Jiang v Sui

[2024] NSWCATCD 21

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Jiang v Sui [2024] NSWCATCD 21

Hearing dates:

On the papers

Date of orders:

16 January 2024

Decision date:

16 January 2024

Jurisdiction:

Consumer and Commercial Division

Before:

D Robertson, Senior Member

Decision:

(1) Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing in respect of the respondent’s application for an extension of time and for access to undertake preliminary testing is dispensed with.

(2)   Provided no less than seven days written notice has been given, the applicants are to permit an acoustic engineer retained by the respondent to have access to their unit to carry out acoustic testing to assess the efficacy of alternative floor treatments.

(3)   The time for compliance with order 1 made on 12 October 2023 is extended to 12 March 2024.

(4)   The time for compliance with order 2 made on 12 October 2023 is extended to 12 April 2024.

Catchwords:

JUDGMENTS AND ORDERS – Amending, varying and setting aside – Application for extension of time to comply and for preliminary testing

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Category:

Consequential orders

Parties:

Jenny Y Jiang and Richard Wang (Applicants)
Xin Sui (Respondent)
The Owners – Strata Plan No 64807 (Other Party)

File Number(s):

2023/00383985 (Previously SC 23/33560)

REASONS FOR DECISION

Introduction

1. By a decision published in this matter on 12 October 2023 I ordered that:

(1) Within three months of the date of this decision, the respondent shall either restore the carpeting within Lot 35, other than in the kitchen, laundry, lavatory, and bathroom areas, or treat or replace the hard floors within Lot 35, other than in the kitchen and laundry, lavatory and bathroom areas, in a manner which will ensure those floors achieve at least a 5 star rating under the Association of Australian Acoustical Consultants Guideline for Apartment and Townhouse Acoustic Rating.

(2) Within one further month, the respondent is to arrange testing by a suitably qualified acoustical consultant to certify the acoustic properties of the floor coverings within Lot 35 other than in the kitchen and laundry, lavatory and bathroom areas.

(3) The applicants are to permit the respondent’s acoustic consultant to access their apartment in order to undertake acoustic testing on no less than seven days written notice.

2. The three months allowed for compliance with order 1 expired on 12 January 2024.

3. On or about 18 December 2023 the respondent sought an extension of time for compliance with the orders and also an order requiring the applicants to permit preliminary testing of potential flooring treatments to ensure any rectification of the floor in the respondent’s unit would achieve a 5 star rating.

4. On 20 December 2023 I made directions:

1 The respondent has sought an extension of time to comply with the orders made on 12 October 2023. The respondent also seeks an order for access to the applicants’ unit in order to undertake acoustic testing of proposed alternative flooring solutions.

2 The respondent is to file and serve upon the applicants any further evidence in support of his application by 5pm on 22 December 2023. That evidence must include an explanation for the delay between 12 October 2023 and 29 November 2023 when the respondent’s tenant contacted the applicants seeking access for the preliminary testing.

3 The applicants shall file and serve upon the respondent any submissions and evidence opposing the orders sought by the respondent by 5pm on 8 January 2024.

4 If either party submits that the respondent’s application cannot be determined on the basis of the written submissions and without a hearing, they shall file and serve on the other party by 5pm on 9 January 2024 written submissions explaining why they submit a hearing is necessary.

5. The respondent filed a further document, with attachments, dated 22 December 2023. The applicants filed a document in response, with attachments, on 8 January 2024.

6. I note that the Tribunal’s Registry did not record the receipt of the respondent’s further document until 5 January 2024. However, the applicants’ response included within its attachments an email from the respondent to the Tribunal and the applicants dated 22 December 2023 to which the respondent’s submissions were said to be attached. The applicants do not suggest that the respondent failed to comply with my order of 20 December 2023, and I will proceed on the basis that the respondent’s further submissions and evidence were filed in within the time allowed.

7. Neither party submitted that the respondent’s application could not be determined on the basis of the written submissions and without a hearing. Having reviewed the submissions, I am satisfied that the issues for determination in relation to the respondent’s application can be adequately determined in the absence of the parties by considering the written submissions and I will make an order pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) dispensing with a hearing in relation to the respondent’s application.

