McElhone v Artemisia Nominees Pty Ltd [2025] NSWCATCD 65;

1. The Tribunal has considered the evidence given in cross examination by Ms Pearce regarding the qualitative differences between different LnTw dB hardwood floor readings. However, that evidence, when considered in conjunction of the flaws in the evidence of Mr McElhone; the absence of any evidence from Ms McElhone; and the evidence of Ms Stephinson does not alter the Tribunal's finding that the applicant has failed to establish breach.

153 Owners, occupiers and other persons not to create nuisance

(1) An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not -

(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or

(b) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or

(c) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.

Note.

Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.

(2) This section does not operate to prevent the due exercise of rights conferred on a developer by the operation of section 82 of the Strata Schemes Development Act 2015.

Note.

Division 1 of Part 6 contains provisions about the circumstances in which owners of lots may carry out work that affects common property

1. The applicable legal principles pertaining to s 153 of the SSM Act were discussed by Ziegler SM in O'Riordan v Chu [2023] NSWCATCD 61 at [34]- [38] as follows:

In The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134 ("Veney"), Darke J held, at [47], that "nuisance" for the purpose of s 153(1)(a) of the SSMA should be interpreted in accordance with the common law meaning of an actionable nuisance, consistent with the approach previously taken by the Tribunal in applications under the former Strata Schemes Management Act 1996 (NSW), for example in Cannell v Barton [2014] NSWCATCD 103 at [95] and Gisks v The Owners - Strata Plan No 6743 [2019] NSWCATCD 44 at [26] ([46]-[47]).

In summary, the Court in Veney found that an actionable nuisance may be described as an unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with the land. Liability is established upon a state of affairs created, adopted or continued by a person, otherwise than in the "reasonable and convenient use" of their own land, which, to a substantial degree, harms another owner or occupier of land in the enjoyment of that person's land, citing Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40 at [59]- [62].

The Court also referred with approval, at [45] to the comments of Lord Wright in Sedleigh-Denfield v O'Callaghan [1940] UKHL 2; [1940] AC 880 at 903, where his Lordship said:

"A balance has to be maintained between the right of the occupier to do what he likes with his own [land], and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society."

In Bayliss v Lea [1961] NSWLR1002 the Court approved the following statement from Fleming on Torts 2nd ed, Clarendon Press, 1961at 400-1:

"The paramount problem in the law of nuisance is, therefore, to strike a tolerable balance between conflicting claims of landowners each of whom is claiming the privilege to exploit the resources and enjoy the amenities of his property without undue subordination to the reciprocal interests of the other. Reconciliation has to be achieved by compromise, and the basis for that adjustment is reasonable use. Legal intervention is warranted only when an excessive use of property causes inconvenience beyond what other occupiers in the vicinity can be expected to bear, considering the prevailing standard of comfort of the time and place. Reasonableness in this context is a two-sided affair. It is viewed not only from the standpoint of the Defendant's convenience, but must equally take into account the interest of the surrounding occupiers. It is not enough to ask: Is the Defendant using his property in what would be a reasonable manner if he had no neighbour? The question is: Is he using it reasonably, having regard to the fact that he has a neighbour?"

In Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102 ("Chehelnabi") the Appeal Panel, after reviewing the authorities, explained, at [74] - [75], the two primary elements which need to be satisfied for an actionable nuisance in respect of noise to be established:

"The first is that there must be some noise that can be heard by the complainant ... in the use of their lot which emanates from the respondents' lot, allegedly causing damage or interference. This may readily be established by the subjective evidence of the appellants as to what they hear or experience.

The second element, though, is that there must be evidence to establish to the satisfaction of the Tribunal that the noise is caused by a use of the respondents' land which is excessive or unreasonable and 'causes inconvenience beyond what other occupiers in the vicinity can be expected to bear, considering the prevailing standard of comfort of the time and place' (Bayliss), or that what is experienced by the appellants is not 'reasonable according to the ordinary usages of mankind living in ... [our] society': Sedleigh-Denfield v O'Callaghan ibid. This is an objective test: Marsh v Baxter [2015] WASCA 169 at [247], referred to with approval in Weber v Greater Hume Shire Council [2018] NSWSC 667 at [427]."

