Field v O'Grady [2025] NSWCATCD 224 | Case summary

Felcher v Owners of Strata Plan No 2738 [2017] NSWCATAP 219

Field v O'Grady [2025] NSWCATCD 224 | Case summary | Zoe

[31]

This factual background has been drawn from the evidence filed and closing submissions of the parties. It is largely documentary and uncontroversial representing dates, events and actual words passing between the parties.
The building the subject of these proceedings is a residential flat building constructed 110 years ago with no concrete slab separating the three units. Constructed of brick with timber joist flooring, it is listed as a heritage item in the North Sydney Council region, including its ceilings and cabinetry (relevantly, limiting the extent, without approval, to which the floor could be raised for acoustic insulation).
Ms O'Grady purchased unit 3 on 29 February 2020, moving in on 22 May 2020 after installing a floating timber floor. About 12 months before she purchased the property, her son was confirmed to be highly allergic to dust mite. For sufferers of this condition, the Australian Society of Clinical Immunology and Allergy recommends hard floors in preference to carpets in their general literature. That was a reason said by Ms O'Grady to have informed her decision to purchase unit 3, after making enquiries with North Sydney Council to ensure that she could do so without breaching local council requirements.
The renovation to the floor performed by Mrs O'Grady involved replacing the carpet and underlay in some of the rooms with floating timber floorboards and and underlay. The thickest possible underlay was chosen whilst avoiding alterations to internal heritage features such as doors and cabinetry.
In August 2022, the previous owner of unit 2, Rita Gentle, moved out. For some two years, unit 2 was left unoccupied.
The Fields and their two children moved into unit 2 on 30 July 2024. Prior to this purchase, they had lived in freestanding houses since at least 2014.
On the first night, Mrs Field reported being distressed at the noise from unit 3 - "loud footsteps, banging sounds ... thuds in far west side of the master bedroom", causing her to sleep in the lounge room. References to thudding and banging characterise a noise diary showing entries from that first night until 15 February 2025. Details will be referred to where relevant later in these reasons, as well as Mrs O'Grady's challenges to the weight to be given to such evidence.
From 4 August 2024, the Fields made known their concerns to Ms O'Grady about the noise emanating from unit 3.
On 7 August 2024, Mr Field wrote to Ms O'Grady in these terms.

[55]

Dr Field provided three affidavits. It is unnecessary to recount a good deal of that evidence given the references already made in the background, drawn from contemporaneous correspondence. Features of that evidence relevant to the determination of credibility and any relevant direct conflicts in versions of events are however discussed to the extent relevant.
Dr Field describes the first night of the occupancy in his affidavit made on 18 February 2025. He says that the noise from Ms O'Grady's unit went on for about two hours. He heard the same noise again the next night on 1 August 2024. He described "what sounded like billiard balls rolling around on the floor above me. It was very loud and was going on for over an hour." The Field's son walked into their bedroom at about 10 pm to complain about the noise.
On 5 August 2024, Dr Field refers to a discussion with Mrs Field where Mrs Field disclosed that she had started keeping notes on her phone of the times noise was being heard. That evening, Dr Field reports being woken up after 10:20 pm "by a loud sound or loud sounds coming from above". He witnessed Mrs Field put noise cancelling headphones on. He said "the noise mostly stopped just after 11 pm but we were both awake until after 12 am".
On the evening of 6 August 2024 at around 9:30 pm, Dr Field heard the loud sounds again from the master bedroom, which he said "sounded like someone walking with heavy boots, dropping billiard balls rolling across the roof". The Fields then got out of bed and watched television in the lounge room, although Dr Field described the noise from above being heard over the volume of the television, which "made trying to watch TV very annoying as the dialogue was interrupted by the sounds from above."
Dr Field gave his opinion interspersed with recalling dialogue with Ms O'Grady about her son's dust allergy and inability to lay rugs down. Dr Field is medically qualified and may indeed have a basis to present an informed opinion however I do not propose to accord those opinions any weight given he is not an independent expert for whom allowances would ordinarily be made by the law to provide opinions to a court or tribunal. That is not intended to disrespect Dr Field's qualifications and potentially his ability to give such evidence in a different context. His opinion evidence cannot however be accorded weight in a proceeding to which he is a party, to the extent it might be relevant (which for the reasons to be given, I do not consider it is).
Dr Field expresses conclusions about records from an owners corporation meeting in 2020 at which Ms O'Grady's renovation was under discussion, heritage and acoustic matters. That has been considered as a submission in these reasons.
Ms O'Grady challenges the evidence of Dr Field and raises concerns about him sharing the same email address as Mrs Field, suggesting they collaborated on their evidence submitted to the Tribunal. I accept Dr Field's testimony that he did not read Mrs Field's draft affidavits although he read her noise diary notes. I do not consider it surprising that if a partner was keeping records of attendances and noise, the other partner might defer to that record for information about particular dates and numerous events which may have been commonly experienced. A noise diary compiled in this way shares some similarities with a business record.
It was not put to Dr Field by Ms O'Grady's solicitor that Dr Field was being untruthful about his recollections and his alleged collaboration if not fabrication of evidence with Mrs Field. It ought to have been, given the attempt to discredit Dr Field, which I do not accept. That flows from the rule in Browne v Dunne (1893) 6 R 67, which applies to adversarial proceedings in a tribunal: Amos v AAI Limited [2023] NSWSC 1193 at [120], as submitted by the Fields' counsel.