8. The applicants opposed the preliminary testing and the extension of time sought by the respondent.

9. The justification propounded by the respondent for the making of the application was essentially that he had been advised that suppliers of flooring solutions could not guarantee the achievement of a 5 star rating outcome without preliminary testing of the particular product in the location where it is to be installed.

10. The respondent did not wish to incur the expense of installing a replacement or altered floor treatment without an assurance that the proposed treatment would achieve the necessary result. The applicants had declined to permit the preliminary testing.

11. The respondent explained the delay in seeking an order permitting the preliminary testing on the basis that he had needed to source an alternative quotation for the testing because he considered that a quote he had obtained for the testing from Koikas Acoustics, which had previously provided a report, was too expensive.

12. I note that the quote from Koikas Acoustics was $1,507 inclusive of GST for the preliminary pre-installation testing. The alternative quote obtained by the respondent, from Renzo Tonin & Associates, was for $1,150 plus GST (that is $1,265). I do not consider that the difference between those quotations could constitute a substantial reason for any delay in the respondent’s application for an extension of time and orders permitting preliminary testing.

13. Furthermore, even if the desire to obtain a second quote is accepted as a reason for delay in making the application, the respondent did not provide any satisfactory explanation for the delay between his receiving a fee proposal from Koikas Acoustics on 16 October 2023 and the first contact with the alternative acoustic engineers, that is Renzo Tonin, on 14 November 2023.

14. The applicants also point out that the respondent could comply with the Tribunal’s order by restoring the carpet in his unit, in which event no acoustic standard is required to be met and preliminary testing would not be necessary.

15. The applicants further submitted that they have not been provided with details of the options for alternative flooring treatments proposed to be tested and suggest that there are on the market a number of “specialized underlay products designed to achieve a 5-star or 6-star rating”.

16. The applicants submit that the respondent’s concern to carry out preliminary testing is directed to minimising the cost of rectifying the floor.

17. The applicants also submit that, in the absence of a clear indication of the products proposed to be tested, they might be exposed to multiple requests for further testing.

Consideration

18. Pursuant to s 36 of the NCAT Act, the guiding principle to which the Tribunal must seek to give effect is:

“to facilitate the just, quick and cheap resolution of the real issues in the proceedings”.

19. Pursuant to s 36(3) of the NCAT Act, the parties have “a duty to co-operate with the Tribunal to give effect to the guiding principle”.

20. The orders made on 12 October 2023 were directed to ensuring that the applicants were not subjected to excessive noise. The orders were not intended to publish the respondent or to require him to spend more than necessary to achieve the objective of reducing the noise to which the applicants are subjected.

21. Although I am not persuaded that the respondent has been as diligent as he should have been in seeking to fulfil his obligations pursuant to the orders, I do not consider that the respondent should be compelled to adopt a solution which is more expensive than an available alternative in order to avoid the risk that the treatment solution adopted will not meet the 5 star requirement imposed under the orders.

22. I consider it reasonable, and consistent with the guiding principle, to require the applicants to permit acoustic engineers retained by the respondent to have access to their lot for the preliminary testing of potential floor treatment solutions, on no less than seven days written notice.

23. In the event that compliance with the 5 star rating proves impracticable in the circumstances of the particular building, the respondent will be required to restore the carpeting within Lot 35.

24. The respondent should also be aware that the orders require the floors to be tested after installation and to achieve at least a 5 star rating when so tested. The fact that I have permitted the respondent to undertake preliminary testing does not eliminate the need for the respondent to achieve the required result in the floors as treated or replaced.

25. The Tribunal has power to extend the time for compliance with its orders, pursuant to s 41 of the NCAT Act. Although I am not persuaded that the respondent has been appropriately diligent in seeking to comply with the orders, I am prepared to allow the respondent a further two months to comply with the orders.

Orders

26. Accordingly, I order:

1. Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing in respect of the respondent’s application for an extension of time and for access to undertake preliminary testing is dispensed with.

2. Provided no less than seven days written notice has been given, the applicants are to permit an acoustic engineer retained by the respondent to have access to their unit to carry out acoustic testing to assess the efficacy of alternative floor treatments.

3. The time for compliance with order 1 made on 12 October 2023 is extended to 12 March 2024.

4. The time for compliance with order 2 made on 12 October 2023 is extended to 12 April 2024.

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

Registrar

Decision last updated: 13 August 2024