Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sui v Jiang [2024] NSWCATAP 128 Hearing dates: 30 May 2024 Date of orders: 28 June 2024 Decision date: 28 June 2024 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President P Durack SC, Senior Member Decision: (1) The application for an extension of time in which to lodge the appeal is refused. (2) The appeal is dismissed. Catchwords: PROPERTY LAW-strata titles dispute-noise issue arising from installation of new flooring in a strata scheme unit-whether owner of the unit was in breach of relevant by-laws-expert evidence as to noise measurements and applicable noise rating-Tribunal found breach of relevant by-law in existence when new flooring installed and breach of amended by-law after the new flooring had been installed. APPEALS-whether appeal lodged out of time-whether time for lodging the appeal ran from the first decision making substantive orders-appeal lodged after lengthy delay from the first decision-the appeal lodged after the appellant obtained new expert evidence about the noise issue-merits of appeal considered on application to extend time-no substantial prospects of success on merits-application for extension of time refused. Legislation Cited: Civil and Administrative Tribunal Act (NSW) (2013) Strata Schemes Management Act 2015 (NSW) Cases Cited: Feletti v Eales; Eales v Feletti [2018] NSWCATCD 66 Hogan v Stebnicki [2022] NSW CATCD 63 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Zhang v Glykis [2020] NSWCATCD 17 R v Palmer [1981] 1 NSWLR 209 Seed v Higgins [1860] 8 H. L. C. 550 Category: Principal judgment Parties: Xin Sui (Appellant) Jenny Jiang (First Respondent) Richard Wang (Second Respondent) Representation: Counsel: P Lin (Appellant) Solicitors: KL International Lawyers (Appellant) First Respondent (Self-Represented) Second Respondent (Self-Represented) File Number(s): 2024/00069360 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 12 October 2023 Before: D Robertson, Senior Member File Number(s): 2023/00383985 (formerly SC 2023/33560) REASONS FOR DECISION Introduction 1. This is an appeal from orders made in two decisions in a strata title dispute about noise emanating from new flooring installed in a unit (Unit 35) in Ultimo, Sydney directly above the respondents' unit (Unit 27). The appellant is the owner of the unit in which the new flooring was installed. These units are part of a multi-level apartment complex containing 335 units. 2. In the first decision, issued on 12 October 2023, work orders were made against the appellant. The main work order was required to be performed within 3 months. In the second decision, issued on 16 January 2024, compliance with the main work order was extended to 12 March 2024. 3. The work orders were made as a consequence of the Tribunal's conclusion that the appellant was in breach of a by-law concerning floor coverings (by-law 14) in existence at the time when the new floor was installed and was also in breach of an amended version of that by-law made after the new flooring was installed., The by-law in existence when the flooring was installed had been made in 2019. The new flooring was installed in November 2021. The amended by-law was made in 2022. 4. None of the work orders were carried out even after the time for compliance had been extended. Instead, on 22 February 2024, the appellant lodged a Notice of Appeal against both sets of orders. 5. On 1 March 2024 the relevant work orders were stayed pending finalisation of the appeal. This stay was conditional upon the appellant ensuring that whilst the stay was in effect the sound transmission from those parts of the floors of his unit affected by the work orders achieved an acoustic measurement known as L'nT,w 45 and as a 5 star rating. The steps taken by the appellant to comply with this condition involved the installation of some foam flooring covering on some of the timber flooring in the appellant's unit. There has been no suggestion that this condition has not been complied with. 6. As will be seen below, in his Notice of Appeal the appellant, incorrectly, proceeded on the basis that the time for lodging the appeal ran from the time when the second decision was received by the appellant's solicitor. This was said to be on 25 January 2024 with the consequence, so it was submitted, that the appeal was lodged within time. 7. However, at the hearing of the appeal, we raised with Mr Lin of Counsel, who appeared for the appellant, the prospect that the appeal had been commenced considerably out of time, on the basis that time ran from the date when the appellant was notified of the written reasons for the first decision, and that this issue had not been addressed in any of the appellant's appeal documents. 