[58]

Mrs Field started keeping the noise diary on the Notes App of her iPhone after about a week of moving in. Those notes were copied across to an MS Word document to create the exhibit, with redactions to quote something personal or private. Other notes were written down with a pen and paper. Some of those incidents were added to the noise diary. Mrs Field describes becoming more diligent with recording times, dates and locations as the noises became more frequent.
It is unnecessary to detail the dates and times in the noise diary other than to note that they are broadly consistent with if not supportive of the evidence given by Mrs Field of the extensive noise events in her apartment from 30 July 2024 to 15 February 2025.
I do not accept the challenges made by Ms O'Grady to the credibility of the noise diary created by Mrs Field. The diary contains a high level of detail. To the extent there may be inconsistencies between the diary annexed to the application and compared with the affidavit, Mrs Field in re-examination described expressing the annexure to her affidavit more formally. She also refers to going back to source notes prepared contemporaneously if not within days of their occurrence and revisiting those notes at convenient intervals to compile them into a standardised document constituting the noise diary in evidence. It was not put to her in cross-examination that she had been untruthful. I considered her to be a witness of truth.
Ms O'Grady's solicitor suggests that if I find some diary entries incorrect and some correct, I should hold a doubt about the totality of the diary, in reliance upon what Kunc J observed in Marzec v Lysiak [2015] NSWSC 647 at [45]. Because I consider the discrepancies found by Ms O'Grady's solicitor to be trivial, and Ms O'Grady to have explained her method of compilation satisfactorily, I consider the diary as a matter of substance to be a fair record of noise heard in unit 2 over the period of time relevant to these proceedings. The discrepancies in Marzec were not trivial or easily explained.
Mrs Field describes the nature of her employment and her experience of the noise at the premises as follows.

[68]

