Butt v The Owners - Strata Plan No 71715 - [2023] NSWCATCD 60 - NSWCATCD 2023 case summary

NCAT Consumer and Commercial|2023-05-16|Before: The Hon J

Introduction

This is an application by the respondents to set aside summonses issued on 6 April 2023 at the request of the applicant (Mr Butt) to: 1. the first respondent (OC) (OC Summons); and 2. to the second respondent (Mr O'Donnell) (O'Donnell Summons).
The content of the Schedule of the OC Summons is as follows: 1. Comittee [sic] and general meeting minutes concerning complaint of noise by or on behalf of the owners of Lot 26 within lot 26 and complaints/investigations relating to the applicant's lot 50 and the applicants use of that lot being the source and/or cause of such noise. (lot 26 noise issue) 2.Documents evidencing communication between the respondents and or their respective agents about the lot 26 noise issue. 3.Documents evidencing or recording noise complaints from other lot owners or occupiers in the respondent scheme building from 1 January 2020 to the date of service of this summons. 4. Documents evidencing correspondence between the respondents and their respective agents and Ausgrid about noise complaints other than the lot 26 noise issue in the strata scheme building. 5. Documents evidencing correspondence between the respondents and their respective agents and any third party other than Ausgrid/Acoustic Logic about the lot 26 noise issue and other noise complaints in the strata scheme building. 5.Documents evidencing the first respondent's brief to Acoustic Logic to report on the lot 26 noise issue, the report of Acoustic Logic dated 27 April 2021 (AL Report) and any communications with Acoustic Logic by the first respondent or its agent/solicitor since the date of that report generally and in relation to carrying out remedial works recommended in that report. 6.Documents relating to carrying out and implementation of remedial works recommended in the AL report and or any reason why the first respondent has not and or is unable to carry out those remedial works including any quotations regarding the carrying out of such remedial works. 7. Documents evidencing any other expert report, investigation and or recommendations in relation to the lot 26 noise issue and any other noise complaint by lot owners or occupiers in the respondent scheme building including documents retaining/briefing such exert. 8. Documents evidencing communications between the first respondent and the applicant, and between their respective agents/solicitors regarding the lot 26 noise issue. 9. Committee and general meeting notices and or reports referring to the lot 26 noise issue. 10. Documents evidencing the first respondent's decision to retain solicitors to represent it in this matter and any fee/cost disclosure /estimate provided to/obtained by the first respondent in respect of such legal services.