8. We proceeded to hear from Mr Lin about this issue. We also heard from the parties about the merits of the appeal. 9. For the reasons set out below, we have decided the required extension of time to lodge an appeal should not be granted. From our reasons, it will also be apparent that had we granted the required extension of time the appeal would have been dismissed. Orders the subject of the appeal 1. The following orders were made by the Tribunal on 12 October 2023, following a hearing on 6 October 2023: (1) Within three months of the date of this decision, the respondent shall either restore the carpeting within Lot 35, other than in the kitchen, laundry, lavatory, and bathroom areas, or treat or replace the hard floors within Lot 35, other than in the kitchen and laundry, lavatory and bathroom areas, in a manner which will ensure those floors achieve at least a 5 star rating under the Association of Australian Acoustic Consultants Guideline for Apartment and Townhouse Acoustic Rating. (2) Within one further month, the respondent is to arrange testing by a suitably qualified acoustical consultant to certify the acoustic properties of the floor coverings within Lot 35 other than in the kitchen and laundry, lavatory and bathroom areas. (3) The applicants are to permit the respondent's acoustic consultant to access their apartment in order to undertake acoustic testing on no less than seven days written notice. 1. By orders made on 16 January 2024 (on the papers) the Tribunal made orders including: …. (2) Provided no less than seven days written notice has been given, the applicants are to permit an acoustic engineer retained by the respondent to have access to their unit to carry out acoustic testing to assess the efficacy of alternative floor treatments. (3) The time for compliance with order 1 made on 12 October 2023 was extended to 12 March 2024. (4) the time for compliance with order 2 made on 12 October 2023 is extended to 12 April 2024. The noise by-laws 1. The 2019 noise by-laws applicable in 2021 (when the new floor covering in Unit 35 was installed) stated: By-law 1-Noise An owner or occupier of a lot must not create any noise on the parcel likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property. By-law 14-Floor coverings (1) An owner of a lot must ensure that all floor space 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. (2) This by-law does not apply to floor space comprising a kitchen, laundry, lavatory, bathroom or any other area that is either parquetry or tiled at the time of the registration of the Strata plan. 1. At this time in 2021 there was also applicable a Special bye-law 7 which included an obligation in respect of floor coverings in terms: You must: … (d) Flooring ensure that any floor coverings installed or exposed in an apartment during the minor renovations are covered or otherwise treated to an extent sufficient to prevent the transmission from the floor coverings of noise likely to disturb the peaceful enjoyment of the owner or occupier of another apartment (apart from floor coverings in a laundry, lavatory or bathroom), 1. The 2022 amended floor coverings by-law 14 retained the same provisions in the existing by-law 14 (by-law 14 (2) became 14 (3)) and there was added a new by-law 14 (2) which stated: (2) Without limiting the requirements of By-law 14.1, if an Owner is utilising a floor finish within an owner's Lot other than carpet, then the Owner must ensure that the floor covering for the Lot has or achieves at least a 5 star rating, under the Association of Australian Acoustic Consultants Guideline for apartment and townhouse acoustic rating. The appeal right 1. Under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the CAT Act on the basis that: …..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) Issues on the appeal 1. At the hearing of the appeal, Mr Lin handed up a document setting out a summary of the issues on the appeal, excluding the question whether an extension of time to lodge the appeal should be granted. The document stated: Primary issues 1. Did the Tribunal err on a question of law in construing the 2019 by-laws? (Combines Grounds 3+ 4.) 2. Did the Tribunal err on a question of law by misapplying the facts as found to the 2019 by-laws? (Ground 1.) Secondary issues 3. Did the Tribunal err on a question of law in applying the by-laws as later amended in 2022? (Ground 2.) 