Ms O'Grady's affidavit of 4 March 2025 confirms many of the facts mentioned in the factual background.
Prior to purchasing unit 3, Ms O'Grady enquired about the scope to instal hard surface flooring to address severe allergic reactions of her son to dust mites and eczema associated with carpet. The allergy is supported by photographs and medical reports, showing severe effects when flaring. Ms O'Grady is understandably concerned to avoid exposure to exacerbating conditions, such as the carpet in unit 3 had she not replaced it with wooden flooring.
Ms O'Grady describes the flooring works and attempts made to minimise noise from the timber floorboards which were to be installed and ultimately were installed. This required, as previously mentioned, selecting an underlay which did not require raising the height of the floor, to avoid altering heritage cabinetry and doors.
It is not clear what the heritage approval requirements might entail to alter the cabinetry, and how difficult it might be to obtain that approval.
The new wooden flooring was installed. Retrospective approval was obtained for the flooring. No complaints were received from the previous owner of lot 2, Rita Gentle. Little weight should be accorded to that evidence given the evidence of Ms Gentle's daughter, Ms Wolfers, that her mother's hearing was substantially impaired: see [83 ]. The fact that Ms Gentle had complained about machinery noise when Ms O'Grady had her flooring installed was of its nature extraordinary noise, not relevant to assessing noise allegedly constituting an ongoing nuisance. It does support an inference that because the hearing impaired Ms Gentle complained about machinery noise above her on one occasion, she would have complained about the living noise above her from Ms O'Grady's unit if at all warranted. Meaning no disrespect, it is difficult to accept, and in this instance I do not accept, that a hearing impaired person could assist with objective evidence of noise disturbance, in the absence of detailed evidence of the extent of that impairment.
Another owner had objected to the works because prior approval had not been granted, according to Ms O'Grady. I do not consider that objection to be relevant to the core matters for resolution in this proceeding.
In response to complaints by the Fields, and further to the background facts earlier described, Ms O'Grady describes moving her son temporarily into the rear bedroom whilst he was preparing for his HSC. She also describes purchasing a large Persian rug for the bedroom above the master bedroom in unit 2. Ms O'Grady was "hopeful that the rug would have made a difference". She was considering purchasing a second rug, informing the Fields of this. Ms O'Grady gives evidence of a conversation with Dr Field, suggesting Dr Field had not noticed this conciliatory attempt. Ms O'Grady's son had moved back into his bedroom after the new rug had been installed. O'Grady's evidence also suggests that Mrs Field had not commented on any change to Dr Field, according to Ms O'Grady's version of the conversation. Ms O'Grady attempted to obtain confirmation in writing that the rug had made a difference but no response was received from the Fields to her email. Despite this being evidence of Ms O'Grady's good faith at the time, the evidence of the Fields was that the rug had made a marginal improvement to the noise transmission (see [29 ]).
Ms O'Grady describes a conversation with Dr Field in which Dr Field reported hearing SBS news from unit 3 at about 10:30 to 11 o'clock at night underneath Ms O'Grady's son's room. Ms O'Grady denies that SBS news would be played in her unit. Having regard to Mrs Field's noise diary and multiple references to noise over a prolonged period of time, I do not consider this anomaly to be significant. Dr Field in his affidavit of 2 April 2025 says he later found out that some TV noise was coming from unit 1 beneath the Fields' level 2 unit. It is conceivable that the noise perceived by Dr Field came from that source or that his description of what he heard as being SBS news was a mistaken guess. It is also notable that such noise would be characterised as airborne noise and not impact noise. The evidence of the experts, discussed below, is that such airborne noise should not have been affected in a significant way by Ms O'Grady's flooring, further undermining the significance of this episode to any matter for resolution.
Ms O'Grady describes floor testing occurring on 30 August 2024 and allowing testing to occur wherever the Fields' expert wished in her apartment.
Ms O'Grady indicated a willingness in her version of a conversation with the Fields on 12 September 2024 to instal hypoallergenic rugs, requesting information from the Fields. Ms O'Grady also indicated a willingness to renovate the hallway if she could afford it, although an unwillingness to depart from hard flooring.
Ms O'Grady's evidence controverts certain evidence of the Fields and entries in the noise diary of Mrs Field on 26 December 2024. Ms O'Grady reports being away from her unit with her three children on that day. Dr Field, in his affidavit of 2 April 2025, stated that on 27 December 2024 and after that time during the holiday period, he heard and saw "person/s coming into the apartment as it had been quiet during the lead up to Christmas", he assumed to feed Ms O'Grady's cat. Mrs Field in her affidavit of 2 April 2025 recalls seeing a man around that time in the stairwell in his early twenties with a female about the same age, and recorded footfall on that day. In an affidavit in reply made on 13 May 2025, Ms O'Grady notes that her daughter had in fact arranged for a friend to feed the cat and, contrary to her initial evidence, "it is possible that someone entered lot 3 on 26 December 2024." This simply confirms that there was a basis for the observation made on and after that time in the evidence relied upon by the Fields.
Ms O'Grady gives evidence that her intention to sell unit 3 has been affected by these proceedings, amongst other factors. Ms O'Grady emphasises that had she formed the view that she could not replace the carpet with hard surface flooring, she would not have purchased the property. She is concerned that a perspective purchaser would take the same position.
Mrs Field sent Ms O'Grady an email of 7 October 2024 conveying Mrs Field's wishful expectation of hearing no noise at all. Ms O'Grady submits that this is inconsistent with Mrs Field saying that she is used to hearing noise in an apartment. As noted above discussing Ms Field's evidence at [62 ], I do not accept Ms O'Grady's conclusion in her evidence that Mrs Field is over-sensitive to noise. This is notwithstanding the urging by Ms O'Grady to interpret the statement by Mrs Field in her email of 7 October 2024 to Ms O'Grady to the effect that Mrs Field unrealistically expected to hear "no noise" in her unit. A full reading of Mrs Field's email shows that the phrasing in her email derived from a representation by the selling agent when purchasing unit 2 that the Fields could expect no noise because of the "highest level of acoustic underlay".

[70]

Ms O'Grady relied upon the statement of 4 March 2025 by Jane Wolfers, the daughter of the previous owner of unit 2, Rita Gentle. Ms Wolfers refers to visiting her mother about four times a week in the 18 months before her mother was put into care, "in the mornings and evenings". Before that she would visit about twice a week. She writes of "a bit of noise from time to time from unit 3," but nothing that made me think "what's going on here" or "gee, they're noisy... It was normal noise to be expected in an old building." She also states that "I did hear a lot of noise of the footsteps from the person two before Linda."
This evidence should be treated with caution, given the absence of direct evidence surrounding the circumstances of the number of occupants in unit 3 when Ms Wolfers was in attendance and whether the type of noise was the same. Whilst Ms O'Grady's evidence is that she moved into the unit with three children, Ms Wolfers does not state not how late into the evening she stayed (for example, there is no evidence that she was there at 10:30 pm when noise could be more disruptive including for sleep). There is also little probative weight the Tribunal can place on Ms Wolfer's evidence that she thought there was more noise from a prior owner of unit 3. That requires Ms Wolfers to cast her mind back some five years. Furthermore, Ms Wolfers' statement of opinion about what noise might be expected in an old building is speculative and unqualified by the demonstration of special knowledge. It is discounted accordingly.
In cross-examination, Ms Wolfers stated that her mother Ms Gentle's hearing was poor and that she relied upon hearing aids. Ms Wolfers gave evidence that she had to raise her voice when speaking with Ms Gentle if she was not wearing her hearing aids.
Ms Wolfers is some two years too early to be able to witness the performance of the floor when subjected to the noise and unit 3 occupancy dynamic the subject of the present complaints - even if there were notionally four occupants in unit 3 at the time covered by Ms Wolfers' evidence. The occupancy dynamic (including the number of occupants and their habits) is not covered in satisfactory detail in the evidence to be able to draw any meaningful conclusions.
I do not accept Ms O'Grady's submission that Ms Wolfers was the only objective lay witness for the reasons above. She is the daughter of someone who was the elderly neighbour of Ms O'Grady in a three owner scheme, which counts for some manner of pre-existing relationship with Ms O'Grady. That said I do not have any concerns about Ms Wolfer's credibility expressing her personal observations. According weight to her subjective observations would however be inconsistent with the objective measurement of impact noise from Ms Hanrahan-Tay, discussed below; and the personal observations of the witnesses of the Fields who presented as credible (despite Mr Eliades and Mr Rousch being a family friend and stepfather respectively). Accordingly, I prefer the evidence of the Fields' expert and lay witnesses over Ms O'Grady's lay evidence for the purpose of applying the law.

