PERTH DAY HOSPITAL PTY LTD -v- FITNESS CARTEL WESTERN AUSTRALIA PTY LTD [2026] WASC 314

[2026] WASC 314 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : PERTH DAY HOSPITAL PTY LTD -v- FITNESS CARTEL WESTERN AUSTRALIA PTY LTD [No 3] [2026] WASC 314 CORAM : LUNDBERG J HEARD : 13 - 17 JULY 2026 DELIVERED : 4 AUGUST 2026 FILE NO/S : CIV 1718 of 2026 BETWEEN : PERTH DAY HOSPITAL PTY LTD Plaintiff AND FITNESS CARTEL WESTERN AUSTRALIA PTY LTD First Defendant PHR HOLDINGS (WA) PTY LTD Second Defendant FITNESS CARTEL OSBORNE PARK PTY LTD Third Defendant Catchwords: Nuisance - Plaintiff alleges excessive noise and vibrations emanating from a neighbouring business in a commercial strata complex - Private day hospital situated in close proximity to gymnasium business - Whether private nuisance claim established - Whether private day hospital represents an ordinary use - -- 1 of 131 -- [2026] WASC 314 Page 2 Whether substantial and unreasonable interference demonstrated - Whether gymnasium use is common and ordinary for the locality - Whether gymnasium business undertaken by a means that is 'conveniently done' - Expert evidence adduced from acoustic and vibration experts - Expert evidence from structural engineering experts - Whether injunction should be ordered - Turns on own facts Legislation: Environmental Protection (Noise) Regulations 1997 (WA), r 4, r 5, r 7, r 8 Environmental Protection Act 1986 (WA), s 3, s 79 Private Hospitals and Health Services Act 1927 (WA), s 26D Rules of the Supreme Court 1971 (WA), O 37 Strata Titles Act 1985 (WA), s 83 Result: Action dismissed. Interlocutory injunction dissolved. Category: B Representation: Counsel: Plaintiff : M L Bennett First Defendant : S J Davis Second Defendant : S J Davis Third Defendant : S J Davis Solicitors: Plaintiff : Bennett First Defendant : MGD Law Second Defendant : MGD Law Third Defendant : MGD Law Case(s) referred to in decision(s): Ammon v Colonial Leisure Group Pty Ltd [2018] WASC 280 -- 2 of 131 -- [2026] WASC 314 Page 3 Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; (2019) 55 WAR 366 Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 Bamford v Turnley (1862) 3 B & S 66; 122 ER 27 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Clarey v Principal and Council of the Women's College (1953) 90 CLR 170 Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 Enkelmann v Stewart [2026] QCA 67 Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 Fearn v Board of Trustees of the Tate Gallery [2024] AC 1 Gartner v Kidman (1962) 108 CLR 12 Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53; (2025) 100 ALJR 89 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Knell v QAV Pty Ltd [2020] WASCA 23 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1 Perth Day Hospital Pty Ltd v Fitness Cartel Western Australia Pty Ltd [2026] WASC 228 Perth Day Hospital Pty Ltd v Fitness Cartel Western Australia Pty Ltd [No 2] [2026] WASC 313 Robinson v Kilvert (1889) 41 Ch D 88 Scott v The President, Councillors and Ratepayers of the Shire of Numurkah (1954) 91 CLR 300 Shogunn Investments Pty Ltd v Public Transport Authority of Western Australia [2016] WASC 42 Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79; (2012) 42 WAR 287 Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145 -- 3 of 131 -- [2026] WASC 314 Page 4 Table of Contents Introduction ................................................................................................................................ 7 The parties to this action ............................................................................................................. 9 The plaintiff ........................................................................................................................... 9 The defendants ..................................................................................................................... 10 The plaintiff's claim .................................................................................................................. 11 The expedited trial .................................................................................................................... 14 Lay witnesses called at trial ...................................................................................................... 16 Dr Jie Xin Xu ....................................................................................................................... 16 Ms Hesther du Plooy............................................................................................................ 17 Ms Emma Stroud ................................................................................................................. 17 Mr Cameron Butterly ........................................................................................................... 18 Ms Hannah Chadwick .......................................................................................................... 18 Expert witnesses called at trial ................................................................................................. 19 Expert witnesses in acoustic and vibration matters ............................................................. 19 Mr Martti Warpenius.................................................................................................. 20 Mr Imran Khan ........................................................................................................... 20 Expert witnesses on structural engineering matters ............................................................. 21 Mr Michael Sander ..................................................................................................... 