4. Should the new evidence be admitted (the Renzo Report)? (Ground 6.) Alternative issue 5. Did the Tribunal err on a question of fact in finding that any noise emanating from Lot 35 was likely to disturb the peaceful enjoyment of the owner or occupier of another lot? (Ground 5.) (Applies in so far as this appeal is on a question of mixed fact and Law.) 1. The grounds of appeal set out in the Notice of Appeal were: 1. Ground 1. The Tribunal erred on a question of law in failing to properly apply the findings of fact to the by-laws that were in force as at 2021. (Those findings included findings in the 2023 Judgement at [50] that there was no reliable evidence from the Respondents of the extent of the noise experienced.) 2. Ground 2. The Tribunal erred on a question of law in applying the by-laws as later amended in 2022. 3. Ground 3. The Tribunal erred on a question of law in failing to deem the applicable standard under the 2021 by-laws to be an impact noise rating of 55. 4. Ground 4. The Tribunal erred on a question of law in interpreting the effect of by-laws 1 and by-laws 14. Neither of those by-laws imposed a quantitative noise transmission standard, but a qualitative one. The imposition of a standard of 45 was an error of law. 5. Ground 5. The Tribunal erred on a question of fact in finding that any noise emanating from Lot 35 was likely to disturb the peaceful enjoyment of the owner or occupier of another lot was against the weight of evidence. 6. Ground 6. The Tribunal erred in failing to consider that the underlying building structure is such that it was not practically achievable to meet the impact noise rating of 45, and therefore standard of 55 was the appropriate standard. 1. It is convenient, at this point, to make some initial remarks about these issues and grounds of appeal, as follows: 1. The appellant accepted that leave to appeal was required in respect of Grounds 5 and 6-the latter was dependent upon whether the appellant could rely upon new evidence on appeal, namely the Renzo Report (as referred to in Issue 4). 2. As to the remaining grounds of appeal, these were said to raise questions of law. How they did so was not readily apparent from either the Notice of Appeal or the appellant's written submissions. 3. We consider that the third issue referred to concerning the 2022 amended by-law was a central issue (not just a secondary issue). This is because, as will be seen below, the Tribunal concluded there had been a breach of the relevant by-law according to its terms in 2019 and as amended in 2022. If either one (or both) of these conclusions was correct then the appeal must fail. 4. The question whether the appellant could rely upon the Renzo Report, which was obtained after the second decision, did not affect the appeal in so far as it concerned a challenge to the Tribunal's decision that there had been a breach of the 2022 by-law. 5. At the hearing of the appeal, Mr Lin indicated that Ground 5 of the appeal (referred to in the summary of issues as the "Alternative issue") was only tentatively pressed. Other relevant facts and matters 1. The appellant's application to the owners corporation for approval to carry out the flooring work, dated 4 June 2021, included an Acoustic Certificate in respect of a foam sound solution underlay to the floating floor boards with a thickness of 5mm, along with a quotation from Ozwood Australia Pty Ltd for the flooring, carpet removal and underlay at a thickness of 5mm. The amount of the quote was $3,671.00. 2. The Acoustic Certificate contained reference to acoustic requirements of the BCA and standards prescribed by the Association of Australia Acoustic or Consultants (AAAC). The AAAC standards identified were those which required a 5 Star rating. 3. The certificate indicated that the testing under 12mm laminate floating boards, the subject of the quotation, produced acoustic results, including L'nT,w 44 and an AAAC Star rating of 5 (Tribunal's reasons at [16]- [18] and [61]). 4. The Acoustic Certificate appears to have been provided in order to satisfy the by-laws concerning the carrying out of minor renovations. Under condition 4.1.1 (d) of those by-laws, if minor renovations involved removing carpet or installing hard floors, if requested by the owners corporation, the unit owner was required to give the owners corporation a report from an acoustic consultant certifying the acoustic properties of the new floor coverings. 5. The work was approved at a meeting of the Strata committee on 29 June 2021. 6. From new expert evidentiary material obtained by the appellant after the Tribunal's decisions, it is apparent that the foam underlay actually installed with the new floorboards, when the work was done later in 2021, was only 2mm or 2mm-3 mm thick (second paragraph of an email from Mr Taylor of Renzo Tonin & Associates to the appellant's solicitor sent on 29 May 2024 at 6:49 pm and Table 1 in the report by Mr Taylor dated 1 April 2024, the Renzo Report). 