[71]

The Fields relied upon expert evidence from Camille Hanrahan-Tay, in a report dated 12 October 2024 (including readings received in unit 1 from unit 2 sources) and 14 February 2025 (including readings received in unit 2 from unit 3 sources).
The former report was prepared prior to the commencement of these proceedings and was not expressed with the usual declaration that the expert would be bound by the Tribunal's Procedural Direction 3 for expert witnesses. The latter report contains a declaration that Ms Hanrahan-Tan agrees to be bound by expert witness code of conduct issued under the Uniform Civil Procedure Rules 2005 which contains the relevant substantial requirements of the Tribunal's Procedural Direction 3.
In the joint report discussed below, Ms Hanrahan-Tan has agreed to be bound by the Procedural Direction. I do not consider anything turns on the absence of that agreement at the time Ms Hanrahan-Tay's first report was issued, given its earlier preparation presumably in the hope of avoiding proceedings; or the UCPR reference in the second report. In any event, the joint expert report adopts relevant evidence from the earlier reports of Ms Hanrahan-Tan - and Ms Hanrahan-Tan agreed to be bound by Procedural Direction 3 in the joint report.
Ms O'Grady relied upon expert evidence provided by Hilary Pearce, dated 4 March 2025, who agreed to be bound by Procedural Direction 3. Ms Pearce accepted the validity of the quantitative acoustic measurements taken by Ms Hanrahan-Tan, and did not perform her own.
I have considered the separate reports provide by these witnesses. As a starting point, the evidence of each is most efficiently understood by reference to the joint report they prepared, dated 21 March 2025.
Both experts have been helpful to the Tribunal. They are both highly qualified in the field of acoustics - Ms Pearce with an engineering qualification and Ms Hanrahan-Tan with a masters degree in design science (audio and acoustics) - and both are members of the Association of Australasian Acoustical Consultants (AAAC). The summary of the evidence below starts with the technical acoustic measurements and proceeds to consider their interpretations.
The experts agree that there are no numerical requirements for floor impact/isolation for acoustic separation of sole occupancy units under the National Construction Code. They accept that the Code does not apply to this building as it was constructed prior to the incorporation of impact and airborne noise ratings. They have worked from the same by-law and are in agreement that it applied at the time of the approval of the timber floor (to the extent that might be relevant).
Both experts accept that the following table of measurements extracted below from Ms Hanrahan-Tan's report is accurate and reliable, in relation to impact noise. (L'nT,w refers to a weighted standardised field impact sound pressure level, rated in decibels (dB). The lower the value, the better the sound insulation. The AAAC star rating is an associational view to assist in residential building design to address acoustical attributes, according to its published explanation of its star rating system. It is subject to revision and re-release.)

[89]

