Nowak v Pellicciotti

The Decision

1. In the Decision, the Member referred to the evidence including the expert reports and commented: 61 The applicant bears the obligation of establishing the facts he seeks to assert on the balance of probabilities and they must establish conduct which would be in breach of the provisions on an objective test. In order to prove that case the Tribunal must be satisfied that the applicant's assertions are more probable than not. … 67. The By-laws do not, in this case, require compliance with a specific building code or with specific acoustic limits but the findings of Mr Huang in conjunction with the observations made by Mr Temelkoski and Mr Kamppi provide the Tribunal with some assistance in determining whether on an objective basis the by-laws [or] the requirements of s 153 have been breached. 68 It is significant to note that the works were inspected by an officer of the Council in October 2017 and it was indicated the renovation works were compliant. It is also significant to note that the representatives of the executive committee of the Owners Corporation and the strata manager have each declined to interfere in the matter notwithstanding that the Owners Corporation is the primary body responsible for enforcing breaches of by-laws through the operations of s 146 and 147 of the Strata Schemes Management Act 2015.
2. The Member referred to the decision of an Appeal Panel of this Tribunal in Felcher v The Owners Strata Plan 2738 [2017] NSWCATAP 219 and stated: 70 The circumstances of the particular case were very similar to the present case in that the appellant owner of strata premises filed an application seeking orders that the noise emanating from an adjoining unit immediately above his own was such as would constitute a breach of by-laws 1 and 14 which were in that case identical in terms to the by-laws in the present case. The Appeal Panel observed that the Tribunal in the first instance had held that it had power under s 232 to consider and make orders if appropriate. The Tribunal at first instance determined that the appellant and unit owner had failed to demonstrate a breach of by-laws 1 and 14 in that particular case. The Appeal Panel accepted that the correct test for determining whether breaches had occurred was whether or not the by-laws had been breached as assessed on an objective basis and not the subjective perspective of the unit owner (see Gao v Agosti [2009] NSWCTTT 175). The Tribunal had noted in that case that the noise complained of by the appellant involved normal daily activities including walking on the floor. The Tribunal in that case found that the appellant had provided no expert evidence to demonstrate that the floor was generating an unreasonable amount of noise.
3. The Member concluded: 71 On applying those principles and weighing up the subjective complaints of the applicant against the evidence produced by the respondent the Tribunal is not satisfied that the evidence, which includes a consideration of the expert report of Palmer Acoustics Australia Pty Ltd, is sufficient to establish that by-laws 1 or 14 or the provisions of s 153 have been breached. The readings taken by Mr Huang exceed the required level under the current Building Code of Australia by 1 unit. This testing was carried out with an expert on behalf of the respondent being excluded. The ultimate findings of Mr Huang from Palmer Acoustics Australia Pty Ltd must be taken into account and considered in conjunction with all of the expert opinions which have been put forward in support of the respondent's case. 72 Whilst the Building Code of Australia 2016 provides a method for an objective assessment of noise it is appropriate to note that this relates to new buildings of current building standards. The expectations of occupants in buildings which are much older with a thinner floor slab must necessarily be less than those in a new building where compliance with that standard is required. To the extent that the testing of Palmer Acoustics Australia Pty Ltd provides a guideline, the evidence of a minimal failure in one room does not, in a building of this age, justify the making of the orders sought by the applicant. It is to be noted that the power to make orders under s 232 of the Act is a power which can be exercised in a discretionary manner. The Tribunal takes into account all of the expert evidence in the present case together with the age of the building and the offers which have been made by the respondent to endeavour to mitigate what might be some difficulty so far as the applicant is concerned. These offers had all been refused and the application for the orders sought by the applicant must fail.

Notice of Appeal

1. Mr Nowak lodged his appeal on 18 May 2018. He claimed to have received the Decision on 18 April 2018. Mr Nowak's appeal was therefore lodged two days outside the period specified by rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW). Mr Nowak sought an extension of time within which to appeal. Section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) permits such an extension of time. Mr Pellicciotti did not oppose the extension of time. As the delay is short, it is appropriate to grant an extension of time, and we do so.
2. Mr Nowak's rights of appeal are limited by s 80(2)(b) of the NCAT Act which provides that an appeal against a decision other than an interlocutory decision of the Tribunal may be made: "as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."
3. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act, leave may only be granted under s 80(2)(b): "if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)."
4. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarized at [71] and [79] as follows: "[71] [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred… [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred."
5. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are set out in the decision of the Appeal Panel in Collins v Urban at [84]: "The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."

