Demir v Liu

Proceedings in the Consumer and Commercial Division

1. On 25 October 2023, the Respondents lodged an application with the Tribunal (the original proceedings) seeking an order that the Appellant comply with By-Law 14(1) by fixing the floor surfacing of the lot so that it no longer transmitted noise which unreasonably interfered with the Respondents' peaceful enjoyment of their lot by carrying out works to remove the current flooring in the living and bedroom and to install an underlay recommended by the Respondents' expert.
2. Both parties provided acoustic reports to the Tribunal in the original proceedings.
3. The Respondents' report from Koikas Acoustics (the Koikas Report) dated 10 May 2021 assessed the "weighted standardised impact sound pressure level" (L'nT,w) for the appellant's living/dining area as 60 and for the bedroom as 59, and concluded: "The impact noise rating of the ceiling/floor system is likely to be perceived as being intrusive and therefore "disturb the peaceful enjoyment of another lot." The intention of the Standard NSW Strata By-Law is not satisfied. … …the installed timber flooring system within Unit 3 is NOT sufficiently treated to a reasonable extent to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner(s) or occupier(s) of Unit 1 directly below. The timber flooring should be tested with premium underlays that include Regupol 6010 8/4*. This underlay may improve the acoustic rating by a further 5 rating points."
4. The Appellant's report from Acoustic Works dated 20 February 2024 (the February 2024 Acoustic Works Report) concluded: "All tested systems were able to satisfy the minimum rating outlined in the National Construction Code (NCC 2022) achieving an L'nT,w ≤62dB. It is Acoustic Works' opinion that the current NCC minimum rating requirements would be designed with the objective of achieving acceptable acoustic amenity and was therefore selected as the minimum requirement for this building."
5. The Tribunal found in favour of the Respondents and made the following order against the Appellant on 17 June 2024: "1. Pursuant to s 232 and s 241 of the Strata Schemes Management Act 2015 (NSW), order that on or before 8 October 2024, the respondent is to comply with By-Law 14 of the strata scheme and is to ensure that the floor space of Lot 3 other than the kitchen, laundry, lavatory or bathroom ("relevant floor space") is covered or is otherwise treated with an adequate underlay to an extent sufficient to prevent the transmission from the relevant floor space of noise likely to disturb the peaceful enjoyment of the owners or occupiers of another lot, namely Lot 1, which is situated immediately below Lot 3."

Notice of appeal and application for stay

1. On 30 July 2024, the Appellant lodged a notice of appeal and an application for a stay of the original decision.
2. The basis of the application for a stay was that the appeal process would extend beyond the enforcement date of 8 October 2024 in the Tribunal's order. The stay was granted on 22 August 2024, on condition that the appellant ensure the floor space was covered with rugs or other floor coverings, until further order of the Tribunal or finalisation of the appeal.
3. The Appellant's grounds of appeal as set out in the notice of appeal can be summarised as: 1. The Tribunal made an error of law by failing to assess the alleged breach of by-law 14 on an objective basis, or to apply the standard of a reasonable person rather than assessing the breach "from the subjective perspective of the hypersensitive affected unit owner"; 2. The failure to apply an objective standard could lead to inconsistent application of regulations and codes, expose decisions to bias and lead to the unfair treatment of property owners.
4. The Appellant did not seek leave to appeal on a ground other than a question of law.
5. The Appellant sought an extension of time in which to lodge the appeal on the basis that her managing agent had received the order on 20 June 2024 but had not passed it on to the Appellant until 24 June 2024. Additionally, as the Appellant was based in the UK, there could be postal delays to Australia.

Respondent's Reply to Appeal

1. In their Reply to Appeal, the Respondents noted that the Koikas Report had used objective criteria for testing and had eliminated personal sensitivity factors. The Koikas Report concluded that the floor of Lot 3 was inadequate to satisfy By-Law 14.
2. The dispute involved whether the Appellants floor complied with By-Law 14, not whether it complied with the NCC.
3. The Respondents objected to the Appellant's request for an extension of time in which to lodge the Notice of Appeal on the basis that the Appellant had consistently failed to comply with NCAT orders and timelines. The property manager's failure to notify her of the orders was a miscommunication between them, not an excuse, and International Express delivery from London to Sydney only takes 5 - 7 days.