1. For the same reasons as the findings regarding failure to establish breach of Special By-law 72 clause 4.6 (a)(ii)(I) and/or By-law 2, the Tribunal is not satisfied the applicant has proved on the balance of probabilities that Artemisia has breached s 153 of the SSM Act. It has not been established objectively that the noise is caused by a use of Lots 14/15 is excessive or unreasonable and causes inconvenience beyond what other occupiers in the vicinity can be expected to bear, considering the prevailing standard of comfort of the time and place.

Issue 4: Whether the amended Special By-law 72 clause 4.6 (a)(i)(II) changing the specification from "40" to "55" should be revoked under s 148 of the SSM Act?

148 Order revoking amendment of by-law or reviving repealed by-law

(1) The Tribunal may, on application by a person entitled to vote on the amendment or repeal of a by-law or addition of a new by-law or the lessor of a leasehold strata scheme, make one of the following orders -

(a) an order that the amendment be revoked,

(b) an order that the repealed by-law be revived,

(c) an order that the additional by-law be repealed.

(2) The Tribunal may make an order only if the Tribunal considers that, having regard to the interest of all owners of lots in a strata scheme in the use and enjoyment of their lots or the common property, the change to the by-laws should not have been made by the owners corporation.

(3) An order under this section, when recorded under section 246, has effect as if its terms were a by-law (but subject to any relevant order made by a superior court).

(4) When making an order under this section in relation to a common property rights by-law, the Tribunal may direct the payment by the owners corporation of compensation to the owner of the lot, or owners of the lots, referred to in the by-law.

Note.

Section 78 of the Civil and Administrative Tribunal Act 2013 provides for the recovery as a judgment debt of amounts ordered to be paid by the Tribunal.

(5) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order.

1. Section 148 is different to ss 149 and 150 of the SSM Act. Section 149 allows the Tribunal to order a proposed common property rights By-law to be registered if the owners corporation unreasonably refused to make the By-law. However, under s 149, the Tribunal must have regard to:

(a) the interests of all owners in the use and enjoyment of their lots and common property, and

(b) the rights and reasonable expectations of any owner deriving or anticipating a benefit under a common property rights by-law

1. (Section 149(2) SSM Act).
2. Under s 150 of the SSM Act, the Tribunal can declare invalid an existing By-law if it considers that an owners corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive.
3. Section 148 arises in the statutory context of the power of an owners corporation to make By-laws in Division 2 and Division 3 of the SSM Act. As discussed previously, By-laws contain mutual covenants that bind owners and occupants (s 135 SSM Act). Section 136 states as follows:

136 Matters by-laws can provide for

(1) By-laws may be made in relation to the management, administration, control, use or enjoyment of the lots or the common property and lots of a strata scheme.

(2) A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.

1. Sections 142-145 of the SSM Act deal with common property rights By-laws, which arise in circumstances that include a Lot owner being conferred a right of exclusive use and enjoyment of the whole or any specified part of the common property.
2. Section 139 of the SSM Act states:

139 Restrictions on by-laws

(1) By-law cannot be unjust A by-law must not be harsh, unconscionable or oppressive.

Note.

Any such by-law may be invalidated by the Tribunal (see section 150).

(2) By-law cannot prevent dealing relating to lot No by-law is capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage or other dealing relating to a lot.

(3) By-law resulting from order cannot be changed If an order made by the Tribunal under this Act has effect as if its terms were a by-law, that by-law is not capable of being amended or repealed except by a by-law made in accordance with a unanimous resolution of the owners corporation and, in the case of a leasehold strata scheme, with the consent of the lessor of the scheme.

(4) By-law cannot restrict children A by-law for a residential strata scheme has no force or effect to the extent to which it purports to prohibit or restrict persons under 18 years of age occupying a lot. This subsection does not apply to a by-law for a strata scheme for a retirement village or housing exclusively for aged persons.

(5), (6) (Repealed)

(7) Community management and precinct management statements prevail over by-laws A community management statement or a precinct management statement prevails to the extent of any inconsistency with a by-law for a strata scheme that is also part of a community scheme or precinct scheme.

