McElhone v Artemisia Nominees Pty Ltd

Case •

[2025] NSWCATCD 65

•

27 June 2025

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: McElhone v Artemisia Nominees Pty Ltd [2025] NSWCATCD 65
Hearing dates: 15 January 2024; 20 August 2024; submissions to 11 November 2024
Date of orders: 27 June 2025
Decision date: 27 June 2025
Jurisdiction:Consumer and Commercial Division
Before: G Sarginson, Deputy President
Decision:

(1)   The application is dismissed.

(2)   No order as to costs, with a view that each party bears its own costs.

(3)   If any party seeks to vary order (2), the following orders apply:

(a)   Costs applicant is to file and serve costs submissions and documents by 14 days from the date of these orders.

(b)   Costs respondent is to file and serve costs submissions and documents by 28 days from the date of these orders.

(c)   Costs applicant is to file and serve costs submissions in reply by 35 days from the date of these orders.

(d)   Any party can apply to vary the procedural timetable for the filing and serving of costs submissions and documents by way of an application in writing to the Tribunal and the other parties by no later than the date of compliance with the relevant timetable obligation.

Catchwords:

LAND LAW – strata title – Strata Schemes Management Act 2014 (NSW) – amended by-law – whether amended by-law should be revoked – s 148 Strata Schemes Management Act 2015 (NSW) – noise transmission from lots – interference peaceful enjoyment – breach of by-laws – nuisance – s 153 Strata Schemes Management Act 2015 (NSW)

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Evidence Act 1995 (NSW)

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

Beechwood Homes (NSW) Pty Ltd v Hassos [2024] NSWCATAP 184

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Chua v The Owners-Strata Plan No 36156 [2022] NSWCATAP 48

Cooper v The Owners Strata Plan No 58068 (2020) NSWLR 160; [2020] NSWCA 250

Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147

Felcher v The Owners-Strata Plan No 2738 [2017] NSWCATAP 219

G v H [1994] HCA 48; (1994) 181 CLR 387

Gambotto v WCP Ltd (1985) 182 CLR 432

Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425

Harris v The Owners-Strata Plan No 34056 [2022] NSWCATAP 111

Hogan v Stebnicki [2022] NSWCATCD 63

Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386

James v The Owners Strata Plan No SP 11478 (No 4) [2012] NSWSC 590

Jiang v Sui [2023] NSWCATCD 127

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Kaye v The Owners-Strata Plan No 4350 [2022] NSWSC 1386

Lo v Aree [2024] NSWCATAP 159

New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231

Nowak v Pellicciotti [2018] NSWCATCD 9

O’Riordan v Chu [2023] NSWCATCD 61

Owners of Strata Plan No 3397 v Tate (2007) 70 NSWLR 334

Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112

Re Day [2017] HCA 2; (2017) 340 ALR 368

Re: Colorado Products Pty Ltd (in liq) [2014] NSWSC 789

Redmyre Group Pty Ltd v Stockman [2023] NSWCATAP 305

The Owners-Strata Plan No 55468 v Silberstein [2025] NSWCATAP 102

The Owners-Strata Plan No 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256.

The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273

Walker Corporation Pty Ltd v Owners of Strata Plan No 61618 [2022] NSWSC 1246; (2022) 20 BPR 42,717

Walker Corporation Pty Ltd v The Owners-Strata Plan No 61618 [2023] NSWCA 125

Wells Group Pty Ltd v Betts [2025] NSWCATAP 70

Texts Cited:

None cited

Category:Principal judgment
Parties:

The Estate of the Late Barbara McElhone (Applicant)

Artemisia Nominees Pty Ltd (First Respondent)

The Owners-Strata Plan No 16307 (Second Respondent)
Representation:

Counsel:
R. Gration (Applicant)
J. Mee (First Respondent)
J. Sleight (Second Respondent)

Solicitors:
Bugden Allen Graham Lawyers (First Respondent)
GDP Law (Second Respondent)
File Number(s): 2023/00385204
Publication restriction: Nil

REASONS FOR DECISION

  1. This is a dispute involving Lot owners; and the owners corporation; in a strata scheme building in respect of noise transmission to Lot 12 from a hardwood floor installed in Lots 14 and 15. The Strata Schemes Management Act 2015 (NSW) (SSM Act) applies to the dispute.

  2. As was clear from the manner in which Mr McElhone and Ms Piccioli gave evidence at the hearing; and from the language used by the legal representatives of the parties in submissions (which were replete with language such as “nonsensical;” “self-serving;” “selfish;” “brazen disregard;” “hypocrisy;” and “conspiracy”) there is significant animosity between the owners/occupants of Lots 12 and Lots 14/15. The copious written submissions of the parties also reflects the manner in which the litigation was conducted. The most neutral description of the parties conduct of this litigation is “robust.”

  3. It is unfortunate that wealthy, well educated, successful people with legal qualifications living in a building with harbour views have not been able to resolve the dispute. Unless either the applicant or first respondent sells their Lot and moves out, they will remain neighbours and part of the owners corporation. There is no guarantee that the decision in these proceedings will not result in an internal appeal to the Appeal Panel under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), leading to more expense and uncertainty.

  4. However, the role of the Tribunal in determining this dispute according to law is not to explore whether the case should have settled (although there has been reference to settlement negotiations in the evidence and submissions), unless that is relevant to determination of the real issues in the dispute. The role of the Tribunal is to apply the applicable legal principles to the dispute, in circumstances where the applicant bears the onus of proving its case.

  5. Any reference in this decision to Artemisia is a reference to the first respondent. Any reference to the owners corporation is a reference to the second respondent.

  6. A critical issue involves Special By-law 72, which applies to Lots 14 and 15. The provision of that By-law pertaining to the level of noise transmission was amended at an Extraordinary General Meeting (EGM) of the owners corporation on 8 February 2023 to increase the noise threshold level of hardwood flooring. The applicant seeks, among other orders, that the amendment be revoked, and the owners of Lots 14 and 15 be ordered to take measures to comply with the previous version of Special By-law 72.

  7. The applicant asserts that the Piccioli family (which, through a corporate entity, owns Lots 14 and 15) owns or controls sufficient lots in the strata scheme such that the amendment to Special By-law 72 was a “fraud on the minority” and should, among other reasons, be revoked under s 148 of the SSM Act. The applicant also asserts that the level of noise transmission from the hardwood floor of Lots 14 and 15 is sufficient to unreasonably interfere with the peace and comfort of Lot 12 and its occupants. Further, it is asserted that the level of noise transmission constitutes a nuisance.

  8. The applicant seeks various remedial orders, which are detailed later in this decision.

Background

  1. The strata scheme building is located in an inner suburb of Sydney in close proximity to Sydney Harbour. The scheme comprises of 22 Lots.

  2. Lot 12 of the strata scheme is located on level 5 of the building. Lot 14 is located directly above Lot 12, and is located on Level 6 of the building. The master bedroom; a bedroom, and a living area of Lot 14 are above similar rooms in Lot 12. Part of the dining area of Lot 12 is below the balcony of Lot 14. Lot 15 adjoins Lot 14 on level 6.

  3. The applicant is the owner of Lot 12. Ms Barbara McElhone was the owner of the lot until she passed away on 24 November 2023. At relevant times since then, the lot has been owned by her estate, subject to finalisation of the estate.

  4. Since about July 2020, Lot 12 has been occupied by Mr David McElhone, and his family. Mr McElhone previously owned and resided in a free standing house in a different part of Sydney.

