Feletti v Eales; Eales v Feletti

[2018] NSWCATCD 66

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

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

Hearing dates:

24 August 2018

Date of orders:

02 November 2018

Decision date:

02 November 2018

Jurisdiction:

Consumer and Commercial Division

Before:

D A C Robertson, Senior Member

Decision:

Proceedings SC 18/21384
1. Application dismissed.

Proceedings SC 18/34455
1. Application dismissed.

Catchwords:

LAND LAW – strata title - by-laws – disturbing the peaceful occupation of another lot – objective test – breach not established – whether landlord under obligation to ensure tenants comply with by-laws – whether Tribunal has jurisdiction to award damages for breach of by-laws – whether Tribunal has jurisdiction to restrain harassment by one lot owner of tenants of another lot owner

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)
Strata Schemes Management Act 1996
Strata Schemes Management Act 2015 (NSW)

Cases Cited:

Felcher v The Owners Strata Plan 2738 [2017] NSWCATAP 219
Gao v Agosti [2009] NSWCTTT 175
Nowak v Pellicciotti [2018] NSWCATAP 245
Nowak v Pellicciotti [2018] NSWCATCD 9
The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270
Walsh v The Owners Strata Plan No 10349 [2017] NSWCATAP 230

Category:

Principal judgment

Parties:

SC 18/21384 Proceedings:
Marie Feletti (Applicant)
Jonathon Eales, The Owners - Strata Plan No 2223, Lauren Rohrbeck and Shane Burgess (Respondents)

  SC 18/34455 Proceedings:
Jonathon Eales (Applicant)
Marie Feletti (Respondent)

Representation:

A Maroya (Counsel) (Ms Feletti)
K Christou (Managing Agent) (Mr Eales)
J Crittenden (Solicitor) (Owners Corporation)

File Number(s):

SC 18/21384 and SC 18/34455

Publication restriction:

Nil

reasons for decision

1. The two applications before me concern Strata Plan 2223, which is a block of apartments in Vaucluse.

2. By the first application, Ms Feletti, the owner and occupier of a unit in the Strata Plan, sought orders against: Mr Eales, the owner of the unit directly above hers; the Owners Corporation of Strata Plan 2223; and Ms Lauren Rohrbeck and Mr Shane Burgess, who were at the time of commencement of the application tenants of Mr Eales, concerning what Ms Feletti complains is excessive noise transmission from Mr Eales’ unit.

3. By the time of the hearing, Ms Rohrbeck and Mr Burgess had vacated the premises and, by consent of all parties, they were removed from the proceedings.

4. By her application Ms Feletti seeks orders:

1. An order, pursuant to ss 232 and 241 of the Strata Schemes Management Act 2015 (NSW), requiring the first respondent [Mr Eales] (and any tenants and/or other occupiers of [Mr Eales’ unit]) to keep the floor space of [that unit] covered or otherwise treated to an extent sufficient to prevent the transmission of noise that is likely to disturb the applicant’s peaceful enjoyment of [Ms Feletti’s unit], in accordance with by-law 14 (‘Floor Coverings’) and by-law 1 (‘Noise’);

2. An order, pursuant to ss 232 and 241 of the Strata Schemes Management Act 2015 (NSW), requiring the second respondent [the Owners Corporation] to ensure that the common property between [Ms Feletti’s unit] and [Mr Eales’ unit] is…