1. As the applicant's Counsel correctly points out in submissions in chief, there is little judicial authority on s 148 of the SSM Act.
2. Basten JA, in Cooper v The Owners-Strata Plan No 58068 [2020] NSWCA 250 (Cooper) stated (by way of obiter dicta) at [63]-[64]:

This provision requires the Tribunal to have regard to "the interests of all owners of lots," an approach which is consistent with the reasoning set out above as to the limits of the power to make a by-law. A by-law which restricts the rights of all owners as to the use and enjoyment of their lots in circumstances where the prohibited use would not interfere with the use and enjoyment of any other lot, is not a by-law which has regard to the interests of all lot holders; nor is it "for the benefit of the lot owners," within the terms of s 9(2).

It is true that in Casuarina Rec Club, Young JA stated that "[t]he power to make by-laws is to be liberally interpreted subject to the doctrine of fraud on the power and with the proviso that an unreasonable by-law will be held to be invalid": at [89]. However, it is difficult to be sure what is meant by a liberal interpretation. The owners corporation is created for specific purposes identified in s 9 of the Strata Management Act. Any expansion of its powers to control the use and enjoyment of lots by lot owners might tend to contravene those purposes. Further, as was explained by the High Court in ADCO Constructions Pty Ltd v Goudappel, [43] legislation having a remedial character may require a beneficial construction "if open", but "to accept the beneficial purpose of the [Act] as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially." There is no sound reason to construe a by-law making power broadly so as to permit a by-law which limits the choice of all lot owners in the use and enjoyment of their lots, without conferring any material benefit on those who would not have exercised the right if available.

1. The owners submission refer to James v The Owners-Strata Plan No SP 11487 (No 4) [2012] NSWSC 590 (NSW) at [39]. However, that paragraph is on a different point, involving the power to appoint a compulsory strata manager, and the responsibilities of the compulsory strata manager.
2. There is clearly a discretion in s 148 of the SSM Act, because the Tribunal "may" order an amended By-law be revoked and the previous By-law revived.
3. However, s 148 is different to ss 149 and 150. Section 149 involves the concept of unreasonable refusal (see, for example, Kaye v The Owners-Strata Plan No 4350 [2022] NSWSC 1386). Section 150 involves a By-law which the owners corporation had no power to make, or is harsh, unconscionable or oppressive (see, for example the discussion by Basten JA in Cooper; and Fagan J in Cooper at [90]-[96]).
4. The critical enquiry is s 148(2):

(2) The Tribunal may make an order only if the Tribunal considers that, having regard to the interest of all owners of lots in a strata scheme in the use and enjoyment of their lots or the common property, the change to the by-laws should not have been made by the owners corporation.

1. In respect of this issue, the Tribunal accepts it was in the interest of Artemisia to vote in favour of the amendment. Artemisia had not complied with Special By-law 72, and faced the prospect of having to either carpet the floor or construct a new floor at considerable time and expense to achieve compliance.
2. The Tribunal also accepts that it was in interest of the applicant to vote against the By-law. Mr McElhone subjectively believed his amenity of Lot 12 was interfered with by reason of noise transmission.
3. However, in respect of the other Lot owners, only one who attended the meeting or provided a proxy voted against the amendment. Despite the Piccioli family having 24.3% of unit entitlements, it still required very significant support to pass the amendment to the By-law, in circumstances where it required a special resolution (75% or more until entitlements voting in favour).
4. In respect of the meeting, as discussed previously, Mr McElhone gave very little evidence as to what was discussed, or what he said at the meeting to persuade other Lot owners to vote against the amendment. There was also limited cross examination of Ms Piccioli as to what she said, or other said, at the meeting. Most of the cross examination of Ms Piccioli about the meeting involved the issue of Mr McElhone's proposal (which was not an agenda item of the meeting, nor had he put forward any proposed By-law) that Artemisia install rugs, floor runners, and other insulation materials under furniture.
5. However, Ms Piccioli gave evidence in her first affidavit that there was discussion at the meeting regarding Lot owners seeking to bring future common property rights By-laws in respect of flooring alterations to their Lots. If multiple Lots had a common property rights By-law with a standard of less than 40 dB for flooring, it may make it more difficult for Lot owners to pass future By-laws with a different standard.
6. Ms Stephinson also had a clear interest in the amendment regarding the use and enjoyment of her Lot, in circumstances where her Lot was directly below Lot 15. She voted in favour of the amendment.
7. Although it was submitted that Ms Stephinson would "always" vote with the Piccioli family, that submission does not fairly assess the evidence of Ms Stephinson. Ms Stephinson was a creditable witness. She stated that she would agree with the majority, but only after discussion. The Tribunal does not accept this evidence should be construed as her simply 'doing the bidding' of the Piccioli family, or that she did not bring an independent mind to voting at owners corporation meetings.
8. Ms Holt's evidence was that she and Mr Goddard were "good friends" with the Piccioli family. However, the Tribunal does not accept that this meant that she or Mr Goddard did not bring an independent mind to voting, nor that they would not take into account the effects of the proposed amendment on other Lot owners, or the management and operation of the owners corporation.
9. The Lot owners at the meeting also had the benefit of the reports of Mr Washer and Mr Taylor, and could assess their respective opinions.
10. Further, the proposed amendment did not contravene any applicable building standard. Although it raised the noise threshold from 40 to 55, that was still well below the applicable Australian Standard of 62. Although all of the experts who gave evidence accept that 62 is a standard that owners corporations should attempt to better, the standard of 55 not obviously unreasonable considering the ratings set out in the AAAC Position Paper.
11. Further, Mr McElhone had the opportunity at the meeting to explain how the noise from the floor was affecting him, and explain why the standard of 40 should be maintained. The onus is on Mr McElhone to prove that the Tribunal should exercise its discretion under s 148, not the owners corporation or Artemisia justify the amendment.
12. Mr McElhone submits that the amendment only affected Lot 12. The Tribunal does not accept that submission, as the issue of alterations of Lots and noise in the building affected (to varying degrees) all Lot owners.