  5. Mr David McElhone is the son of Ms Barbara McElhone and executor of her estate. There are factual disputes about how often Lot 12 was occupied since July 2020, but it has, according to the evidence of Mr McElhone been consistently occupied since renovations to the Lot were completed in about June 2022 when Mr McElhone and his family moved back into the Lot. However, Mr McElhone did assert that there were periods before the renovation, and after the renovation, when he and his family were not in Lot 12, but resided at a holiday house; or sometimes in Perth (where Ms McElhone’s family is based).

  6. There are factual disputes between the parties as to how often Lot 12 has been occupied since June 2022; the extent of noise complaints by Mr McElhone to Mr Piva and Ms Piccioli; and whether there has been an unreasonably excessive transmission of noise between Lots 14/15 and Lot 12 that has affected the amenity of Mr McElhone and his family.

  7. Lots 14 and 15 are owned by the first respondent. Ms Christina Piccioli and her husband Mr Piva, occupy Lots 14 and 15. They jointly own Lot 15 with the first respondent. The first respondent owns Lot 14. Ms Maria Piccioli is the director and secretary of the first respondent, which owns Lot 14 and co-owns Lot 15. At all relevant times, Mr Piva has been the Chairperson of the strata committee. For a period of time, Ms Barbara Piccioli, who is the sister of Christina Piccioli, lived in Lot 20, which is also owned by the first respondent. Ms Barbara Piccioli was, for a period of time, also a strata committee member.

  8. In 2014, Lot 14 had carpet replaced by a hardwood floor. Those works were authorised by a common property rights by-law passed at a meeting of the owners corporation on 19 May 2014.

  9. In 2018, renovation works were performed that had the effect of joining together Lot 14 and 15 into a single living space. Such works were authorised by Special By-law 72 which was passed at a general meeting of the owners corporation on 6 June 2018. The renovation of Lots 14 and 15 included the installation of a hardwood floor to replace and extend the hardwood floor that was installed in 2014.

  10. The 2018 renovation works to Lots 14 and 15 were authorised by a common property rights by-law passed at a general meeting of the owners corporation on 6 June 2018. That common property rights by-law was registered as Special By-law 72.

  11. In respect of flooring works, clause 4.6 of Special By-law 72 relevantly stated as follows:

4.6 Flooring

(a) Where Works involved the installation of a floor finish other than carpet:

(i) before commencement of Works, the Owner must provide to the Owners Corporation or strata committee a report from a qualified acoustic engineer that analyses the proposed floor finish, method of installation and effect of sound transmission including impact noise following installation. The report must state that the proposed floor finish after installation to the Lot will comply with clause 4.6(ii)(II) below:

(ii) the Owner must:

(I) ensure that all floor space within the Lot is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of an Owner or occupier of another Lot;

(II) ensure that the flooring is insulated with soundproofing underlay as specified by the Owners Corporation from time to time and shall not have a weighted standardised impact sound pressure level L’nT w exceeding 40 when measured in situ in accordance with Australian Standard “AS ISO 140.7-2006 Field measurements of impact sound installation of floors” and rated to AS ISO 717.2-2004” Acoustics- rating of sound insulation in buildings and of building elements. Part 2: Impact sound insulation;

(iii) following the installation of a floor finish other than carpet in a Lot, if there are any complaints about noise transmission through or from the floor of the Lot (Whether Vertically or Horizontally) the Owners Corporation or strata committee may require, and if it does so, the Owner must provide the Owners Corporation or strata committee with a certificate from a qualified acoustic engineer acceptable to the Owners Corporation or strata committee. The certificate must state that the qualified acoustic engineer is tested the floor finish as installed to ensure that the installation and the resulting sound transmission the parameters set out in this by-law including those in the report required under clause 4.6 (ii)(II).

  1. The flooring installed in Lots 14 and 15 was, according to Ms Piccioli, “slightly different” to the previous flooring in Lot 14 (as matching floorboards were no longer available), and 3 layers of Angelstep acoustic underlay were installed between the structural slab and the floorboards (Piccioli affidavit dated 13 December 2023 at [9]).

  2. It is not in dispute that, prior to commencing the renovation works to Lots 14 and 15 in 2018 an acoustic report was not obtained and provided to the owners corporation or the strata committee in accordance with clause 4.6(a)(i). Ms Piccioli, in her evidence, explains this by asserting that she and Mr Piva left the issue of renovations to their project manager due to personal circumstances (Ms Piccioli having recently given birth to twins) and they did not give any close attention to clause 4.6 of Special By-law 72, which had been drafted by Grace Lawyers. She asserts there was no deliberate, wilful, or malicious non-compliance with Special By-law 72, and that failure to comply was, in effect, due to inadvertence.

  3. In April 2020, Mr McElhone proposed renovations to Lot 12, by way of an email to Mr Piva and the strata committee attaching a construction management plan dated 27 November 2020 and a proposed by-law. The email states the by-law was “based on those used for Lot 5 and Lots 14 and 15”.

  4. On 24 May 2021, at a general meeting of the owners corporation, Special By-law 75 was passed authorising the renovation works to Lot 12.

  5. Prior to commencing work, Mr McElhone engaged an acoustic engineer, Mr Abood of Acoustic Logic Pty Ltd, to prepare a report.

  6. Mr Abood prepared a report dated 4 November 2021.

  7. Mr Abood had access to both Lot 12 and Lot 14. Ms Piccoli asserts in her affidavit of 13 December 2023 that she and her husband were misled into believing a dilapidation report was being prepared rather than an acoustic engineering report (para [16] Piccioli affidavit dated 13 December 2023).

  8. The report states that Mr Abood was engaged to “assess existing impact isolation ceiling performance” for Lot 12 in circumstances where the ceiling was being replaced” within Lot 12. The report states the measurements were undertaken to “determine the existing performance to ensure that any renovation works would not reduce the existing impact noise renovation between the two units.” The testing was performed on 13 October 2021.

  9. Mr Abood used a tapping machine and Norsonic 140 Sound Level Analyser to conduct the tests.

  10. He asserted that the noise transmission between the Lot 14 bedroom and Lot 12 bedroom was 50 LnTw, which was compliant with the National Construction Code/Building Code of Australia criteria of less than 62 LnTw, but greater than the requirement in Special By-law 72 of 40 (or less) LnTw.

  11. Mr Abood prepared a second report dated 17 November 2021, that included testing between Lot 12 and Lot 9 below.

  12. That testing involved using different sampled floor finishes and underlay. The testing results are set out in paragraph 3.3 of the report. In summary, a 15 mm Engineered Timber on timber battens with Vibrapad acoustic pads spaced at 450 mm achieved a LnTw of 40, but the other types of hardwood floor and underlay system achieved a LnTw of between 46 and 55 LnTw.

  13. Mr Abood states that all of the hardwood flooring systems tested were within the applicable National Construction Code/Building Code of Australia standard of less than 62 LnTw, but, other than the 15 mm Engineered Timber on timber battens with Vibrapad acoustic pads spaced at 450 mm, the flooring systems were above the “By-law requirement” of not exceeding 40 LnTw.

  14. On 1 December 2021, Mr McElhone emailed a copy of Mr Abood’s report to the strata committee.

  15. In the period between about October 2021 and June 2022, renovations were performed to Lot 12, including a hardwood floor being installed. A Vibrapad batten system was installed, with engineered timber on top of the battens.

  16. According to Mr McElhone, the renovations to Lot 12 cost over $900,000. The hardwood flooring installed, which contained a Vibrapad batten system cost over $50,000.