7. Following complaints from the respondents about noise coming from Unit 35, which unit had been rented to a family in November 2021, the appellant obtained an acoustic's report from Koikas Acoustics dated 18 October 2022 (the Koikas Report). Later in 2022, the Strata Manager corresponded with the appellant about the Koikas Report revealing that the flooring did not achieve an AAAC 5 star rating and, hence, did not comply with the by-laws. 8. The Koikas Report contained test results of L'nT,w 51 in the dining/living area and of L'n T,w 54 in the bedroom. It stated that the tests were found to comply with the BCA impact noise requirements but were found "to not achieve the professional opinion of Koikas acoustics [of equal to or less then L'n T,w 45] and therefore may "disturb the peaceful enjoyment of another lot"" (Tribunal's reasons at [40]). 9. In addressing the status of compliance with the 2019 by-law the Koikas Report stated (Tribunal reasons at [38]): The standard flooring by-law (By-law 14) presented in Strata Plan 64807 does not specify an impact noise rating necessary to satisfy the requirements of By- law 14 above. To achieve the intent of the subject By-law 14 that the floor is covered/treated to ensure that any transmitted noise does not interfere with unreasonably or disturb the peaceful enjoyment of an owner or occupier of any other lot, Koikas Acoustics generally supports the adoption of an impact noise rating not more than L'n T,w 45 which corresponds to a 5 Star rating under the AAAC apartments and townhouses guidelines. This rating is increasingly being adopted in strata plans throughout apartment buildings in Sydney. Achieving this design standard can be quite onerous, and in some cases, it is not possible to achieve this rating based on the underlying structural components of the building. Koikas Acoustics is aware that other acoustic consultants advocate for a lesser performing impact noise rating of 55 as being suitable to achieve the intent of the standard qualitative flooring By-law 14, and that adopting this acoustic rating is approved by the other AAAC Member firms and supported by the AAAC itself. Given the large variance in responses to impact-generated noise within a building, it is the opinion of Koikas Acoustics that the more onerous acoustic rating of L'nT,w 45 should apply where it is practically achievable to meet this standard. Where the underlying building structure is such that it is not practically achievable to meet this rating, irrespective of the proposed acoustic treatment, then the lesser design standard of L'nT,w 55 could be seen as a reasonable and appropriate compromise for the body corporate to consider at their discretion. 1. In July 2023, after an unsuccessful mediation involving Fair Trading New South Wales, the respondents commenced proceedings in the Tribunal seeking orders to rectify the noise problem. 2. The Tribunal application made reference to the Koikas Report as the basis for the contention that the new flooring did not comply with the by-laws. In the proceedings, the respondents contended that the appellant was in breach of by-law 14 as it existed both at the time when the new flooring was installed and as amended (Tribunal's reasons at [35]-[36]). 3. The appellant presented no expert evidence in response to the Koikas Report either to counter the opinion in favour of a noise rating of not more than L'n T, w 45, corresponding to a 5 star rating, or to show that a lesser standard should apply because the higher standard was not practically achievable. 4. The three months allowed for compliance with Order 1 expired on 12 January 2024. 5. On or about 18 December 2023 the appellant sought an extension of time for compliance with the orders and also an order requiring the respondents to permit preliminary testing of potential flooring treatments to ensure any rectification would achieve a 5 star rating. The evidentiary material presented by the appellant in support of this request for an extension of time did not contain any disagreement with the Tribunal's decision or its reasons. On the contrary, it presented a position that the appellant was doing what it could to carry out the work the subject of the work orders and to rectify the problems as soon as possible. 6. After the extension of time was granted by the Tribunal on 16 January 2024, Mr Taylor's acoustic engineering firm conducted testing on 7 February 2024 from within the living areas of both units. For reasons that are not apparent, his report following that testing was not issued until 1 April 2024. 