1. The applicant raises many issues which it asserts supports the exercises of its discretion under s 148. None of those issues persuade the Tribunal that am order should be made under s 148 of the SSM Act.

Was It "Achievable" A Floor Could Be Installed In Lots 14/15 that Would Meet dB 40?

1. There were copious evidence and submissions on this issue, which revolves around the expert evidence of Ms Pearce, Mr Blair (and to a lesser extent) Mr Washer.
2. The applicant submits that the Tribunal should reject the evidence of Ms Pearce that a batten system floor was not suitable for Lots 14/15 due to flaws in her reasoning and methodology. In particular, the flaws were regarding her assessment of the height of a batten floor.
3. The Tribunal does not accept that the cross examination of Ms Pearce regarding the height of a batten floor undermined her calculations and assessments. When her evidence is considered in its full context, there were no concessions by her regarding flaws in her assessment.
4. However, even if there was a flaw, error, or mistake in her assessment of the height of the floor, there is no doubt that installation of a batten floor would raise the height of the current floor, and be of very considerable time and expense.
5. Considering the current floor in Lots 14/15 has an LnTw of 50 and the findings of the Tribunal regarding the quality of Mr McElhone's evidence on noise and disturbance, the evidence of Ms Pearce does not support the exercise of discretion to make an order under s 148 of the SSM Act, nor go further and order the owners of Lots 14/15 to remove their current floor and replace it with a batten system floor.
6. The cross examination of Ms Pearce on a Nouvelle Acoustic flooring system based on a manufacturer's brochure was not persuasive. Ms Pearce stated that she had not been instructed to consider such flooring, and in any event it did not change her view that the system "most likely" to achieve db 40 was a batten system. Further, the Lot were such a floor was installed (Ms Hutton) had a significantly greater LnTw than 40dB.
7. Further, Mr McElhone had not obtained any expert evidence from a building consultant, or acoustic engineer, regarding installation of a Nouvelle Acoustic floor and what LnTw that type of flooring would achieve if installed in Lots 14/15.
8. The applicant also submits that the evidence of Mr Blair should not be accepted, or that he made concessions in cross examination. However, as he made clear on a number of occasions, he was commenting upon the structural issues arising if a batten system of the type identified by Ms Pearce was installed, and that if other flooring alternatives were proposed he would have to undertake further investigations or modelling.
9. It is clear from the evidence of Mr Blair that installing a batten system floor in Lots 14/15 will require very extensive work, and the Tribunal accepts his evidence that such work may cause non-compliance with building standards.
10. Even if I accepted that, because Mr McElhone has installed a batten system in Lot 12 it is equally "achievable" to install such a floor in Lots 14/15, it remains the case that the works required will be very extensive. In all the circumstances of the matter, that does not favour the exercises of discretion under s 148.

