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

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.
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.
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.
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…

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 Zhang v Glykis

Details

AGLC: Zhang v Glykis [2020] NSWCATCD 17
Case: [2020] NSWCATCD 17
Decision Date: 29 January 2020

CaseChat Overview and Summary

Zhang v Glykis was a dispute in the Supreme Court of Queensland between two strata lot owners, Zhang and Glykis. The conflict arose from noise complaints Zhang made regarding the noise emanating from Glykis's unit. Zhang claimed that Glykis was in breach of the strata by-laws and statutory requirements designed to prevent noise transmission. The central legal issues before the court were whether Glykis's actions constituted a breach of the by-laws and if the floor coverings in Glykis's unit were adequate to prevent noise transmission that could disturb Zhang's unit.

The court examined the legislative framework and by-laws applicable to strata titles. It found that the by-laws did not explicitly impose a requirement on floor coverings to prevent noise transmission. The court also noted that the legislation did not confer such a function on the by-laws. Instead, the by-laws and the relevant statutory provisions aimed to address noise disturbances in a broader sense. The court held that the by-laws were not breached because the floor coverings did not need to be of a specific type to prevent noise transmission as long as they were sufficient to reduce noise likely to disturb another lot owner or occupier. Consequently, the court dismissed Zhang's application, finding that Glykis had not breached the by-laws. The court also ordered that each party 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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