Taking a case to NCAT is a lottery, especially since some Members are viewing by-laws that have previously been accepted for years as now being harsh and unconscionable.
And there are other factors. Take a look at this case where the Member decided that because the Acoustic engineer did not specifically say that fitted carpet with underlay was more effective than Persian carpet in reducing noise, then areas that weren’t covered by the Persian carpet did not need to be carpeted. I know! The logic or lack thereof is baffling.
And in this case, the Member has ruled that because the building was old, the residents should not expect a level of sound insulation that would be mandatory in a new building (ignoring the fact that the sound insulation was fine before the upstairs resident ripped up the carpet and installed timber floors).
Most alarming is the fact that the Member seems to accept that the advice of the flooring supplier that 5mm insulation was “the best available” was reasonable grounds for the upstairs neighbour to proceed. Fort the record, my building insists on 11mm Regupol (rubber).
In the latter case, the by-laws simply say the flooring insulation must be sufficient to prevent the transmission of intrusive noise. The Member appears to be ruling that this is not enough and they should have included specific rules, presumably with acoustic ratings. It’s worth noting that two senior members of NCAT later rejected an application for the decision to be appealed.
However, it seems to me in your case that the upstairs owner, as a member of the committee, should have known what the by-laws were and have acted accordingly.
I don’t think it’s at all unusual for bedrooms to be treated differently than other rooms, when it comes to floor covering. But it seems this new law firm is less than fired-up about this, and that would worry me. Are they going to go in half-hearted or with all guns blazing?
I think I would be seeking a second opinion from a specialist strata lawyer with a track record in successfully pursuing cases of this nature before I settled on a compromise.
After all, the by-laws were clear, the upstairs owner should have known what they were but then chose to put down cheap flooring at your expense. A smart lawyer will line up a stack of evidence to show that separate conditions for bedrooms are standard practice and not at all “harsh or unconscionable”. Someone has to draw the line somewhere.