The Reasons for Non-Compliance With The Original Version of Special By-law 75

1. The applicant submits that Artemisia, without any good reason, failed to comply with the original version of Special By-law 72, and that is a discretionary reason in making an order under s 148, because Artemisia is 'changing the rules' to regularise its breach and alleviate itself from the requirements of compliance.
2. The Tribunal accepts the evidence of Ms Piccioli, which has been detailed previously, as to why Special By-law 72, in its original form, was not complied with. The Tribunal does not accept there was deliberate, wilful, or contumelious non-compliance done in a way that caused unreasonable harm or interference to the occupants of Lot 12. The non-compliance was inadvertent.
3. Undoubtedly, the effect of the amendment means that Artemisia does not have to install a new floor, or restore the floor back to carpet. However, the SSM Act allows owners corporations to amend Special By-laws. It also allows Lot owners, who have altered common property without a common property rights By-law to retrospectively authorize such works. The mere fact of non-compliance with the original Special By-law 72 is not sufficient, when taken into account with all the other relevant matters, to persuade the Tribunal to exercise its discretion under s 148.

1. The concept of fraud on the minority in a strata scheme was discussed by Ball J in James v The Owners Strata Plan No SP 11478 (No 4) [2012] NSWSC 590 at [46]- [50] as follows:

In Houghton v Immer (No 155) Pty Ltd [1997] NSWSC 608; (1997) 44 NSWLR 46, the Court of Appeal rejected the submission that the Strata Titles Act 1973, the predecessor Act to the SSM Act, provided a code for the regulation of strata schemes so as to exclude the doctrine of fraud on the power. That doctrine was expressed in these terms by Lord Lindley in General Assembly of the Free Church of Scotland v Lord Overtoun [1904] UKLawRpAC 50; [1904] AC 515 at 695 (quoted with approval by Handley JA, with whom Mason P and Beazley JA agreed, in Houghton v Immer at 53):

I take it to be clear that there is a condition implied in this as well as other instruments which create powers, namely, that the powers shall be used bona fide for the purposes for which they are conferred.

The doctrine applies to the exercise of powers conferred on shareholders in general meeting: see Peters American Delicacy Co Ltd v Heath [1939] HCA 2; (1939) 61 CLR 457. As Lord Lindley said in British Equitable Assurance Co Ltd v Bailey [1905] UKLawRpAC 72; [1906] AC 35 at 42 (again quoted by Handley JA with approval in Houghton v Immer at 53):

Of course, the powers of altering by-laws, like other powers, must be exercised bona fide, and having regard to the purposes for which they are created, and to the rights of persons affected by them.

In Houghton v Immer, the Court of Appeal concluded that that principle applied equally to bodies corporate formed under the Strata Titles Act. A failure to exercise the power bona fide will entitle the person affected by the exercise to equitable relief.

Mr Corsaro, who appeared for the owners corporation, accepted that these principles extended to the exercise of power by a manager appointed under s 162 of the SSM Act.

In Gambotto v WCP Ltd [1995] HCA 12; (1994-95) 182 CLR 432, the High Court considered the application of the general doctrine of fraud on a power in a context where a majority sought to expropriate the shares of a minority. It rejected that in that context the test was appropriately formulated as one concerning what was "bona fide for the benefit of the company as a whole". Instead, Mason CJ, Brennan, Deane and Dawson JJ formulated the test in these terms (at 445):

In our view, such a power can be taken only if (i) it is exercisable for a proper purpose and (ii) its exercise will not operate oppressively in relation to minority shareholders. In other words, an expropriation may be justified where it is reasonably apprehended that the continued shareholding of the minority is detrimental to the company, its undertaking or the conduct of its affairs - resulting in detriment to the interest of the existing shareholders generally - and expropriation is a reasonable means of eliminating or mitigating that detriment.

The mere fact that the expropriation might, for example, have saved the company administrative costs was not sufficient.

The principles stated in Gambotto apply to the compulsory destruction of rights as well as their expropriation: Heydon v NRMA Limited [2000] NSWCA 374; (2000) 51 NSWLR 1 at [577] per Ormiston AJA. They also apply to strata schemes and, in particular, to the expropriation of minority rights to a shared use of common property: Young v Owners Strata Plan No 3529 [2001] NSWSC 1135; (2001) 54 NSWLR 60 at [45] per Santow J; Thoo v The Owners Strata Plan No 50276 [2011] NSWSC at 182 per Slattery J. So, for example, in Young Santow J held that a special by-law which sought to limit the use of a swimming pool that formed part of the common property to owners of residential lots in the strata scheme was invalid because it deprived owners of lots that only gave the owner exclusive use of a car space from using the swimming pool.

