Zhang v Glykis

[2020] NSWCATCD 17

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Zhang v Glykis [2020] NSWCATCD 17

Hearing dates:

18 November 2019

Date of orders:

29 January 2020

Decision date:

29 January 2020

Jurisdiction:

Consumer and Commercial Division

Before:

J Ringrose, General Member

Decision:

1. The application is dismissed.

2. Each party is to bear their own costs.

Catchwords:

LAND LAW — Strata title — Strata Scheme — Noise transmission — Compliance with by-laws — Objective tests — Whether function conferred or imposed by legislation or by-laws — Floor coverings sufficient to prevent the transmission of noise likely to disturb the peaceful of another lot owner or occupier

Legislation Cited:

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

Curragh Coals Sales Co Pty Ltd v Wilcox [1984] FCR 46

Eales v Feletti [2018] NSWCATCD 66

Feletti v Eales [2019] NSWCATAP 100

Gao v Agosti [2009] NSWCTTT 175

George v Rockett [1990] 170 CLR 104 at 112

Hargrave v Goldman [1963] 110 CLR 40

Nowak v Pellicciotti [2018] NSWCATCD 9

Opera House Investments v Devon Buildings Pty Ltd [1936] 55 CLR 110 at 116

St Helen Melting Co v Tipping (1865) 11 HSC

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Frances Zhang (Applicant)
Peter Glykis (First Respondent)
The Owners – Strata Plan No. 17572 (Second Respondent)

Representation:

Applicant (Self-represented)
First Respondent (Self-represented)

File Number(s):

SC19/30449

reasons for decision

Application

1. By an application filed on 1 July 2019 the applicant as the owner of Lot 116 in Strata Plan 17572 commenced proceedings against the first respondent who is the owner of Lot 126 in Strata Plan 17572 and also the Owners Strata Plan 1752. She claimed that there was insufficient floor covering in Lot 126 and sought an order that the Tribunal direct the respondent to comply with flooring by-laws.

2. The matter was listed for directions on 7 August 2018 when the Owners – Strata Plan No. 17572 were joined as a second respondent and the applicant was given leave to amend her claim by 21 August 2019 and to file Points of Claim specifying precisely the orders she sought against each respondent and the sections of the Act upon which she relied. The respondents were to file and serve points of defence by 4 September 2019. The applicant was to provide all documents upon which she sought to rely at the hearing by 2 October 2019.

3. On 13 August 2019 the applicant sought an extension of time to enable her to obtain an expert acoustics report and on 21 August 2019 the timetable was amended to enable the applicant to file her Points of Claim and an amended application by 4 September, with Points of Defence to be filed by 18 September and the applicant’s documents were to be provided by 8 October 2019.

4. On 9 October 2019 the Owners Corporation was removed as a respondent and consent orders were made requiring the applicant to file documents including a copy of the By-laws by 11 October 2019. The respondent was then ordered to provide all of his documents by 1 November.

5. Senior Member Wilson determined that the Tribunal did not have power to make orders sought by the applicant against the Owners Corporation and as a result the applicant withdrew her claim against it. Senior Member Wilson noted that the Tribunal would decide whether the respondent had breached the relevant by-law and whether the Tribunal should order that the respondent is to install carpet or whether it should make some other order.

6. The applicant filed three different sets of evidence and submissions between 3 October 2019 and 28 October 2019 and the respondent filed his evidence on 23 September 2019 and 8 November 2019. The matter was then listed for hearing on 18 November 2019.

Applicant’s submissions

7. In the reasons set out in her application the applicant noted that since July 2017, when she purchased Lot 116, she had suffered for two years from the tenant upstairs. She claimed that the tenant had ignored her complaints over two years and the owner was unable to control the tenant.

8. In a letter to the Tribunal dated 28 June 2019 she claimed that she had made some 20 email complaints to the Building Manager and the Strata Manager in regard to serious noise issues from the unit above which was tenanted and was self-managed by the respondent. She claimed (without other evidence) that the tenants were constantly under the influence of substances and behaved in a very uncivilised manner. She alleged that noises were unbearable all the time and that the floors lacked proper coverage and insulation.

9. She attached to her evidence a number of emails addressed to the Strata Manager concerning noisy parties and these communications continued through until 2019.

10. By 1 March 2019 the Strata manager wrote to the applicant informing her that he had had an in depth discussion with the owner of Lot 126 and the advice he received did not align with what had been said by others. He pointed out that the owner was aware that the Strata Manager was seeking an immediate solution to the problem and that he had been provided with the tenant’s details.