7. Mr Taylor's set out the results of the February testing in the Renzo Report. This showed that carpeting in Unit 35 would satisfy the L'nT, w 45 measurement but use of vinyl planks with a self-adhesive underlay installed on top of the flooring would not satisfy this measurement. In his report Mr Taylor also expressed opinions that: 1. A minimum performance level of L'n T, w 55 was a reasonable standard to be applied when the by-law itself did not nominate a numerical acoustic performance requirement (as was the case with the 2019 by-law). 2. He thought it likely that the timber floors in Unit 35 could not be acoustically treated to achieve the L'nT, w rating of 45 and that this was a limitation of base building elements that could not be cured by an acoustic underlay system. He believed that there was a limitation on acoustic performances a result of the base building elements (slab thickness, ceiling cavity size or similar). Accordingly, he thought it was unlikely that the L'nT, w 45 performance standard could be met other than by carpet. 1. Mr Taylor's report was less than definite about these aspects referred to in paragraph 34 (2) above and he did not identify any specific base building element that existed to explain the acoustic problem. The Tribunal's main decision of 16 October 2023 1. First, the Tribunal concluded that as a result of the new floor covering the appellant had not complied with by-law 14 (1) as it existed in 2021 when the new floor was installed. The Tribunal founded that conclusion upon the evidence contained in the Koikas Report referred to above (at [57]-[58], [64]-[66] and [79] of the reasons). 2. In arriving at this conclusion, the Tribunal said that the question would not be resolved by reference to anecdotal evidence of noise transmission but by reference to the objective evidence, which in this case consisted of the Koikas Report, the Tribunal having found that there was no reliable evidence from the respondents as to the extent of the noise they were experiencing (at [50]-[52] of the reasons). 3. The Tribunal also distinguished the different conclusions on this same issue reached in the Tribunal decisions of Feletti v Eales; Eales v Feletti [2018] NSWCATCD 66, Zhang v Glykis [2020] NSWCATCD 17 and Hogan v Stebnicki [2022] NSW CATCD 63 based upon the different expert evidence led in those cases (at [55]-[57] of the reasons). 4. The Tribunal also pointed out that the appellant had not led any evidence to suggest that the 5 star rating was not practically achievable, it had not sought to establish exactly what had been installed, or the nature of the ceiling/floor system or the thickness of the slab over which the floor been laid (reasons at [60]). 5. The Tribunal said that whilst it was not strictly necessary to consider the issue whether there was non-compliance with the amended by-law, it would address the issue. It concluded that the amended by-law was intended to apply to floors in existence at the time of the amendment as well as to floors subsequently installed and that it followed that the respondent was in breach of the amended bylaw (reasons at [69]-[71]). Consideration-the extension of time issue 1. The appellant made a submission that the 28-day period for lodging the appeal ran from the second decision because it had extended the time for compliance with the work orders. This is not correct. 2. Under r 25 (4) (c) of the Civil and Administrative Rules 2014 (NSW) (the CAT Rules) the time period to file an internal appeal in the circumstances of this matter is: (4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged— ….. (c) in any other case—within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later). 1. It is notification of the decision or reasons for the decision that triggers the relevant time period. Clearly, the Tribunal's decision of 16 October 2023 was a decision within the meaning of that word in r 25 (4) (c) above. The fact that, subsequently, time periods specified in that decision were amended does not alter this position. 2. The appellant, who had retained a solicitor for the proceedings at first instance, although leave was not granted for legal representation at that stage, did not suggest that he was notified of the Tribunal's written reasons for decision at any other time than on or about 12 October 2023 (the date of the decision). 3. Accordingly, his appeal lodged on 22 February 2024 was lodged 15 weeks out of time, which is a very lengthy delay. 4. The principles applicable to extensions of time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. In that case the Appeal Panel said that the time limit should generally be strictly enforced but that was not to say that exceptions should not be made where the interests of justice so require (at [21]). The Appeal Panel added (at [22]): The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]. 