Stuart-Carberry v Jackson

[2023] NSWCATCD 183

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Stuart-Carberry v Jackson & Anor [2023] NSWCATCD 183
Hearing dates:	18 July 2023
Date of orders:	30 November 2023
Decision date:	30 November 2023
Jurisdiction:	Consumer and Commercial Division
Before:	C. Campbell, General Member
Decision:	1 The application is dismissed
Catchwords:	Application by lot owner – By-law 20 – Transmission of noise -flooring – noise likely to disturb peaceful enjoyment
Legislation Cited:	Strata Scheme Management Act 2015
Cases Cited:	Nowak v Pellicciotti [2018] NSWCATAP
Category:	Principal judgment
Parties:	Patricia Stuart-Carberry (Applicant) Phoebe Jackson (First Respondent) Thomas Green (Second Respondent)
Representation:	Counsel: N/A Solicitors: N/A
File Number(s):	2022/00399760 (Previously SC 22/53320)
Publication restriction:	Nil

REASONS FOR DECISION

1. This is an application by the owner of Lot 1. seeking an order be made pursuant to s 232 of the Strata Schemes Management Act 2015 for the respondent owners of Lot 3 to comply with By-Law 20, in relation to the floor coverings.

2. The parties were all self-represented.

3. The application was filed on the 01 December 2022 with the former owners of Lot 3 named as respondents. The current owners purchased the property on the 03 March 2023, and on the 16 March 2023 the Tribunal amended the name of the respondents by substituting the names of the former owners with that of the current owners.

4. Under the heading “REASONS FOR ORDERS” the application states:

The floors of the lounge and bedrooms in lot 3 are bare wood with some thin jute mats on some areas. The entry is tiled. The floor noise of foot traffic, rolling suitcases, voices, music, TV and rolling vacuum cleaner are transmitted at an intrusive level through the floor to Lot one, disturbing the occupier’s peaceful enjoyment of the Lot. In addition to the ongoing floor noise disturbance, the occupant, my tenant has been woken from sleep at 5.30 am on 10 November 2022 and at 4.30 am on 29 November 2022, by floor noise of suitcases and foot traffic. After mediation the Lot owner sent photographs of an additional thin mat, which has not made any difference. The occupier has provided a noise diary and sound recordings.

5. The applicant filed an amended application on the July 2023, but withdrew that application at the commencement of the hearing.

6. There are six apartments in what was described as being a 1930’s building. Lot 3 is situated directly above Lot 1. In 2018 Lot 3 underwent a renovation. At an Extraordinary General Meeting held on 06 March 2018 by way of Special Resolution By-Law Renovation Works-Lot 3 was approved by the Owners Corporation to undertake a renovation of the bathroom and the partial removal of a masonry wall. At the same meeting General Resolution Minor Renovation Motion-Lot 3 was approved for the removal of the existing floor coverings and the sanding, painting and sealing of the existing timber floor beneath. The approved works were completed in 2018. The applicant was the sole dissenting vote in relation to the approval of the works.

Docomentary evidence

7. Both parties complied with the Tribunal’s direction for the filing and exchange of evidence. The applicant relies on the following documents:

• Affidavit of the applicant dated 10 January 2023 “A1”

The applicant reads pages 8-9 and 17-29 only

• Affidavit of the applicant dated 08 February 2023 “A2”

• Affidavit of the applicant dated 16 May 2023 “A3”

• Affidavit of the applicant dated 10 July 2023 “A4”

• Affidavit of Belinda Bullivant dated 08 January 2023 “A6”

8. The respondents rely on the following:

• Affidavits of Thomas Green & Phoebe Jackson “R1”

(These affidavits are identical)

9. The applicant alleges the respondents are in breach of by-law 20 which is in the following terms:

An owner of a lot must 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 the owner or occupier of another lot. This by -law does not apply to floor space comprising a kitchen, laundry, lavatory or bathroom.

Applicant’s Evidence

10. Prior to the authorised works being undertaken to Lot 3 in 2018 there was laminate flooring with 6 star underlay in the living room and carpet in the two bedrooms.

11. Following the authorised renovation, the old flooring was removed and it is the applicant’s contention this led to the noise transmission into her lot below. She was aware the previous owners leased Lot 3 for short term holiday letting. The owner only resided at the property for about 50% of the time.

