicitor:
I’ve removed those points on sleep disturbance assessment, as requested.
We must reiterate that almost any professional acoustician when questioned on this would make the (logical and reasonable) step to a sleep disturbance assessment very quickly. By that I mean it would be inadvisable to rely on this report alone, as it is natural to look at this situation in terms of the risk of sleep disturbance. It just happens that this situation is not quite covered by the ACT’s regulatory framework.
There is no doubt that these requested amendments were obstructive and delayed the defendant solving the problem. The developer had been given a report by a qualified consultant that both supported the plaintiff’s complaint, and included a solution years before the entire litigation commenced – a solution similar to that which the defendant’s own expert ultimately recommended. Yet that information was withheld from the Executive Committee. Instead, it was given a report that stated the building complied with the BCA and other regulatory frameworks that were not applicable to the issue.
Mr Efkarpidis was cross-examined about his involvement in the production of the SLR report, and in particular, whether he was aware of the earlier report and the fact that it had been ‘sanitised’. His answer was that he could not recall and that he ‘did not drive the process’. He was given a further opportunity to tell the Court whether he was aware that the SLR report had been sanitised and he repeated, more forcefully, that he did not drive the process. His evidence in that regard was both non-responsive and evasive.
The evidence discloses the following:
(a) Mr Efkarpidis was the sole director of Nishi Residential Building Pty Ltd, on whose behalf Clayton Utz engaged SLR.
(b) Mr Efkarpidis asked SLR to update their quote to prepare the report by changing an address. He also queried SLR’s budget to prepare the report.
(c) Mr Tokic included Mr Efkarpidis in numerous emails regarding the noise issue from 21 October 2014.
(d) Mr Smith, the managing agent wrote directly to Mr Efkarpidis and Mr Tokic on 19 and 20 November 2014 (the day before the draft report was sent) to ask how best to resolve the issue and for an update on when the SLR report would be received.
(e) When SLR produced its draft report, it was sent to Mr Tokic. Mr Tokic then included Mr Efkarpidis in his email on 25 November 2014, requesting SLR to amend the report and just confine it to whether there was any breach of any building standards under the BCA or other noise regulations.
(f) On 25 November, Mr Efkarpidis was included in the email response from SLR to Mr Tokic, where it was expressly communicated that including a section in the report regarding compliance with certain standards was not helpful as the standards named by Mr Tokic were inapplicable for the type of noise in question.
(g) On 25 November 2014, Mr Efkarpidis wrote to Mr Smith and drafted a response to the plaintiff’s husband regarding some questions that were asked. In the course of that email, Mr Efkarpidis said ‘It is true that we have done some investigations but we have not had a response yet’.
(h) Mr Efkarpidis was also involved over 25/26 November 2014 in arranging for his father, Mr Tim Efkarpidis to discuss the noise issues. He was included in emails between his father and Mr Smith.
(i) On 10 December 2014, Mr Efkarpidis communicated directly to the Executive Committee in relation to the awaited SLR report that ‘we have yet to receive this report’.
(j) On 22 December 2014, Clayton Utz sent the SLR Report to Mr Efkarpidis, which to my mind demonstrates that Mr Efkarpidis was the person instructing Clayton Utz. It was Mr Efkarpidis who then provided the SLR Report to Mr Smith and Chris Miller (the chair of the Executive Committee at the time).
In circumstances where Mr Efkarpidis was the sole director of the company who engaged SLR, where he was included in emails at the critical time passing between Mr Tokic and SLR as to the contents of the report, where he was the person responding to Mr Smith as to where the progress of SLR’s investigations and where the report was up to, and where he provided the final version of the report to the Executive Committee, it is clear that Mr Efkarpidis was involved in every part of the process. I have concluded that, notwithstanding the inability of Mr Efkarpidis to recall in the witness box, he was aware of the contents of the draft SLR Report which included the impact of the noise on sleep disruption and a potential solution.