1. Mr Lin told us in general terms that the appellant had sought to comply with the 12 October 2023 orders. Then when he obtained the Renzo Report discovered that the noise rating required by the work orders was unlikely to be achieved except by reinstalling carpet. This discovery had led the appellant to appeal because it was commercially unviable-it was a costly exercise and the appellant's tenant would have to do vacate, at least, whilst the work was done. 2. However, the appellant did not provide any statement explaining the delay. As we have already mentioned, the stance taken by the appellant with his application to extend time for compliance with the work orders was that he was doing his best to comply with those orders as soon as he could. However, on the appeal there was no evidence from the appellant about this, which evidence would have needed to address why it had taken the appellant so long to investigate and obtain expert advice about the ways to rectify the noise problem and the alleged difficulties this created. There was no evidence from the appellant about the cost of reinstalling carpet. 3. The respondents made submissions by reference to documents to the effect that the appellant's strategy throughout, including the delay commencing the appeal, had been to resist the respondents claim and avoid making any changes in his unit. 4. We are not a position to conclude that the respondents are correct about this. What we do conclude, however, is that the lengthy delay remains unexplained. 5. The appellant made written and oral submissions about the merits of the appeal. In oral submissions, Mr Lin framed these submissions by reference to the issues documents we have already referred to. 6. First, Mr Lin submitted that it was an error of law not to conclude that a 3 star rating applied under the 2019 by-law 14 because this was the standard applied in the Feletti, Zang and Hogan decisions and the Koikas report did not "mandate" a 5 star rating. 7. However, leaving aside the question as to how this, in truth, amounted to a question of law, we see no error by the Tribunal in distinguishing these decisions by reference to the expert evidence that it had before it in this case. Furthermore, the Tribunal, correctly, cited the opinion from the Koikas report in support of the 5 star rating, subject to the question whether it was practically achievable. As to the latter, the Tribunal, correctly, pointed out that there was no evidence presented to the effect that it was not practically achievable. 8. Mr Lin also submitted that the Tribunal had distinguished the present case from these other cases on a flawed basis, namely that the by-laws in those other cases did not contain the exemption for the areas referred to in the by-law containing parquetry or tiles at the time of registration of the strata plan. However, whilst the Tribunal remarked upon this difference (with the qualification that it was to the extent that the terms of the relevant by-laws were ascertainable from these other decisions; at [46] of the reasons), the basis it applied to distinguish these other decisions was the different expert evidence presented (at [54] of the reasons). 9. Next, Mr Lin submitted the Tribunal made an error of law by disregarding the lack of any reliable lay evidence as to the level of noise experienced. He submitted that this was an error of law because it failed to take account of such evidence as a mandatory consideration. 10. However, it is plain from the Tribunal's reasons that it did take account of its own conclusion that there was a lack of such reliable lay evidence. It then based its decision solely upon the expert evidence in the Koikas report. 11. Mr Lin also made an oral submission to the effect that the Tribunal made an error of law by adopting expert opinion upon the application of a legal standard. In support of this submission he relied upon the views expressed by Glass JA in R v Palmer [1981] 1 NSWLR 209 at 214. These were views about the admissibility of evidence. He also relied upon views expressed in Seed v Higgins [1860] 8 H. L. C. 550 concerning patent infringement. In this case it was said that the question of infringement was one of mixed law and fact, that the construction of the specification was for the Court, that the question whether there has been an infringement was a question of fact for the jury, as to which scientific evidence may be admissible to fully elucidate the case. 12. However, in the first place the Tribunal is not bound by the rules of evidence. Secondly, we note that the rule against the admissibility of expert evidence about a fact in issue or an ultimate issue has been abolished: see s 80 of the Evidence Act 1995 (NSW). Finally, the Tribunal did not construe the by-law according to the opinion of the acoustic expert. The Tribunal explained the approach it took to the use of the expert evidence as being, first, to assist the Tribunal in measuring, objectively, the extent to which sound was transmitted through the floor and, secondly, to explain the impact of the level of transmission so measured. We see no error in that approach. 