  17. As discussed previously, the renovation works to Lot 12 were authorised by Special By-law 75. In respect of flooring, that by law relevantly stated as follows:

4.6 Flooring

(a) Where Works involve the installation of a floor finish other than carpet:

(i) at least 7 days before commencement of the Works the Owner must provide to the Owners Corporation or strata committee a report from a qualified acoustic engineer that analyses the proposed floor finish, method of installation and the effect of sound transmission including impact noise following installation. The report must state that the proposed floor finish after installation to the Lot will comply with clause 4. 6 (a)(ii) (B) below;

(ii) the Owner must:

(A) ensure that all floor space within the lot is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of an Owner or occupier of another Lot;

(B) ensure that the flooring is insulated with soundproofing underlay a specified by the Owners Corporation from time to time and shall not have awaited standardised impact sound pressure level L’nT, w exceeding40 when measured in situ in accordance with Australian Standard “AS ISO 140.7 -2006 Field measurements of impact sound installation of floors” as rated to AS ISO 717.2-2004” Acoustics-Rating of sound installation in buildings and of building elements. Part 2: Impact sound insulation.

(iii) following the installation of a floor finish other than carpet in a lot, if there are any complaints about noise transmission through or from the floor of the Lot (whether vertically or horizontally) the Owners Corporation or strata committee may require, and if it does so, the Owner must provide the Owners Corporation or strata committee with a certificate from a qualified acoustic engineer acceptable to the Owners Corporation or strata committee. The certificate must state that the qualified acoustic engineer has tested the floor finish is installed to ensure that the installation and the resulting sound transmission make parameters set out in this by-law including those in the report required under clause 4.6(a)(ii)(B).

  1. There have been disputes between the owners corporation (and, in particular, Mr Piva and Ms Piccioli as the occupants of Lots 14/15) and Mr McElhone regarding other aspects of the renovation of Lot 12. In particular, there was a dispute about Lot 12 installing awnings and blinds.

  2. On 21 September 2022, an extraordinary general meeting of the owners corporation passed a resolution that Special By-law 75 be amended in respect of aspects of the works pertaining to internal blinds over the glass roof; and the installation of two retractable awnings over the terrace area.

  3. Separate to By-laws 72 and 75, By-law 15 provided that a lot was to be covered in carpet (other than in areas such as the kitchen, laundry and bathroom) with adequate underlay. However, both Special Bylaw 72 and 75, in their terms, state they take precedence over By-law 15.

  4. Further, there is a general By-law pertaining to noise transmission (By-law 2). It states as follows:

By Law 2- Noise

A proprietor or occupier of a lot shall not upon the parcel create any noise likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using common property.

  1. On 6 October 2022, Mr McElhone emailed Mr Piva stating that “we hear a lot of noise in our unit when people walk on the floor of unit 14, or move furniture. It can wake us up in the morning.” Mr McElhone cited Clause 4.6 of Special By-law 72, and concluded:

“…

Could you please let me know if a report form a qualified acoustic engineer was provided to the owners corporation or strata committee before the wooden floors were installed. If so, could you please provide a copy.

If it was provided, do you have anything that shows the requirements set out in the report were followed when the floorboards were being installed?”

  1. On 11 October 2022, Mr McElhone sent another email to Mr Piva, which relevantly stated as follows:

“I have not received a response to the below email.

As part of the works to unit 12, we were required to obtain an acoustic report, which we did. A copy was provided to the strata committee, further copy attached for your convenience. That showed non-compliance by unit 14 without acoustic requirements of Special By-law 72. Due to that, we asked the engineer to use the information from that report to provide a report specific to unit 14, a copy of which report is attached.

The general report indicates that that one of the reasons for non-compliance may be the failure to use timber battens in addition to underlay beneath floorboards. We inserted battens in our renovation, which is why there is a small step up when entering unit 12.

While I am not an acoustic’s expert, from reading the reports, it appears the choices to enable unit 14 to comply with Special By-law 72 are to either install carpet with appropriate underlay throughout, or insert battens with underlay, amongst other things.

Could you please indicate by close of business this week if the owner of unit 14 will effect the works necessary to comply with Special By-law 72 within a reasonable time, say by Christmas.”

  1. On 14 October 2022, Mr McElhone emailed the strata manager and the strata committee. He requested the owners corporation direct the owner of lot 14 “to meet the acoustic requirements of Clause 4.6(a)(ii)(II) of Special By-law 72…within a reasonable time, which I suggest would be by Christmas 2022”. The email also states that Mr McElhone believed that 2 members of the strata committee are related to “the family which owns unit 14” and that he expects that “they will act in such a way that any conflict of interest is appropriately addressed”.

  2. In October 2022, Mr Piva and Ms Piccioli obtained legal representation, which Ms Piccioli asserts arose because Mr McElhone is a partner at a large law firm and she and Mr Piva believed it was appropriate to engage a lawyer by reason of the demand that the hardwood floor be modified to achieve compliance with Clause 4.6(a)(ii)(II) of Special By-law 72.

  3. On 17 October 2022, a Solicitor acting for the first respondent wrote to Mr McElhone stating that all future correspondence be directed to the Solicitor rather than Mr Piva and Ms Piccioli.

  4. In November 2022, Mr McElhone sought that the dispute about noise transmission between Lots 14/15 and Lot 12 be referred to mediation at NSW Fair Trading. A mediation date was set for 27 February 2023. That date was subsequently changed to a date in March 2023 as 27 February 2023 was not suitable for Mr McElhone.

  5. Ultimately, mediation was declined by the first respondent. Ms Piccioli was cross examined on why mediation was declined. According to her, mediation was declined because of the resolution passed at the EGM on 8 February 2023, and the things that occurred at that meeting, including negotiations about mats and runners being installed as a compromise, but that any such compromise was predicated on an amendment to By-laws to bind future owners and occupants of Lots 14/15, and

  6. In January 2023, the first respondent obtained an expert acoustic report from Mr Thomas Taylor of Renzo Tonin and Associates. The date of the report is 27 January 2023.

  7. The report of Mr Taylor states that he has been “asked to comment on the impact (footfall) noise performance of flooring installed” in Lot 14. Mr Taylor did not perform an inspection or testing. His reports sets out assumptions. Those assumptions are that the floor slabs of the building are concrete; the ceiling below Lot 14 is likely to be a suspended plasterboard ceiling; three layers of Anglestep 250 acoustic underlay have been installed beneath the new floorboards in Lot 14; and that “the building by-laws target an acoustic rating of LnTw 40”. Mr Taylor was “asked to comment on whether three layers of Angelstep 250 acoustic underlay is sufficient to prevent transmission of noise to the unit below” and “whether a LnTw 40 rating is reasonable”.

  8. Mr Taylor states that the National Construction Code has a standard of LnTw 62 or lower, and that the position statement of the Association of Australasian Consultants in 2022 states a reasonable minimum level of performance is LnTw 55 or better, to meet the objectives of the SSM Act that transmission of noise not unreasonably interfere with the use or enjoyment of the owner or occupiers of other Lots.

  9. According to Mr Taylor, triple layer Anglestep 250 underlay (provided it was adequately installed) would “provide as high a level of acoustic performance as is practically achievable in the apartment (and) significantly better that the LnTw 55 rating that the AAAC position paper indicates is an objectively reasonable level of protection…”.

  10. Mr Taylor further asserts that a LnTw rating of 40 is “not feasible” unless carpet is installed, or a “built up floor system” (i.e. battens with acoustic pads) is used. However a batten system “will commonly result” in the floor being raised by 40mm of pads and battens, plus the floor finish on top, and “often cannot be spatially accommodated in an apartment when the ceiling heights have not been designed with this in mind”.

  11. In January 2023, the owners corporation called an EGM to amend Clause 4.6(a)(ii)II of Special By-law 72.

  12. The extraordinary general meeting occurred on 8 February 2023. It occurred in the ground floor study of Lot 22. Lot 22 is owned by Ms Barbara Piccioli, and is located on the top floor of the strata building.