That means that a member of the Executive Committee had knowledge of both the cause of the noise problem, that the noise was a problem sufficient to require a remedy, and that there was a potential solution for years before the litigation was commenced.
As I have stated above, the Executive Committee’s conduct and that of its advisers was influenced by the SLR Report. In March 2016, the Executive Committee obtained legal advice. The purpose of the legal advice was to see whether the defendant was able to seek compensation from the developer or builder in the event that it undertook works to resolve the noise issue. The advice contained a heading titled “Strategy – [plaintiff’s apartment]”. The advice cited the SLR Report and stated that it was not for the lawyers to go behind that report as they lacked the expertise. Although the advice expressly did not address nuisance, it concluded:
... there is no defect to be repaired as the impulsive noise is within the applicable standards …
An executive summary of the legal advice also included the following:
Assuming SLR are correct in their view that the impulsive noise defect does not exceed any applicable standards, the best approach to take is to do nothing in relation to this defect.
Had the SLR Report in its original form been provided to the lawyers advising the Executive Committee, the recommendation may well have been different, and the entire litigation might have been avoided.
Whether the conduct of individual members of the Executive Committee ought be taken as conduct of the defendant is another thing. Mr Efkarpidis did not consider that he was in a position of a conflict of interest. I will make no finding about that, as he is not a party, has not been represented in these proceedings and it is not an essential finding to make in considering whether aggravated damages should be awarded. The Court is concerned only with whether the defendant acted in a manner that warrants aggravated damages. Similarly, despite the conflicts of interest being raised against other members of the Executive Committee in the plaintiff’s pleading, it is also not appropriate to make those findings.
The Executive Committee as a whole, acting on behalf of the defendant, did not engage SLR and were not aware of the amendments SLR were requested to make to their report. I do not think I can impute the conduct of one member to the defendant in deciding whether the tortious conduct was aggravated.
There is, however, a further troubling aspect about the legal advice. Two versions of the advice were prepared and the above extract was omitted from the version of the advice that was given to the plaintiff. The conduct of the Executive Committee in that regard was less than transparent.
The plaintiff was alerted to the discrepancy between what she had been given and the true version of the advice from the AGM papers which included an extract about an Impulse Noise Defect that did not appear in the version of the advice given to the plaintiff. When the plaintiff queried the discrepancy, she was met with an implausible explanation from Mr Smith, who had been directed by the Executive Committee to give the explanation to the plaintiff.
The Executive Committee’s conduct with regard to concealing legal advice obtained from the plaintiff was unsatisfactory. The plaintiff was an owner. She is part of the Owners Corporation and at the time the advice was given, litigation had not commenced. In my view, she was entitled to the legal advice given to the Owners Corporation. However, I have ultimately decided that the defendant’s conduct was not so egregious as to warrant the awarding of aggravated damages on that basis alone.
As to other aspects of the defendant’s conduct, such as requiring the plaintiff to prove the existence of a nuisance and failing to substantively act for four years, these matters are part of the findings above which founded the conclusion that the defendant’s conduct was unreasonable so as to make the defendant liable in nuisance.
To my mind, there would need to be something more to warrant awarding the plaintiff aggravated damages, even though the delay was substantial and the failure to accept there was a nuisance was unfounded. At the time, the defendant’s legal advice was that it was appropriate not to act. Further, I have not found that the defendant, through the Executive Committee, acted maliciously or in bad faith. Finally, it must be remembered that legal costs are also compensatory - the defendant will of course have to pay the costs of requiring the plaintiff to prove matters on which it then succeeds, such as the additional expenses of an acoustic expert.
Overall, I am not satisfied that the conduct of the defendant was so high handed as to warrant aggravated damages. The lack of respect for the plaintiff as an owner with equal rights to those on the Executive Committee of the defendant was unsatisfactory, but not to the point where the Court would find it aggravated the damages for the reasons given above.
3.3 Is the plaintiff entitled to injunctive relief?
In the case of a trespass to a proprietary right of a continuing nature, the Court will generally interfere by injunction: Reliance Finance Corporation Pty Ltd v Orwin Walshe & Ward [1964] 5 NSWR 970 at 976 per McLellan CJ in Eq.
