Zhang v Glykis

Decision

In this matter the applicant, Frances Zhang, substantially seeks an order that the respondent comply with By-law 11 relating to floor coverings. The by-law provides 1. 11 Floor Coverings 2. An owner of a lot must ensure that the floor within the lot is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot. 3. This by-law does not apply to floor space comprising a kitchen, laundry, lavatory or bathroom.
She initially sought orders against the Owners Corporation and for reasons provided by Senior Member Wilson on 9 October 2019, the Owners Corporation was removed as a respondent when the applicant withdrew her application against them. The Senior Member noted at that time the Tribunal would decide 1. Whether the respondent had breached a by-law 2. Whether the Tribunal should order that the respondent install carpet or make some other order.
Unit 126 was purchased by the respondent, Peter Glykis, in July of 2007 and the renovation of the unit occurred in August and September of 2008 when timber flooring was installed by Wanda Floor Coverings of St Peters.
Mr Glykis states that prior to the installation of the floorboards approval was requested and obtained from the Owners Corporation in relation to the installation of the timber floorboards.
Unit 116 was purchased by the applicant on 30 March 2017 and the first complaint was made about Lot 126 on 10 July of that year. The applicant claims that between July of 2017 and June of 2019, when the tenants of Lot 126 moved out she had submitted some 17 complaints to either the Strata manager or the building manager and ultimately, in 2019, to the respondent as owner of Lot 126. The relief presently claimed by the applicant is that carpet be installed on top of the existing timber floor throughout Unit 126 and that rugs with a minimum thickness of 10mm be placed around the unit in areas of high pedestrian traffic, including the hallway, living areas and bedrooms. She has also sought an order that the respondent pay 50% of the costs of the Acoustic Report obtained from Acoustic Directions in August of 2019 and that a written agreement be put in place stating that a lease would be terminated if there were three official complaints from the applicant in the future.
The applicant has sought to rely on an Expert Report of Camille Hanrahan-Tan of Acoustic Directions. That report is dated 2 September 2019 and relates to testing undertaken in Units 116 and 126, apparently on that date. The respondent, Peter Glykis sought permission to access the applicant's lot in October so that he could have his own independent report undertaken by Mr Green and Mr Haydon of Acoustic Dynamics. Access to Unit 116 was not made available at the time and accordingly a peer review report was prepared on behalf of Acoustic Dynamics on 29 October 2019. Both reports were received into evidence although the Tribunal could have excluded the applicant's report on the basis that the respondent was not given an opportunity to have his own full independent report.
In the present case the Tribunal has deemed it appropriate to allow the applicant's report to be admitted but it is appropriate to balance the findings in the report against the observations of the respondent's experts who were not given the opportunity to participate in this testing process or any testing process which required access to be gained to the applicant's unit.
Ms Zhang has argued that the noise emanating from the respondent's unit has disturbed her peaceful enjoyment of her unit then she accordingly seeks the orders referred to in her points of claim.
Although not specifically referred to in the applicant's claim it is appropriate to consider the provisions of s.153(1) of the Strata Schemes Management Act 2015 which provides :- 153 (1) An owner, mortgagee or covenant charge in possession tenant or occupier of a lot in a Strata Scheme must not:_ 1. Use or enjoy the lot or permit the lot to be used or enjoyed in a manner of or for the purposes that cause a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not) The wording of s.153(1) of the 2015 Act is identical to the wording of s.117(1)(a) of the Strata Schemes Management Act 1996.
The appropriate interpretation of By-law 11 in s153(1) of the Strata Schemes Management Act 2015 requires a consideration of terms such as a "peaceful enjoyment of a property" and "the causing of a nuisance or hazard". In St Helen Melting Co v Tipping (1865) 11 HSC and Hargrave v Goldman [1963] 110 CLR 40 the Court held that an unreasonable and substantial interference with one's use or enjoyment of land gives rise to an action in nuisance.
Unreasonable is not defined under the Act and it is therefore to be understood as it would in the common everyday meaning of the word (see Curragh Coals Sales Co Pty Ltd v Wilcox [1984] FCR 46). The test of what is reasonable is an objective test that requires the existence of facts which are sufficient to induce that state of mind in a reasonable person (George v Rockett [1990] 170 CLR 104 at 112).
