Acoustic insulations

Jimmy,

Our strata has just drafted a bylaw stating that all hard flooring must be acoustically tested and must not exceed 45 db – the value is somewhat subjective, but how would this be enforced if an owner challenged its legiticimy or basis? Also would this then be legally retrospective for all owners who previously renovated & have hard floor coverings? The building is in Sydney.

Hi dnighttime,

I am totally appalled to hear how this has turned out. The only advice I can give you at this point is to appeal the decision.

Unfortunately the CTTT web site states :”If you want to appeal a Tribunal Member’s decision made following the hearing of a strata and community schemes matter, you will need to appeal against the decision to the District Court of NSW.”

“

Appeals may be made to the District Court of NSW under section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001. 

The grounds for an appeal to the District Court is that the CTTT made an error when it decided a question with respect to a matter of law.  Appeals to the District Court must be made within 28 days from the date the CTTT’s order is made.”.

An alternative is to Appeal to the Supreme Court as follows:”

Appeals may be made to the Supreme Court of NSW under section 65 of the Consumer, Trader and Tenancy Tribunal Act 2001. 

The grounds for an appeal to the Supreme Court include that there was a denial of procedural fairness or that the CTTT did not have jurisdiction to make the order.”

I would strongly advise seeking sound legal advise before you proceed.

You have my deepest sympathies.

The Minister (for Fair Trading) one stated that the CTTT was “an underutilised resource”; we now have another example of why that’s the case!

Posters here often refer to the CTTT’s decisions being decided by the spin of a chocolate wheel, but seriously, don’t let the legally unqualified, inconsistent, and incompetent (but not all) people at the CTTT get away with what appears to be a totally irrational and patently unjust ruling. Talk to your acquaintance at Makinson d’Apice about proactively assisting you in an appeal to a higher Court.

Alternatively (or at least after any appeal), prevail upon your local State Member to make a representation to the Minister on your behalf; it probably won’t be seen by the Minister himself but believe me it will rattle some cages at the CTTT. 

dnighttime:

First, please name and shame the Tribunal member responsible for your decision. There are no privacy provisions involved, and the inconsistency in Tribunal orders suggests that the one thing we as owners can do in these circumstances is remove the veil of anonymity behind which members hide. This is particularly important as precedent plays no part in CTTT decisions – members are not bound by decisions of other members, even Senior members!

Second, there seems to me to be a “Portia” loophole which you may be able to exploit. (Remember the Merchant of Venice – Shylock could take his pound of flesh but not a drop of blood?) If the acoustic test as accepted by the Tribunal indicated that the standard was complied with as measured with the rug, but not elsewhere, then it could be argued that the entire floor needs to be covered with equivalent rug or carpet to satisfy the original order.

Thirdly, before you hike off to the Supreme Court, I think you might well qualify for a review of the case in the Tribunal itself. See s.68 of the CTTT Act:

68 Rehearings by Tribunal

(1) A party in any proceedings that have been heard and determined by the Tribunal (“the completed proceedings” ) may, in the manner and within the time prescribed by the regulations, apply to the Chairperson to have the completed proceedings reheard by the Tribunal.

(2) The grounds on which such an application may be made are that the applicant may have suffered a substantial injustice because:

(a) the decision of the Tribunal in the completed proceedings was not fair and equitable, or

(b) the decision of the Tribunal was against the weight of evidence, or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the completed proceedings were being heard).

Find it here:

https://www.austlii.edu.au/au/legis/nsw/consol_act/ctatta2001361/

But as already advised, you need legal skills to avoid being browbeaten by the Tribunal. The problem is that the CTTT dispenses law, not justice, and the interpretation of the law in any case is whimsical.

Hope this helps

Yep, the District Court for you … where it will be decided on points of law and not whether some jumped up failed solicitor didn’t get enough chocolate on his morning cappuccino.

So, Ancestor, it seems everybody else is out of step except you.  This website, our regular contributors and the CTTT are all giving “unreliable advice(s)”. 

Firstly, as you did, we recommended that dnightime get professional advice from an experienced strata lawyer.

Secondly, are you seriously suggesting that readers ignore the CTTT’s own factsheet which specifically excludes strata issues from the appeals and rehearing process?  Do you think readers will do better if they pursue your theories?

Have you actually done this yourself?  Do you know anyone who has successfully rocked up to the CTTT and said, “Your advice is wrong – we are going to do this MY way”?

