Yuruga [2000] QBCCMCmr 106 (25 February 2000)

RA MeekREFERENCE: 0647-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11504
Name of Scheme:	Yuruga
Address of Scheme:	63 Moray Street NEW FARM QLD 4005

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

John MacKinlay Harvie, the owner of lot 1

RA MeekI hereby order the owners of lot 3, Enrico Ziviani, Jacqueline Irene Ziviani and Simon John Ziviani shall, within six (6) weeks of the date of this order, install -

•	rubber stoppers on the front door or door frame;
•	a hall runner to the point where the lounge room meets the bedroom;
•	a large mat to cover the trafficable areas of the lounge / living room.

I further order that the owner of lot 1, John Mackinlay Harvie, shall pay to the owners of lot 3, by way of contribution either one half of the cost of the purchase of the rugs or mats, or a maximum contribution of $250, whichever is the lesser, within two (2) weeks of being provided with a copy of the invoice(s) for the purchase of the same by the owners of lot 3.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0647-1999

“Yuruga” CTS 11504

The applicant John MacKinlay Harvie, the owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the timber parquetry flooring be covered with –

•	Cork tiles;
•	Carpet;
•	Matting

so as to reduce the noise which resonates into lot 1 below.

Section 223(1) provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

The grounds to this application are known to both the applicant and the person affected by the application, the owner of lot 3, Enrico Ziviani, Jacqueline Irene Ziviani and Simon John Ziviani (the respondents) via the submission process, and I do not intend to restate them here.

Both the applicant (Harvie) and Simon Ziviani (Ziviani) attended a meeting of the parties called by myself as an adjudicator of this dispute on Thursday 24 February 2000. Both parties again presented their view of the dispute, and no solution to the dispute was forthcoming, although I acknowledge that a solution was proposed by Harvie, and partially accepted by Ziviani. It was clear at the meeting that both parties considered the position adopted by the other unreasonable, and without justification. Whilst both parties acknowledged that communication regarding the dispute had been a problem, I consider that this issue has merely enhanced the dispute, and is not part of the real issue in dispute. I therefore sought to confine the issue in dispute to the issue of noise.

I indicated to the parties my ability to resolve the dispute by adjudication, without any need for the agreement or consensus of the parties. When the meeting concluded without resolution, I indicated that I intended to make an inspection of the parcel, to consider for myself the relative level of noise, following which I would simply make an order.

This physical inspection of the parcel took place also on Thursday 24 February 2000. The inspection was attended by Simon Ziviani, and an agent on behalf of the applicant. As part of the inspection process I requested another member of this office, Mr David Reardon, to attend and assist the inspection by walking around the respondent’s unit, whilst I considered the level of noise from the applicant’s lot. Ziviani observed the level of noise created from both his unit and the applicant’s. At the time of the inspection, construction noise could also be heard elsewhere in the building and I was informed by the applicant’s agent that the bathroom of lot 12 was being renovated. The building is structured as two units per floor over six levels. The applicant’s lot is on the bottom left, and lot 12 is on the top right, the furthermost point of separation of any two units. I consider that the level of noise created by the renovation was twice as audible as the noise made by David Reardon in the respondent’s unit. Clearly the concrete floor is a reasonable conductor of noise.

I certainly agree with the applicant’s complaint, freshly raised at the meeting, of the level of noise created by the closing of the steel security door to the respondent’s unit. I note that the respondent is agreeable to the installation of some form of rubber stoppers to either the steel security door or the door frame to stop the clang of metal on metal.

My impressions on the level of noise created within the applicant’s lot was that it was on the borderline of what one might reasonable to expect in a community title complex. I say borderline as I consider that the level of noise would certainly be more audible if it were made late at night or early of a morning, or if it were made by harder soled boots or women’s shoes. However, I certainly did not form the view that the level of noise created was such as to make it impossible for the applicant to use and enjoy the amenity of his lot. In this regard, I conclude that the applicant has somewhat overstated the alleged level of nuisance to him, or alternatively, genuinely considers the level of noise unreasonable. However, I am not convinced of this based on the experiment conducted and conclude that perhaps the applicant does have a greater sensitivity to noise than is reasonable, or that the on-going nature of this dispute has caused him to loose perspective somewhat.

Having said this, I have nevertheless concluded that the level of noise is “borderline” and that in certain circumstances, could certainly interrupt the sleep or other enjoyment of his lot by the applicant. For example, if the occupier was to return from being out in the dead of night, perhaps somewhat intoxicated, slammed the security door heavily, forgetting to remove boots or shoes, did so in the bedroom, which is the furthermost point from the front door (excluding the balcony), and then proceeded to go to the toilet a couple of times throughout the night. I accept that this a worse case scenario, and might happen infrequently, if at all, but the possibility must be accepted.

In the circumstances, I intend to order that the rubber stoppers be installed on the front door, that a hall runner be installed to the point where the lounge room meets the bedroom, and that a large mat be installed to cover the trafficable areas of the lounge / living room. By trafficable, I am referring to the usual access routes to the bedroom on the one hand, or the kitchen / bathroom facilities on the other. Further, the carpet, rugs or mats selected should provide reasonable sound insulation qualities.

Whilst it might appear that the applicant has succeeded in achieving a favourable outcome, in circumstances where I am not totally convinced of the applicant’s position, the outcome for the respondent might in fact have been considerably worse. If the applicant’s position had been more convincing, I might have ordered that the respondents replace the parquetry flooring to the unit. In this regard, I have noted the serious admission of the respondents to the effect that –

... and subsequently laid wood parquetry. Prior to laying it I discussed this with Mr Harvie, however at no time suggested that it would be insulated. Given the method of laying parquetry, insulation is not possible.

In my view, in the laying of either wood or tiled floors in units, such surface should be properly insulated by effective insulation.

Given my finding that the nuisance created by the parquetry flooring is borderline, I further intend to order that the applicant contribute towards the cost of the purchase of the rugs or mats, to a maximum level of contribution of $250. I intend to include this as part of the order not because of the applicant previous offers to the respondents to subsidise the cost of some form of floor covering, but because of my finding that the nuisance created by the noise is borderline. Given this, I consider that applicant should contribute to the cost of the floor covering because there will be a real benefit to him in their purchase, whereas there is no real benefit in their purchase to the respondents.