Grounds of Appeal

1. Mr Nowak's Notice of Appeal identified 13 grounds of appeal, which it is convenient to set out in full: 1. The Tribunal Member, J Ringrose ('The Member') was wrong at Law/was not supported by the evidence in coming to his decision. 2. The Member did not properly take into account and or give proper weight to the: (a) evidence in/the conclusions of the Palmer Acoustics Field Impact Insulation Tests Report dated 11/10/2017 (at clause 7.0 of the Report) performed by Senior engineers; and (b) The letter of Palmer Acoustics dated 9/10/2017 authored by Senior Engineer, Eric Huang being one of the authors of the report of the Palmer Acoustics Field Impact Insulation Tests Report dated 11/10/2017. 3. The Member was incorrect in finding that there was no evidence to support the Applicant's/Appellant's submission that "the original worn carpet was likely to have achieved a 6 star in impact rating better than 40 L'nT,w". 4. The evidence provided by the Respondent as set out at paragraphs 41 of the Member's reasons for judgment should not be accepted as the Appellant has new evidence that shows a Development Application was required prior to the Respondent commencing any renovations of the Respondents unit, pursuant to letter from Tweed Shire Council dated 23/4/2018. 5. The Member did not take into account and or did not give proper weight to the Mental State of the Applicant/Appellant pursuant to the Clinical Psychologist's Report of Daniel Murphy dated 10/1/2018. 6. The Member did not take into account and or did not give proper weight to the Respondents letters dated 10/04/2017 to the Applicant/Appellant and to the 'Unit Owners/Tenant', with the latter being put on the record by the Strata Management for SP16028, regarding how the Respondent intended to undertake the flooring renovations and that the substance of the former and latter letters differed. 7. The Member gave undue weight to submissions/evidence of the Respondent that the Applicant/Appellant did not allow the Respondent access to the Applicant's/Appellant's premises relative to acoustic testing or otherwise, in circumstances where the Applicant/Appellant took such position in adhering to the Orders of the Tribunal, pursuant to Tribunal Member, W Priestley, dated 22/9/2017, whereby such orders did not require the Applicant/Respondent to allow the Respondent or any agent or representative of the Respondent access to the Applicant's/Appellant's premises for any reason. The respondent should have applied for an order through the Tribunal if it was not happy with the orders of the Tribunal 22/09/2017 but chose not to. 8. The Tribunal Member gave undue weight to the reports of the Respondent, of themselves, relative when they were provided and or in the light of the Palmer Acoustics Field Impact Insulation Tests Report dated 11/10/2017. 9. The Member took into account evidence of 'Kevin Bodens' which was not provided in evidence. 10. The Member did not: (a) take into account all of the evidence provided by the Applicant/Appellant by way Statutory Declarations; and (b) did not give sufficient weight to the evidence provided by the Applicant/Appellant by way Statutory Declarations. 11. The Member was wrong, at Law/on the available evidence: (a) in finding that Body Corporate by-laws 1 and 14 have "limited requirements"; (b) in finding that the Respondent had not breached by-laws 1 and 14; (c) in finding that the Respondent was not in breach of s 153 of the Act; and (d) n dismissing, not following and or having given limited weight to the Building Code of Australia. 12 In coming to his decision the Member placed undue weight: (a) on his finding that the "representatives of the executive committee of the Owners Corporation and the strata manager have each declined to interfere in the matter"' and (b) on the age of the subject building. 13 The Member was wrong in finding that the circumstances in case of Felcher v The Owners Strata Plan number 2738 [2017] NSWCATAP 219, were very similar to this case.
2. Mr Nowak also sought leave to appeal on 13 grounds which were effectively identical to Mr Nowak's 13 grounds of appeal.
3. We will address each of the 13 grounds in turn. We note that it is not clear that any of the grounds raise a question of law. We will address that issue as we consider each ground, and consider, in respect of each ground which does not raise a question of law, whether Mr Nowak has demonstrated that a grant of leave to appeal is warranted in respect of that ground.