  13. The Notice of the Extraordinary General Meeting contained an Agenda that relevantly stated as follows:

The Owners of Lots 14 and 15 are requesting the permission of the Owners Corporation to amend Special By-law No 72-Works to Lots 14 and 15 by changing the current acoustic performance standard LnTw 40 to that of LnTw 55 as the change will not affect the residential amenity of the building.

To address the acoustic elements of the Special By-law No 72-Works to Lots 14 and 15, the Owners of Lots 14 and 15 have engaged the services of Renzo Tonin and Associations who confirm this and other facts in their report, a copy of which is attached.

Explanatory Note:

Clause 4.6(a)(ii)(II) of Special By-law 72 requires an acoustic performance of LnTw 40. However, the National Construction Code requires floors to have an acoustic performance of LnTw <62 (which is less stringent than LnTw 40). Furthermore, it is the position of the Association of Australasian Acoustical Consultants that, to meet the intent of the Strata Management Act, the acoustic performance of floor separating apartments must not exceed LnTw 55. See report of Renzo Tonin dated 27 January 2023.

  1. The Agenda also contained an “acknowledgement that Special By-law is harsh, unconscionable or oppressive” and that the “Owners Corporation supports an application by the owners of Lots 14 and 15 for an order by the Tribunal to amend Special By-law 72 by replacing the number “40” in clause 4.6(a)(ii)(II) with the number “55”, if those owners choose to make that application”.

  2. On 6 February 2023, Mr McElhone obtained a report from Mr Alex Washer, acoustic engineer. The contents of that report are set out later in these reasons.

  3. On 7 February 2023, Mr McElhone sent an email to Lot owners and the strata manager where he and Ms McElhone set out their position in opposition to the resolution to amend Special By-law 72. The email is over 2 pages in length. In summary, the email states:

  1. Lots 14 and 15 installed their hardwood floor in a manner that was non-compliant with Special By-law 72. Artemisia was obliged under the By-law to provide an acoustic report prior to performing the works, but failed to do so.

  2. Lot 12 had complied with its applicable Special By-law (Special By-law 75) and had obtained an acoustic report prior to commencing work.

  3. Mr and Ms McElhone had pointed out to Mr Piva when they moved back into Lot 12 in 2022 that “we hear a lot of noise from footsteps and movement of furniture, including being woken at night and in the early morning by people moving about above us. We had heard these before our renovation but we weren’t aware of the non-compliance before we obtained our acoustics report.”

  4. It was unfair that Special By-law 72 be changed. Other owners, except Lot 5 do not have to comply with the same provisions if they have already installed floorboards, as they are governed by their own works By-law or the general building by-laws that address floorboards.

  5. Lot 12 is “disadvantaged” if the change occurs. Lot 12 “did the right thing” and obtained an acoustic report prior to installing its hardwood floor. Lot 8 below Lot 12 has not complained of noise. It was not difficult to comply with the noise level of not greater than dB 40. To allow Special By-law 72 to be amended to reduce the noise threshold after a Lot owner had performed non-complying work would mean “an owner can agree to do something in a By law, then fail to do it and later amended the By law to avoid doing it, despite the adverse effect on someone else”.

  6. The report of Renzo Tonin & Associates was “deficient in a number of ways.” Five reasons are identified. Firstly, it assumes 3 layers of Anglestep 250 acoustic underlay has been installed, but provides no evidence that it has been. Secondly, “upmarket” properties aim for higher ratings, not just the minimum. This is reflected in the By-law for both Lot 14/15 and 12. Thirdly, the report does not state that 3 layers of Anglestep 250 underlay is sufficient to prevent the transmission of noise to the unit below. The expert acoustic report that Mr McElhone and had obtained in 2021 states that noise is transmitted to Lot 12, in contravention of By-law 72. Fourthly, although the report says that battens usually result in a significant increase in height, Mr McElhone had taken this into account when performing the renovations to Lot 12, so that the noise requirement of not greater than 40 dB was complied with. Fifthly, it relies on a position statement of the AAAC, but that position refers to minimum performance, and a higher standard should be encouraged according to the AAAC.

  7. Mr McElhone attached a report from Mr Alex Washer of Acoustic Logic dated 6 February 2023. He states that report supports his criticisms of the Renzo Tonin & Associates report.

  8. The email concludes by stating that Lot 12 has current NCAT proceedings against Lot 14/15, and if the motion is passed the owners corporation would be need to be joined as a party. The owners corporation “would be better off staying out of this.” Lots 14/15 “would of course suggest ways that it might reduce the noise disturbance, but to date it has not engaged”.

  1. The report of Mr Washer of Acoustic Logic Pty Ltd states that reducing the noise threshold in Special By-law 72 to LnTw of 55 would be the equivalent of a 3 star AAAC rating, rather than the current by-law (not exceeding 40) which is a 6 star rating. As the owner of Lot 12 had an acoustic engineering report that showed that a timber batten/pad system could achieve the standard of not exceeding 40, it was clearly achievable. The AAAC Position Paper referred to in the Renzo Tonin report indicated that the National Construction Code/Building Code of Australia standard of not exceeding 62 dB was the “minimum level of performance” and a higher level of performance is often desired by future occupants.

  2. The AAAC Position Paper contains the following “star rating” in respect of Impact Isolation of Floors:

  3. Between Tenancies LnTw <

  1. 65-2 star (clearly audible)

  2. 55-3 star (clearly audible)

  3. 50-4 star (audible)

  4. 45-5 star (audible)

  5. 40-6 star (just audible or not audible)

  1. The Extraordinary General Meeting to consider amending Special By-law 72 took place on 8 February 2023. The documentary evidence of the parties contained the Minutes of the meeting.

  2. The only Lot owners who were not present, or in attendance, at the meeting (either in person or by persons holding proxies on their behalf) were the owners of Lots 6 and 7.

  3. The resolution amending Special By-law 72 to replace the number “40” in clause 4.6(a)(ii) (II) with the number “55” was passed by special resolution. The owners who voted against the resolution were the owners of Lot 12 and Lot 9. Mr Wilton voted on behalf of Lot 9, which was co-owned by a company and Ms Catherine Williams.

  4. The Minutes of the meeting do not set out any reasons why persons voted for or against the resolution, other than the acknowledgement referred to in the Agenda that the acoustic performance of not exceeding 40 is “harsh, unconscionable or oppressive”. However, Ms Piccioli gives evidence of what occurred at the meeting, and both she and Mr McElhone were cross examined about what occurred.

  5. The amended Special By-law 72 was subsequently registered and now forms part of the By-laws of the strata scheme.

  6. On 18 July 2023, the applicant commenced proceedings in the Tribunal. It is unnecessary to extensively detail the procedural history of the proceedings, which involved a number of directions hearings. During the procedural history of the matter, the name of the applicant was amended to reflect the passing of Ms Barbara McElhone; both parties were granted leave to be legally represented; and there were procedural directions for the filing and serving of evidence, including expert evidence.

The Claim

  1. By way of an amended application filed on 23 August 2023, the applicant sought the following orders:

  1. The amended Special By-law 72 be revoked under s 148(1)(a) of the SSM Act, which would have the effect of restoring the previous Special By-law 72 with a decibel level not exceeding LnTw 40.

  2. An order requiring Artemisia to comply within 60 days with Clause 4.6 of Special By-law 72, as originally passed on 6 June 2018.

  3. An order requiring the owners corporation after 60 days to “take any necessary steps under SSM Act Part 7 division 4” to “ensure” the owner of lots 14 and 15 has complied with Clause 4.6 of Special By-law 72 as originally passed on 6 June 2018.

  4. An order requiring the owners corporation to direct the owners of lots 14 and 15 to provide a post installation acoustic testing certificate certifying that any floor finish, other than carpet, has a measured weighted standardised impact sound pressure level (LnTw) not exceeding 40 dB.

