The plaintiff was the owner of an apartment spanning part of the top two floors of the Nishi Residential Building. At various intervals throughout the day and night, the plaintiff argued that the expansion and contraction of the roof and walls of the building created a noise in her apartment at an unacceptable level which caused, and continues to cause, a nuisance.

The plaintiff sued the owners corporation in nuisance alleging that although the owners corporation did not create the noise that constitutes the nuisance, it has since adopted or continued the nuisance through its knowledge of the noise since at least November 2014, and the failure to do anything effective (or anything at all) to abate it.

The three key issues dealt with by the Court were:

1. was there a nuisance which was actionable by the plaintiff?

After considering the plaintiff’s lay evidence, the plaintiff’s expert acoustic evidence and the evidence of three structural engineers, the Court was satisfied that there was, and continues to be, a nuisance in the form of structure-borne noise heard in the plaintiff’s apartment, which was substantial enough to constitute an unreasonable interference with the plaintiff’s enjoyment of the apartment, or her rights in connection with the apartment.

2. whether the owners corporation has continued or adopted the nuisance?

After reviewing the history of action or inaction taken by the owners corporation, the Court held that there were four key difficulties with the conduct of the owners corporation being:

• the failure to accept that the noise level was sufficient to constitute a nuisance. Indeed, notwithstanding all the advice it had received and evidence served by the plaintiff, the owners corporation went to trial on a pleading that did not admit that there was any noise problem that was serious enough to constitute a nuisance;
• for at least a year, the owners corporation pursued a course of attempting to have third parties (such as the developer or builder) take responsibility for any remediation works;
• the failure to implement the resolutions passed at AGMs, each of which would have resulted in some progress towards abating the noise; and
• the delay in implementing a solution generally.

3. whether the plaintiff is entitled to the relief she seeks including:

• whether the plaintiff has suffered or will suffer damage as a result of the nuisance, such as to be entitled to compensatory damages?

The Court held that damages were a partial but not an adequate remedy and as such, an injunction was granted (as well as damages in the sum of $20,651.75 plus $3,678.01 interest).

• whether injunctive relief should be granted and if so, in what terms; and

The Court held that the injury suffered by the plaintiff was not capable of being estimated in money and would not be adequately compensated by a small monetary payment. Moreover, the grant of an injunction was not oppressive to the owners corporation, as it has the ability to raise a large amount of money over a period of time to pay for the works required.

An injunction was granted restraining the owners corporation from continuing to permit the structure-borne noise arising in the plaintiff’s apartment and to take such measures as may be necessary to preclude the noise occurring in the apartment. This injunction was stayed for 12 months pending the implementation of a system by the owners corporation which effectively reduces the thermal load on the roof.

• whether aggravated damages should be awarded.

Aggravated damages compensate the plaintiff when the harm done by a wrongful act was aggravated by the manner in which the act was done. Aggravated damages should be distinguished from exemplary damages which are intended to punish the defendant and serve one or more of the objects of punishment – moral retribution or deterrence. The focus of aggravated damages is compensatory and consideration is given as to whether the tortious conduct was aggravated. The focus of exemplary damages is punitive.

In determining whether aggravated damages should be awarded the Court gave consideration to the executive committee code of conduct and whether the executive committee acted in the best interests of the owners corporation, did not disclose conflicts of interest when making decisions relating to nuisance and made decisions relating to the nuisance despite having actual or perceived conflicts of interest.

After some lengthy consideration of the various issues, the Court was not satisfied that the conduct of the owners corporation was so high as to warrant aggravated damages.

This decision serves as a warning to owners and strata managers alike that Courts and tribunals will not permit lengthy delays by owners corporations in addressing owner concerns. The decision not to award aggravated damages was a ‘close run’ thing and such delays are unfortunately all too common in the conduct of owners corporations.

Finally, it should be noted that the owners corporation has appealed this decision.