(a) The sound transmission claim (being the allegation of excessive noise transmitting into Hastings lot from Marven's lot, and

(b) The claim that she has breached her obligations as a committee member under s 117 of the Owners Corporations Act 2006 (Vic) ('OC Act') where the allegation is made that Marven (in her position as committee member) wrongfully represented at a dispute resolution meeting on 5 April 2018 that there were no ceiling penetrations in her lot.

1. Marven contends that the proceeding is a cause of action which is subject to s 5(1)(a) of the Limitation of Actions Act 1958 (Vic) ('LAA'). Marven submits that the sound transmission aspect of the claim is statute barred under s 5(1)(a), but concedes that part of the claim relating to an alleged breach of s 117 of the OC Act is not statute barred.[2]
2. Marven also seeks that the entire proceeding be summarily dismissed or struck out under to s 75 of the VCAT Act, or in the alternative s 76 of the VCAT Act on the basis that:

(a) The proceeding is unsustainable in law.

(b) The proceeding is absolutely hopeless, as the six-year statute of limitation period for an action has been exceeded and the proceedings are 'absolutely hopeless'.

(c) The latest date of the cause of action is not a disputed question of fact.

(d) There has not been any evidence provided in this matter by the applicant to demonstrate any changes to the integrity of the external boundaries to Lot 6 which may allow any change in the transmission of sound from Lot 6 to Lot 9.[3]

Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) is otherwise an abuse of process.

1. The questions to be determined by the Tribunal are:

(a) Is the proceeding subject to s 5(1)(a) of the LAA? If the answer is yes, is that part of the claim that relates to sound transmission statue barred, and should it be dismissed under s 75 of the VCAT Act?

(b) Should the Tribunal exercise its discretion under to s 75 to summarily dismiss or strike out the proceeding in its entirety because it is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process?

(c) Should the Tribunal exercise its discretion under s 76 of the VCAT Act to summarily dismiss or strike out all, or any part of the proceeding for want of prosecution?

Is the proceeding subject to s 5(1)(a) of the Limitations of Actions Act 1958?

Contracts and torts

(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued -

(a) Subject to subsections (1AAA), (1AA) and (1A), actions founded on simple contract (including contract implied in law) or actions founded on tort including actions for damages for breach of a statutory duty;

(b) Actions to enforce a recognizance;

(c) Actions to enforce an award, where the submission is not by an instrument under seal;

(d) Actions to recover any sum recoverable by virtue of enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.

1. Marven contends that Hastings application is subject to s 5(1)(a) of the LAA. Marven concedes that the sound transmission claim in this proceeding is not an action for damages for breach of a statutory duty, but says rather that it is a tort within the meaning of s 5(1)(a). Marven submits that the Act is not limited to actions in tort involving damages for breach of a statutory duty, but can include other torts.[4] I accept this submission, it is clear from the reading of the section that the inclusion of actions for damages for breach of a statutory duty, does not exclude other actions founded on tort.
2. Marven submits that:

(a) The transmission of sound it a tort as per being classified as a nuisance, which is supported by authorities;

(b) That the Nuisance of Noise is akin to the Nuisance of Trees;

(c) That the tort of the nuisance of tress is considered to be subject to the NSW equivalent of the LAA; and

(d) There is no limitation with the OC Act that prohibits the matter being considered as bound by the LAA.[5]

1. Marven in her submissions then addresses the basis upon which this action is brought, being under s 162 of the OC Act, in respect of two alleges breaches of the OC Act being:

(a) Section 129 which requires a lot owner to properly maintain in good and serviceable repair any part of the lot that affects its outward appearance, or use or enjoyment of other lots, and

(b) Section 117 in which Hastings alleges that Marven has breached her duties as a member of a committee or sub-committee.