Evidence before the Appeal Panel

1. The Appellant provided: 1. An email from the managing agent to the Appellant dated 24 June 2024 attaching the Tribunal's order and reasons for decision. The email indicates that the orders were forwarded on 20 June 2024; 2. A new Acoustics Works Report dated 18 September 2024 (the September 2024 Acoustics Works Report) which added an extra line to the February 2024 Acoustics Works Report as follows: "Thus it is our professional opinion that the flooring system is sufficient to satisfy By-Law 14."
2. The Respondent provided: 1. The original Strata and community schemes application to NCAT and accompanying submissions, including: 1. Chronology 2. The Koikas Report 3. The strata plan 4. By-laws for the Strata Scheme; 5. A noise log regarding the time and source of noise from Lot 3 in September, October and November 2023; 6. Correspondence with the Appellant regarding the noise issues; 7. A Notice to comply (based on contravention of by-law 14) addressed to the Appellant dated 7 December 2021 requiring her to comply with the recommendations in the Koikas report. 1. A copy of the Tribunal's order and reasons and 2. A copy of the February 2024 Acoustics Works Report.

Appeal Panel hearing

1. Both parties were self-represented at the hearing. The Appellant appeared by audio-visual link from the UK. The Respondents appeared in person and were assisted by a professional interpreter.
2. The Appellant sought to tender the September 2024 Acoustics Works Report at the appeal hearing on the basis that, in her view, the language used in the February 2024 Acoustics Works Report was not sufficiently definitive.
3. The Appellant clarified that she was not seeking leave to appeal and based her appeal on a question of law, being that the Tribunal had failed to apply an objective standard, or the standard of a reasonable person. She agreed that this could be framed as the application of an incorrect principle of law.
4. Her basis for this argument was that the Tribunal had preferred the Koikas report but should have preferred the more recent Acoustics Works report because there had been remedial work undertaken in the meantime.
5. The Respondents submitted that the grounds of appeal were weak and lacking in substance. There were few legal points and the February 2024 Acoustics Works report was very rudimentary in its conclusion. Further, the Appellant's arguments regarding the grounds of appeal did not conform with the facts. They neglected the intent of By-Law 14 and the contents of the Koikas Report. The Appellant was merely attempting to re-run her case in the Appeal Panel. Accordingly, the appeal should be dismissed.

Scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) at [25]-[40], the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act. The principles set out in Unique which are relevant to the present proceedings include that: 1. An appellant is required to identify a pure question of law which then becomes the subject matter of the appeal (Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]). 2. There is a distinction between an error of law and a question of law. A question may disclose an error of law, but not raise a question of law: Kudrynski v Orange City Council [2024] NSWCA 33 (Kudrynski) at [42]; Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 at [52]-[54]. 3. An appeal is against orders and not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 97 ALJR 674 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 270 at [259]. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.
3. One established question of law is whether a wrong principle of law had been applied: Chapman v Taylor [2004] NSWCA 456 at [33], per Hodgson JA (Beazley and Tobias JJA agreeing); Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(3)] (Prendergast).
4. In Unique at [27] - [28] the Appeal Panel did make allowance for circumstances such as in the present case, where a question of law is not specifically articulated, but appears in substance: "27. Where, however, there is a question of law in substance, a court (and, it follows, an Appeal Panel) has discretion (to be exercised judicially and in the interests of justice) to direct its formal notification in an amended notice of appeal: Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [60]. In appropriate circumstances, the Appeal Panel may elect to waive the requirement to formally lodge an amended notice of appeal, given its mandate to act "with as little formality as the circumstances of the case permit … without regard to technicalities or legal forms": NCAT Act, s 38(4); Wollondilly at [19]. Where the party is not legally represented, a more generous approach is warranted: Kudrynski at [50]-[51]. This is an aspect of ensuring procedural fairness. 28. When dealing with self‑represented parties, the Appeal Panel has in many instances considered for itself whether a question of law is raised, applying [Prendergast] at [12]."
5. However, an appeal is not an opportunity for the party who was unsuccessful before the Tribunal to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. As stated in NCAT Guideline 1, Internal Appeals (which can be found on the Tribunal's website): "an appeal is not an opportunity to have a second go at a hearing".

Issues

1. The issues that we need to address are: 1. Should an extension of time be granted? 2. Should the Tribunal admit the September 2024 Acoustic Works Report? 3. Has the Appellant articulated a question of law such that there is a right of appeal? 4. Has the Appellant made out that the question of law has affected the Tribunal's orders? In other words, has an error been established with respect to the question of law?