  5. An order requiring the owners of lots 14 and 15 “to comply within 7 days” with Clause 4.6 (a)(ii)(I) of Special By-law 72, and By-law 2, by ensuring that all permanent floor finishes in Lot 14 other than carpet have an LnTw<40 dB, temporary floor finishes are installed sufficient to ensure that any noise created by the occupants of Lot 14 does not interfere with the peaceful enjoyment of the occupiers of Lot 12.

  6. An order requiring Artemisia (and the occupants)to cease using Lot 14 , or permitting Lot 14 to be used, in a manner which causes a nuisance to Lot 12 (s 153 SSM Act).

  7. An order for legal costs against both respondents, and an order that any money payable to the applicant for costs by the owners corporation must be paid from contributions levied only in relation to lots excluding Lot 12.

  1. Notably, in its closing written submissions, the applicant refers to an “open offer of settlement” dated 21 December 2023, which is relied upon on the basis that “the applicant remains willing to compromise and for the Tribunal to instead make orders in the nature of paragraphs 1 to 4 of the applicants now expired open offer of 21 December 2023, other than in relation to costs”.

  2. That offer involves the owners of lots 14 and 15 being ordered to install certain floor coverings to suppress the transmission of noise on the existing hardwood floor of lots 14 and 15. The owners of Lot 14 and 15 were prepared to undertake certain measures, and asserted they had already installed acoustic pads under the stills at the breakfast bar and dining chairs. However, the “sticking point” in the parties reaching a resolution was that the applicant insisted that any installation of floor coverings bind all future owners and occupiers of lots 14 and 15.

  3. The applicant’s closing submissions, as an alternative to an order under s 148 of the SSM Act, submit that any orders for the installation of rugs, runners and acoustic furniture floor pads by Artemisia should be made in a manner that binds future owners and occupants of Lots 14 and 15.

Conduct of the Hearing

  1. The hearing was conducted on 15 January 2024 and 20 August 2024.

  2. The hearing on 15 January 2024 was only listed for half a day, as that was the relevant information that was conveyed to the Tribunal by the parties as the likely duration of the matter and the matter was set down for a hearing directions hearing. That estimate was inaccurate considering the extent of the evidence relied upon by the parties, and the issues in dispute.

  3. On 15 January 2024, Mr Gration of Counsel appeared for the applicant; Ms Mee of Counsel appeared for Artemesia; and Mr Sleight of Counsel appeared for the owners corporation.

  4. After dealing with certain interlocutory matters, and opening oral submissions; hearing on 15 January 2024 involved cross examination of the Artemisia’s expert structural engineering witness, Mr Blair. Mr Blair was available on 15 January 2024, so he was called to give evidence out of the usual sequence that the applicant’s witnesses go first.

  5. Unfortunately, for reasons that are unclear, the Tribunal Registry was unable to allocate the matter a further hearing date until 20 August 2024.

  6. On 20 August 2024, the appearances remained as on 15 January 2024. Mr Gration of Counsel appeared for the applicant; Ms Mee of Counsel appeared for Artemesia; and Mr Sleight of Counsel appeared for the owners corporation.

  7. The structure of the hearing was that the expert witnesses of the parties gave evidence separately (as no joint expert reports had been ordered, or prepared by the parties).

  8. At the conclusion of the hearing, a timetable was made for the parties to file and serve written closing submissions, and that an agreed transcript of evidence be filed.

  9. As detailed later in this decision, the written submissions of the parties were voluminous. Further, the transcript of evidence is 61 pages for the first hearing date; and 179 pages for the second hearing date.

  10. The following witnesses gave evidence and were cross-examined:

Expert Witnesses

  1. Applicant – Mr Washer, a mechanical engineer with Acoustic Logic

  2. First Respondent (Artemisia) – Ms Pearce (acoustic engineer).

Lay Witnesses

  1. Applicant – Mr David McElhone

  2. Respondent – Ms Fiona Stephinson; Ms Carli Holt; and Ms Christina Piccioli.

Evidence of the Parties

  1. The parties relied upon documentary evidence, which are relevantly included:

Applicant

  1. Affidavits of Mr McElhone dated 14 November 2023 and 18 July 2024.

  2. Expert report of Mr Alex Washer of Acoustic Logic dated 6 February 2023, and other documents annexed to the affidavits of Mr McElhone.

  3. Additional documents filed at the hearing in the context of cross examination of the witnesses (in particular, Mr Blair and Ms Pearce).

First Respondent (Artemisia)

  1. Affidavits of Christina Piccioli dated 13 December 2023 and 8 August 2024.

  2. Affidavit of Fiona Stephinson dated 13 December 2023. Ms Stephinson is the owner and occupant of Lot 13.

  3. Affidavit of Carlie Holt (co-owner and occupant of Lot 11) dated 8 August 2024.

  4. Expert report of Ms Hiliary Pearce, acoustic engineer, of Renzo Tonin & Associates dated 15 December 2023.

  5. Expert report of Mr Peter Blair, structural engineer, of Structured Project Management (Australia) Pty Ltd dated 15 December 2023.

Second Respondent (owners corporation)

  1. The owners corporation did not separately file and serve any evidence and relied upon the evidence of the other parties.

Summary of the Evidence of the Parties

Applicant-Evidence of Mr McElhone

  1. Mr McElhone, in his affidavit of 14 November 2023, asserts that complying with the acoustic requirements of Special By-law 75 was not “difficult or particularly expensive”. As discussed previously, he asserts the renovation to Lot 12 cost “more than $900,000 and the flooring component cost $48,450 plus GST”. He asserts the strata building is located in a desirable location and “owners, occupiers and potential purchasers have an expectation of reasonable quality of strata living.” According to Mr McElhone, the standard of renovated Lots in the building is “very high” and the building is a “prestige building.”

  2. Mr McElhone’s evidence of experience of noise from the Lot above is set out in paragraphs [37]-[38] of the affidavit of 14 November 2023. He relevantly states:

“…my wife and I are often disturbed by noise emanating from Lot 14. This includes the sound of people walking, running, otherwise moving about or moving items above us. Of particular concern is the noise of people moving about when we are trying to sleep. Our bedrooms are beneath the two bedrooms of Lot 14. For example, we hear people early in the morning, often about 6.45 am, which wakes us up. A further example was on 4 November at about 6pm when I was trying to have an afternoon nap but couldn’t from noise above. We also hear what sounds to be children running down the corridors, people walking in the entrance hall, and people moving about in the kitchen, dining and living areas of Lot 14. We are regularly disturbed when speaking amongst ourselves at the dining table by the distinctly audible noise from people moving above us.

I do not believe that my wife or I are “fussy,” difficult or unreasonable occupants living in a strata building. We understand that strata living necessarily involves some compromises from the amenity expected in free-standing houses and that consideration for one’s neighbours is paramount. However, the 6 star acoustic standard specified in the Original By-law 72 and in By-law 75 is reasonable, practically and cost-effectively achievable, as demonstrated by the renovation done in Lot 12.

…”

  1. Mr McElhone’s affidavit of 14 November 2023 does not contain any contemporaneous notes by way of a diary of noise events.

  2. No evidence was provided by the applicant of Ms McElhone’s experience of noise; nor of any other occupant of Lot 12. There was also no evidence from any friends of Mr and Ms McElhone who have visited Lot 12 since the completion of its renovation of any experience of unreasonable noise.