1. The amendment to Special By-law 72 did not constitute fraud on the minority. On the evidence before it, the Tribunal is satisfied that the power to amend was exercised bona fide, and did not operate oppressively to remove a right of the applicant.
2. As discussed previously, there were genuine reasons for the amendment of the By-law to be passed, and it affected the rights and interests of all Lot owners (although to varying degrees). The noise standard contained in the amended Special By-law was not unreasonable in all the circumstances. The Lot owners who voted with Lots 14/15 did not do so to oppress the applicant, nor did cause oppression considering the quality of Mr McElhone's evidence on noise transmission.

Alleged Defects in The Manner in Which the Meeting Was Held

1. In closing submissions and with it never being clearly raised in the applicant's amended application or the evidence, the applicant asserts that the meeting on 8 February 2024 did not comply with the requirements of the SSM Act and its Regulations.
2. Section 24 of the SSM Act states as follows:

24 Order invalidating resolution of owners corporation

(1) The Tribunal may, on application by an owner or first mortgagee of a lot in a strata scheme, make an order invalidating any resolution of, or election held by, the persons present at a meeting of the owners corporation if the Tribunal considers that the provisions of this Act or the regulations have not been complied with in relation to the meeting.

(2) The Tribunal may, on application by an owner or first mortgagee of a lot in a strata scheme, make an order invalidating any resolution of, or election held by, the persons present at a meeting of the owners corporation if the Tribunal considers that the provisions of Part 10 (other than Division 6 or 7) of the Strata Schemes Development Act 2015 have not been complied with in relation to the meeting.

(3) The Tribunal may refuse to make an order under this section only if it considers -

(a) that the failure to comply with the provisions of this Act or the regulations, or of the Strata Schemes Development Act 2015, did not adversely affect any person, and

(b) that compliance with the provisions would not have resulted in a failure to pass the resolution or affected the result of the election.

(4) The Tribunal may not make an order invalidating a resolution under subsection (2) if an application for an order has been made under Division 6 of Part 10 of the Strata Schemes Development Act 2015 in relation to the same or a related matter.

(5) The Tribunal may not make an order under this section invalidating a decision by an owners corporation to approve, or not to approve, the appointment of a building inspector under Part 11.

1. At no point in the proceedings was an order under s 24 of the SSM Act sought. There is nothing in the evidence of Mr McElhone where he complains that the meeting was not held in accordance with the requirements of the SSM Act or its Regulations, other than the issue of it being held in Lot 22 occupied by Ms Barbara Piccioli.
2. The applicant argues that it can raise purported defects in the meeting in the context of its application under s 148 of the SSM Act. The Tribunal does not agree. It is not procedurally fair to the respondents to raise the issue in submissions. If it was raised in the amended application, or even directly in the evidence of Mr McElhone, the respondents could have adduced evidence to deal with the purported defects or non-compliance.
3. In any event, even if there were the defects or non-compliance submitted, that does not, in all the circumstances of the matter, cause the Tribunal to exercises its discretion under s 148 of the SSM Act.
4. For the applicant to succeed in an order under s 24 of the SSM Act, it would need to show that the non-compliance with the provisions of the SSM Act and its Regulations regarding the calling and holding of general meetings adversely affected the outcome (Chua v The Owners-Strata Plan No 36156 [2022] NSWCATAP 48; Harris v The Owners-Strata Plan No 34056 [2022] NSWCATAP 111). The evidence before the Tribunal fails to demonstrate this. The meeting was held, the applicant had the opportunity to attend the meeting; speak at the meeting and vote at the meeting. An agenda was sent out prior to the meeting. There is nothing to indicate the votes were not correctly tallied. Mr McElhone did not raise any issue about the validity of the meeting prior to the meeting, or at the meeting.
5. The mere fact that the meeting was held in Lot 22 does not cause the Tribunal to exercise is discretion under s 148, when considered with the other evidence. The submission that the location of the meeting caused the participants to vote in a certain way is without evidence or substance.