21 Mr Andrew van der Meer ........................................................................................... 23 Relevant legal principles .......................................................................................................... 23 The tort of private nuisance ................................................................................................. 23 Further explanation of the legal principles .......................................................................... 26 Key issues to be determined in these proceedings ................................................................... 32 Factual findings as to the Site ................................................................................................... 33 Overview .............................................................................................................................. 33 A description of the Site and the locality ............................................................................. 34 The history of the Site .......................................................................................................... 36 The operations of the Hospital ............................................................................................. 37 The construction of the Hospital .......................................................................................... 44 Development and building approvals......................................................................... 44 The LARU Guidelines ................................................................................................. 45 Construction and related works ................................................................................. 48 The Fitness Cartel gymnasium business .............................................................................. 49 Overview ..................................................................................................................... 49 Staffing and member behaviour ................................................................................. 50 -- 4 of 131 -- [2026] WASC 314 Page 5 Zone 1 of the gymnasium ............................................................................................ 55 Zones 2 and 3 of the gymnasium ................................................................................ 55 Zones 4 and 5 of the gymnasium ................................................................................ 59 The Merse Wellness spa ...................................................................................................... 60 The construction and fit out of the Fitness Cartel gymnasium ............................................ 62 Factual findings as to the material events commencing in March 2025 .................................. 63 Events in March 2025 .......................................................................................................... 64 Events in January 2026 ........................................................................................................ 65 Events in February 2026 ...................................................................................................... 66 Events in March 2026 .......................................................................................................... 68 Events in April 2026 ............................................................................................................ 70 Events in May 2026 ............................................................................................................. 74 Events in June 2026 ............................................................................................................. 75 Events in July 2026 .............................................................................................................. 75 The absence of certain witnesses and documentary material ................................................... 76 The nature of adverse inferences ......................................................................................... 76 Inferences adverse to the plaintiff's case.............................................................................. 78 Inferences adverse to the defendants' case ........................................................................... 79 The EP Act and the Noise Regulations .................................................................................... 83 Expert evidence – acoustic and vibration experts .................................................................... 87 Overview .............................................................................................................................. 87 Vibration criteria .................................................................................................................. 87 Mr Warpenius' opinions ....................................................................................................... 90 Mr Khan's opinions .............................................................................................................. 92 Consideration ....................................................................................................................... 94 The spike event recorded on 28 June 2026 .......................................................................... 98 Expert evidence – structural engineering experts ..................................................................... 