Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 23 February 2019.
Ruth owns a unit in a multi-story strata complex.
The apartment above Ruth is rented-out to a young couple and noise from the apartment is keeping her awake at night.
Ruth makes an application to the NSW Consumer and Administrative Tribunal (NCAT), alleging that the tenants are responsible for noise that disturbs the peaceful occupation of her unit, breaching the strata by-laws. She also claims that the unit does not have floor coverings or treated floors sufficient to prevent the transmission of such noise to other units.
The owner of the unit, Earl and the Owners Corporation are joined in the proceedings.
Ruth seeks an order that Earl and the Owners Corporation prevent the tenants from making excessive noise and for Earl to install floor coverings or to treat the floors to prevent the transmission of such noise.
Ruth also seeks an order for damages, which includes the payment of the costs that she incurred in staying at hotel accommodation, allegedly to escape the noise.
Ruth engages an engineer specializing in acoustics as part of her evidence.
NCAT allows Ruth and Earl to retain legal representation on the basis that they agree not to seek an order that the unsuccessful party pay the successful party’s legal costs. Barristers are involved and the legal costs mount substantially.
NCAT rules that in the circumstances, it does not have the power to order an owner to comply with the by-laws. It therefore followed that NCAT had no power to make orders requiring a lot owner to ensure that tenants comply with the by-laws.
NCAT also ruled that it did not have the power to award damages.
In any event, NCAT ultimately finds that there was insufficient evidence that the tenants were responsible for an excessive noise and dismisses Ruth’s application.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