11. On 5 March 2019 the Strata Manager advised the applicant that an email referencing the by-laws had been sent to the owner and the tenants and that any further problems would be handled through the Strata manager.

12. On 17 April 2019 the applicant wrote to the respondent pointing out there had been 17 complaints about the tenant in Unit 126 since 2017. She suggested that sounds coming through the timber floor were excessive and further action was necessary to make the flooring more soundproof. In addition she suggested that the tenant should be changed in favour of others who were more considerate of neighbours.

13. On 5 May 2019 Mr Glykis responded to the applicant noting that it was his understanding that the noise issues had been resolved as the problem tenant had gone.

14. The applicant filed further submissions on 3 October 2019 which included a report dated 2 September 2019 from Acoustic Directions, completed and signed by Camille Hanrahan-Tan.

15. Ms Zhang referred to the report and claimed that according to recommendations made by the acoustic consultant in the report she was making the following claims:-

1. Carpet to be installed on the top of the existing timber floor throughout Unit 126

2. A rug with minimum thickness of 10 mm be placed around the unit in areas of high pedestrian traffic including the hallway, living area and bedrooms.

She noted that the report had recommended that the floors be completely removed and reinstalled although she was not intending to add that to her claim. She sought an order that the respondent pay 50%of the acoustic report which she had obtained and that he should have an agreement in place stating that any lease would be terminated if there were three official complaints made by the applicant in the future.

16. At that stage Ms Zhang sought orders against the second respondent to pay 50% of the acoustic report and to have a strict policy in place that if the owner of Unit 126 did not manage the property responsibly or remove the tenants after three official complaints then the Owners Corporation should enforce a termination as well as applying a penalty to protect other lot owners.

17. In her chronology of events date 17 September 2019 Ms Zhang noted that new tenants moved into Unit 126 in July 2019 and Ms Zhang made a complaint concerning the noise from furniture being moved about in the unit above..

18. On 28 October 2019 Ms Zhang filed further material in support of her claim. She claimed that the occupant of Unit 118 had some problems and she attached a witness statement of Mr Kurt Denby dated 16 October 2019. He noted that tenants in Unit 126 had caused some problems until they were finally removed in June 2019. He stated that after those tenants moved out the frequent disturbances stopped with the new occupants moving in but there were still some sounds of objects dropping at night time due to poor soundproofing of the flooring.

19. A further statement of Henzo Matsumori was also included and Mr Matsumori gave his address as Unit 116/ 6-14 Oxford Street Darlinghurst. He states that he moved in with the applicant in May of 2019 and the tenants in Unit 126 moved out in June. Mr Matsumori made observations concerning what he felt should be done to the flooring but his observations in that regard are of little, if any, assistance to the Tribunal.

20. A copy of the by-laws was also included and it is noted that the relevant by-law (By-law 11) provides:-

“Floor Coverings

1. The 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 an owner or occupier of another lot.

2. This by-law does not apply to floor space comprising a kitchen, laundry, lavatory or bathroom.”

21. The acoustic report prepared by Acoustic Directions indicates that a measurement of the impact noise transmission of the existing timber floor system between Unit 126 and Unit 116, directly below, had been undertaken in the master bedroom and living room of Unit 116 which was the receiving unit for noise impact. The tapping machine was positioned in three alternative positions in the master bedroom and four alternative positions in the larger living room of Unit 126. Measurements were taken in the receiving room. Different rotation orientation of the machine was used for each position.

22. Mr Hanrahan-Tan noted that the impact noise in this Strata Plan was subject to the requirements of the Building Code of Australia. He observed that the criteria for impact noise was listed in section FV 5.1 of the National Construction Code and he referred to the Star Ratings under that Code.

23. The overall results using the AAC Star Rating System and the Building Code of Australia determined that both the master bedroom and the living room achieved a three star rating and both rooms were in compliance with the Building Code of Australia. He concluded that the results show that the timber floor in Unit 126 does comply with the BCA minimum of a weighted standardised impact sound pressure level of not more than 62 when determined under the ASISO 717.2. The calculated readings were 55 in the master bedroom and 54 in the living area.

Respondent’s Evidence

24. The initial material was filed by Mr Glykis on 23 September 2019 and in a chronology of significant events he noted that Unit 126 was purchase him in July 2007. During August and September 2008 renovations took place and timber flooring was installed by Wanda Floor Coverings of St Peters. Prior to the installation of the floor approval was obtained from the Owners Corporation but Mr Glykis claims that owing to the eleven years passing since the floorboards were installed neither the current or previous strata managers had copies of the documents.