12. The noises started to transmit into her lot well before the applicants purchased the property. The noises included the sounds of suitcase wheels rolling on the floor above at all hours of the day and night, loud voices, doors slamming and loud music and furniture moving on the floor.

13. As a result of those noises the applicant commenced these proceedings and retained Octave Acoustics to undertake testing. The report is dated 07 February 2023. The applicant relies on that report and submits the flooring in Lot 1 is in breach of the BCA and CCA. She says that notwithstanding the renovation was said to be compliant with the legislation this is incorrect as Octave has found otherwise. Even though her expert does concede the BCA does not apply to this old building, she submits the respondent was bound to comply with the BCA as the renovation work was undertaken in 2018.

14. The applicant relies on a statement from her tenant Ms Bullivant who kept a Floor Noise Disturbance Log since May 2022, a copy of that log is attached to Ms Bullivant’s affidavit. The log records loud music, rolling sounds of suitcases, loud foot traffic, vacuum cleaner noise, people talking loudly, disturbance to her sleep with people walking and thumping, the opening and closing of cupboards and a reference to Airbnb guests being noisy. The Log finishes on the 06 January 2023

15. In the applicant’s affidavit she deposes to conversations she had with Ms Bullivant in June 2023. Her tenant no longer complains of any loud music, or suitcase wheels, or other noises reported in her log, in June 2023 she complains about the sound of what she describes as “torpedo wee” noise emanating from the bathroom in Lot 3. And other that on some unspecified date she heard “…them come home late at night with their shoes on...” and she heard them “…walking around their bedroom for a while…”.

16. It is the applicant’s submission that the noises recorded in her tenant’s log represent an ongoing breach of by-law 20, being noise that is likely to disturb the neighbour.

17. She relies on the report and recommendations from Octave Accoustics and seeks an order the current floor be replaced with carpet and high rated acoustic underlay as recommended by Octave.

RESPONDENTS’ EVIDENCE

18. The respondents submit the application is frivolous, vexatious, misconceived or otherwise lacking in substance.

19. Since they have moved into their apartment there is no evidence of any complaints of noise coming from their lot as set out in Reasons for Orders in the application.

20. All historical works undertaken within their lot were approved by the owners corporation. The applicant has not provided any evidence of the historical floor treatment, including the rating of the former underlay and side insulation which was removed in 2018.

21. The report from Octave Accoustic acknowledges the minimum required for the BCA only relates to “new multi residential building”. The standard does not apply to this 1930’s building. They rely on the Appeal Panel decision in Nowak v Pellicciotti [2018] NSWCATAP at 76:

Whilst the Building Code of Australia 2016 provides a method for an objective assessment of noise it is appropriate to note that this relates to new buildings of current building standards. The expectations of occupants in buildings which are much older with a thinner floor slab must necessarily be less than those in a new building where compliance with that standard is required. To the extent that the testing of Palmer Acoustics Australia Pty Ltd provides a guideline, the evidence of a minimal failure in one room does not, in a building of this age, justify the making of the orders sought by the applicant.

22. The applicants have purchased new furniture which has soft floor felt padding on the legs of the chairs and the lounge. This is designed to minimise noise transmission. They have also purchased a new rug. The jute rugs referred to in the application belonged to the former owner.

23. The respondents seek an order the application to be dismissed.

decision

24. The applicant has failed to provide cogent evidence of any new breach of the by-law 20 since the property was sold to the respondents on 03 March 2023, apart from noise in the bathroom pipes when the bathroom is being used. There is no further affidavit from the tenant in Lot 1 post 03 March 2023.

25. Affidavit the tenant in Lot 1 Belinda Bullivant was affirmed on the 08 January 2023. Attached to which is a Noise Disturbance Log, based on recordings she made within Lot 1 between 20 May 2022 and 06 January 2023. None of this is relevant to activities within Lot 3 after 03 March 2023.

26. At paragraph 21 of A4 the applicant deposes to conversations with her tenant Ms Bullivant on 21 June 2023 and 23 June 2023. There is no affidavit from Ms Bullivant in relation to these conversations.