Mr Butt's claims

Mr Butt sets out the background to his application in a statement accompanying his application where he states: 1. I am the owner of lot 50. Lot 26 is directly below my lot. 2. The Owners Corporation (OC) and the owner of lot 26 have complained that a vibrating chair and bed I have has been causing a nuisance to the tenants of lot 26. 3. have been threatened with legal action for breach of by laws by the OC (Annexure G) and the owner of lot 26 (Annexure D) and in respect of noise pollution by one of the occupants of lot 26 (Annexure E). 4. I was informed about the complaint by the OC building manager in about August 2021 following which I ceased using the bed and chair. Yet, as I understand it, noise complaints from lot 26 continued, nevertheless. 5. In November 2022, I installed acoustic matting as recommended by the chair/bed manufacturer. 6. l am concerned that the noise complained of in unit 26 has some source or cause other that my bed/chair. 7. I have severe diabetes type one and am insulin dependent and morbidly obese. I also suffer from sever tinnitus. 8. I have medical advice to use the chair/bed to improve my circulation 9. My solicitor has proposed that the OC obtain an expert nomination from UNISEARCH to source an expert to report on the lot 26 noise complaints and to recommend remedial work and that the OC obtain and pay for and obtain that report (Annexure F). 10. The problem here has been going on for a long time and I am concerned that the other parties may have lost objectivity and have become emotionally involved to the extent they can see no other cause for the problem other than to blame me. 11. If there have been vacancies in occupation of lot 26, I am concerned that this may be due to COVID and or other causes. 12. I feel that an independent and objective expert selection and report will enable the resolution of this dispute. 13. In the circumstances I seek any reasonable relief against harsh opearation of by laws t enable me to operate my medically direce3d bed/chair.
As Mr Butt explains in submissions filed 15 February 2023: 1. I have brought this application to resolve a strata dispute in which I am being pursued by the Owners Corporation (OC) and the owner of lot 26 which is immediately below my lot (unit below), in relation to vibration issues alleged to be occurring in the unit below. 2. There are allegations that the vibration is caused by a vibrating bed and chair in my unit which I use for medical reasons, to which I have applied insulation for noise penetration as recommended by the manufacturer of both items. Framing of relief in initiating application 3. Initially, I believed it would be necessary to commission an expert report to determine the source of the vibration complained of and suggest a way of resolving those vibrations. At the time of filing the application, I was not aware that the OC had already obtained an expert opinion about the alleged vibration. 4. The owners of the unit below have not co-operated by providing documents evidencing the vibration and their relations with various tenants who they claim have quit because of the alleged vibration, thus denying access to vibration/tenant complaint data for use in resolving this situation. OC reveals 2021 experts report and apparent failure to carry out remedial works 5. However, on 27 January 2023 the OC provided, for the first time, a report by Acoustic Logic dated 27 April 2021 (AL Report), which finds a correlation between vibration in the buildings transformer room and vibration in the unit below, and recommends remedial works to vibration as follows: Isolate the transformer from the building by 25mm deflection springs and equivalent.
Against that background, by a Further Amended Application filed pursuant to leave granted on 23 May 2023 (FAA), Mr Butt seeks the following orders: [1] An order that the respondent owners corporation take such steps and measures as are open to it, at its expense, and in a good and workmanlike manner, to abate, or cause to be abated, the noise nuisance found to emanate from the building's transformer room by report of Acoustic Logic dated 27 April 2021 by "Isolate the transformer from the building by 25mm deflection springs and equivalent: or otherwise isolate the transformer room as found by that report (remedial works). [2. Pursuant to ss] 59(1) and (2)(b) and 232 of the Strata Schemes Management Act 2015. An order that the respondent owners corporation at its expense, obtain a further report from Tomas Bohdan of Acoustic Logic (Expert) on the extent and nature and source of noise vibration complained of by the owner occupier of lot 26 (affected lot) said to impact the enjoyment of lot 26 (lot 26 noise complaint), Should the owner/occupier of the affected lot still complain of the still complain of the said noise/vibration impacting the quiet enjoyment of the e remedial works specified in the expert's report of 3 May 2023 (3 May remedial works). The further report to be conducted on the basis of simultaneous noise data collection from the building transformer room and apartments 307 and 207 over a period of time, as determined by the tribunal, at times between 7pm and 10pm, or such hours as determined by the tribunal, and so as to determine and report on the contribution of noise affecting the affected lot by the noise emanating from the transformer room and the noise emanating from the applicant's vibrating chair following the remedial works and the 3 May remedial works, if any, and recommend any further works needed to address ongoing noise impacting the affected lot (further remedial works). [3. Section] 232(1)(a) of the Strata Schemes Management Act 2015 finding that the Applicant has not used his vibrating bed and/or chair to create a nuisance and/or to unreasonably interfere with the enjoyment of the affected lot 26. [4. Sections 150 and 231(1)(a) of the Strata Schemes Management Act 2015. Should the Applicant be found to be using his vibrating bed or chair to cause a nuisance to, or unreasonably interfere with the enjoyment of the affected lot within the meaning of by law 4, that by-law be revoked in accordance with s 150 of the of the Strata Schemes Management Act 2015 as being harsh, unconscionable and oppressive to the extent it prevents the applicant using the medically prescribed and TAG approved vibrating chair in his home. [5. Sections 9(1) and (2)(b) and 232(1)(a)] of the Strata Schemes Management Act 2015, finding that the first respondent has failed to exercise its functions under s 9 of the Strata Schemes Management Act 2015 competently and in the interests of all lot owners, in the management and administration of the lot 26 noise complaint and the conduct of these proceedings. [6. Section 237] of the Strata Schemes Management Act 2015. An order that a compulsory managing agent be appointed at the expense of the respondent to deal with the matters referred to in [the orders above]. [7]. Further and other orders. [8]. Costs. (Italics added; new paragraph numbers added; bolding and definitions as in original)

