Nowak v Pellicciotti - [2018] NSWCATCD 9

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Nowak v Pellicciotti [2018] NSWCATCD 9
Hearing dates: 9 February 2018
Date of orders: 13 April 2018
Decision date: 13 April 2018
Jurisdiction: Consumer and Commercial Division
Before: J A Ringrose – General Member
Decision:
1. The application is dismissed
2. Each party is to bear their own costs

Catchwords: Application by lot owner seeking compliance with by-laws – lot owner creating noise likely to interfere with peaceful enjoyment of an adjoining lot owner – floor coverings sufficient to prevent the transmission of noise likely to disturb the peaceful enjoyment of another lot owner or occupier.
Legislation Cited: Strata Schemes Management Act 2015 ss. 153, 232 and 241.
Cases Cited: St Helen Melting Co. v Tipping [1865] 11 HSC 562
Hargrave v Goldman [1963] 110 CLR 40
Curragh Coals Sales Co. Pty Ltd v Wilcox [1984] FCR 46
George v Rockett [1990] 170 CLR 104 at 112
Opera House Investments v Devon Buildings Pty Ltd [1936] 55 CLR 110 at 116 per Latham J
Walsh v The Owners – Strata Plan number 10349 [2017] NSWCATAP 230
Felcher v The Owners – Strata Plan number 2738 [2017] NSW CATAP 219
Gao v Agosti [2009] NSW CTTT 175
Category: Principal judgment
Parties: Joseph Nowak – Applicant
Marcello Pellicciotti - Respondent
Representation: Each party appeared in person

File Number(s): SC 17/37708
Publication restriction: Nil

REASONS FOR DECISION

Application

By an application filed on 22 August 2017 the applicant as the owner of unit 4 in strata plan 16028 brought proceedings against the respondent as the owner of unit 6 in that strata plan seeking “enforcement of by-laws 1 and 14”. He claimed that the by-law had been breached when the respondent recovered the floor of unit 6 by removing carpeting and laying a different floor covering. He alleged that he was told that the flooring would be better than carpet but that the noise had now increased.
The application seeks an order that the carpet be restored. It is claimed that the occupants of unit 4 are woken up with footsteps when the occupants of unit 6 get out of bed.
A mediation request was declined by the respondent and accordingly the matter can be determined by the Tribunal.
Directions were made on 22 September 2017 requiring the applicant to provide his evidence by 13 October 2017 and the respondent to provide his evidence by 20 October 2017. The member directed that the respondent was to provide access to his unit for an expert to undertake tests if required.
The applicant sought an extension of time which ultimately required documents to be provided by 10 November 2017.

Applicant’s Evidence

Mr Joseph Nowak is the owner and resident of unit 4/14 Boundary Street, Tweed Heads, which is known as Surfview Apartments. He has lived in the complex for approximately 12 years and he claimed that the respondent Marcello Pellicciotti purchased unit 6 in about March 2017 and moved into the property with his family…

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 Nowak v Pellicciotti

Details

AGLC: Nowak v Pellicciotti [2018] NSWCATCD 9
Case: [2018] NSWCATCD 9
Decision Date: 13 April 2018

CaseChat Overview and Summary

The proceedings in the case of Nowak v Pellicciotti were brought before the NSW Civil and Administrative Tribunal. The dispute involved a claim by the plaintiff, Nowak, against the defendant, Pellicciotti, who is an adjoining lot owner. The crux of the matter was that Nowak sought compliance with the by-laws of their strata scheme, which were designed to ensure that the noise levels on Pellicciotti's property did not interfere with Nowak's peaceful enjoyment of their own lot. Specifically, Nowak alleged that the noise generated by Pellicciotti's activities, including the installation of floor coverings, was sufficient to cause disturbance.

The legal issues before the tribunal centred on whether Pellicciotti's actions constituted a breach of the by-laws and if so, whether such a breach warranted a declaration of compliance. The tribunal had to determine the extent to which the by-laws were intended to mitigate noise disturbances and assess whether the floor coverings installed by Pellicciotti were adequate to prevent the transmission of noise that could disturb Nowak. This involved a careful analysis of the by-laws, the specific circumstances of the noise complaints, and the effectiveness of the floor coverings in question.

The tribunal dismissed Nowak's application, finding that there was insufficient evidence to establish that the floor coverings installed by Pellicciotti were inadequate in preventing the transmission of noise. The tribunal held that the by-laws did not explicitly require a certain level of soundproofing, and therefore, the mere installation of floor coverings was not sufficient to establish a breach of the by-laws. Additionally, the tribunal concluded that the noise levels did not reach a threshold that would be considered an interference with Nowak's peaceful enjoyment. Consequently, each party was ordered to bear their own costs.

Orders

Orders of the court

1. The application is dismissed

2. Each party is to bear their own costs

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:	Nowak v Pellicciotti [2018] NSWCATCD 9
Hearing dates:	9 February 2018
Date of orders:	13 April 2018
Decision date:	13 April 2018
Jurisdiction:	Consumer and Commercial Division
Before:	J A Ringrose – General Member
Decision:	1. The application is dismissed 2. Each party is to bear their own costs
Catchwords:	Application by lot owner seeking compliance with by-laws – lot owner creating noise likely to interfere with peaceful enjoyment of an adjoining lot owner – floor coverings sufficient to prevent the transmission of noise likely to disturb the peaceful enjoyment of another lot owner or occupier.
Legislation Cited:	Strata Schemes Management Act 2015 ss. 153, 232 and 241.
Cases Cited:	St Helen Melting Co. v Tipping [1865] 11 HSC 562 Hargrave v Goldman [1963] 110 CLR 40 Curragh Coals Sales Co. Pty Ltd v Wilcox [1984] FCR 46 George v Rockett [1990] 170 CLR 104 at 112 Opera House Investments v Devon Buildings Pty Ltd [1936] 55 CLR 110 at 116 per Latham J Walsh v The Owners – Strata Plan number 10349 [2017] NSWCATAP 230 Felcher v The Owners – Strata Plan number 2738 [2017] NSW CATAP 219 Gao v Agosti [2009] NSW CTTT 175
Category:	Principal judgment
Parties:	Joseph Nowak – Applicant Marcello Pellicciotti - Respondent
Representation:	Each party appeared in person
File Number(s):	SC 17/37708
Publication restriction:	Nil