Hogan v Stebnicki [2022] NSWCATCD 63

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hogan v Stebnicki [2022] NSWCATCD 63 Hearing dates: 20 January 2022 Date of orders: 01 June 2022 Decision date: 01 June 2022 Jurisdiction: Consumer and Commercial Division Before: P French, Senior Member Decision: (1) The application is dismissed. Catchwords: LAND LAW – Strata title – By-laws – Noise – Floor coverings – Interference with the peaceful enjoyment of the owner or occupier of another lot – Objective test Legislation Cited: Strata Schemes Management Act 2015 (NSW) Cases Cited: Briginshaw v Briginshaw [1938] 60 CLR 336 Felcher v The Owners Strata Plan 2738 [2017] NSWCATAP 219 Feletti v Eales; Eales v Felletti [2018] NSWCATCD 66 Gao v Agosti [2009] NSWCTTT 175 Nowak v Pellicciotti [2018] NSWCATAP 245 Texts Cited: Guideline for Apartment and Townhouse Acoustic Rating Version 1.0 (June 2017) Category: Principal judgment Parties: Patricia Hogan (First Applicant) Brendan Hogan (Second Applicant) Mark Stebnicki (First Respondent) Jessica Stebnicki (Second Respondent) Representation: Applicants (Self-represented) Respondents (Self-represented) File Number(s): SC 21/35010 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. By this application the applicant Lot 2 Lot Owners (Lot 2 Lot Owners) apply for an order under s 230(1) of the Strata Schemes Management Act 2015 (SSM Act) that would give effect to an agreement or arrangement arising out of a mediation session they participated in with the respondent Lot 3 Lot Owners (Lot 3 Lot Owners). Specifically, the Lot 2 Lot Owners seek an order that would require the Lot 3 Lot Owners to comply with By-Laws 1 and 14 of the Strata Plan (which relate to noise and noise transmission through floors) by installing carpets and underlay on the floor surfaces of the living areas and bedrooms of Lot 3. This application was made to the Tribunal on 16 August 2021 (the application). 2. For the reasons set out in greater detail following, the application has been dismissed. There has been no failure by the Lot 3 Lot Owners to comply with the mediation agreement dated 11 May 2021 that would warrant such an order being made. Nor have the Lot 2 Lot Owners established on an objective basis that noise transmission from Lot 3 to Lot 2 through the floor of Lot 3 is so excessive as to constitute noise nuisance.