25. Unit 116 was purchased by the applicant on 30 March 2017 and on 10 July 2017 she states that she made her first complaint about noise. Mr Glykis claims that there were never any complaints from Unit 116 concerning higher noise levels until that time and it wasn’t until April 2019 that the issue of flooring was raised by the applicant with him.

26. He was aware of instances where tenants had made excessive noise and these issues had been addressed through the Strata Manager and the building manager. Initially Mr Glykis had told the Building Manager to contact the police if the tenants contravened noise by-laws and in September 2019 he communicated to the Strata Manager and advised him to progress with a Notice To Comply with noise by-laws.

27. In December 2018 and again in March 2019 he was notified that tenants were being disruptive and apparently a mediation session was convened with the Building Manager, the Strata Manager and the tenants to identify what was an acceptable level of noise.

28. In May 2019 the applicant lodged her present application for mediation and in June 2019 the tenants vacated the property.

29. New tenants moved into Unit 126 in July 2019 and the applicant made a complaint of furniture moving, but otherwise there were no further complaints made to the respondent up until the time when the respondent’s evidence was filed.

30. The respondent noted that the flooring includes two acoustic underlays between the flooring surface and a floating floor and an additional measure was taken to apply rubber sealant between the timber floor and the walls to prevent transmission of noise through the walls.

31. Mr Glyskis referred to a report from Acoustic Answers and noted that results indicated a three star AAC rating which was compliant with the CA requirements. It was suggested that a sub ceiling could be installed in the room below which would go some way towards solving the problem. He noted that the height of the ceiling in Unit 116 would enable this to be done without difficulty if the applicant chose to adopt that course.

32. In summary Mr Glykis observed that the issue the applicant had was with the behaviour of previous tenants and he acknowledged that they were not model tenants, however steps were taken to address their behaviour. Once the tenants vacated the premises he had assumed that there would be no further issues and in the absence of further complaints after the new tenants moved in he expected that the issue had been resolved.

33. Mr Glykis submitted that apartment living required some flexibility as neighbours may not have the same sense of what is reasonable and this could be challenging, coupled with the fact that the unit block is located on a major city road, Oxford Street, which would add additional living pressures. He submitted that he had taken all reasonable steps to ensure that noise was not transferred to the unit below and he invited the applicant to do the same. He observed that the units were built to different Regulations in the 1970’s and that it was an inevitable fact of modern high rise living that there may be some impact from neighbours.

34. Mr Glykis included a report from Acoustic Dynamics dated 29 October 2019. The company was engaged to conduct a technical review of the impact of the noise assessment submitted by Acoustic Directions Pty Ltd but it reported that the company was denied access to Unit 116 and accordingly they were unable to conduct a comparative report but instead they conducted a technical review of the other report.

35. The author of the report agreed that the flooring complied with the Building Code of Australia and that the assessment also resulted in a Three Star AAAC rating for floor sound transmission performance requirements. He noted that these are generally considered to be representative of a minimum acceptable standard. A three star performance was likely to prevent the transmission of noise likely to disturb the peaceful environment of the owner or occupier of another lot and prevent the transmission of noise that caused a nuisance or hazard.

36. Having conducted a review of the impact noise assessment undertaken by the applicant’s experts Mr Green and Mr Haydon concluded that the floor complied with all relevant criteria and was not likely to disturb the peaceful enjoyment or cause nuisance or hazard to the owner or occupier of another lot to interfere unreasonably with the use or enjoyment of any other lot.

37. The request for access for an expert report was made by the respondent and on 21 October 2019 Ms Zhang replied to Mr Glykis in the following terms:-

Since our last phone conversation I have spoken to some parties to find out exactly who should issue breach notices, main response was the owner should be and the Strata’s reply was:

There are no legalities of who issues breach notices, the tenant has a lease from the owner and such lease contains all by-laws – so how an owner cannot enforce by-laws within their own lease agreement is incorrect.

You mentioned in an email you will ask the tenants to place rugs, there is no guarantee in this time line, actually just finding some rugs and place them in the apartment won’t even take more than one day of your time, if they are second hand rugs then it’s an even cheaper option, it makes much more sense that you doing another acoustic report which the first report was already used by you in your evidence to your favour. By the way I didn’t have time tomorrow afternoon to grant access and it wasn’t in the Tribunal’s order to grant access.