Ground 1

1. As Mr Nowak accepted in his written submissions, Ground 1 merely reflects the conclusion Mr Nowak suggests should be drawn in consequence of the remaining Grounds 2 to 13. It is not necessary to address this ground.

Ground 2

1. Ground 2 does not raise a question of law. It is, properly understood, merely a challenge to the Member's conclusion that Mr Nowak had not established his case.
2. The Member clearly took into account Mr Huang's conclusions but found that Mr Huang's report was not sufficient to establish that, given the age of the building and the attempts made by Mr Pellicciotti to mitigate the noise transmission from his unit, Mr Pellicciotti was in breach of by-laws 1 or 14 or s 153(1)(a) of the Strata Schemes Management Act.
3. For the reasons which we will set out more fully in respect of subsequent grounds, we are not persuaded that the Member's conclusion was not fair and equitable or against the weight of evidence.

Ground 3

1. In par [50] of the Decision the Member referred to a document upon which Mr Nowak sought to rely, being "information from the Association of Australian Acoustics Consultants described as guidelines for apartment and townhouse acoustics ratings". We understand that the document referred to was Appendix 5 to Mr Nowak's application. The Member recorded that Mr Nowak sought to assert that the "original worn carpet was likely to have achieved a 6 star impact rating better than 40 L'nT,w". The Member stated "there is no evidence or expert report to support this contention".
2. Mr Nowak pointed to two documents which he submitted constituted evidence which the Member had ignored. The first was the covering letter to Mr Huang's report dated 9 October 2017 in which Mr Huang stated: From experience (conducting many floor impact tests), the floor impact rating for a worn carpet with underlay will achieve a better rating than any hard flooring (tile, timber & vinyl) with single layer underlay system (under 10mm thick). In our opinion, the performance for a worn carpet with underlay will achieve a minimum floor impact rating of better than L'nT,w 40 in this building. Testing is required to confirm this opinion.
3. Secondly, Mr Nowak referred to an email dated 12 September 2017 from Mr Wales of Regupol, the manufacturer of the underlay used under Mr Pellicciotti's floor, which attached acoustic test sheets relating to two types of underlay, including that used by Mr Pellicciotti, and stated: "no hard flooring will ever give you the same rating as carpet, carpet can achieve an L'nT,w 35 or less rating".
4. We note that neither Mr Huang nor Mr Wales conducted any testing on the "original worn carpet". We recognise that Mr Huang's opinion was that a worn carpet with underlay would achieve a minimum floor rating of better than L'nT,w 40 "in this building" but qualified that statement by indicating "testing is required to confirm that opinion". Similarly, Mr Wales' statement was not directed to the particular building and did not reflect any testing or assessment of the specific circumstances of the particular building.
5. Whilst it may not be strictly true to state that there was "no evidence" to support the contention that the original worn carpet was likely to have achieved a 6 star rating better than 40 L'nT,w, the evidence to which Mr Nowak points was neither specific nor of significant weight.
6. In any event, we note that the Member did not rely upon a comparison between the original worn carpet and the floor installed by Mr Pellicciotti in determining that Mr Pellicciotti was not in breach of the by-laws or s 153(1)(a).
7. We do not consider that Ground 3 identifies a question of law. To the extent that Mr Nowak seeks leave to appeal on Ground 3, we are not persuaded that the documents identified by Mr Nowak as evidence of the acoustic characteristics of the carpet that Mr Pellicciotti removed are sufficient to establish those acoustic characteristics or to establish that the Member's conclusion that Mr Pellicciotti was not in breach of the by-laws or s 153(1)(a) was not fair and equitable or was against the weight of evidence.