The OC's submissions

The OC's submissions commence by setting out various reasons why the relief sought by Mr Butt is "confused and ill-thought out", and why the application should be withdrawn.
As to the summons issued against it, the OC submits: 3.1 Generally, in relation to the summons and items 7 and 10, the OC submits that the NCAT should not make a coercive order that documents be produced in circumstances where the Applicant already has a right to search for these documents in the strata records. That right is set out in section 182 of the Strata Schemes Management Act, 2015 which permits the Applicant, being a lot owner, to make a request and then carry out an inspection of the OC's records. 3.2 The Applicant has not made such a request but has instead served a document (the summons) akin to a subpoena. That right under section 182 is akin to a right to discovery. A court will not allow a subpoena to be served on another party in a case where there are other rights to obtain documents such as discovery or a notice to produce, and service of a subpoena against a party is an abuse of process. The Tribunal ought not to order production of documents in this case for the same reasons. 3.3 Furthermore, the OC after receipt of the summons asked the Applicant to pay reasonable costs of the strata manager's time in searching for these documents. It is accepted that the recipient of a subpoena has a right to have its reasonable expenses paid for in searching for documents. The Applicant refused to pay for that search. 3.4 However, in any case the documents sought are irrelevant to any issue before the Tribunal. Category 7 calls for "documents evidencing any other expert report, investigation or recommendations in relation to the lot 26 noise issue and any other noise compliant by lot owners or occupiers in the respondent strata scheme building including document retaining/briefing such exert (sic)". 3.5 There is no application for orders on foot to which these documents in category 7 relate. All the Applicant seems to be doing is attempting to find some material that might assist in some case that has not yet been lodged (a "fishing expedition"). 3.6 Similarly, Category 10 call for "documents evidencing the first respondent's decision to retain solicitors to represent it in this matter and an fee/cost disclosure provided to/obtained by the first respondent in relation to such legal services." 3.7 This material is again irrelevant to any issue before the Tribunal. In this case all the parties were given the right to be legally represented at the directions hearing on 15 February 2023. This material will not prove or disprove any fact alleged by the parties and so the item ought to be rejected.
In conclusion, the OC asks that the OC Summons be dismissed.

Mr Butt's submissions

Mr Butt submits that: 35. Paragraph 3.1. This is misconceived. See para 27 above. Without a coercive obligation to produce, the applicant cannot be sure that all documents will be produced and so complete tender/cross examination bundles. A summons is appropriate. 36. Paragraph 3.2. This is misconceived. [Section] 182 of the SSMA has nothing to do with discovery or the conduct of proceedings. 37. Paragraph 3.3. Despite not producing on summons, the first respondent put into evidence most of the documents requested. The initial estimate linked to the managing agent charges is not an appropriate measure. Office bearers can attend to production. No estimate has been given even for the reduced call. Any genuine claim can be addressed at the hearing once the actual time spent is known. 38. Paragraphs 3.4 - 3.5. The documents are apparently relevant to the issues raised in the FAA which centre around what noise is produced affecting 207 and weather the applicant is causing a nuisance or using his chair to unreasonably interfere with the enjoyment of 207. The documents are needed to prepare to cross-examine the first respond[ent's] expert's report. 39. Paragraphs 3.6 - 3.7. It is known that the OC has instructed solicitors. The expense being incurred is relevant to dysfunction/compulsory appointment in a matter where OC's maladministration of the 207-noise issue where all that was required was a professional investigation/report, but instead a large legal exercise is underway with the features outlined above, at the cost of lot owners. The documents sought are apparently relevant. 40. It is clear that the allegations are pressed against the applicant (Para 1.4), yet the first respondent makes no crossclaim. 41. The first respondent does not want the allegations dealt with in NCAT. 42. To the extent that the first respondent has raised a jurisdictional issue, this could and should have been raised at the first directions hearing. This aspect will be addressed separately. 43. Otherwise, the submission makes a range of false statements and disparagements about the opponent. The applicant's proceedings history is set out above. The Tribunal will be the judge of how this conduct assists the Tribunal with its adjudicative work.

Consideration

As the Supreme Court noted in Wollongong Coal Ltd v Gujarat NRE Properties Pty Ltd (No 2) [2019] NSWSC 758 at [185]: What constitutes a "fishing expedition" was explained by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254 (i.e., where a party has no evidence that "fish of a particular kind are in a pool [but] desires to be at liberty to drag it for the purpose of finding out whether there are any there or not").
As the Supreme Court further noted in Structerre Consulting Engineers (NSW) Pty Limited v Townend [2020] NSWSC 1476 at [17]: A subpoena may not be used by a party to litigation for the purpose of endeavouring, not to obtain evidence to support the party's case, but to discover whether they have a case at all: The Commissioner for Railways v Small (1938) 38 SR (NSW) at 564. A subpoena is "fishing" when issued in the hope of finding something to supply evidence necessary to support one's case, there being no evidence that the subpoenaed party has such material but wishing to find out whether there is any material or not. …
I see no substance in any of Mr Butt's submissions. In my view, what Mr Butt is doing is in relation to the documents sought in paragraph (7) of the OC Summons is clearly "fishing". It appears to be a direct search for evidence, including evidence which may be privileged.
As to the documents sought in paragraph (10) of the OC Summons, as submitted by the OC, those documents are plainly irrelevant, and least in so far as the application is currently pleaded.
The OC Summons ought to be set aside.