Should an extension of time be granted?

1. Under r 25 (4) (c) of the Civil and Administrative Rules 2014 (NSW) (the NCAT Rules) the time period to file an internal appeal in the circumstances of this matter is: (4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged - ….. (c) in any other case - within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later).
2. The Notice of Appeal was not received by NCAT until 30 July 2024. Regardless of whether the decision was notified to the agent on the day it was issued (17 June 2024) or it was notified on the day that it was forwarded to the agent (20 June 2024), the Notice of Appeal was not received within 28 days from the day on which the Appellant was notified of the decision to be appealed and the Appellant requires an extension of time in which to lodge the notice of appeal if the appeal is to proceed.
3. The principles applicable to extensions of time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. In that case the Appeal Panel said that the time limit should generally be strictly enforced but that was not to say that exceptions should not be made where the interests of justice so require (at [21]). The Appeal Panel added (at [22]): "The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]."
4. At most, the delay is 15 days. Whilst this is too long to be simply disregarded, it is not unduly lengthy when considered against the reasons for the delay. The Appellant is in the UK and there was a delay in the managing agent forwarding the notice to her. The Notice of Appeal was signed on 7 July 2024 but not received by NCAT until 30 July 2024 which the Appellant attributed to postal delays.
5. The Respondents noted that the Appellant had frequently failed to meet the Tribunal's timetable and submitted that an extension of time should not be granted. However, the delay is not so great as to constitute significant prejudice to the Respondents and they have had the opportunity to respond to the Appellant's case.
6. Regarding the prospects of success, we have found that the Appellant's grounds of appeal do, in substance, disclose a question of law and as such the Appellant would have a right of appeal under s 80(2) NCAT Act. In that sense she had an arguable case, although ultimately, as set out below, she has been unsuccessful.
7. The delay was not long, and we accept that the delay was at least in part caused by distance which was outside the Appellant's control. The Respondents were not unduly prejudiced by the delay and the Appellant did appeal on a question of law.
8. Weighing the factors to be considered in relation to an extension of time to lodge the appeal, we have decided to grant the extension of time in which to lodge the appeal.

Should the Tribunal admit the September 2024 Acoustic Works Report?

1. Under cl 12(1)(c) of Schedule 4 of the NCAT Act, an Appeal Panel may grant leave under s 80(2)(b) only if significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). The Appellant has not formally sought leave on that basis but the September 2024 Acoustic Works Report could only be material to the Appeal Panel's consideration if leave to appeal were sought on that basis: Yuen v Thom [2016] NSWCATAP 243 at [14]-[22]; Lettau v Artwork Transport Pty Ltd [2017] NSWCATAP 14 at [23] - [28].
2. The Appellant submitted that she wished to clarify the information in the February 2024 Acoustics Works Report by submitting an updated report. However the time for clarifying such information was before the hearing in the Tribunal, not after the evidence had been found wanting. The Appellant is attempting to rerun her case in the Appeal Panel. It cannot be said that the September 2024 Acoustic Works Report was not reasonably available at the time of the original hearing. We do not accept the September 2024 Acoustic Works Report as new evidence.

Has the Appellant articulated a question of law such that there is a right of appeal?

1. The Appellant's notice of appeal did not clearly articulate a question of law. However, whilst we are mindful of the principles set out in Unique regarding that requirement, both parties are unrepresented and as such, entitled to a slightly more flexible approach if there appears to be a question of law in the substance of the Appeal. As set out by the Appeal Panel in Cominos v Di Rico [2016] NSWCATAP 5 at [13]: "13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. …"
2. On balance, we accept that the question of law posed in the Appeal is whether a wrong principle of law had been applied, in that the Tribunal applied a subjective, rather than an objective standard in assessing whether the flooring in Lot 3 contravened By-Law 14.
3. The Appellant's second point regarding "public importance or matters of administration or policy which might have general application" reveals no question of law or even any error on the part of the Tribunal and we do not need to consider that point further.

Has the Appellant made out that the question of law has affected the Tribunal's orders?

