Mologadi Margaret Sefara v Amanda Cousins

The applicant, Mologadi Margaret Sefara, is the registered owner and occupier of Unit 26 in Stanton Creek, Brentwood Park, Benoni. The respondent, Amanda Cousins, is the registered owner of Unit 18, apparently situated above the applicant's unit. The applicant complained that a male occupier associated with the respondent regularly cut wood with machinery in the respondent's garden/unit area while building doll houses, causing disturbing noise early in the mornings, during the day, and on weekends and public holidays. The applicant stated that the conduct had persisted for months despite complaints to the managing agent, Solver Properties, and a trustee. She also alleged that in June 2023 the respondent came to her door and banged on it, which she regarded as further nuisance. The respondent later informed the adjudicator by email that her husband had suffered a stroke, did not always understand, and that all electrical equipment had been removed from the house so that he was not able to make noise. The adjudication proceeded on the papers under the CSOS Act and the Practice Directive.

• Whether the respondent's and her male counterpart's wood-cutting activities constituted a nuisance under s 39(2) of the CSOS Act.
• Whether the complained-of conduct contravened rule 16.1 and 16.1.1 of the scheme's conduct rules relating to excessive noise.
• Whether the respondent's conduct in going to the applicant's unit and banging on the door constituted a nuisance warranting relief.
• Whether the adjudicator could grant the specific relief sought by the applicant, including directing where the respondent should cut wood, within the powers conferred by s 39 of the CSOS Act.
• What significance attached to the applicant's failure to cite the body corporate/trustees, given their role in enforcing scheme conduct rules.

Application granted in part. The adjudicator found for the applicant, but not as claimed. The respondent was ordered to stop the nuisance by refraining from allowing her male counterpart to cut wood and create disturbing noise at any time of day, including early mornings, afternoons, weekends and public holidays, and to stop going uninvited to the applicant's unit and banging on the applicant's door. The relief seeking an order that the respondent find another place to cut wood, or be required to cut wood inside the unit, was refused as falling outside s 39 of the CSOS Act.

Within a community scheme, conduct by an owner or occupier that creates disturbing noise and interferes with another owner's peaceful and undisturbed enjoyment of their unit can constitute a nuisance under s 39(2) of the CSOS Act and a breach of scheme conduct rules regulating excessive noise. A CSOS adjudicator may grant behavioural relief compelling the respondent to cease such nuisance conduct, including associated harassing conduct such as banging on the complainant's door. However, relief must remain within the powers conferred by s 39; an adjudicator cannot order remedies that do not fall within the statutory categories, such as prescribing an alternative location for the respondent's activity if not authorised by the Act.

The adjudicator remarked that the applicant had omitted to cite the trustees/body corporate, despite the fact that the body corporate bears responsibility for managing the scheme and enforcing its conduct rules and therefore had a material interest in the dispute. He indicated that, had the trustees been joined, broader or more effective relief may have been possible. The discussion of Prag NO and Avenue Body Corporate v Shmaryahu was also used to emphasise the limited jurisdiction and remedial competence of CSOS adjudicators, particularly that orders must align with the governing legislation and the remedies expressly authorised by s 39.

The decision is significant as a practical application of s 39(2) of the CSOS Act to neighbour-dispute nuisance within a sectional title/community scheme context. It confirms that persistent noise and intimidating door-banging can constitute behavioural nuisance justifying a CSOS order. It also illustrates the limits of an adjudicator's remedial powers under the CSOS Act: the adjudicator may order a person to stop a nuisance, but may not grant relief that falls outside the statutorily authorised categories. The order further highlights the importance of citing the body corporate or trustees where enforcement of scheme rules is centrally implicated.