Mr Donnell's submissions

As to documents sought in par (1) of the Schedule, Mr O'Donnell submits: 5. The description of the documents, including the use of the vague and abstract term "manifestation", is undeniably vague to the extent that it would be oppressive for our client to attempt to interpret its meaning and provide the documents he considers relevant to comply with the description. 6. Additionally, the description provides no timeframe for such documents/correspondence or details to limit the parameters of documents required, such as correspondence between certain parties
As to documents sought in par (2) of the Schedule, Mr O'Donnell repeats par [5], states that it has produced the residential leases for lot 26 for the period specified. 9. The Second Respondent is the owner of lot 26 in the strata scheme and is being impacted significantly by the noise disturbance into his lot. However, the orders sought by the Applicant, as outlined in paragraph 2 above, do not seek payment of compensation to the Second Respondent, nor do they seek the payment of damages for losses incurred by the Second Respondent. As such, the rental management statements and any tenant requests for compensation are entirely irrelevant to the Proceedings and the Second Respondent objects to providing these documents on this basis. 10. The mediation with NSW Fair Trading was wholly confidential. Additionally, the Applicant fails to clearly articulate the specific type or range of documents being requested, including in relation to "matters brought before CAT". There have been no other matters before the Tribunal, as far as the Second Respondent is aware, regarding the noise disturbance other than the current Proceedings and the Second Respondent has not yet been able, or required, to file evidence in these Proceedings. … 11. The Second Respondent objects to producing any documents relating to the confidential mediation between the parties for the reasons outlined in paragraph 10 above
As to documents sought in par (3) of the Schedule, Mr O'Donnell submits: 12. To the extent possible, the Second Respondent has provided correspondence held between their managing agent and tenants regarding the noise disturbance into lot 26; however, the Second Respondent considers this request to be entirely vague and imprecise, causing compliance by the Second Respondent to be oppressive. 13. The Second Respondent objects to the production of these documents on this basis. 14. The Second Respondent, through its solicitor, has raised these objections with the Applicant's solicitor and requested a revised summons which more precisely articulates the documents being sought. The Applicant's solicitor's response is enclosed for reference.
As to documents sought in par (4) of the Schedule, Mr O'Donnell submits: 15. The Second Respondent has produced the documents requested; however, the Second Respondent objects to evidencing a retainer, if such exists, as this is entirely irrelevant to the Proceedings. 16. It is wholly apparent that the Applicant's vague and imprecise descriptions of the documents and the irrelevance of a number of the documents requested to be produced under the summons is merely a fishing expedition, having provided no clear basis as to how such documents are relevant to the issues in the Proceedings. 17. The insufficient particularisation of the documents sought to be produced, in addition to requests for documents such as rental statements, which bear no relevance to the orders being sought by the Applicant, means the summons is largely oppressive and the Second Respondent objects to complying with the summons for the reasons outlined above.

Mr Butt's submissions

As to documents sought in par (1) of the Schedule, Mr Butt submits that he has been seeking these documents since before the commencement of these proceedings. He submits that given the nature of the allegations, documents recording noise complains go to the heart of the matter and are plainly apparently relevant to determining what noise propagation is put against him.
As to documents sought in par (2) of the Schedule, Mr Butt submits that given nature of the allegations and notice of a claim for compensation by Mr O'Donnell from his tenants quitting during Covid, the true nature of Mr O'Donnell's dealings with his tenants and the tenants' reasons for quitting are apparently relevant to how alleged noise affected the said tenants and whether a nuisance and unreasonable interference with "207 enjoyments" by Mr Butt has occurred.
As to documents sought in par (4) of the Schedule, Mr Butt submits that the documents are apparently relevant to the issues raised in the FAA which turn on what noise is propagated affecting 207 and whether he is causing a nuisance or using his lot to unreasonably interfere with the enjoyment of lot 26. The documents are needed to prepare to cross examine the first respondent's expert.
Mr Butt then turns to Mr O'Donnell's submissions and responds as follows: 50. Paragraphs (5-6) - refer to 45 above. It is the second respondent who makes the allegation of nuisance/unreasonable interference against the applicant and has served a chronology (not required by 15 February 2023 directions) detailing the timeframe of noise complaints, and the applicant accepts production for the chronology paragraphs 1 (September 2020) to 18 (& October 2022-current). In this context "manifest" means "occurs", i.e. took place, became apparent. The whole issue and proceedings turn on the second respondent's occupiers noise complaints. The documents are apparently relevant to the allegations put against the applicant and any nuisance/unreasonable interference. The second respondent has put on evidence about the noise complain. If such documents exist, they should be produced. 51. Paragraph (7) - see 47 above. 52. Paragraph (9). This does not make sense - see 51 above. Tenant allegations about noise, compensation sought and offered, and if/when the tenants quit, is apparently relevant to the allegations put against the applicant and any nuisance unreasonable interference. 53. Paragraphs (10-11). The documents sought relate to a mediation between the landlord and tenant only. There is no privilege or confidentiality between the applicant and the second respondent. 54. Paragraphs (15-17). Having produced the documents requested (15), the applicant seeks access only to the documents produced.