Unless the hardship to the defendant entailed by a specific remedy is out of all proportion to the relief thereby assured to the plaintiff, the plaintiff should not be compelled to exchange or suffer continuing invasion of its proprietary right for a money payment at the behest of the wrongdoer: Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd [2007] VSCA 311, cited in Coles Group Property Developments Limited v Stankovic [2016] NSWSC 852 at [56].
It may be appropriate to award damages in substitution for an injunction where:
(a) the injury is small;
(b) it is capable of being estimated in money;
(c) it may be compensated by a small monetary payment; and
(d) the grant of an injunction would be oppressive to the defendant.
See Lord v McMahon [2015] NSWSC 1619 at [170] and the cases there-cited.
Applying this criteria, the plaintiff’s injury is not small. She has been driven out of her home by the ongoing nuisance. In this regard, the plaintiff drew upon the words of Veale J. in Halsey v Esso Petroleum Co. Ltd [1961] 1 WLR 683 at 696:
After all, one of the main objects of living in a house or flat is to have a room with a bed in it where one can sleep at night. Night is the time when the ordinary [woman] takes [her] rest.
The injury is not capable of being estimated in money and would not be adequately compensated by a small monetary payment. Moreover, the grant of an injunction will not be oppressive to the defendant, a statutory corporation, as the defendant has the ability to raise a large amount of money over a period of time to pay for these works which affect a number of unit owners, from the owners of 235 apartments or alternatively through finance.
Accordingly, I am satisfied that it is appropriate to grant injunctive relief.
What is the appropriate form of injunctive relief?
The parties were at odds over whether, if injunctive relief were considered appropriate, the Court would order a prohibitive or a mandatory injunction. The defendant submitted that the Court could not simply order an injunction restraining the nuisance. An order would also have to be made specifying how the nuisance was to be abated.
The plaintiff submits that these issues can be addressed by the form of the orders made. The precise form of any injunctive relief can be couched in terms which takes account of the time required to investigate and implement the available remediation options.
The flexibility demonstrated in cases like Mallone show that injunctions and orders can be framed in such a way as to address the nuisance without leading to any unintended consequences for any party. In the easement case of 117 York St Pty Ltd v Proprietors of Strata Plan No. 16123 (1998) NSWLR 504 Hodgson CJ in Eq. (as his Honour then was) imposed an easement but stayed its operation pending approval being sought from Sydney City Council to undertake certain works (which were essential to the need or operation of the easement). The case demonstrates a degree of flexibility in accommodating any potential conflict between the effect of Court orders and the capacity to comply with them if those two points in time are not identical. The plaintiff further submitted that this is a common issue within the sphere of injunctive relief. It is hardly an impediment. The plaintiff accepted that a certain amount of time will need to be taken to implement a remediation solution whether that takes six or 12 months.
I understand and accept the submission that a party must know precisely what is required so as to comply with an order (and so that in the event of a failure to comply, any charge of contempt is clear on the face of the order).
However, I disagree that the only way to achieve that is to specify a method of abatement now. There are cases where the Court has permitted the defendant sufficient time to design and implement a solution. Examples include Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31; Baker Superannuation Fund Pty Ltd v Aurizon Operations Limited & Anor [2017] QSC 26 and Mallone – in each case, the Court granted the injunction requiring the defendant to abate the particular nuisance, but stayed its operation for a certain period or allowed the parties to bring in short minutes detailing the regime for the performance of the injunction.
The plaintiff has consistently submitted that although she presented a particular engineering solution which she believes would abate the nuisance, she was not concerned about the form of the solution, as long as it was effective.
The experts were of one accord in the witness box that they would be able to design an effective solution for planning approval in a timely fashion, whether that be the metal roof that has already been approved years earlier, or an insulated protective membrane. Given the plaintiff’s position and that other owners in the Nishi Residential Building will be jointly funding the solution through special levies or otherwise, the defendant should be given the opportunity to control the solution. I will allow 12 months for it to be implemented.