As I have heard from the last hearing now, the case comes down to whether the owner complied to by-laws, even if the floor comprised BCA. If the neighbours are being disturbed then according to by-laws more sufficient floor coverings are needed, you kept saying I am sensitive to noise but you can see two other witnesses to prove that it is not the case.

Without some proof that you have enforced the rugs being placed then we are not comfortable to withdraw the case at this stage, I have already paid for the report and I’d rather there’s some outcome to prevent us to future disturbances, thank you.

38. In his submissions Mr Glykis refered to By-law 11 and to my decision in Nowak v Pellicciotti [2018] NSWCATCD 9 along with a decision in Feletti v Eales [2018] NSWCATCD 66 which was later the subject of an appeal in April 2019.

Decision

39. In this matter the applicant, Frances Zhang, substantially seeks an order that the respondent comply with By-law 11 relating to floor coverings. The by-law provides

1. 11 Floor Coverings

2. An owner of a lot must ensure that the floor 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.

3. This by-law does not apply to floor space comprising a kitchen, laundry, lavatory or bathroom.

40. She initially sought orders against the Owners Corporation and for reasons provided by Senior Member Wilson on 9 October 2019, the Owners Corporation was removed as a respondent when the applicant withdrew her application against them. The Senior Member noted at that time the Tribunal would decide

1. Whether the respondent had breached a by-law

2. Whether the Tribunal should order that the respondent install carpet or make some other order.

41. Unit 126 was purchased by the respondent, Peter Glykis, in July of 2007 and the renovation of the unit occurred in August and September of 2008 when timber flooring was installed by Wanda Floor Coverings of St Peters.

42. Mr Glykis states that prior to the installation of the floorboards approval was requested and obtained from the Owners Corporation in relation to the installation of the timber floorboards.

43. Unit 116 was purchased by the applicant on 30 March 2017 and the first complaint was made about Lot 126 on 10 July of that year. The applicant claims that between July of 2017 and June of 2019, when the tenants of Lot 126 moved out she had submitted some 17 complaints to either the Strata manager or the building manager and ultimately, in 2019, to the respondent as owner of Lot 126. The relief presently claimed by the applicant is that carpet be installed on top of the existing timber floor throughout Unit 126 and that rugs with a minimum thickness of 10mm be placed around the unit in areas of high pedestrian traffic, including the hallway, living areas and bedrooms. She has also sought an order that the respondent pay 50% of the costs of the Acoustic Report obtained from Acoustic Directions in August of 2019 and that a written agreement be put in place stating that a lease would be terminated if there were three official complaints from the applicant in the future.

44. The applicant has sought to rely on an Expert Report of Camille Hanrahan-Tan of Acoustic Directions. That report is dated 2 September 2019 and relates to testing undertaken in Units 116 and 126, apparently on that date. The respondent, Peter Glykis sought permission to access the applicant’s lot in October so that he could have his own independent report undertaken by Mr Green and Mr Haydon of Acoustic Dynamics. Access to Unit 116 was not made available at the time and accordingly a peer review report was prepared on behalf of Acoustic Dynamics on 29 October 2019. Both reports were received into evidence although the Tribunal could have excluded the applicant’s report on the basis that the respondent was not given an opportunity to have his own full independent report.

41. In the present case the Tribunal has deemed it appropriate to allow the applicant’s report to be admitted but it is appropriate to balance the findings in the report against the observations of the respondent’s experts who were not given the opportunity to participate in this testing process or any testing process which required access to be gained to the applicant’s unit.

42. Ms Zhang has argued that the noise emanating from the respondent’s unit has disturbed her peaceful enjoyment of her unit then she accordingly seeks the orders referred to in her points of claim.

43. Although not specifically referred to in the applicant’s claim it is appropriate to consider the provisions of s.153(1) of the Strata Schemes Management Act 2015 which provides :-

153 (1) An owner, mortgagee or covenant charge in possession tenant or occupier of a lot in a Strata Scheme must not:_

1. Use or enjoy the lot or permit the lot to be used or enjoyed in a manner of or for the purposes that cause a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not)

The wording of s.153(1) of the 2015 Act is identical to the wording of s.117(1)(a) of the Strata Schemes Management Act 1996.

48. The appropriate interpretation of By-law 11 in s153(1) of the Strata Schemes Management Act 2015 requires a consideration of terms such as a “peaceful enjoyment of a property” and “the causing of a nuisance or hazard”. In St Helen Melting Co v Tipping (1865) 11 HSC and Hargrave v Goldman [1963] 110 CLR 40 the Court held that an unreasonable and substantial interference with one’s use or enjoyment of land gives rise to an action in nuisance.