99 Overview .............................................................................................................................. 99 Mr Sander's opinions ........................................................................................................... 99 Mr van der Meer's opinions ............................................................................................... 104 Disposition .............................................................................................................................. 105 Issue 1 – does the plaintiff have standing to maintain this action?.................................... 105 Issue 2 – is the plaintiff's use of Unit 10 an 'ordinary' one? .............................................. 105 Consideration ........................................................................................................... 105 Conclusion ................................................................................................................ 108 Issue 3 – has there been a substantial and unreasonable interference? .............................. 113 -- 5 of 131 -- [2026] WASC 314 Page 6 Consideration ........................................................................................................... 113 Conclusion ................................................................................................................ 115 Issue 4 – have the defendants demonstrated a justification or excuse? ............................. 122 Issue 5 – what relief should be ordered?............................................................................ 126 Conclusion and orders ............................................................................................................ 127 ATTACHMENT A Extracts from the Strata Plan.................................................................. 128 ATTACHMENT B Images and plans of the Site ................................................................... 129 -- 6 of 131 -- [2026] WASC 314 LUNDBERG J Page 7 LUNDBERG J: Introduction 1 This action concerns two businesses which lawfully operate from the same commercial strata complex, in close proximity to each other. The first is a private day hospital, where medical practitioners perform delicate procedures on their patients such as pain management injections and endoscopies. The second business, located adjacent to and, in part directly above the hospital, is a 24 hour fitness gymnasium which offers its members a range of weightlifting and exercise options, including the high intensity 'Hyrox' regime. 2 In their own ways, the businesses have an evident social and public utility, encompassing both the prevention and cure aspects of health and wellness service delivery. 3 The day hospital brings this action in the tort of private nuisance, focused on the vibration and noise which it says has emanated from the gymnasium before and after the court imposed an interlocutory injunction to restrict the gymnasium's operations. The injunction was imposed on 2 June 2026, in advance of the day hospital proposing to commence its operations on 3 June 2026. The gymnasium had commenced operating somewhat earlier, in December 2025, with both businesses having construction and fit out lead times that pre-date that period, with the day hospital's construction timeline being much longer. 4 Members of the public may ask themselves - how did we get to the position that such seemingly ill-fitting neighbours would find themselves conjoined in the one building? It is a fair question and, indeed, the history of these premises and how the parties have come to find themselves as commercial neighbours has some relevance to the proceedings. 5 These proceedings primarily require the court to examine the present and anticipated interference which the gymnasium is said to have caused, and will cause, on the use the day hospital normally derives from the premises in which it operates, and the manner in which the gymnasium has sought to minimise that interference. Such matters are integral to the tortious claim brought by the day hospital, together with an assessment as to whether the use of the premises as a day hospital is an ordinary use within the meaning of the common law. -- 7 of 131 -- [2026] WASC 314 LUNDBERG J Page 8 6 The trial of the action was listed on an expedited basis following the grant of the interlocutory injunction. At the trial, which commenced on 13 July 2026, five lay witnesses gave evidence, as well as four expert witnesses across two disciplines. The parties provided the court with detailed opening submissions and comprehensive closing submissions, concerning the issues arising in the proceedings. 7 The scope of the plaintiff's case was narrowed quite considerably by the time closing addresses were made at the conclusion of the trial, such that the initial focus of the plaintiff's claim, concerning the effect of the defendants' conduct on the medical procedures to be performed at the day hospital, had diminished. The focus in closing was on the impact of the conduct on persons within the premises of the hospital as though it was a commercial office. 8 To the extent to which the plaintiff claims that its use of the premises in question to conduct surgery and medical procedures has been the subject of interference by the neighbouring gymnasium business operated by the third defendant, that claim does not attract the protection of a private nuisance action. This is because, when regard is had in particular to the relevant locality, the history of the tenants in the building, and the hypersensitive nature of the surgery and medical procedures to be undertaken on the premises, that use of the land does not represent an 'ordinary use' of Unit 10 at common law. 9 For the detailed reasons which follow, the court has therefore concluded that the plaintiff has not established the pleaded claim in private tortious nuisance and, accordingly, the court will decline to grant any permanent injunctive relief or to continue the previously granted interlocutory relief. 