Ground 4

1. In par [41] of the Decision the Member referred to communications from the Local Council in which the relevant officer of the Council had found that the flooring works and renovation works were compliant and noted that no further action was required.
2. Mr Nowak included with his appeal submissions: an email dated 28 February 2018 from the Compliance Officer at Tweed Shire Council recording that a site inspection had been undertaken at Mr Pellicciotti's property and "it is confirmed that the property owner has been advised to submit the appropriate applications in relation to the works that have been undertaken"; and a letter dated 23 April 2018 from the Tweed Shire Council to Mr Nowak giving notice that Mr Pellicciotti was seeking approval for "an additional bedroom and alterations to kitchen and bathroom" in his unit.
3. Mr Nowak submitted that this material established that the conclusion in par [41] of the Decision was incorrect. Clearly Ground 4 does not raise a question of law but rather seeks leave to appeal on the basis of fresh evidence. The material relied upon by Mr Nowak was not before the Member and, if it did establish that the Member's conclusion was incorrect, a question would arise whether the evidence was reasonably available at the time of the hearing. Mr Nowak did not provide any explanation why he would not have been able to obtain that evidence if he had made enquiries of the Council before the hearing.
4. Nevertheless, as Mr Pellicciotti pointed out, the additional correspondence does not in any event contradict the "communications" referred to by the Member. The communications consisted of an email dated 25 October 2017 in which the Council's Compliance Officer stated that "As per discussed at the property, Council are happy that no works are being undertaken and the flooring works and renovation works that were undertaken in May this year are compliant". The subsequent correspondence from the Council upon which Mr Nowak sought to rely related to kitchen and bathroom renovations and not the change to the floor covering.
5. We are not persuaded that we should grant leave to Mr Nowak to introduce the further evidence. We are not persuaded that the evidence is relevant.

Ground 5

1. As the Member correctly noted in the Decision, the assessment of whether the conduct of an owner of a lot is "likely to disturb the peaceful enjoyment of the owner or occupier of another lot" or "cause a nuisance to the occupier of any other lot" depends upon an objective assessment of the effect of that conduct. The relevant conduct in this case is Mr Pellicciotti's installation of wooden hard flooring.
2. The evidence referred to by Mr Nowak in Ground 5, that is a psychologist's report, may have been evidence of the subjective impact of the installation of the hard flooring upon Mr Nowak but it did not constitute objective evidence of the effect of the installation of the hard flooring.
3. In Gao v Agosti [2009] NSWCTTT 175 (which the Member referred to in the Decision at [70]), a Member of the Consumer Trader and Tenancy Tribunal held: "The standards imposed by the by-laws are to be interpreted objectively. That is the test to be applied in this case is whether the noise being transmitted is likely to disturb the peace and enjoyment of a reasonable person, rather than a person who may have a heightened sensitivity to disturbance".
4. The specific by-laws, the subject of that case, were not recorded in the Decision, but we agree with the proposition extracted above, which was referred to without disapproval in Felcher v The Owners - Strata Plan 2738 [2017] NSWCATAP 219. Accordingly we consider that the evidence of Mr Nowak's mental state was irrelevant and the Member did not err in failing to take it into account.

Ground 6

1. The issue which Mr Nowak seeks to raise by Ground 6 arises from the fact that there appear to have been two versions of the letter circulated by Mr Pellicciotti to lot owners. The version received by Mr Nowak, which he says was put before the lot owners at the annual general meeting, included a statement to the effect that the renovations proposed by Mr Pellicciotti, replacing the carpet and tiles with glued hardwood floor and acoustic underlay, would "produce less noise than the current carpet that we have now".
2. The letter appearing in the Body Corporate's records does not include that phrase. Mr Nowak appears to suggest that Mr Pellicciotti deliberately took steps to ensure that a letter which did not include the quoted words appeared in the Body Corporate files. Mr Nowak appears to seek to attribute this to some dishonest or malign conduct on the part of Mr Pellicciotti.
3. The relevance of this issue to Mr Nowak's appeal is not obvious. The Member did not attribute any significance to what appeared in the Body Corporate's records or to the letter in which Mr Pellicciotti indicated that the hard floors would produce less noise than the pre-existing carpet. Ground 6, taken at its highest, appears to be an attempt to re-argue the case based upon a submission that was not made to the Member. We are not persuaded that there is any merit in that submission.
4. The Decision was founded upon an assessment of the expert evidence concerning the level of noise transmission and its objective impact. The content of correspondence from Mr Pellicciotti did not enter into the Member's consideration. In those circumstances we are not persuaded that there is any substance in Ground 6 or that leave to appeal on that ground should be granted. Ground 6 clearly does not raise a question of law.

