Hogan v Stebnicki

[2022] NSWCATCD 63

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hogan v Stebnicki [2022] NSWCATCD 63

Hearing dates:

20 January 2022

Date of orders:

01 June 2022

Decision date:

01 June 2022

Jurisdiction:

Consumer and Commercial Division

Before:

P French, Senior Member

Decision:

(1) The application is dismissed.

Catchwords:

LAND LAW – Strata title – By-laws – Noise – Floor coverings – Interference with the peaceful enjoyment of the owner or occupier of another lot – Objective test

Legislation Cited:

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

Briginshaw v Briginshaw [1938] 60 CLR 336

Felcher v The Owners Strata Plan 2738 [2017] NSWCATAP 219

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

Gao v Agosti [2009] NSWCTTT 175

Nowak v Pellicciotti [2018] NSWCATAP 245

Texts Cited:

Guideline for Apartment and Townhouse Acoustic Rating Version 1.0 (June 2017)

Category:

Principal judgment

Parties:

Patricia Hogan (First Applicant)
Brendan Hogan (Second Applicant)
Mark Stebnicki (First Respondent)
Jessica Stebnicki (Second Respondent)

Representation:

Applicants (Self-represented)
Respondents (Self-represented)

File Number(s):

SC 21/35010

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. By this application the applicant Lot 2 Lot Owners (Lot 2 Lot Owners) apply for an order under s 230(1) of the Strata Schemes Management Act 2015 (SSM Act) that would give effect to an agreement or arrangement arising out of a mediation session they participated in with the respondent Lot 3 Lot Owners (Lot 3 Lot Owners). Specifically, the Lot 2 Lot Owners seek an order that would require the Lot 3 Lot Owners to comply with By-Laws 1 and 14 of the Strata Plan (which relate to noise and noise transmission through floors) by installing carpets and underlay on the floor surfaces of the living areas and bedrooms of Lot 3. This application was made to the Tribunal on 16 August 2021 (the application).

2. For the reasons set out in greater detail following, the application has been dismissed. There has been no failure by the Lot 3 Lot Owners to comply with the mediation agreement dated 11 May 2021 that would warrant such an order being made. Nor have the Lot 2 Lot Owners established on an objective basis that noise transmission from Lot 3 to Lot 2 through the floor of Lot 3 is so excessive as to constitute noise nuisance.

Procedural history

3. The application was first listed before the Tribunal, differently constituted, for a Directions Hearing by telephone on 13 October 2021 in accordance with the Tribunal’s COVID-19 Revised Hearing Procedure. Both Lot 2 Lot Owners attended that listing of the application. Mr Mark Strebnicki attended on behalf of the Lot 3 Lot Owners. In accordance with the Tribunal’s usual practice where both parties are present at the first listing of an application, the Tribunal attempted to assist the parties to resolve the dispute co-operatively by conciliation. Those efforts were not successful. As a consequence, the Tribunal adjourned the application for a Special Fixture Hearing and issued directions to the parties for the filing and exchange of the documentary evidence that…