10 The action will therefore be dismissed and the interlocutory injunction will be dissolved. 11 In reaching this conclusion, the court recognises the importance of the plaintiff hospital being able to operate in a calm environment, free of substantial vibration and noise, particularly given the nature of the procedures and operations conducted at the premises. Vibrations and noise, particularly when sudden in nature, would not be conducive to patient comfort nor the medically safe operation of the hospital. 12 However, it is essential to recognise the principle of reciprocity, or 'give and take', when considering the tortious action of private nuisance, which means the locality of the premises requires consideration by the -- 8 of 131 -- [2026] WASC 314 LUNDBERG J Page 9 court and the legitimate interests of the businesses which surround the hospital, such as the gymnasium business, must be acknowledged. 13 In this regard, those neighbours are, within the limits of the common law principles, not permitted to operate their businesses without regard to the interests of the plaintiff. As observed in these reasons, the gymnasium business, particularly the third defendant, has not demonstrated that it took the available steps the law would expect a gymnasium to implement in the construction of its premises, although it ultimately, and somewhat sluggishly, implemented sufficient remedial steps to ameliorate the vibration and noise effects as the complaints from the hospital grew louder and the threat of litigation grew closer. 14 It is the expectation of the court that those persons responsible for the operation and control of the gymnasium business, including in particular Mr Theng, will continue to ensure that these remedial steps are properly maintained. The parties to this action 15 The plaintiff and the third defendant, together with other entities, operate commercial businesses within the same industrial building at 454 Scarborough Beach Road, Osborne Park (the Site). There are two buildings on the Site, with this proceeding focused on the main building to the east. 16 The Site is subject to a strata plan dated 17 June 1980, being strata plan 8188 on the land in Certificate of Title Volume 1569 Folio 274 (Strata Plan), which has been registered under the Strata Titles Act 1985 (WA) (Strata Titles Act).1 Extracts of the Strata Plan are included in Attachment A to these reasons, drawn from the aide memoire prepared by the plaintiff's solicitors. An aerial photograph of the Site taken in 2023 and the architectural floor plan of Unit 10 are included in Attachment B. The plaintiff 17 The plaintiff, which I will refer to in these reasons as the Hospital, operates a private day hospital at the Site. It operates that hospital from Unit 10 in the main building through a leasing arrangement, treating patients in the classes of pain management and endoscopy. 1 Exhibit 1. -- 9 of 131 -- [2026] WASC 314 LUNDBERG J Page 10 18 The unit is owned by a related company, Perth Day Hospital Freehold Pty Ltd.2 which is not a party to this action. 19 Dr Jie Xin Xu and Ms Hesther (Carine) du Plooy, together with others (being Dr Mondello and Dr Chan), own the shares in both the plaintiff and Perth Day Hospital Freehold Pty Ltd. They are directors and company secretaries of both entities as well. The defendants 20 The third defendant operates a fitness gymnasium at the site, from Unit 8 in the main building, through a franchising arrangement with the first defendant. On occasions in these reasons, I will refer to the business in general terms as the Fitness Cartel business or the gymnasium business. 21 To distinguish the first and third defendants, which are related entities, I will refer to them respectively as Fitness Cartel WA and Fitness Cartel OP. 22 The shares in Fitness Cartel OP are owned by Mr Matthew Theng and Ms Emma Stroud. Mr Theng owns all of the shares in Fitness Cartel WA. Mr Theng is the sole director and company secretary of both entities. Mr Theng also holds shares in the 'Merse Wellness Spa' business which is located within the main building on the Site, and owns the chiropractor business in Unit 9 which is adjacent to the Fitness Cartel gymnasium on the first floor. 23 The premises at Unit 8 are owned by the second defendant.3 The second defendant is owned by Mr Paul Lai and others. Mr Lai is one of the directors of that entity. 24 The role of Fitness Cartel OP was the main focus at trial, rather than the roles of the second defendant or Fitness Cartel WA. The approach I have taken is that, absent any differentiation by the defendants (who were jointly represented in the litigation) as to their respective roles and their conduct, the conduct about which the plaintiff complains is in effect the conduct of all of the defendants, and each of them have either undertaken or committed the conduct in question or acquiesced in that conduct. It is therefore not necessary in these reasons to distinguish in any respect between the roles they defendants played. 2 Exhibit 12. 