27. Three of the five noises referred to by the tenant post 03 March 2023 is the sound of what she describes as “torpedo wee” and toilet flushing. The only contemporaneous evidence to support these more recent complaints by the tenant is an email from Ms Bullivant to the applicant dated 23 June 2023 complaining of hearing “torpedo wee” that morning. This is clearly Lot 3 using their bathroom. By-law 20 specifically excludes the bathroom and the lavatory, and this is acknowledged by the applicant in the application.

28. Ms Bullivant does not state when she actually heard all but one of the noise complaints, in particular the date she heard the owners in Lot 3 coming home late at night, or when she heard them walking around their bedroom. Whenever that may have been, I am satisfied that in apartment living it would not be unusual to hear some noise of other residents. This is not a breach of the by-law.

29. The tenant kept a noise disturbance log for seven months from 20 May 2022 to 06 January 2023 and recorded many different types of noise disturbing her quiet enjoyment. None of which included use of the bathroom by the residents in Lot 3. Since the respondents have resided there the main complaints are noise coming from the use of the bathroom. I am satisfied that all the other recorded noises have ceased. And I find the sound transmission through the pipes is not a breach of the by-law 20.

30. The applicant relies on the report from Octave Accoustics. In her affidavit the applicant refers to the author of the Octave report as being a “qualified expert acoustic engineer.” The author of the report is not disclosed.

31. The report does not conform the with Expert’s Code of Conduct in accordance with NCAT Procedural Direction 3. The unidentified author does not disclose his/her specialised knowledge based on his/hers training, study or experience and it follows has not who provided an opinion based wholly or substantially on that knowledge.

32. I will admit the report but it is a question of what weight to give the report, having regard to the above. This issue becomes less significant as the report and testing were undertaken pre-03 March 2023, when the owners at that time had rented the apartment for the short-term holiday lettings. There is no expert evidence of noise transmission emanating from the premises since the respondents purchased the property on the 03 March 2023.

33. The applicant bears the obligation of establishing the facts she seeks to assert on the balance of probabilities and she must establish conduct which would be in breach of the provisions on an objective test. In order to prove that case the Tribunal must be satisfied that the applicant’s assertions are more probable than not.

34. The applicant alleges the flooring in Lot 3 does not comply with the BCA as referred to above. The applicant’s expert has taken measurements which are said to fail minimum standards of the BCA/NCC. The provisions of the Codes are not extracted in the report. This omission is not fatal, as the author concedes neither of these Codes apply to the subject building, having regard to its age. It was not contested this is a circa 1931 building, and therefore the codes do not apply.

35. It is obvious to say that the allegations raised by the applicant concerning the transmission of noise and indeed the evidence relied on by the applicant all predate the purchase of Lot 3 by the named respondents. Prior to 03 March 2023 there may well have been transmission of noise of the type described in the application from Lot 3 into Lot 1. But the applicant has failed to provide evidence that noise of that kind continued after 03 March 2023.

36. I have formed the view the application is misconceived as it relates to the transmission of noise from Lot 3 at a time which predated the current owners’ occupation of the premises. The only noise transmission since march 2023 which is corroborated by contemporaneous documentary evidence is the complaint from the tenant in Lot 1, and that is a sound which is transmitted through the pipes of a 1930’s building. This is not a breach of the by-law and the laying of carpet and underlay in the living room and bedrooms would not prevent its transmission.

37. In this case I have formed the view that there was sound transmission from Lot 3 prior to the change of ownership. The former owner rented the lot on short term holiday letting websites and I accept the usage of the premises for that purpose resulted in the transmission of the noises described in the application.

38. I am not satisfied on the applicant’s evidence that there has been any noise transmission which could be considered to be likely to disturb the peaceful enjoyment of the owner or occupier of another lot since the sale to the respondents. It is apparent from the application itself that the reasons for the orders sought related to noise that was associated with the short-term holiday letting which I am satisfied ceased after the property was sold to the respondents in March 2023.

39. It appears the application may not have been misconceived when it was filed, but with the change of ownership the continuation of the proceedings was misconceived as there is no evidence of noise transmission from Lot 3 that is likely to disturb the peaceful enjoyment of the owner or occupier of Lot 1.

40. For these reasons the application is dismissed.

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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