1. In respect of s 129 Marven submits that the remedy sought by Hastings for the sound transmission to stop is a form of abatement, which is a remedy for the tort of nuisance.[6]
2. Marven references authority which defines nuisance as 'The essence of nuisance is a state of affairs that is either continuous or recurrent, a condition or activity which unduly interferes with the use of enjoyment of land...'[7]
3. Marven contends that the transmission of sound in this case, is 'effectively noise and noise has been defined as a nuisance'. Marven then cites the decisions in Uren v Bald Hills Wind Farm, and McDonald v Fosterville Gold Mine as supporting this contention.[8]
4. The Tribunal in Steedman[9] considered whether s 157 of the Water Act 1989 (Vic) ('Water Act') attracted s 5(1) of the LAA, and found that it did not do so. Her Honour Justice Quigley, and Deputy President Wilson accepted that "the word 'tort' is a legal technical term. When construing a technical legal term, it is to be given its acquired legal meeting unless a contrary intention appears".[10] They go on to say that in the case of s 157 of the Water Act it 'is not a statutory extension of a negligence claim or another common-law claim....The statutory claim available under s 157 provides a form of statutory compensation for flooding and the flow of water, independent of the common law'[11]
5. In Lanigan,[12] the Court determined that a claim for contravention of the Equal Opportunity Act 2010 (Vic) ('EO Act') was not an action founded on tort. Section 188 of the EO Act states that a contravention of this Act does not create any civil or criminal liability except to the extent expressly provided by this Act. His Honour held that s 188 makes it clear that a breach of the EO Act does not provide a ground for civil liability as there was no contrary express intention in relation to the sexual harassment and victimisation provisions of the EO Act.[13] He refers to the Estate of Russell as authority for two propositions.

First, any attempt to broadly categorise what is and is not a tort by reference to a highly-generalised definition is unhelpful. Second, notwithstanding the difficulty in conclusively defining what constitutes a tort, a tort denotes a common law cause of action that is enforceable in a court. A tort is a civil action, breach of which generates civil liability.[14]

1. Marven's submissions, and the Amended Points of Claim dated 9 October 2023 establish that Hastings brings her sound transmission claim under s 129 of the OC Act. Section 129 requires a lot owner to properly maintain in a state of good and serviceable repair any part of the lot that affects the outward appearance of the lot or the use or enjoyment of other lots or the common property. In this case Hastings contends that ceiling penetrations in Lot 6 have affected the sound attenuation of lot 6's ceiling which has allowed sound transmission into Lot 9. In my view a cause of action under this section is not akin to the tort of nuisance. The section provides a statutory framework to address a failure by a lot owner in an OC to maintain their lot in good repair, such that it either affects its outward appearance, or as in this case, allegedly impacts upon the use or enjoyment of Lot 9. A potential remedy under this provision is an order for the lot owner to maintain the lot in good repair. In this case I reject Marven's submission that the remedy sought by Hastings is akin to the remedy of abatement, which is available as a remedy for private nuisance. I also reject Marven's submissions that the claim brought under s 129 is akin to the tort of nuisance. While the two may be compared in respect of excessive noise, in all other aspects of both the nature of the claim, the statutory basis upon which the claim is founded, and the remedies available they are not analogous. I find that a claim made under s 129 of the OC Act is not a tort, and s 5(1)(a) of the LAA does not attach to this claim.
2. The claim under s 129 of the OC Act should therefore not be dismissed under s 75 for being undoubtedly hopeless and bound to fail due to it being statute barred.

Should the Tribunal exercise its discretion under to s 75 to summarily dismiss or strike out the proceeding in its entirety because it is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process?

1. Member Johnson (as she then was) in Dundas[15] helpfully summarised the relevant principles to be applied in the exercise of the discretion under s 75 of the VCAT Act as follows:

The power to dismiss or strike out a proceeding, or part of a proceeding, summarily should be exercised only where it is obvious that the proceeding cannot possibly succeed or where it is obvious that the proceeding is an abuse or process for other reasons. Otherwise an applicant is entitled to have the case fully heard and adjudicated upon at a final hearing. It must be very clear indeed that the proceeding is absolutely hopeless or so clearly untenable that it cannot possibly succeed. It is accepted that VCAT should not order summary dismissal in circumstances where the outcome of the case might depend on findings of fact based on contested evidence. The applications...require me to determine whether, assuming that Dundas will be able to prove all the facts on which it relies, its claim is nevertheless absolutely hopeless, unsustainable in fact or in law and bound to fail. This is a high bar.

