Jiang v Sui - [2023] NSWCATCD 127

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Jiang v Sui [2023] NSWCATCD 127
Hearing dates: 6 October 2023
Date of orders: 12 October 2023
Decision date: 12 October 2023
Jurisdiction: Consumer and Commercial Division
Before: D Robertson, Senior Member
Decision:
(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.

Catchwords:
LAND LAW – Strata Title – By-laws – Noise – Installation of floating floor – Interference with the peaceful enjoyment of the owner or occupier of another lot – Amendment of by-law after installation of floating floor – By-law as amended requiring compliance with particular standard – Whether by-law as amended applies to pre-existing floor

Legislation Cited:
Strata Schemes Management Act 2015 (NSW)

Cases Cited:
Felcher v The Owners – Strata Plan No 2738 [2017] NSWCATAP 219
Feletti v Eales [2019] NSWCATAP 100
Feletti v Eales; Eales v Feletti [2018] NSWCATCD 66
Gao v Agosti [2009] NSWCTTT 175
Hogan v Stebnicki [2022] NSWCATCD 63
Nowak v Pellicciotti [2018] NSWCATAP 245
Zhang v Glykis [2020] NSWCATCD 17

Category: Principal judgment
Parties: Jenny Y Jiang and Richard Wang (Applicants)
Xin Sui (Respondent)
The Owners – Strata Plan No 64807 (Other Party)
File Number(s): SC 23/33560

REASONS FOR DECISION

Introduction

The applicants are the owners of Lot 27 in Strata Plan no 64807, a multi-level apartment complex of 335 lots in Ultimo.
The respondent is the owner of Lot 35 which is directly above Lot 27.
Lot 35 is let to Ms C Ang, who represented the respondent at the hearing.
The respondent undertook renovations in Lot 35 in 2021. Those renovations included the installation of floating floors.
The applicants complain that since the installation of the floating floors they have been disturbed by noise from Lot 35.
The applicants filed their application on 25 July 2023. The applicants seek orders:

“1. Pursuant to ss 135, 232 and 241 of the Strata Schemes Management Act 2015 (NSW), an order requiring the U35 owner to promptly rectify his floor covering to ensure compliance with SP64807 by-laws 14 requirements. The rectification shall be of non-removable nature, providing permanent and long-term solution to the noise disturbance issue.
2. In addition to the above order,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jiang v Sui

Details

AGLC: Jiang v Sui [2023] NSWCATCD 127
Case: [2023] NSWCATCD 127
Decision Date: 12 October 2023

CaseChat Overview and Summary

The case of Jiang v Sui involved a dispute in relation to the installation of a floating floor in Lot 35 of a strata-titled property. The applicants, the owners of Lot 35, alleged that the installation of the floating floor by the respondents, who owned an adjoining apartment, had caused noise issues that interfered with their peaceful enjoyment of their property. The applicants sought relief in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the amended by-law, which required compliance with a particular standard for acoustic performance, applied to the pre-existing floating floor in Lot 35. The court had to determine the appropriate remedy to address the interference with the applicants' peaceful enjoyment of their property.

In reaching its decision, the court considered the terms of the amended by-law and the circumstances of the installation of the floating floor. The court found that the amended by-law applied to the pre-existing floor and that the respondents had failed to comply with the relevant standards. The court concluded that the applicants' peaceful enjoyment of their property had been interfered with and ordered the respondents to either restore the carpeting or treat or replace the hard floors in a manner that met the required acoustic rating. The court also ordered the respondents to arrange for acoustic testing by a qualified consultant and required the applicants to permit access for the testing.

The final orders of the court mandated that the respondents restore or treat the flooring within three months and arrange for acoustic testing within one additional month. The applicants were required to allow the respondents' acoustic consultant to access their apartment for testing, provided that at least seven days' written notice was given.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Jiang v Sui [2023] NSWCATCD 127
Hearing dates:	6 October 2023
Date of orders:	12 October 2023
Decision date:	12 October 2023
Jurisdiction:	Consumer and Commercial Division
Before:	D Robertson, Senior Member
Decision:	(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.
Catchwords:	LAND LAW – Strata Title – By-laws – Noise – Installation of floating floor – Interference with the peaceful enjoyment of the owner or occupier of another lot – Amendment of by-law after installation of floating floor – By-law as amended requiring compliance with particular standard – Whether by-law as amended applies to pre-existing floor
Legislation Cited:	Strata Schemes Management Act 2015 (NSW)
Cases Cited:	Felcher v The Owners – Strata Plan No 2738 [2017] NSWCATAP 219 Feletti v Eales [2019] NSWCATAP 100 Feletti v Eales; Eales v Feletti [2018] NSWCATCD 66 Gao v Agosti [2009] NSWCTTT 175 Hogan v Stebnicki [2022] NSWCATCD 63 Nowak v Pellicciotti [2018] NSWCATAP 245 Zhang v Glykis [2020] NSWCATCD 17
Category:	Principal judgment
Parties:	Jenny Y Jiang and Richard Wang (Applicants) Xin Sui (Respondent) The Owners – Strata Plan No 64807 (Other Party)
File Number(s):	SC 23/33560