  3. In Mr McElhone’s affidavit of 18 July 2024, he provides more detailed evidence of his experience of noise.

  4. He states that “since January 2024” he had kept a diary of “some of the disturbances my wife and I suffer from noise emanating from movement on the flooring in Lot 14”. Mr McElhone states the diary doesn’t cover “all disturbances,” but shows “numerous examples” of disturbances. According to Mr McElhone, he and his wife “hear the noises throughout our bedroom our unit at times, the most disturbing noise is in our bedroom and combined study, our second bedroom/studio, at our kitchen bench where we sit at stools, and at that part of our dining table where my wife and I usually sit closest to our kitchen.”

  5. Mr McElhone states that there is a “marked difference” between the quiet enjoyment of Lot 12 when occupants of Lot 14/15 are away, such as “last Christmas and during the current school holidays”. When Lots 14/15 are vacant:

  6. “Our sleep is not disturbed by noise from above. I am able to concentrate better when working in my study, we can better enjoy sitting and talking in our kitchen and adjoining dining areas, and we can use the second bedroom/studio without disturbance.”

  7. Mr McElhone refers to 31 December 2023, “at about 3pm” when he and his wife heard “a lot of noise coming from above our living and kitchen areas…people moving about above us on the floorboards”. As will be discussed in respect of the evidence of Ms Holt, this incident arose in circumstances where Mr Piva and Ms Piccioli were on holidays, but had invited Ms Holt, her husband Mr Goddard, and their friends to use Lots 14/15 to view the Sydney New Years Eve fireworks.

  8. The noise diary annexed to Mr McElhone’s affidavit of 18 July 2024 is summarised as follows:

  1. 1 event in January 2024-thee instances of noise at different times (8.30 am; 3.45 pm; and 6.07 pm), where there was a “lot of noise…things being moved and person moving…hard to concentrate”.

  2. 1 event in February 2024-at 4.50 pm “onwards” there was “heavy footsteps above while I was trying to work in my study-very distracting”.

  3. 3 events in March 2024 (27,29 and 30 March). On 27 March there were “heavy footsteps above when I was trying to work in my study-very distracting”. On 29 March 2024 at 6.15 pm Mr McElhone was “woken while having an afternoon nap from footsteps above”; and at 8 pm there was “a lot of noise of footsteps above kitchen”. On 30 March Mr McElhone was woken by “footsteps above” at 6.50 am.

  4. 9 events in April 2024 (10, 11, 12, 19, 20, 21, 22 and 30 April). On 10 April 2024, 30 minutes “thumping on floor” at 3.45 pm. On 11 April 2024, “couldn’t sleep because of noise from floorboards above”. On 12 April 2024 “distracted by noise” from floorboards above when in study. On 19 April 2024 “noise from movement on floorboards above preventing sleep”. On 20 April 2024, 3 incidents. The first at 7.20 am when “can’t sleep in due to noise above.” The second at 3.15 pm when “can’t have afternoon nap due to noise above.” The third at 4.30 pm when “distracted by noise” when in study and “hard to concentrate.” On 21 April 2024, “woken when trying to sleep in” at 7.10 am- 8.00 am. On 22 April 2024, at 8 pm when working in office “a lot of thumping noise from above from 8 pm onwards-very distracting”. On 30 April 2024, 2 incidents. The first at 6.40 am when “woken up by footsteps above.” The second at 7.30 am when “a lot of noise from footsteps above kitchen.”

  5. 11 events in May 2024 (1, 2, 5, 7, 15, 20, 24, 25, 27 and 28 May). On 1 May 2024, “woken up by footsteps of someone running on corridor above”. On 2 May, at 6.40 am, woken up by noise of person “moving around” above bedroom. On 5 May, at 2..20 pm “noise of people moving about above while I was trying to work in study-distracting”. On 6 May between 7.20 pm and 8.10 pm “thumping noise from upstairs” when in living room. On 7 May, 2 incidents. One at 6.45 am when “thumping noises” above bedroom. The second at 7.30 am when “thumping noises” above kitchen. On 15 May, 2 incidents. One at 8.30 pm when working in study “heavy thumping on floorboards above.” The second at 10 pm when this noise “continued”. On 20 May, at 7.47 pm “thumping noise” from above when working in study. On 24 May at 5.45 am, “woken by footsteps above”. On 25 May, 2 incidents. The first between 6.50 am and 7.30 am when “woken by footsteps above, people moving about.” The second at between 7pm-9.30 pm with “a lot of noise above kitchen, people moving about, disturbing us”. On 27 May, between 4 pm and 5.30 pm “disturbed” by a “a lot of noise above-footsteps” when working in study. On 28 May, 2 incidents. The first at 7 am when “woken by footsteps above”. The second at 8 am when “a lot of noise from above” when having breakfast.

  6. 2 events in June 2024 (23 and 24 June). On 23 June, 2 incidents. The first at between 9 am and 9.30 am when “trying to read at kitchen bench, disturbed by people moving about above”. The second at 2.45 pm when “disturbed by thumping” when working in study. On 24 June, 2 incidents. At 7.10 am woken up by “loud noises from above” and at between 6.40 pm-8 pm “working from study noise above us is disturbing”.

  1. No detailed evidence was given in Mr McElhone’s affidavits as to what was said at the EGM on 8 February 2024 by any of the persons present at that meeting.

Cross Examination of Mr McElhone

  1. Mr McElhone agreed he and his wife had lived in Lot 12 “on an off” since July 2020. Between July 2020 and commencement of the renovation of Lot 12 in November 2021 there were periods he and his wife “moved around” with time spent in their holiday house and in Perth. He stated that the renovations to Lot 12 were “delayed” by a “couple of months” because the strata manager had notified Mr McElhone that he “couldn’t do” the renovations.

  2. Mr McElhone agreed that prior to moving into Lot 12 he had his wife lived in a large freestanding house in a suburb. He denied that he had unrealistic expectations of noise living in a unit in the inner city. He accepted that his mother had not complained to him about noise from Lot 14 when she lived int the Lot, but asserted that she was elderly and had hearing difficulties. He accepted that floorboards had been installed in Lot 14 in 2014.

  3. Mr McElhone asserted that Ms Piccioli and Mr Piva had been unreasonable in not responding to his emails in October 2022 when he raised the issue of noise from their floor.

  4. Mr McElhone was questioned on when he first raised the noise issue with Lots 14/15, and his motivation for doing so. The following exchange occurred (T:80-81):

Artemisa Counsel: This is an email form you to Matteo and can you see there, after the first line you say “I wanted you to know that we hear a lot of noise in our unit hen people walk on the floor of unit 14 or move furniture. It can wake us up in the morning,” can you see that?

McElhone: Mm

Artemisia Counsel: And you accept that this was the first time that you actually raised an issue with noise with Christina and Matteo?

McElhone: There were three emails that are similar time and it looks like that was the first one, yes.

Artemisia Counsel: And you gave them no oral warning before sending this email, you didn’t talk to them about it, did you?

McElhone: No.

Artemisia Counsel: Even though you’d had numerous dealings with Matteo just prior to that about your renovations?

McElhone: No, I just thought it would be easier to put it in an email.

Artemisia Counsel: But it’s the case that even though you had numerous dealings with Matteo prior to that, you didn’t raise it during those dealings?

McElhone: Well, those discussions were about a completely different issue.

Artemisia Counsel: And you accept that you didn’t raise it during those discussions?

McElhone: Yep.

Artemisia Counsel: And in fact, the purpose of those discussions was to try to get the agreement of Lot 14 to certain works in your lot?

McElhone: Yes.

Artemisa Counsel: And it was only after you had secured that agreement that you raised this issue?

McElhone: Yes.

  1. Mr McElhone was later questioned about his motivation for complaining about noise, and bringing the proceedings. At T: 90-91 Mr McElhone did not agree he was “aggrieved” because his renovation to Lot 12 had installed flooring compliant with its common property rights By-law and Lots 14/15 had not complied with their common property rights By-law. He denied that this was the purpose of bring the proceedings. He asserted that he was “trying to get some relief from the noise we are hearing.” He denied that “the most important issue” to him was the principle that Lots 14/15 should have complied with their common property rights By-law when they installed the hardwood flooring.