If you want to get all bush lawyer on the CTTT, and go tilting at windmills, go right ahead and please let us know how that works out for you.

But our advice to our readers is to read the literature provided by the body to which you are appealing, then follow their rules and protocols and you have a much better chance of success.

I’m sorry if this seems harsh but if you come on to the this website and advise people not to trust the advice given – especially when it is sound, reliable, tried and tested – expect a push-back.

@drshelley said:
This is getting scary – I was under the impression that we could appeal if we do not get a favourable result from our adjudication submission (which closes in one week) and also to be heard at Hurstville. 

Let’s be clear n this – you are saying it’s an adjudication which CAN be appealed (by a new application for a hearing).

However, the member’s decision at the subsequent hearing can’t be appealed at the CTTT (only at the District or Supreme Court level).

This is what the CTTT website says (click HERE to read the full page):

Appealing Strata and Community Schemes decisions

The appeal process in strata and community schemes matters differs depending on whether it is an appeal against an Adjudicator’s decision, or an appeal against a Tribunal Member’s decision.

Adjudicator’s decision

If you want to appeal an Adjudicator’s decision you can lodge a fresh application to the CTTT appealing the decision within 21 days of the order coming into effect. 

The matter will be listed for hearing and the Tribunal Member may affirm, revoke or make a substitute order.  The Tribunal Member may dismiss the application if they believe the matter was appropriately dealt with by the Adjudicator.

When making an appeal application against an Adjudicator’s decision, you may also request a stay order to stop the Adjudicator’s orders coming into effect until after the appeal application has been determined.

Tribunal Member’s decision

If you want to appeal a Tribunal Member’s decision made following the hearing of a strata and community schemes matter, you will need to appeal against the decision to the District Court of NSW.

 

drshelley continues

Our upstairs timber floor loving modern family have just had an acoustic test done a couple of days ago which (according to the consultant) may meet the BCA – but that doesn’t stop the dreaded noise of this family – there is no mention of the bca in the by-laws.

The BCA is the biggest smokescreen in these issues and it is frequently dismissed by savvy Tribunal members and adjudicators.  The by-law is all about noise and disturbance.  If you can prove your peaceful enjoyment of your lot is being unreasonably disturbed by the noise from upstairs, then the BCA is irrelevant.  

What the BCA doesn’t relate to is the actual activity on the floor.  The BCA is a notional benmchmark which takes no account of usage.  Would an owner holding Flamenco dancing classes be protected by saying the floor met BCA standards?

If you go to a hearing to appeal the adjudication, try to have any evidence about the BCA dismissed as it is not relevant to the case which should only be about whether or not this specific by-law been breached.

dnighttime:

In response to your question of December 5 re appeals to the Tribunal from a decision by an Adjudicator:  I have recently been through this process and would make a couple of points that may assist you. 

In constructing your appeal you will have first of all to set out the grounds for your appeal. This is not as simple as it sounds; it is not sufficient to say that you don’t agree with the Adjudicator’s decision. You have to credibly submit where you think he erred, and why your case should be re-opened.

I have to warn you that you have to be very careful here, because much will depend on who you get as a Tribunal Member to hear your appeal. There are two schools of thought in the Tribunal: one contends that there are only limited avenues for appeal, the other argues that it is permissible to introduce new material. There are decisions of the Tribunal which support both sides, and both quote and interpret a couple of Supreme Court decisions differently.

In my case, I was fortunate to get a Senior Member who believed in the right to open up the whole matter, and ordered that my appeal be heard de novo, that is from the beginning, all over again with no restriction on the review of the Adjudicator’s decisions, reasons or comments. At the final hearing I again won a sympathetic Senior Member who clearly stated where she stood in the argument (among Tribunal members).

So, my conclusion from this is to treat with some scepticism the advice from your friend that you have a good case and should be able to run it yourself. It’s a toss of the coin who you get in the Tribunal, and some members can be absolute sticklers on the law. Whatever you’ve been told, it’s not a place for amateurs, unless it’s not critical and doesn’t matter, so you can have the fun of the experience. This is not your situation, so I would strongly advise engaging a competent strata solicitor to prepare your appeal documents and explain them to you. If you want to save money and take a risk, by all means appear yourself, but be prepared to be asked questions to which you don’t know the answers. (Do you understand all about Directions Hearings, for example?)

Hope this helps.