As to the form of words of the injunction, there is authority to the effect that an injunction in general terms will suffice, as excessively narrow formalism in framing the injunction may wreak its own injustice: Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; 210 CLR 181 at 220. See also the detailed discussion of the form of an injunction for nuisance in Bankstown City Council v Alamdo Holdings Pty Ltd [2004] NSWCA 325 at [89]-[106].
An injunction in general terms may also be qualified by the words ‘so as to constitute a nuisance’, with a view to importing a degree of reasonableness – it is not envisaged that every creak and crack will be prevented by the adoption of either of the options presented by the experts.
There is nothing to prevent the parties obtaining further certainty by specifying what constitutes compliances and then agreeing to a discharge of the injunction upon implementation of a detailed scheme, such as what occurred in York Bros (Trading) Pty Ltd v Commissioner for Main Roads [1983] 1 NSWLR 391 at 412, referred to by the NSW Court of Appeal as part of the detailed discussion in Bankstown v Alamdo. A further order can be made in Chambers if the parties get to a consent position once the experts have crafted the appropriate solution and it has received planning approval.
Conclusion
The above findings are sufficient to dispose of the litigation. Not all the evidence given by the various witnesses has been referred to; nor has the detail of the competing factual findings and various legal arguments been set out. I have taken that course for efficiency in these already lengthy reasons. The case was heard over eight days, including a view of the apartment and the relevant structural features of the Nishi Residential Building. 16 witnesses gave evidence and most were cross-examined. The parties have collectively tendered thousands of pages of evidence and the Court has been provided with hundreds of pages of submissions, including marked up chronologies, authorities and marked up transcript.
Although it was neither necessary nor desirable to record the detail of the arguments and evidence led, the Court was greatly assisted by the diligence of the legal representatives in presenting the case and the thoroughness with which the parties dealt with the facts and the law. Regrettably, the judgment has taken some time to deliver in part due to intervening maternity leave and in part as a result of attempting to do justice to the arguments of the parties and the volume of material – I have read and had regard to the entirety of what was before the Court (most of which was available electronically) before making the factual and legal findings set out in these reasons. This includes the numerous authorities cited and the transcript references the parties relied upon, along with my detailed notes and observations of each witness, that I recorded as the hearing progressed.
Costs
The result is that the plaintiff has succeeded and I will order that the defendant pay her costs, on the basis that costs follow the event. However, there may be matters outside the knowledge of the Court that bear upon the question of costs. If either party wishes to seek a variation in that costs order, they are to notify my Chambers within seven days.
Interest
The plaintiff also seeks interest on the damages claimed. There is no reason why the Court would not also award interest on the sum.
The cause of action is ongoing and the losses in respect of which damages were claimed were suffered over various dates. As a matter of convenience, I will award interest from the date of the filing of the claim.
Orders
For the above reasons, I make the following orders:
(1) An injunction is granted restraining the defendant from continuing to permit the structure-borne noise arising in [the plaintiff’s apartment] (the Apartment) so as to cause a nuisance to the plaintiff.
(2) The defendant is to take such measures as may be necessary to preclude the noise occurring in the Apartment so as to cause a nuisance to the plaintiff.
(3) The injunction set out in Orders (1) and (2) above is stayed for 12 months pending the implementation of a system by the defendant which effectively reduces the thermal load on the roof of the said building.
(4) Liberty to the parties to apply on 3 days’ notice in writing to the other in relation to the operation of Orders (1) and (2).
(5) The defendant is to pay the plaintiff damages in the sum of $20,651.75 plus interest in the sum of $3,678.01.
(6) The defendant is to pay the plaintiff’s costs.
(7) The defendant is not to require the plaintiff to contribute towards the payment of the sums stipulated in Orders (5) and (6).
(8) Order (6) is stayed for 7 days and if either party applies to vary the order within that time, will be stayed pending further order.
| I certify that the preceding two hundred and thirty-nine [239] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
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