In Words and Phrases Legally Defined there is reference to the discussion of "reasonable" in the Australian context in the following terms:- "The word reasonable" has been declared to mean "reasonable in all the circumstances of the case". The real question is to determine what circumstances are relevant. In determining this question regard must be paid to the nature of the transaction. A circumstance which has no relation to the property which was the subject matter of the transaction but which is entirely dependent on the personal position or personal desires of the owner of the property would not in my opinion be relevant circumstances in determining what was "reasonable" (see Opera House Investments v Devon Buildings Pty Ltd [1936] 55 CLR 110 at 116 per Latham J).
The applicant bears the onus of establishing the facts she seeks to assert on the balance of probabilities and they establish conduct which would be in breach of an objective test. In order to prove that case the Tribunal must be satisfied that the applicant's assertions are more probable than not.
Mr Glykis had indicated that prior to the installation of the floorboards he sought advice from a flooring specialist as to the insulation which would be required in order to achieve a compliant impact standard. The floor he installed included two acoustic underlays between the flooring surface and a floating floor, additionally a further measure was taken to apply a rubber sealant between the timber floor and walls to prevent the transmission of noise to the walls.
Acoustic Directions identified in their impact noise test that Lot 126 had achieved a AAAC Star Rating of three and Acoustic Dynamics confirmed that a hard flooring achieving a AAAC Three Star performance was likely to prevent the transmission of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot. This view was expressed to be consistent with other AAAC member firms as agreed and documented in the Minutes of the AAAC Mid Year Meeting of 2005.
In Eales v Feletti [2018] NSWCATCD 66 Senior Member D Robertson had noted that an expert, Mr Tonin, expressed the opinion that a three star rating was a reasonable standard for the majority of apartments in Sydney. That decision was taken on appeal and leave to appeal was refused by the Appeal Panel and the Appeal was dismissed (Feletti v Eales [2019] NSWCATAP 100).
In Nowak v Pellicciotti [2018] NSWCATCD 9 I observed that a circumstance which had no relation to the property but which entirely depended upon the personal desires of the owner of the property would not, in my opinion, be a relevant circumstance in determining what was reasonable (see Opera House v Devon Buildings Pty Ltd [1936] 55 CLR 110 at 116 per Latham J).
The applicant has conceded that her own Acoustic Dynamics report verifies that the flooring complies with the Building Code of Australia. That position is clearly supported by the opinion expressed by Acoustic Directions, although unfortunately they were not able to carry out their own independent assessment as Ms Zhang did not allow them to enter her apartment when they sought to do so. The unit block is some 45 years old and it is located on a major city road, namely Oxford Street Darlinghurst.
It would appear that the initial complaints made by the applicant were directed to the behaviour of the tenant at the time and it is significant to note that after that tenant was removed from the property no further complaints have been recorded other than a complaint of noise when new tenants moved into the property in July of 2019.
The Appeal Panel has accepted that the correct test for determining whether breaches had occurred was whether or not by-laws had been breached as assessed on an objective basis and not the subjective perceptive of a 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. In that case, as in the present case the appellant had provided no expert evidence to demonstrate that the floor was generating an unreasonable amount of noise.
On applying those principles and weighing up the subjective complaints of the applicant against the evidence provided by the applicant and the respondent the Tribunal is not satisfied that the evidence, which includes a consideration of both expert reports, is sufficient to establish that By-law 11 or the provisions of s.153 of the Act have been breached.
It is appropriate to note that the Building Code of Australia of 2016 provides a method for an objective assessment of noise which relates to new buildings and current Standards. The expectation of occupants in buildings which are much older with probably a thinner floor slab must necessarily be less than those in a new building where compliance with that Standard is required.
The Tribunal notes that in the course of earlier discussions between the parties the respondent had offered to ensure that rugs were strategically placed in the tenanted unit but this offer was refused and there is no basis upon which the Tribunal should or would order other measures be taken. The objective determination of both experts is that the flooring complies and it is noted the flooring was originally approved by the Owners Corporation in 2008. For these reasons the application is dismissed.

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