Ground 7

1. The fact that the expert retained by Mr Pellicciotti was not permitted to observe the testing conducted by Mr Huang was relevant to the Member's assessment of the relative weight of the experts' evidence. Mr Nowak submitted that Mr Pellicciotti could have obtained an order from the Tribunal to permit his expert to have access to Mr Nowak's premises but did not do so and that Mr Huang's evidence should not be discounted on that account.
2. We note the obligation of parties to proceedings in the Tribunal, imposed by s 36 of the NCAT Act, to: "co-operate with the Tribunal to give effect to the guiding principle [to facilitate the just, quick and cheap resolution of the real issues in the proceedings] and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal".
3. We do not regard Mr Nowak's conduct as consistent with his duty to co-operate with the Tribunal to facilitate the just, quick and cheap resolution of the real issues in the proceedings. In circumstances where Mr Nowak had not given prior notice that he would not permit Mr Pellicciotti or his expert to enter his unit to observe the testing, Mr Pellicciotti could not be expected to have obtained orders from the Tribunal requiring Mr Nowak to permit that to occur in advance of the testing taking place. We do not consider that the Member gave inappropriate weight to the fact that Mr Nowak did not permit Mr Pellicciotti or his expert to enter Mr Nowak's premises.
4. It is to be noted that the Member did not reject Mr Huang's testing results as unreliable. Rather, he determined, as set out above, that "the evidence of a minimal failure in one room does not, in a building of this age, justify the making of the orders sought by [Mr Nowak]". It is not clear that the Member actually took into account in reaching his ultimate conclusion the fact that Mr Pellicciotti and his expert were excluded from observing the testing.

Ground 8

1. Ground 8 is expressly a challenge to the weighting of evidence and as such clearly does not allege an error of law.
2. The Member took Mr Huang's report into account, but accepted the qualification to Mr Huang's conclusions suggested by Mr Kamppi, that the Building Code of Australia was not applicable in a building of the age of the building in which the units are situated. That issue was fairly raised in the report of Mr Kamppi which was attached to an affidavit sworn by Mr Pellicciotti on 24 October 2017. Mr Nowak had ample time to have Mr Huang respond to that evidence. He did not do so. We do not consider that the Member's conclusions in this respect were against the weight of the evidence.

Ground 9

1. In par [51] of the Decision the Member referred to a statutory declaration from "Kevin Bodens" and stated "this material is subjective in nature and does little to assist the Tribunal". The evidence filed by Mr Nowak included a statutory declaration of Karen Bodman. The evidence before the Tribunal did not include any statutory declaration by Kevin Bodens.
2. It takes only a moment's reflection to recognise that the Member has mis-transcribed the name of Ms Bodman. Given that the Member did not rely upon the evidence but rather stated that he considered the relevant evidence of little assistance, it is difficult to understand on what basis Mr Nowak submits that the Decision could have been not fair and equitable because the Member had referred to, but given no weight to, a statutory declaration from "Kevin Bodens". This ground must be rejected.