Although I have considered the differences in opinion between the parties' experts and evidence submitted in relation to overseas acoustic standards, including the opinion of Ms Pearce that the overseas standards may contain different assumptions about communal living compared with local standards, I have not based my findings on those standards and do not consider the overseas standards relevant.
Both experts agreed that the AAAC contains a membership of competent and capable people in their field of expertise, providing professional, unbiased advice to a high professional standard including for the use of instruments, measuring techniques and data processing. Reservations about the AAAC standards are expressed by Ms Pearce, discussed below at [113 ]. I consider the AAAC standard to be the most relevant, helpful standard and I accept it as a guide issued by an established professional association comprising expert consensus deserving of weight.
Both experts agree that an AAAC 4 star impact insulation/isolation which retains the heritage cabinets and doors without altering them, "is likely only achievable with carpet and underlay". Neither expert is sure, without impact noise testing, whether hard floor covering in the building could achieve a 3 star AAAC rating.
Ms Pearce notes that a small improvement in airborne noise may have been achieved since the installation of the wooden floor by Ms O'Grady, although it is at best marginal. I accept that this is relevant for example to speech and television noise, which has been the subject of complaint by the Fields, with the result that a change to the flooring cannot be shown to have contributed to the noise the subject of those airborne noise complaints.
The measurements relating to footfall warrant reflection, according to the LAFmax (the maximum noise level, weighted for human perception). Ms Hanrahan-Tan's measurements show that walking barefoot achieved a measured simulated impact noise result of 1 LAFmax worse through carpet received in unit 1 compared to the reading received in the Fields' unit 2 through the wooden floor of Ms O'Grady. Heel drops, being another form of impact noise, show an improvement of 7 LAFmax received in unit 1 through the carpeted floor of the Fields in unit 2. From her spectra analysis associated with these results, Ms Hanrahan-Tan opines that that there is there is additional low-frequency sound energy which is audible but not reflected in these LAFmax measurements. Ms Pearce takes a different view and opines that barefoot walking comparisons across carpet and the installed floorboards, because of the audibility qualities of low frequency sounds, are unlikely to result in perceptible difference should an order be made in the Fields' favour.
The significant incidents of footfall take place in the context of what I find from the Fields' evidence to be the significant presence of other impact noise heard in the Fields' apartment, including unit 3 cupboards and drawers opening and closing and impacts resonating in unit 2. Although there was no direct evidence of the type of walking or gait creating footfall noise the subject of complaint, and the comparative weights of those walking above, it is notable that heel drops fare worse on Ms O'Grady's wooden flooring, described by Ms Hanrahan-Tan as "substantially louder" from Ms O'Grady's unit. Accepting Ms Pearce's evidence at its highest - being that barefoot walking may be similar through both surfaces - it does not lead me to doubt that significant impact noise which might have been created other than by footfall consistent with Ms Hanrahan-Tan's personal footfall characteristics has still been transmitted through Ms O'Grady's floor.
It is unnecessary for present purposes to detail the views of the acoustic experts on installation matters to accommodate heritage concerns, should the Tribunal order new flooring. It presupposes that wooden flooring would be the only option. That is not a relevant matter as these reasons for decision will later demonstrate.
It is also unnecessary to consider the experts' views of nuisance as foreshadowed earlier. That is a legal concept which the Tribunal must evaluate. Although intended to be helpful, such submissions stray from their area of scientific expertise.
Furthermore, so far as the "statutory matters" disagreed are concerned, correctly accepting that this requires an evaluation of subjective evidence, at [20] to [25] of the joint report, Ms Pearce has interpreted and opined on minutes of meetings approving installation of floors and contents of witness statements in these proceedings, expressing her evaluation of the legal concept of peaceful enjoyment, without reference to scientific measures of an applicable acoustic standard. A substantial part of Ms Pearce's reasoning warrants quotation for an appreciation of the basis for her conclusion.

[90]

"21. Pearce: Due to COVID lockdown, the meeting to approve the installation of the timber floating floors in Lot 3 was held approximately 10 weeks after Ms O'Grady moved into Lot 3, after the installation of the floating timber floor in the Bedrooms, Foyer, Lounge and Dining in Lot 3. As such, the subjective performance of the floor was tested by Ms Gentle, the owner and occupant of Lot 2 (and her guests), before retrospective approval for the installation of the floor was granted. In the Minutes of General Meeting Sunday 2 August 2020, Ms Gentle was noted as being "very satisfied" with the performance of the floating timber floors, noting that Ms Gentle had lived there prior to the change of flooring by Ms O'Grady.

22. Pearce: In the Statement of Jane Wolfers, dated 4 March 2025, Ms Wolfers advised that her mother had owned and lived in Unit 2 (Lot 2) of 132 Kurraba Road, Kurraba Point from about 1991, until she went into care in about August 2022. Ms Wolfers statement notes that she visited her mother about four times a week in the mornings and evenings in the period January 2021 to August 2022 (the 18 months prior to her mother going into care) and about twice a week before that (the period May 2020 to December 2020 would be relevant for the new timber floors) and described hearing "a bit of noise from time to time from Unit 3, but nothing that made me think "what is going on here?" or "gee, they're noisy". It was normal noise to be expected in an old building".

23. Pearce: Peaceful enjoyment is a subjective term. The acoustic separation of apartments built in 1910-1920 are very different from apartments built under current codes, due to the differences in construction methods and regulatory requirements. At the time this building was constructed, there were no numerical requirements for the separation of sole occupancy units.

24. Pearce: The strata plan was registered in 1979, but the Owners Corporation have not, in the intervening period, sought to amend By-Law 14 to put in place a special by-law relating to the covering of floors, to include an objective measure. As such, this gives the indication that the Owners Corporation has accepted the acoustic limitations of the building and the performance of the elements within and they do not see a higher bar."

[93]