49. Unreasonable is not defined under the Act and it is therefore to be understood as it would in the common everyday meaning of the word (see Curragh Coals Sales Co Pty Ltd v Wilcox [1984] FCR 46). The test of what is reasonable is an objective test that requires the existence of facts which are sufficient to induce that state of mind in a reasonable person (George v Rockett [1990] 170 CLR 104 at 112).

50. In Words and Phrases Legally Defined there is reference to the discussion of “reasonable” in the Australian context in the following terms:-

“The word reasonable” has been declared to mean “reasonable in all the circumstances of the case”. The real question is to determine what circumstances are relevant. In determining this question regard must be paid to the nature of the transaction. A circumstance which has no relation to the property which was the subject matter of the transaction but which is entirely dependent on the personal position or personal desires of the owner of the property would not in my opinion be relevant circumstances in determining what was “reasonable” (see Opera House Investments v Devon Buildings Pty Ltd [1936] 55 CLR 110 at 116 per Latham J).

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

52. Mr Glykis had indicated that prior to the installation of the floorboards he sought advice from a flooring specialist as to the insulation which would be required in order to achieve a compliant impact standard. The floor he installed included two acoustic underlays between the flooring surface and a floating floor, additionally a further measure was taken to apply a rubber sealant between the timber floor and walls to prevent the transmission of noise to the walls.

53. Acoustic Directions identified in their impact noise test that Lot 126 had achieved a AAAC Star Rating of three and Acoustic Dynamics confirmed that a hard flooring achieving a AAAC Three Star performance was likely to prevent the transmission of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot. This view was expressed to be consistent with other AAAC member firms as agreed and documented in the Minutes of the AAAC Mid Year Meeting of 2005.

54. In Eales v Feletti [2018] NSWCATCD 66 Senior Member D Robertson had noted that an expert, Mr Tonin, expressed the opinion that a three star rating was a reasonable standard for the majority of apartments in Sydney. That decision was taken on appeal and leave to appeal was refused by the Appeal Panel and the Appeal was dismissed (Feletti v Eales [2019] NSWCATAP 100).

55. In Nowak v Pellicciotti [2018] NSWCATCD 9 I observed that a circumstance which had no relation to the property but which entirely depended upon the personal desires of the owner of the property would not, in my opinion, be a relevant circumstance in determining what was reasonable (see Opera House v Devon Buildings Pty Ltd [1936] 55 CLR 110 at 116 per Latham J).

56. The applicant has conceded that her own Acoustic Dynamics report verifies that the flooring complies with the Building Code of Australia. That position is clearly supported by the opinion expressed by Acoustic Directions, although unfortunately they were not able to carry out their own independent assessment as Ms Zhang did not allow them to enter her apartment when they sought to do so. The unit block is some 45 years old and it is located on a major city road, namely Oxford Street Darlinghurst.

57. It would appear that the initial complaints made by the applicant were directed to the behaviour of the tenant at the time and it is significant to note that after that tenant was removed from the property no further complaints have been recorded other than a complaint of noise when new tenants moved into the property in July of 2019.

58. The Appeal Panel has accepted that the correct test for determining whether breaches had occurred was whether or not by-laws had been breached as assessed on an objective basis and not the subjective perceptive of a unit owner (see Gao v Agosti [2009] NSWCTTT 175). The Tribunal had noted in that case that the noise complained of by the appellant involved normal daily activities including walking on the floor. In that case, as in the present case the appellant had provided no expert evidence to demonstrate that the floor was generating an unreasonable amount of noise.

59. On applying those principles and weighing up the subjective complaints of the applicant against the evidence provided by the applicant and the respondent the Tribunal is not satisfied that the evidence, which includes a consideration of both expert reports, is sufficient to establish that By-law 11 or the provisions of s.153 of the Act have been breached.

60. It is appropriate to note that the Building Code of Australia of 2016 provides a method for an objective assessment of noise which relates to new buildings and current Standards. The expectation of occupants in buildings which are much older with probably a thinner floor slab must necessarily be less than those in a new building where compliance with that Standard is required.

61. The Tribunal notes that in the course of earlier discussions between the parties the respondent had offered to ensure that rugs were strategically placed in the tenanted unit but this offer was refused and there is no basis upon which the Tribunal should or would order other measures be taken. The objective determination of both experts is that the flooring complies and it is noted the flooring was originally approved by the Owners Corporation in 2008. 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: 17 March 2022