13. What we have addressed so far would appear to deal with the questions raised in Issues 1 and 2 encompassing Grounds 1, 3 and 4. 14. As to Issue 3 (concerning Ground 2), we consider that the Tribunal was correct in deciding that the amended by-law applied to the new flooring, despite the appellant's submission that this was contrary to the presumption against retrospectivity. 15. In respect of this issue, the appellant relied upon authorities concerning the presumption against retrospectivity-a presumption concerning the interpretation of legislation. The appellant did not attempt to show how this presumption was applicable to by-laws in a strata scheme which bind relevant parties to the same extent as if they had been signed and sealed by the relevant parties and contained mutual covenants to observe their provisions: s135 (1) of the Strata Schemes Management Act 2015 (NSW). 16. In any event, by the use of the words "is utilising", without any exemption for floorings already installed, we consider that it was the clear intention of the amendment to apply to all floors, regardless of when they were installed. Hence, in our view, any relevant presumption was overcome. 17. As to Issue 4 (concerning Ground 6), whilst we accept that the Renzo Report is relevant evidentiary material in relation to such explanation as there was for the delay in commencing the appeal and as to potential prejudice, we do not consider that the Renzo Report can be relied upon for the purpose of the merits of the appeal. This is because, in our view, it does not satisfy the requirement in cl 12 of Schedule 4 of the CAT Act, concerning the grant of leave to appeal, for the new evidence to be evidence that was "not reasonably available at the time of the hearing". 18. In this regard, the submission was made that the questions addressed in the Renzo Report "were not foreseeable at the time of the hearing below because [the appellant] had relied on the Koikas Report, believing that Lot 35 had met the standard of 55. Thus, the relevance and necessity of this evidence in the Renzo Report only came to the fore after the 2023 Judgement was delivered". 19. This seems to us to be an unsustainable submission, bearing in mind the terms of the Koikas Report we have already referred to, including the statement in the report: "… it is the opinion of Koikas Acoustics that the more onerous acoustic rating of L'n T,w 45 should apply where it is practically achievable to meet the standard." and the absence of any suggestion by the appellant that before, or at the time of the hearing, he believed that this rating was not practically achievable. 20. In view of the appellant's position concerning Issue 5 (concerning Ground 5) that we have already referred to, it is sufficient for us to say that we see no merit in a contention that the Tribunal's decision was against the weight of the evidence. 21. For these reasons, we consider that the appellant has no substantial prospects of success on the merits of the appeal. 22. The appellant submitted that he would suffer prejudice if the extension of time was not granted in the way we have already referred to. The prejudice translated to the cost in money terms only and we were not provided with any evidence as to the quantification of that cost. We also note that the relevant prejudice to the respondents by delaying rectification has been ameliorated by the condition of the stay order. 23. In view of the lengthy unexplained delay in commencing the appeal, our assessment of the prospects of success on the merits of the appeal, the nature and lack of quantification of the prejudice to the appellant if the extension of time is refused and the general prejudice to the respondents of the continued delay in final resolution of the noise problem, we consider that it is in the interests of justice that the application for an extension of time in which to lodge the appeal should be refused. Orders 1. The Appeal Panel orders: (1) The application for an extension of time in which to lodge the appeal is refused. (2) The appeal is dismissed. ********** 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: 28 June 2024