3 Exhibit 19. -- 10 of 131 -- [2026] WASC 314 LUNDBERG J Page 11 25 I note that some of the conduct the subject of the claim concerns actions undertaken by members who frequent the Fitness Cartel gymnasium business. I have proceeded on the basis that the actions of those members, in terms of dropping weights or similar activity, is in effect conduct attributable to the defendants as part and parcel of the gymnasium business, the leasing of the property to a gymnasium business, or the franchising of the business to another entity. 26 The court notes that Fitness Cartel OP was added as a defendant to the proceeding by order made on 6 July 2026. The plaintiff had, until that time, understood that the first defendant operated the gymnasium business, based on the interlocutory affidavit sworn by Mr Theng on 3 June 2026, in which he had deposed that Fitness Cartel WA leased the premises and operated the business. Mr Theng has sought to correct these matters by preparing a correcting affidavit but, as at the conclusion of trial, the correcting affidavit had not been formally tendered in evidence. The plaintiff's claim 27 The plaintiff's grievances are centred on the noise and vibrations which it says emanate from the gymnasium business operated by Fitness Cartel OP. 28 The essential claim pleaded by the plaintiff, and denied by the defendants, is that, from the time the gymnasium business commenced its operations, the Hospital has experienced:4 (a) excessive noise emanating from the defendants' premises, namely music and the sound of falling or dropped weights; and (b) vibrations within the Hospital and the theatres, caused by heavier weights being dropped or equipment being used immediately above or near key Hospital treatment areas. 29 The plaintiff pleads, and the defendants deny,5 that the defendants are causing a private nuisance, through the interference with the plaintiff's right to use its premises. It is alleged the defendants are permitting the 'continuation of the unreasonable ongoing noise and vibration constituting nuisance' in respect of the plaintiff's premises.6 4 Further Amended Statement of Claim [28] (FASOC). 5 Amended Defence dated 8 July 2026 (Defence). 6 FASOC [29.1] and [29.2]. -- 11 of 131 -- [2026] WASC 314 LUNDBERG J Page 12 30 Allied to this, the plaintiff asserts the defendants are using and permitting the use of a lot within a strata titles scheme in a way that interferes unreasonably with the use or enjoyment of the plaintiff's premises, which is lawfully on the lot, contrary to s 83 of the Strata Titles Act.7 This aspect of the case assumed little prominence in the course of the trial or in the plaintiff's closing submissions. For the reasons set out in the defendants' closing submissions on this point, I am of the view that the plaintiff's reliance on s 83 adds nothing to the common law nuisance claim which is otherwise pleaded, and it is not necessary to separately address the statutory provision.8 31 On 2 June 2026, the court imposed interlocutory restraints on the gymnasium business operated by Fitness Cartel OP pending trial. The court subsequently declined an application to vary the restraints brought by the defendants. I refer to the reasons of the court delivered on 8 June 2026.9 The interlocutory restraints were in the following terms: Upon the plaintiff's undertaking to the court filed 29 May 2026 and pending the hearing and determination of the action, or until further order, the defendants be restrained and an injunction be granted restraining them by themselves or by their servants or agents during the hours of 6:30am - 8:00pm, Monday to Friday, from: (a) the playing of music at a volume audible in the plaintiff's premises; and (b) the use of weights, including medicine balls and kettlebells, at Unit 8, 454 Scarborough Beach Road, Osborne Park WA. 32 The plaintiff makes no claim for damages against the defendants. 33 Rather, the remedy sought by the plaintiff at trial was for permanent injunctive relief. The order sought was to restrain the defendants from causing or permitting noise or vibration at the gym exceeding the regulatory noise level pursuant to the Environmental Protection (Noise) Regulations 1997 (WA) (the Noise Regulations) 7 FASOC [29.3]. Section 83 is headed 'Use and Enjoyment' and stated that: 'The owner or occupier of a lot must not use, or permit the use of, the lot or common property of the strata titles scheme in a way that interferes unreasonably with the use or enjoyment of another lot or the common property by a person who is lawfully on the lot or common property.' 8 Defendants' closing submissions [20] – [22] (which I note were signed by both Mr Simon Davis and Mr Michael Douglas, as counsel for the defendants). 9 Perth Day Hospital Pty Ltd v Fitness Cartel Western Australia Pty Ltd [2026] WASC 228. -- 12 of 131 -- [2026] WASC 314 LUNDBERG J Page 13 and excessive vibrations transmitted to the Hospital, exceeding the guidance within the Australian Standard.10 34 The primary form of relief sought by the plaintiff is: 1. The defendants, including their officers, employees, members and agents, are restrained from causing or permitting at Unit 8, 454 Scarborough Beach Road, Osborne Park: 1.1 noise exceeding the applicable assigned levels under the Environmental Protection (Noise) Regulations 1997 (WA); and/or 1.2 vibration exceeding the applicable criteria in Australian Standard AS 2670.2-1990, where such noise or vibration is recorded or measured at or in the plaintiff's premises at Unit 10, 454 Scarborough Beach Road, Osborne Park, between 6:30 am and 8:00 pm Monday to Saturday (excluding public holidays). 35 The particular standard relied upon by the plaintiff is referred to as AS 2670.2-1990, which is entitled 'Evaluation of human exposure to whole-body vibration – Part 2: Continuous and shock-induced vibration in buildings (1 to 80 Hz)'.11 Both acoustic and vibration experts made reference to this standard. 