1. In her written and oral submissions, the Appellant contended that the Tribunal had erred in law by failing to assess the alleged breach of by-law 14 on an objective basis rather than from the "subjective perspective of the hypersensitive affected unit owner," citing Gao v Agostini [2009] NSWCTT 175 and Felcher v The Owners-Strata Plan 2738 [2017] NSWCATAP 219.
2. The Appellant's argument then focussed on the Tribunal's preference for the Koikas report over the February 2024 Acoustic Works report, on the basis that the latter was more recent and remediation works had been undertaken.
3. However, the Appellant was unable to direct us to the point in the Tribunal's reasons where the Tribunal applied anything other than an objective test.
4. At [12] the Tribunal set out the issues for determination: "(i) whether upon a proper interpretation of the scheme's by-laws and in the events which had occurred, it could be said that the respondent had not complied with the By-Laws of the Strata Scheme (ii) if so, whether the Tribunal should exercise its discretion to make orders under s 232 and 241 of the SSMA in the manner contended for by the applicants, or if not, on what terms."
5. The Tribunal then proceeded to determine those issues, weighing the parties' arguments and evidence. The Tribunal found: "20. I do not accept the [Appellant's] position that there has always been compliance with bylaw 14. This is because I cannot easily dismiss the conclusions (based on noise impact testing using a standardised BSWA Technology Co. Type TM002 S/N 440504 Tapping Machine) as regards non-compliance with the By-Law, which are clearly set out in the Koikas report. The observations by Acoustic Works that the existing flooring/ceiling system between the Lots meets acceptable acoustic standards under the NCC and the BCA are simply not to the point, when the issue is whether (or not) there has been compliance with the By-Laws of the scheme. …"
6. The Tribunal preferred the Koikas Report over the February 2024 Acoustic Works report, noting that the Koikas Report used standardised (ie objective) technology, and Acoustic Works had made conclusions regarding the acoustic standards under the NCC and the BCA which were not relevant to the issue to be determined. There is no error in this approach and the Tribunal has not applied anything but the correct objective test; see also Feletti v Eales [2019] NSWCATAP 100 at [34] - [35], Zhang v Glykis [2020] NSWCATCD 17 at [49] - [51] and Hogan v Stebnicki [2022] NSWCATCD 63 at [28] - [30].
7. The Tribunal accepted that the Appellant had taken some remedial actions since the institution of the proceedings, such as laying rugs on the floors and taking steps to limit the behaviour of her tenants. However, the Tribunal was not persuaded that those arrangements were effective to address the issue of whether the hard surface flooring was insufficient to limit noise transference without other steps being taken. The Tribunal allowed the Appellant a period of up to 4 months to take advice on any appropriate treatments or methods available to her and to carry such advice into effect to ensure that there was compliance with By-Law 14.
8. The Appellant's argument has not disclosed any error on the part of the Tribunal. As a result, the question of law has not affected the Tribunal's orders and the appeal will be dismissed.
9. The time to comply (8 October 2024) with the original orders has passed and the Appellant will require an extension of time in order to comply.
10. We are minded to allow the same period of time to comply as allowed by the Tribunal below, being up to 4 months.
11. If either party wishes to make submissions as to whether we should allow an extension of time, or the period of that extension of time, we will make a short timetable in order to do so, noting that the Appeal Panel proposes to determine any application for a different order in the proceedings on the basis of the written submissions and without a hearing, pursuant to s 50(2) of the NCAT Act.
12. The conditional stay of the orders granted on 22 August 2024 will lapse on the publication of these reasons. No further order is required in that regard.

Orders

1. The Appeal Panel makes the following orders: 1. An extension of time in which the lodge the Notice of Appeal is granted. 2. The appeal is dismissed. 3. The Tribunal proposes to grant the Appellant a period of 4 months from the date of these orders to comply with the original orders made by the Tribunal in these proceedings. If any party seeks a different order, the following orders and directions will apply: 1. Any party contending for a different order is to file and serve a short written submission (no more than 5 A4 size pages) within 7 days of the date of these orders, 2. The other party is to file and serve a short written submission (no more than 5 A4 size pages) in response within 14 days of the date of these orders, 3. Subject to the parties' submissions on this point, the Appeal Panel proposes to determine any application for a different order on the basis of the written submissions and without a hearing, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 NSW. 1. Unless either party files submissions pursuant to Order 3 above, the time for compliance with Order 1 made on 17 June 2024 in proceedings 2023/00370085 is extended to the date which is four months after the date of publication of this decision.

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 08 November 2024 - Coversheet - file number under appeal corrected 2023/00370085 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: 08 November 2024