The scale adopted by the industry body to which both experts belong, the AAAC, indicates the results obtained by Ms Hanrahan-Tan, which Ms Pearce accepts as accurate, are "generally considered to be below an acceptable standard of sound transmission performance and may not be sufficient to prevent the transmission of 'noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot'". Despite this, Ms Pearce favours the evidence of Ms Wolfers and Ms O'Grady, and the approval of the owners corporation of the flooring.
I find Ms Pearce's scepticism towards the AAAC star rating system for the present purpose difficult to accept. Ms Pearce does not accept Ms Hanrahan-Tan's conclusion that the descriptions are "established foundations and industry accepted descriptions." In cross-examination, Ms Pearce would not concede that the AAAC is the peak industry body. She conceded only that it is an industry body, although suggested no superior body. Her concern seemed to be that there will be variations amongst general descriptions of noise such as dinner party noise, depending upon whether some people are louder talkers than others. I could not discern from Ms Pearce's answers that there was any problem with the system at a general level, beyond a conclusion that there will be outlying factors which might create exceptions.
Decisions such as Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 make it clear that, for an expert's opinion evidence to be accepted, the following considerations apply: (1) the expert's opinion must clearly indicate the facts upon which it is based; (2) those facts must be proved so there is a factual basis for the opinion; (3) the reasons or the process of reasoning for the opinion must be disclosed; and (4) any opinion must fall within the qualifications and experience of the expert.
Significant premises for the acceptance of the flooring by Ms Pearce are the evidence of Ms Wolfers about the hearing impairment of Ms Gentle, and a 10 week "trial period" by Ms Gentle yielding retrospective approval of Ms O'Grady's new flooring by the owners corporation on the basis of Ms Gentle's acceptance of it. Ms Pearce has prioritised clearly questionable evidence of the necessarily subjective nature of daily noise events. That evidence seems substantially grounded in inferences drawn from circumstantial evidence thought to reflect the state of mind of a hearing impaired person. Ms Pearce has preferred this evidence over the detailed noise diary and the experiences of the Fields and two witnesses from outside their household. I do not consider Ms Pearce's conclusion on this element is sufficiently based upon her particular expertise in, or principles of, acoustic engineering; rather, she has expressed views based on assertions of extraneous facts which it is for the Tribunal to find or not find, in respect of the effect of the noise created. Although Ms Pearce does not appear to have been instructed initially that Ms Gentle was hearing impaired, once apprised, Ms Pearce did not resile from her opinion. The Tribunal's findings of fact in relation to the weight to be given to that evidence are different from those upon which Ms Pearce has substantially based her opinion, a portion of which must be characterised as lay and not expert evidence. Such evidence from Ms Pearce is not accepted.
To conclude the analysis of the experts' evidence, I make the following findings.

[105]

How these laws are to be understood has recently been summarised in McElhone.
"353 By-laws bind the owners and occupiers of Lots in the strata scheme to the same extent as if the By-laws contained mutual covenants to observe and perform all the provisions of the By-laws (s 135(1) of the SSM Act).
In Walker Corporation Pty Ltd v The Owners-Strata Plan No 61618 [2022] NSWSC 1246; (2022) 20 BPR 42,717 (Walker Corporation) Parker J at [87]-[97] described By-laws as "statutory contracts" rather than delegated legislation for the purpose of considering whether statutory contract interpretation principles apply, rather than statutory interpretation principles that give rise to administrative law principles. In this regard, His Honour agreed with the approach of McColl JA (with whom Mason P agreed) in Owners of Strata Plan No 3397 v Tate (2007) 70 NSWLR 334 at [34]-[73].
The decision in Walker Corporation was unsuccessfully appealed to the NSW Court of Appeal (Walker Corporation Pty Ltd v The Owners-Strata Plan No 61618 [2023] NSWCA 125). However, the NSW Court of Appeal decision did not refer to the concept of By-laws as "statutory contracts."
However, irrespective of any debate as to the characterisation of By-laws as statutory contracts or delegated legislation, it is settled law that By-laws are assessed objectively, including whether a By-law has been breached (Lo v Aree [2024] NSWCATAP 159 at [58] and the authorities discussed therein).
In respect of noise transmission By-laws such as Special By-law 72 clause 4.6 (a)(ii)(I); and By-law 2, whether there has been noise likely to disturb, or interfere with, the peaceful enjoyment of the occupant of another Lot is assessed objectively taking into account all relevant evidence, not merely from the subjective beliefs or interpretations of the applicant (Felcher v Owners of Strata Plan No 2738 [2017] NSWCATAP 219 at [31]).
In Nowak v Pellicciotti [2018] NSWCATAP 245 (Nowak), the Appeal Panel stated as follows at [51]-[54]:

[113]

Whilst the Fields complain of TV noise and talking being transmitted to their unit, that is airborne noise. The expert evidence shows this is largely unaffected by the choice of flooring. Consequently, remedial orders will not be made on the strength of reports of airborne noise. However, having regard to the corpus of the Fields' evidence, a significant portion of it relates to impact noise heard whilst in the affected areas the subject of the intended orders, attributable to the flooring choices made by Ms O'Grady. That can be addressed through remedial orders.
The personal evidence is supplemented by the expert witness readings which have a scientifically demonstrable basis in decibel readings supporting L'nT,w measures, in the relevant areas yielding 2 star and below 2 star ratings (compared with 6 star readings for the comparable unit 2 carpeted areas). That diminution, in the context of the noise transmitted by the albeit otherwise ordinary daily use of unit 3, suggests the change to the flooring made by Ms O'Grady, and the ongoing failure to take steps to cover relevant flooring to a sufficient extent, have given rise to an interference with the Fields' peaceful enjoyment of their apartment and breached their entitlement to such. The age of the building is irrelevant given that Ms O'Grady sacrificed an AAAC 6 star impact rating.
Furthermore, the evidence of the experience of the Fields and their lay witnesses, subjective though personal experience must necessarily be, rises to the level of being objectively established, as mentioned. This is the more so having regard to the coincidence of this personal experience with the objective measurement of the L'nT,w noise measurements taken through the floor, and the AAAC guidance that such noise levels of two stars or below is "generally considered to be below an acceptable standard of sound transmission performance and may not be sufficient to prevent the transmission of 'noise likely to disturb the peaceful enjoyment of the owner or occupy of another lot'". The expert witnesses of both parties were agreed on the accuracy of the acoustic data collected by the Fields' expert, Ms Hanrahan-Tan. I preferred the evidence of Ms Hanrahan-Tan about the significance of the AAAC guidance over that of Ms O'Grady's expert, Ms Pearce, for the reasons stated above (see [103 ] - [113 ]).
The installation of the hardwood flooring by Ms O'Grady in her apartment, and the failure to cover the hallway area the subject of the initial proposed order, have demonstrably breached by-law 14 and constitute a nuisance under s 153 of the SSMA. That is to say, usage of the floor by the occupants in Ms O'Grady's unit gives rise to:

[116]

Ms O'Grady seeks to lead evidence attached to her opening submission, by way of a historical title search and inference from a 1929 newspaper article. That inference is that there were no noise complaints by the three previous owners of hallway noise, given a continuous hard floor in that area suggesting that there had been no "grave concern to any of these occupants". It is also to infer that all complaints would still appear in current owners corporation records and that they have been accessed and correctly interpreted. Even if that could be inferred, which the Tribunal does not, on the evidence, it does not address the contemporary objectivity of the alleged nuisance which the law is required to consider.
Ms O'Grady argues that, if the Tribunal did take the view that the flooring were to be replaced, the order cannot mandate carpet and underlay. Ms O'Grady argues that there is an implied mandate to be inferred from both experts agreeing that the appropriate 3 or 4 star rating cannot likely be practically achievable without carpet and underlay. If that is the case, Ms O'Grady argues, this would be to interpret by-law 14 in a way which is inconsistent with the SSMA and in particular sub-s 110(3)(c). This submission relies upon s 136(2) which provides that a by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law. Ms O'Grady argues that it would constitute a blanket prohibition on the installation of hard floors, relying upon Gurram v Owners Corporation SP 36589 [2018] NSWCATCD 39. It was also stated in that case at [22], as quoted by Ms O'Grady, that such a by-law would be harsh, unconscionable and oppressive within the meaning of s 139(1).
The Tribunal does not accept that those propositions are relevant to the present circumstances. The mischief the subject of Gurram was a special by-law passed in the very terms of a blanket prohibition against timber or ceramic floor tiles other than for ground floor units. No such blanket prohibition is proposed here. The mischief in the present case is the alleged breach of a by-law in relation to noise and the breach of a statutory provision proscribing nuisance. If the Tribunal were to make an order in favour of the Fields, there would be a principled reason for it, which could not be characterised as a "blanket prohibition" with no proper basis.
There is no "statutory right of the Respondent to install hard surface flooring" contended for by Ms O'Grady. Whilst a by-law has no force or effect to the extent that it is inconsistent with the SSMA or any other law as noted by Ms O'Grady's solicitor in his closing submission at [22], there is no unqualified statutory right to instal hard surface flooring under s 110 of the SSMA. Relevantly, that section only goes so far as to permit an owner of a lot to instal or replace wood or other hard floors (considered "minor renovations") by ordinary not special resolution of owners, on such terms as might be imposed by the owners corporation. That section provides no dispensation from compliance with s 153 of the SSMA and the general law of nuisance.
Furthermore, I do not agree with Ms O'Grady's solicitor that the observations made by the Tribunal in Mackinnon v Greenway [2020] NSWCATD 28 should be persuasive here. Those facts were different. There, the mandating of a 5 dB improvement to 45 dB, below a standard of 50 dB, which would eliminate hardwood flooring from contention, was regarded as harsh. The standard the subject of complaint in that proceeding was considerably more favourable than the noise readings complained of in the present case occasioned by Ms O'Grady's installation of wooden flooring. It cannot be gainsaid that Ms O'Grady's installed wooden flooring and its impact sound dynamic, by the objective standard of the AAAC (being its 2 star and below rating), is "generally considered to be below an acceptable standard of sound transmission". That dynamic supported by all of the other facts which have been found, show the breach of a statutory by-law and a statutory provision in no uncertain terms.
The observations of Robertson PM in Jiang are germane to the present circumstances:

[118]