1. Marven contends that the allegations made by Hastings are refuted by expert evidence and therefore have no foundation in fact. She says further that Hastings has provided no evidence that Marven has constructed or made penetrations into the ceiling or walls of her apartment.[16]
2. She further says:

(a) The only expert evidence available makes findings that any sound transmission has been attenuated by at least the threshold required by the Building Code of Australia, and that the lay evidence provided by Hastings lacks objectivity and independence;[17]

(b) The electrical evidence does not support Hasting's concerns about the integrity of the boundaries of Lot 6 due to electrical installation works;[18]

(c) The evidence does not support Hasting's concern that Marven's works for the exhaust vent from the kitchen created any new cavities or holes during installation.

(a) The first of a three part acoustic test finding can be corroborated by her through diary entries which confirm noise transference at levels that do not meet minimum standards;[19]

(b) The electrical reports do not confirm that Marven had no knowledge of the existence of ceiling penetrations in lot 6 at the meeting on 5 April 2018; and that light battens were installed during electrical work completed in 2008;[20]

(c) The mechanised kitchen fumes are exhausted into the wall cavity and into lot 9, and a plumbers quote stating 'Flue Range hood to atmosphere', evidences that the flue discharges into the atmosphere.

1. The Tribunal should not order summary dismissal where the outcome of the case might depend on findings of fact based on contested evidence. I must assume that Hastings will be able to prove all the facts on which she relies. The proceeding should not be summarily dismissed if the outcome depends on disputed questions of fact that could be established by evidence yet to be adduced or tested.[21] Marven has failed to establish that the proceeding is absolutely hopeless, unsustainable in fact or in law and bound to fail. The evidence is relation to the sound transmission, the existence of ceiling holes in lot 6, and the installation of a flue transmitting gas into the wall cavity and Lot 9 are disputed questions of fact which are appropriately tested, and determined by the Tribunal at final hearing. In addition whether or not Marven acted in her own capacity, or in her capacity as a committee member at the meeting on 5 April 2018 is a disputed issue of fact, and one for determination at final hearing. It is certainly not the case that Hastings application is absolutely hopeless or bound to fail and Marven has failed to establish that the proceeding should be summarily dismissed or struck out under s 75 of the VCAT Act.
2. In the alternative Marven seeks that the proceeding be summarily dismissed or struck out under s 76 of the VCAT Act
3. Section 76 relevantly provides

Summary dismissal for want of prosecution

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding for want of prosecution.

1. Marven's submissions provide very little elaboration in respect of this provision, other than for her legal representative to suggest during the hearing that the section could be invoked because there was no evidence of the act to cause what Hastings alleges has happened. And that the provision is analogous to a 'no case to answer'.
2. I have no basis to exercise the discretion afforded to me under s 76. The actions of Marven in relation to ceiling penetrations, or her conduct at the meeting on 5 April 2018 are appropriately matters for hearing and determination at final hearing, during which evidence in relation to those matters can be led and tested. Hastings is taking active steps to prosecute her case and place evidence before the Tribunal. Marven's application under s 76 is dismissed.
3. Hastings has made submissions claiming the conduct of Marven in this proceeding amounts to an abuse of process under s 78 of the VCAT Act. No application of this nature has been made by Hastings, and Marven has not had an opportunity to respond to the allegations. It would be inappropriate to deal with this issue given those circumstances, and if Hastings wishes to pursue that allegation, it must be dealt with by way of an application to the Tribunal.
4. Given that Marven's application has been dismissed I shall refer this proceeding to a directions hearing for the making of further procedural orders.

[1] Marven written submission dated 18 December 2024 at paras 2 and 3.

[2] Marven written submissions dated 17 March 2025 at para 27.

[3] Marven written submissions dated 18 December 2024 at para 32.

[4] Marven written submissions dated 17 March 2025.

[5] Marven written submissions dated 17 March 2025 at para 3.

[6] Marven written submissions dated 17 March 2025 at para 6.

[9] Steedman v Greater Western Water Corporation [2023] VCAT 128.

[12] Lanigan v Circus Oz & Ors [2022] VSC 35.

[15] Dundas Terrace Pty Ltd v Owners Corporation PS5341300K (Owners Corporations) [2019] VCAT 571, paras 22-24.

[16] Marven written submissions dated 17 March 2025 at paras 31-32.

[17] Marven written submissions dated 18 December 2024 at para 23.

[19] Hastings written submissions dated 22 January 2025 at para 23.

[21] Shaw v Imperial Builders Pty Ltd (Building and Property) [2024] VCAT 929 at para 7.