Ground 10

1. The evidence produced by Mr Nowak included four statutory declarations from: Peter O'Neill, Craig Ellis, Karen Bodman and Marita Nowak. The Member referred to the statutory declarations from Mr O'Neill and Ms Bodman, albeit in the latter case mistakenly naming her as Kevin Bodens. Mr O'Neill and Mr Ellis both occupied the unit next to Mr Nowak's unit. Both set out in their statutory declarations the complaint that the noise coming from Mr Pellicciotti's unit was excessive. The only difference between Mr Ellis' and Mr O'Neill's statutory declarations was that Mr Ellis made reference to the noise from Mr Pellicciotti's unit affecting his sleeping patterns. In other respects the statutory declarations of Mr O'Neill and Mr Ellis were identical.
2. The fact that the Member did not refer to Mr Ellis' statutory declaration does not establish that he failed to take it into account. Mr Ellis' evidence added nothing significant to that of Mr O'Neill. We infer that the Member assessed that evidence in the same way as he had assessed the declaration from Mr O'Neill.
3. Mrs Marita Nowak, who is Mr Nowak's mother, gave no evidence from direct knowledge of any issues with noise transmission to Mr Nowak's apartment but rather reported hearsay evidence of what Mr Nowak had said to her. We do not consider that that evidence could have carried any weight in support of Mr Nowak's application.
4. It was not necessary for the Tribunal Member to refer to every piece of evidence no matter how slight.
5. In Gussoni v Burnheim [2018] NSWCATAP 75 an Appeal Panel, in dealing with a submission that a Tribunal Member had erred in failing to refer to particular evidence, stated as follows: 32 In Mifsud v Campbell (1991) 21 NSWLR 725 at 728 Samuels JA, referring to McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281, noted that a failure to explain the basis of a crucial finding of fact involved a breach of the principle that justice must not only be done but must be seen to be done. He went on to state that: … it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case. Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge… may promote a sense of grievance in the adversary and create a litigant who is not only "disappointed" but "disturbed" - to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal. [Our emphasis] 33. The principle of justice being done and being seen to be done was discussed by Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. His Honour, in a passage frequently cited with approval, said at 443 - 444 (citations omitted): … reasons need not necessarily be lengthy or elaborate ... The scope of the reasons to be given is ... related "… to the function to be served by the giving of reasons". Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it ... Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to. ... Third, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well. ... …In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal. … an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice… Another question, which need not presently be decided, is whether the failure to provide reasons or the provision of inadequate reasons constitutes either an error of law or some other appealable error. This was a question which Hope A-JA noted but found unnecessary to decide in Mifsud v Campbell (at 729). It is sufficient to note that most cases have assumed the error is one of law.
6. The statutory declarations of Craig Ellis and Marita Nowak were not evidence critical to an issue in a case or contrary to an assertion of fact made by one party and accepted by the Tribunal Member. The evidence of Mrs Marita Nowak added very little to the evidence of Mr Nowak himself and at best was evidence of consistency in Mr Nowak's complaints that he was subjectively discomforted from noise from Mr Pellicciotti's unit. Mr Ellis' evidence added nothing to the evidence of Mr O'Neill which the Member dealt with.
7. Ground 10 must be rejected.

Ground 11

1. Ground 11 does not raise a question of law. The matters identified as (b) and (c) in Mr Nowak's Ground 11 are simply assertions that the Decision was incorrect and identify no substantive ground of appeal.
2. Ground 11 (a) refers to the statement in par [54] of the Decision that "the submissions on behalf of the applicant appear to lose sight of the limited requirements of by-laws 1 and 14 which are applicable to this strata complex".
3. We understand the Member's reference to "the limited requirements of the by-laws" to relate to the Member's finding (at par [67] of his Decision which we have set out at [24] above) that the by-laws do not require compliance with a specific building code or specific acoustic limit.
4. The by-laws lay down general obligations upon the owner or occupier of a lot. The Member made no error, either in law or fact, in describing those requirements as "limited". They are clearly not unlimited.
5. Ground 11 (d) is a challenge to the Member's factual determination that the Building Code of Australia did not apply to the building.
6. The Member found (at [72], which we have set out at [26] above) that the Building Code of Australia 2016 relates to new buildings and requires a thicker floor slab than exists in the building in this case. That finding was supported by the evidence of Mr Kamppi. The Member determined that the minimal failure of compliance with the building code in one room in a building of the age of the subject building, did not justify the making of the orders sought by Mr Nowak. That was a finding that was available to the Member and we do not consider that that finding was against the weight of evidence or not fair and equitable.