Similarly, it does not matter that there is no applicable construction code to the present matter, given the age of the building.
The floor installed by Ms O'Grady has noise insulation properties worse if not significantly worse than the carpet it likely replaced or which could have been installed, having regard to the carpet tested in unit 2. (The carpet Ms O'Grady replaced was not tested, it having been replaced prior to the Fields moving in.)
I am satisfied that the AAAC 4 star rating sought by the Fields is not being used arbitrarily. It is not being used to draw conclusions for orders to be made in these proceedings. The rating system corresponds with decibel levels for impact noise which signifies certain characteristics, all things being equal. Those characteristics are relevant for specifying the order to be made. Ms O'Grady's sacrifice of acoustic quality between floors - by installing the wooden flooring and omitting to treat the linoleum - represents an objective reduction from a 6 star rating to a 2 star rating. To remediate that sacrifice, should it be so ordered, the rating system offers a measure. That rating should logically be an improvement on 2 stars and less than or equal to 6 stars. The use of the rating that way is to deploy it as a quantitative, not qualitative or arbitrary, measurement. Orders could otherwise be expressed more clumsily within the parameters of technical decibel terms.
The Tribunal is sympathetic to the allergic reaction of Ms O'Grady's son to dust mites attracted to carpet. As much as that constitutes a difficulty for Ms O'Grady, there is no legal basis to cater for special circumstances, which might otherwise attract sympathy, to breach a valid by-law and provision of a statute.
It is not necessary to traverse the parties' recollections of conversations about rugs, acoustics and their attempts to mediate, beyond noting that they appear to have engaged in good faith at the outset but become less amicable. The apparent strain of protecting their families and living spaces appears to have made cooperation increasingly difficult for both parties.
On discretionary grounds, Ms O'Grady asks the Tribunal to take into account her installation of a rug and offer to instal another rug. On the evidence of the Fields, that made a marginal difference to the noise, as instructed to Ms Hanrahan-Tan but not conveyed to Ms O'Grady. Ms O'Grady had suggested that she was thinking about purchasing and installing a second rug. I accept that the opportunity to instal rugs is an opportunity which should be available to Ms O'Grady to remediate a breach of a by-law and nuisance in the present circumstances. The evidence in this matter does not however establish that the offer by Ms O'Grady to instal another rug was of such a type and so reasonable as to attract a dismissal of the present application, as was the case in Nowak v Pelliciotti [2018] NSWCATCD 9.
The Tribunal does not accept that the Fields are under an obligation to mitigate their loss by exploring the installation of a false ceiling. Any duty on a defendant to abate a nuisance will be limited to taking reasonable steps having regard to the effort and expense required: see Goldman v Hargrave [1966] UKPCHCA 2; (1966) 115 CLR 458 at 467-468. A change to the ceiling in unit 2 constitutes an effort even in the absence of an evidenced estimate of expense. In the expectation it would cost thousands not hundreds of dollars, that cost should not fall on the Fields in view of all of the objective evidence pointing to Ms O'Grady's breach.
Furthermore, the Tribunal does not accept that the Fields have "come to the nuisance", such that they are required to do something. The fact that a plaintiff (or applicant) "had come to the nuisance did not prevent it being unreasonable for the defendants to do nothing...": Owners of Strata Plan 4085 v Mallone [2006] NSWSC 1381 at [58], per Young CJ in Eq, citing other authorities. Whilst Ms O'Grady accepts this proposition, her solicitor submits that she can only be required to take "reasonable steps" which include taking into account "practicality", a proposition accepted in that case (at [51]).
In Mallone, however, practicality did not extend to the Court allowing the defendant to "do nothing". The defendant was required to "deal with the problem" and to use her best endeavours in cooperation with the plaintiff (at [102]-[104]). A significant distinction in that case is that the defendant was a pensioner who had not "actively caused the problem" of rocks falling off a cliff face on the defendant's land caused by quarrying years earlier by a predecessor. The defendant in that case was still found liable because of "actionable non-feasance" attracting the Court's discretion.
Another authority relied upon by Ms O'Grady for the proposition that Ms O'Grady's responsibility should be limited to reasonable steps, Leakey v National Trust for Places of Historical Interest or Natural Beauty [1979] EWCA Civ 5; [1980] QB 485, also a case concerning natural causes giving rise to an interference with adjacent land, "without any human intervention" (at [528]), as noted in the submission from the Fields in reliance upon Frost v Northern Beaches Council [2022] NSWSC 1214 at [39]-[41] per Brereton JA.
The present circumstances are different because here the respondent Ms O'Grady has actively and solely caused the nuisance, notwithstanding the special circumstances said to justify doing so, being her son's allergy.
In contrast to the financial circumstances of, and hardship to, the defendant in Mallone if required to meet the costs of redress, the financial circumstances of Ms O'Grady are not in evidence before the Tribunal; nor, as mentioned, the cost and prospects of obtaining heritage approval to alter cabinetry to accommodate preferred flooring which will alleviate the actionable nuisance and breach of by-law. Given that absence, even if the Tribunal did have and were required to exercise a discretion to make a similar joint contribution order as that in Mallone, I would not be persuaded to do so in this case.
In summary, to find in favour of Ms O'Grady would involve the Tribunal excusing what is in effect the creation of an increased level of enjoyment for her unit (although apparently well intentioned and addressing her son's allergy) at the expense of her neighbours' - including any future neighbours' - enjoyment of their unit. I have not been taken to any authorities, nor have I found any, which would suggest that the Tribunal has a discretion to take into account the special circumstances asserted by Ms O'Grady.

Field v O'Grady [2025] NSWCATCD 224;

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Judgment (123 paragraphs)

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Legislation Cited (5)

Cases Cited (4)