Consideration

In my view there is substance in all of Mr O'Donnell's submissions, and I see no substance in Mr Butt's.
As a general observation, I consider that all the categories of documents sought lack sufficient or reasonable particularity. As Bryson J, speaking extra-curially, [1] has said: 20 What is required is reasonable particularity (Small at 575). "Reasonable" is not a dogmatic word. In Waind v. Hill & National Employers Mutual General Insurance Association Ltd [1978] 1 NSWLR 372 at 382 Moffitt P for the Court of Appeal gave an exposition of what is meant by using a subpoena for the purpose of discovery. Moffitt P said: "The essential feature of discovery in this connection … is that the person to whom the subpoena is addressed will have to make a judgment as to which of his documents relate to issues between the parties. It is oppressive to place upon a stranger the obligation to form a judgment as to what is relevant to the issue joined in a proceeding, to which he is not a party. …a subpoena can only properly be used for the production of documents described in particular or general terms which does not involve the making of such a judgment. It does not follow, however, that because the party who issues a subpoena is unaware of the precise description of a particular document, or whether a particular document or documents is in the possession of the witness, or even whether it exists, or is unaware of its contents, that the subpoena, or even a subpoena in general terms, amounts to the use of the subpoena for the purpose of 'discovery'." In my understanding, even though the words in a subpoena are general and may require some decision by the recipient going further than simply recognising that the document is the one described, the use of a general description is not oppressive unless it requires the recipient to form a judgment about relevance to issues, or about some other matter which is so complex or difficult as to be oppressive. A call to an employer for all documents relating to the employment of and wages paid to the plaintiff during a stated period involves forming some judgment, but the exercise is probably not difficult, and can be fulfilled by getting out the personnel file and wages records. The question is, what is reasonable, and involves an appraisal of the task imposed. 21 There are limits to this. Once the requisitions in a subpoena stray into an expression like "all documents relating to" the ground is becoming a little shaky, but it is not necessarily quicksand. A subpoena may be oppressive, and may be set aside for that reason, if the exercise it requires the recipient to perform is simply too large and elaborate, even if it does not involve any real difficulty in the exercise of judgment and making decisions. There are reasonable limits. To take an example from Small's case, a call for all files relating to falls from electric trains extending to back 10 or 11 years could not survive the challenge. (emphasis added)
In addition, the documents sought in paragraph (1) of the O'Donnell Summons, Mr O'Donnell refers to vague and abstract terms. I agree. In addition, in my view the category lacks reasonable particularity.
Further, the documents sought in paragraphs (2), (3) and (4) of the O'Donnell Summons clearly amount to more fishing expeditions of the kind described above in which Mr Butt is looking for evidence,.
The O'Donnell Summons too ought to be set aside.

Costs

If either respondent seek costs, they should file and serve submissions as to costs within 14 days. Their submissions should identify the relevant costs rule and the reasons why costs should ordered.
The applicant may respond within a further 14 days
The respondents may reply within a further 7days.
The Tribunal proposes to consider any application for costs on the papers and without a hearing. If any party opposes that course they must address that issue in their submissions.

Orders

The Tribunal orders that: 1. The summons to the first respondent issued by the Tribunal on 6 April 2023 at the request of the applicant is set aside. 2. The summons to the second respondent issued by the Tribunal on 6 April 2023 at the request of the applicant is set aside. 3. Costs are reserved. 4. If either respondent seek costs, they should file and serve submissions as to costs within 14 days. Their submissions should identify the relevant costs rule and the reasons why costs should ordered. 5. The applicant may respond within a further 14 days 6. The respondents may reply within a further 7days.

Endnote

Continuing Professional Education - The 2004 Judges Series. Practical Litigation in the Supreme Court and the Federal Court [https://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/Pre-2015 Speeches/Bryson_20040225.pdf 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

Amendments 14 August 2023 - Formatting amendments. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 August 2023

Butt v The Owners - Strata Plan No 71715

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Cases Cited (2)