Ground 12

1. This ground clearly does not raise a question of law. The issue raised by Ground 12, as Mr Nowak's submissions acknowledge, relates to the weight of evidence. Mr Nowak submits that the Member placed "undue weight" on his findings concerning the decisions of the Executive Committee and the Strata Manager and the age of the subject building.
2. Mr Nowak does not explain why he submits the Member placed undue weight on those matters. It is not apparent to us that the Member placed any significant weight on the conduct of the Executive Committee and the Strata Manager. The Member addressed those matters in par [68] of the Decision, which we have set out at [24] above. The Member noted those matters but did not in our view place significant weight on them. The Member's reasoning is set out in pars [71] and [72] of the Decision which we have set out at [26] above. That reasoning, in our view, did not involve giving undue weight to the conduct or decisions of the Executive Committee or the Strata Manager.
3. The Member did place some weight on the age of the subject building. However we do not consider that he placed undue weight on that matter. It was a relevant factor to be taken into account in determining whether the transmission of noise from Mr Pellicciotti's unit was excessive or likely to interfere with Mr Nowak's peaceful enjoyment of his lot. The age of the building was significant because, as Mr Kamppi noted, the floor slab between the parties' units was significantly thinner than would be required by current building standards. Ground 12 must be dismissed.

Ground 13

1. Mr Nowak submits that the circumstances in Felcher v The Owners Strata Plan 2738 [2017] NSWCATAP 219 were distinguishable from this case in that in Felcher the applicant had provided no expert evidence to demonstrate that the floor was generating an unreasonable amount of noise, whereas Mr Nowak had adduced the evidence of Mr Huang.
2. In par [70] of the Decision (set out at [25] above) the Member clearly acknowledged that distinction between this case and the circumstances in Felcher. The circumstances were similar in that in both cases an application was made for orders to enforce by-laws 1 and 14 (which were in identical terms to those applicable in this case) on the basis that there was excessive transmission of noise from a unit immediately above a unit occupied by the applicant. In those circumstances, there is nothing exceptionable about the Member referring to Felcher as indicating the appropriate approach to the application. That is a normal, and indeed expected, application of the principle of stare decisis.
3. The Member extracted from the decision of the Appeal Panel in Felcher the proposition that, whether breaches of the by-laws had occurred should be assessed on an objective basis and not by reference to the subjective perspective of the unit owner. On our reading of the Decision, the Member did not rely upon the decision in Felcher as providing any greater guidance in reaching his decision.
4. As we have observed above, the Member applied the correct principles and determined that he was not satisfied on the evidence that the by-laws or the provisions of s 153 of the Strata Schemes Management Act had been breached. The Member did not ignore the fact that Mr Nowak had adduced expert evidence, he took that evidence into account in what we consider was an entirely appropriate and unexceptionable manner. Accordingly Ground 13 must be dismissed.

Conclusion

1. We have rejected each of Mr Nowak's 13 grounds. Accordingly to the extent that Mr Nowak seeks leave to appeal, that application will be refused. The appeal will be dismissed.
2. Mr Pellicciotti sought leave, in the event that the appeal was dismissed, to make submissions on costs after receipt of our decision.
3. Mr Pellicciotti acknowledged that, pursuant to s 60 of the NCAT Act, he must establish that there are special circumstances before the Appeal Panel can make an order for costs in his favour.
4. Mr Pellicciotti submitted that there were special circumstances, but sought an opportunity to submit written submissions concerning that issue in the event the appeal was dismissed. We will afford Mr Pellicciotti that opportunity and allow Mr Nowak an opportunity to respond. Mr Pellicciotti also foreshadowed that he would provide evidence concerning the legal expenses he had incurred in defending the appeal. If Mr Pellicciotti seeks that the Appeal Panel make an assessment of his costs, rather than an order that his costs be agreed or assessed, he should ensure that detailed evidence of his legal expenses is provided.

Orders

1. We make the following orders: 1. Pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) extend the time for the appellant to lodge his appeal to 18 May 2018. 2. Refuse the application for leave to appeal. 3. Dismiss the appeal. 4. The respondent may within 14 days of the date of publication of this decision file written submissions concerning the costs of the appeal. Such submissions should address the question whether the issue of costs can be determined on the papers without a hearing. 5. If the respondent files submissions in accordance with Order (4) above, the appellant may file written submissions in reply within a further 14 days, such submissions should address the question whether the issue of costs can be determined on the papers and without a further hearing.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 October 2018