  2. Mr McElhoe accepted that the owner/occupant of Lot 13 “may” also be affected by the flooring in Lots 14/15. He did not accept the proposition that other Lot owners were “indirectly impacted” by the noise standard in Special By-law 72, nor that Lot owners may have a legitimate concern over what the acoustic standards should be in the building for particular Lots (T:84-85).

  3. In respect of the Piccioli family’s alleged control of the owners corporation, Mr McElhone accepted that his original affidavit which incorrectly stated that the Piccioli family had 25% of unit entitlements was intended to convey the impression that the Piccioli family could “band together as a family to block resolutions” (T:87). In respect of voting at the EGM on 8 February 2024 the following exchange occurred (T:88):

Artemisia Counsel: And that’s the EGM which is the subject-or the resolution which is the subject of these proceedings?

McElhone: Mm

Artemisia Counsel: Can you see on the next page there’s a summary of who voted for and against the resolution?

McElhone: Yep.

Artemisia Counsel: And in fact, the only votes against it were units 12 and 9?

McElhone: Of those who were present.

Artemisia Counsel: And everybody else who voted, voted yes?

McElhone: Correct

Artemisia Counsel: So certainly this isn’t the case of effectively a resolution being blocked, is it, by a particular family?

McElhone: Correct.

  1. Mr McElhone was questioned about his experience of noise, and keeping a noise diary (at T: 92-100).

  2. Mr McElhone did not agree that the noise diary recorded the “most significant” disturbances. The following exchange occurred (at T: 93-94):

Artemisia Counsel: Now in para 6 you say “The diary records don’t cover all disturbances but show numerous examples?”

McElhone: Mm

Artemisa Counsel: So you would have recorded the most significant ones then?

McElhone: Well, not necessarily. I thought it was important to have a record of disturbances that were occurring.

Artemisia Counsel: Well, what was the criteria that you used whether to record something as a disturbance or not?

McElhone: Well there was times I just didn’t get around to doing it.

Artemesia Counsel: So it was rather random what you recorded and what you didn’t?

McElhone: No, no. When I heard noise I’d do it, but sometimes I’d hear noise and, for whatever reason, I might be distracted by something else, and I didn’t get around to recording it.

Artemisia Counsel: Where do you keep this diary? Is it in a sheet of paper that was sitting somewhere in your unit?

McElhone: It was in my study.

Artemisia Counsel: And you kept a pen next to it?

McElhone: There’s usually pens on that table, yes.

Artemisia Counsel: You used the same pen each time, for each entry?

McElhone: Well these are the-this is the sort of pen I use, so I think it was probably one of these.

Artemisia Counsel: Did you always record these entries contemporaneously or did you sometimes come back to it later and record your recollection?

McElhone: No, it would be within 20 minutes, if not right at the time.

Artemisia Counsel: Sometimes you did them on, in fact, later dates that the entries that occur here?

McElhone: No.

Artemisia Counsel: I suggest that you put this together as an afterthought afterwards and not contemporaneously?

McElhone: That’s not correct.

  1. Mr McElhone then stated (at T: 94) that he had left out a page of the noise diary for June 2024. He had only realised “last night.” He was “embarrassed” by the omission. The following exchange occurred (at T: 94-95):

Artemisia Counsel: In fact, that’s not really numerous instances of noise disturbance then, is it?

McElhone: Well, the purpose of the diary was to record examples of noise disputes and I think it achieves that purpose.

  1. Mr McElhone was questioned about the layout of Lot 12 beneath Lot 14, in respect of location of the various rooms; furniture; and the balcony.

  2. Mr McElhone was then questioned about the evidence in his second affidavit of hearing noise “at about 3pm” on New Years Eve 2023. Mr McElhone acknowledged that on New Years Eve he heard significant noise, by reason of external activities. The following exchange occurred (at pp T:96-97):

Artemisia Counsel: I see. And you were particularly disturbed mid-afternoon but not later in the evening?

McElhone: No we had people there and there was noise everywhere so it was-it was at that time, that’s why I say “about 3pm”.

Artemisia Counsel: And you say you were particularly disturbed at about 3pm?

McElhone: Wouldn’t say we were particularly disturbed. The point of it was highlighting the difference between when people were there and when people weren’t there, so that we heard noise from above when people were there, as to opposed to when they weren’t.

Artemisia Counsel: But the purpose of putting this in your affidavit is to suggest that you were particularly disturbed by it, right?

McElhone: No.

Artemisia Counsel: So you weren’t particularly disturbed by this noise, then?

McElhone: well we were disturbed but the point of putting it in there was to highlight the difference between when it was occupied and when it was not occupied.

Artemisia Counsel: I see. So you accept that it was not particularly disturbing?

McElhone: Well from memory it wasn’t for a long period of time but it highlighted, as I say, the difference between no one being there and people being there.

Artemisia Counsel: Now do you accept that it’d be a normal incident of strata living that you would be able to hear some noise?

McElhone: Yes.

Artemisia Counsel: But the purpose of putting in a reference to this must be to show that you considered this was more than normal noise?

McElhone: No, as I said, it was to highlight the difference between noise when people were there and noise when-and no noise when people weren’t there.

  1. Mr McElhone acknowledged that, when Lot 12 commenced its renovation work, he knew that Lots 15/15 floor did not comply with the specification of less than 40dB (T: 98). He stated he “possibly” could have raised the issue the floor being non-compliant with Special By-law 72 with Mr Piva and Ms Piccioli at that time (T:99). He again denied that he had engaged in a “calculated strategy… to finish your works first and then only after that, to spring a complaint.” Mr McElhone denied that there was no real noise disturbance in his Lot, and that he had an unrealistic “expectation” to no noise at all. Mr McElhone acknowledged that he had, since moving into the strata scheme, brought 3 applications to NCAT.

  2. Mr McElhone was then questioned by the Counsel for the owners corporation about the EGM on 8 February 2023 (T: 101-102).

  3. Mr McElhone acknowledged that he had been a Solicitor for 40 years; was a partner at a law firm; and is used to articulating his views at meetings. The following exchange occurred:

Owners Corporation’s Counsel: Well, at the extraordinary general meeting of 8 February 2023, that’s precisely what you didn’t do, isn’t it? You didn’t express your point of view?

McElhone: No, I think we did.

Owners Corporation’s Counsel: Well, do you recall or do you think you did or did you?

McElhone: I made it quite clear that I thought the change in the By-law was inappropriate and they had the information from the- Mr Washer that we’d sent to them.

Owners Corporation’s Counsel: Can I suggest to you that all you said was that you opposed the By-law?

McElhone: No.

Owners Corporation’s Counsel: Do you say that you actually spoke up as to why the change would be detrimental to you?

McElhone: I think I refer-its going back a while but I think I referred to the actual information that we provided. I sent an email to all owners prior to the meeting setting out our position. So it was pretty clearly set out why we didn’t think it was appropriate.

Owners Corporation’s Counsel: But you only think you spoke to them, you’re not sure?

McElhone: Well I certainly spoke at the meeting.

Owners Corporation’s Counsel: But did you speak, trying to persuade people not to pass the By-law.

McElhone: Yes.

Cross Examination of Mr Washer

Alleged Defects in The Manner in Which the Meeting Was Held

  1. In closing submissions and with it never being clearly raised in the applicant’s amended application or the evidence, the applicant asserts that the meeting on 8 February 2024 did not comply with the requirements of the SSM Act and its Regulations.