Jones v Dunkel Inference From Artemisa Failing to Call Mr Piva

1. The principles applicable to Jones v Dunkel were discussed in detail in Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184 at [129]- [123]. The mere fact a witness is called does not give rise to the inference; and the inference is only that the witness's evidence would not have assisted the parties case, not that the evidence would have detracted from it. The inference cannot be used to overcome a party, who has the onus of proof, failing to provide sufficient evidence to prove a particular factual matter.
2. In this matter, it is unclear what evidence Mr Piva would have given that would have been different or additional to the evidence of Ms Piccioli. That is different to the issue referred to previously in regard to Ms McElhone. Ms McElhone would have given evidence regarding what noise she was experiencing in Lot 12.
3. No Jones v Dunkel inference is drawn from the failure to call Mr Piva. Even if a Jones v Dunkel inference was drawn, it would not have made any difference to the outcome.

1. The applicant has failed to prove any of the causes of action alleged. Accordingly, the application fails.
2. The Tribunal notes that the applicant, in submissions, put forward an alternative order that rugs and floor runners be installed sufficient to supress noise. However, s 232 and/or s 241 of the SSM Act cannot be used in a general way to make any order a party seeks to resolve a dispute or complaint (The Owners-Strata Plan No 55468 v Silberstein [2025] NSWCATAP 102 at [112]- [117]; Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147 at [126]- [134]).
3. In circumstances where the s 148 application has failed, and the applicant has otherwise failed to prove breach of By-laws or nuisance under s 153 of the SSM Act, there is no legal basis to order that rugs/floor runners or other acoustic suppression devices be installed.
4. As well, there are two additional difficulties with the Tribunal making such an order. Firstly, the order would have to be crafted in a manner sufficiently specific so that Artemisa knew what to do to comply with it, and if there was a dispute about non-compliance (for example a penalty application under s 247A of the SSM Act) the Tribunal could determine whether it was complied with (Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 at [113]). It is unclear what is proposed would satisfy this criteria.
5. Secondly, in previous negotiations and in submissions, a suggestion has been made that the order could bind future Lot owners. The Tribunal does not see how this would be capable of achievement without a By-law being enacted, and there is no general power under s 232 of the SSM Act for the Tribunal to make By-laws. Its powers in respect of By-laws are specific, and have been referred to previously.

1. The Tribunal is satisfied that it makes a costs order in this decision, and if any party seeks to vary that order, it can do so. This has been an approach taken by the Tribunal and Appeal Panel in a number of matters (e.g. Wells Group Pty Ltd v Betts [2025] NSWCATAP 70).
2. This is not a type of proceedings where r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) applies (The Owners-Strata Plan No 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256).
3. Accordingly for the respondents to be awarded costs, the Tribunal would need to be satisfied that there are "special circumstances" under s 60(2) of the NCAT Act, taking into account the matters in s 60 (3) of the NCAT Act.
4. The principles applicable to ss 60(1)-(3) are well established (see, for example, The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273). The Tribunal needs to be satisfied (a) there are special circumstances; and (b) those special circumstances are sufficient for the Tribunal to exercise its discretion to depart from the usual principle under s 60(1) of the NCAT Act that each party pay its own costs.
5. In this matter, there are not (subject to any future application to vary) any sufficient special circumstances to cause the Tribunal to depart from an order that each party pay its own costs. The applicants case was not obviously weak or otherwise unmeritorious. The proceedings were conducted in a procedurally orthodox manner The proceedings were not frivolous, vexatious or lacking in substance. Ther was no breach of the duty in s 36(3) of the NCAT Act. There are no other obviously relevant matters in the proceedings that would cause the Tribunal to make a costs order in favour of the respondents.

(2) No order as to costs, with a view that each party bears its own costs.

(3) If any party seeks to vary order (2), the following orders apply:

(a) Costs applicant is to file and serve costs submissions and documents by 14 days from the date of these orders.

(b) Costs respondent is to file and serve costs submissions and documents by 28 days from the date of these orders.

(c) Costs applicant is to file and serve costs submissions in reply by 35 days from the date of these orders.

(d) Any party can apply to vary the procedural timetable for the filing and serving of costs submissions and documents by way of an application in writing to the Tribunal and the other parties by no later than the date of compliance with the relevant timetable obligation.

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.