  2. Section 24 of the SSM Act states as follows:

24 Order invalidating resolution of owners corporation

(1)  The Tribunal may, on application by an owner or first mortgagee of a lot in a strata scheme, make an order invalidating any resolution of, or election held by, the persons present at a meeting of the owners corporation if the Tribunal considers that the provisions of this Act or the regulations have not been complied with in relation to the meeting.

(2) The Tribunal may, on application by an owner or first mortgagee of a lot in a strata scheme, make an order invalidating any resolution of, or election held by, the persons present at a meeting of the owners corporation if the Tribunal considers that the provisions of Part 10 (other than Division 6 or 7) of the Strata Schemes Development Act 2015 have not been complied with in relation to the meeting.

(3)  The Tribunal may refuse to make an order under this section only if it considers—

(a)  that the failure to comply with the provisions of this Act or the regulations, or of the Strata Schemes Development Act 2015, did not adversely affect any person, and

(b)  that compliance with the provisions would not have resulted in a failure to pass the resolution or affected the result of the election.

(4) The Tribunal may not make an order invalidating a resolution under subsection (2) if an application for an order has been made under Division 6 of Part 10 of the Strata Schemes Development Act 2015 in relation to the same or a related matter.

(5)  The Tribunal may not make an order under this section invalidating a decision by an owners corporation to approve, or not to approve, the appointment of a building inspector under Part 11.

  1. At no point in the proceedings was an order under s 24 of the SSM Act sought. There is nothing in the evidence of Mr McElhone where he complains that the meeting was not held in accordance with the requirements of the SSM Act or its Regulations, other than the issue of it being held in Lot 22 occupied by Ms Barbara Piccioli.

  2. The applicant argues that it can raise purported defects in the meeting in the context of its application under s 148 of the SSM Act. The Tribunal does not agree. It is not procedurally fair to the respondents to raise the issue in submissions. If it was raised in the amended application, or even directly in the evidence of Mr McElhone, the respondents could have adduced evidence to deal with the purported defects or non-compliance.

  3. In any event, even if there were the defects or non-compliance submitted, that does not, in all the circumstances of the matter, cause the Tribunal to exercises its discretion under s 148 of the SSM Act.

  4. For the applicant to succeed in an order under s 24 of the SSM Act, it would need to show that the non-compliance with the provisions of the SSM Act and its Regulations regarding the calling and holding of general meetings adversely affected the outcome (Chua v The Owners-Strata Plan No 36156 [2022] NSWCATAP 48; Harris v The Owners-Strata Plan No 34056 [2022] NSWCATAP 111). The evidence before the Tribunal fails to demonstrate this. The meeting was held, the applicant had the opportunity to attend the meeting; speak at the meeting and vote at the meeting. An agenda was sent out prior to the meeting. There is nothing to indicate the votes were not correctly tallied. Mr McElhone did not raise any issue about the validity of the meeting prior to the meeting, or at the meeting.

  5. The mere fact that the meeting was held in Lot 22 does not cause the Tribunal to exercise is discretion under s 148, when considered with the other evidence. The submission that the location of the meeting caused the participants to vote in a certain way is without evidence or substance.

Jones v Dunkel Inference From Artemisa Failing to Call Mr Piva

  1. The principles applicable to Jones v Dunkel were discussed in detail in Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184 at [129]-[123]. The mere fact a witness is called does not give rise to the inference; and the inference is only that the witness’s evidence would not have assisted the parties case, not that the evidence would have detracted from it. The inference cannot be used to overcome a party, who has the onus of proof, failing to provide sufficient evidence to prove a particular factual matter.

  2. In this matter, it is unclear what evidence Mr Piva would have given that would have been different or additional to the evidence of Ms Piccioli. That is different to the issue referred to previously in regard to Ms McElhone. Ms McElhone would have given evidence regarding what noise she was experiencing in Lot 12.

  3. No Jones v Dunkel inference is drawn from the failure to call Mr Piva. Even if a Jones v Dunkel inference was drawn, it would not have made any difference to the outcome.

Conclusion

  1. The applicant has failed to prove any of the causes of action alleged. Accordingly, the application fails.

  2. The Tribunal notes that the applicant, in submissions, put forward an alternative order that rugs and floor runners be installed sufficient to supress noise. However, s 232 and/or s 241 of the SSM Act cannot be used in a general way to make any order a party seeks to resolve a dispute or complaint (The Owners-Strata Plan No 55468 v Silberstein [2025] NSWCATAP 102 at [112]-[117]; Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147 at [126]-[134]).

  3. In circumstances where the s 148 application has failed, and the applicant has otherwise failed to prove breach of By-laws or nuisance under s 153 of the SSM Act, there is no legal basis to order that rugs/floor runners or other acoustic suppression devices be installed.

  4. As well, there are two additional difficulties with the Tribunal making such an order. Firstly, the order would have to be crafted in a manner sufficiently specific so that Artemisa knew what to do to comply with it, and if there was a dispute about non-compliance (for example a penalty application under s 247A of the SSM Act) the Tribunal could determine whether it was complied with (Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 at [113]). It is unclear what is proposed would satisfy this criteria.

  5. Secondly, in previous negotiations and in submissions, a suggestion has been made that the order could bind future Lot owners. The Tribunal does not see how this would be capable of achievement without a By-law being enacted, and there is no general power under s 232 of the SSM Act for the Tribunal to make By-laws. Its powers in respect of By-laws are specific, and have been referred to previously.

The Issue of Costs

  1. The Tribunal is satisfied that it makes a costs order in this decision, and if any party seeks to vary that order, it can do so. This has been an approach taken by the Tribunal and Appeal Panel in a number of matters (e.g. Wells Group Pty Ltd v Betts [2025] NSWCATAP 70).

  2. This is not a type of proceedings where r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) applies (The Owners-Strata Plan No 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256).

  3. Accordingly for the respondents to be awarded costs, the Tribunal would need to be satisfied that there are “special circumstances” under s 60(2) of the NCAT Act, taking into account the matters in s 60 (3) of the NCAT Act.

  4. The principles applicable to ss 60(1)-(3) are well established (see, for example, The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273). The Tribunal needs to be satisfied (a) there are special circumstances; and (b) those special circumstances are sufficient for the Tribunal to exercise its discretion to depart from the usual principle under s 60(1) of the NCAT Act that each party pay its own costs.

  5. In this matter, there are not (subject to any future application to vary) any sufficient special circumstances to cause the Tribunal to depart from an order that each party pay its own costs. The applicants case was not obviously weak or otherwise unmeritorious. The proceedings were conducted in a procedurally orthodox manner The proceedings were not frivolous, vexatious or lacking in substance. Ther was no breach of the duty in s 36(3) of the NCAT Act. There are no other obviously relevant matters in the proceedings that would cause the Tribunal to make a costs order in favour of the respondents.

ORDERS

  1. The application is dismissed.

  2. No order as to costs, with a view that each party bears its own costs.

  3. If any party seeks to vary order (2), the following orders apply:

  1. Costs applicant is to file and serve costs submissions and documents by 14 days from the date of these orders.

  2. Costs respondent is to file and serve costs submissions and documents by 28 days from the date of these orders.

  3. Costs applicant is to file and serve costs submissions in reply by 35 days from the date of these orders.

  4. Any party can apply to vary the procedural timetable for the filing and serving of costs submissions and documents by way of an application in writing to the Tribunal and the other parties by no later than the date of compliance with the relevant timetable obligation.

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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: 27 August 2025

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Cases Cited

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Statutory Material Cited

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Briginshaw v Briginshaw [1938] HCA 34
Briginshaw v Briginshaw [1938] HCA 34
Cooper v The Owners - Strata Plan No 58068 [2020] NSWCA 250