36 I should note that the level of the music being played by the gymnasium business was an initial concern for the Hospital, and appears to have resulted from, or at least been exacerbated by, the poorly placed speakers within the gymnasium. The Fitness Cartel gymnasium turned the music level down around 5 dB commencing in March 2026, in response to the Hospital's complaints, and the evidence did not suggest that the music level remained an issue thereafter. Rather, the focus remained on the noise and vibration from the activities conducted in the gymnasium. 37 The defendants denied the alleged nuisance and expressly put the plaintiff to proof on all elements of the tort, specifically as to whether the plaintiff's use of the premises is an 'ordinary' use and whether any interference is substantial and unreasonable. The defendants plead that the plaintiff's use of the Hospital for performing the procedures pleaded 10 FASOC [30] and Plaintiff's Minute for Judgment dated 20 July 2026. 11 Exhibit 2. -- 13 of 131 -- [2026] WASC 314 LUNDBERG J Page 14 by the plaintiff 'constitutes an exceptionally delicate trade and an abnormally sensitive use of Unit 10'.12 38 Further, in the event the plaintiff makes good the allegations on which it carries the onus, the defendants plead that their use of Unit 8 as a gymnasium 'has at all material times been for a common and ordinary purpose, and by means that have, since March 2026, reasonably minimised the extent of any such interference'.13 In this regard, the defendants point to the following steps they have taken (which I have extracted from the Defence):14 (a) In March 2026, the volume of music playing in the gymnasium in Lot 8 has been lowered and remains at a lower level than previously. (b) In March 2026, additional rubberised flooring was added to the existing flooring in the areas of the second floor of Lot 8 known as the dumbbell area and the deadlift area. (c) In April 2026 signage was installed throughout the gymnasium business in Lot 8 requesting members to refrain from dropping weights and to be mindful of noise and vibration impacts. (d) Since in April 2026, the coaching format in the Hyrox training room on the second floor of Lot 8 was adjusted, and Olympic lifting, deadlifting, wall balls and similar movements were prohibited. (e) In April 2026, instructions were issued to team members to actively monitor member behaviour to encourage appropriate use of gym equipment, and in particular to remind members to avoid any unnecessary dropping of weights. (f) In May 2026, additional layers of rubberised and plywood flooring were installed in the areas of the second floor of Lot 8 known as the dumbbell area, the deadlift area and the Hyrox training room. The expedited trial 39 The trial of the action was listed in an expedited manner. 40 The parties collectively called five lay witnesses to give evidence at the trial, together with around 1,000 pages of documentary material, most of which was adduced by the plaintiff. In addition, the plaintiff 12 Defence [29]. 13 Defence [29]. 14 Defence [29(f) - particulars]. -- 14 of 131 -- [2026] WASC 314 LUNDBERG J Page 15 and the defendants each called an expert witness to give provide evidence to the court concerning acoustic and vibration matters, as well as experts concerning structural engineering matters. 41 As further explained in the court's reasons which have been separately published,15 the defendants applied on the second day of the trial for leave to amend their defence to expressly plead two matters. First, that the building on the Site was unsuitable for the construction of the Perth Day Hospital within Unit 10 – this plea was focused on the nature of one of the concrete slabs which underpins the Hospital. Second, that there are reasonable steps available to the plaintiff to mitigate the effects of the conduct on the part of the defendants which are the subject of this nuisance action. 42 On the second day of trial, I granted leave for the amendments, but on the basis the issues raised by those amendments would need to be deferred and dealt with in a second phase of the trial. I formed the view the plaintiff would be prejudiced had the issues fallen to be determined within the five days allocated in July for the trial. The potential for a variation to the injunction, as a result of this delay in the resolution of the matter, was also raised during the course of argument. 43 Ultimately, this delay was a bridge too far for the defendants.16 Counsel for the defendants informed the court that the delay, given the continuing injunction, would be financially problematic for the gymnasium business and, accordingly, the amendment application was withdrawn. 44 The court proceeded with the trial thereafter on the basis it was not open for the defendants to raise the matters which had been the subject of the proposed amendment. 45 I note that these reasons have been prepared in an expedited manner, given the continuing injunction imposed by the court. In the time available, it has not been possible for the court to identify within these reasons every item of evidence which was led, and every submissions advanced, at trial. Rather, these reasons focus on the evidence and submissions the court has assessed as being most material to the determination of the issues in the action. 15 Perth Day Hospital Pty Ltd v Fitness Cartel Western Australia Pty Ltd [No 2] [2026] WASC 313. 16 ts 115. -- 15 of 131 -- [2026] WASC 314 LUNDBERG J Page 16 Lay witnesses called at trial 46 The lay witnesses who were called at the trial are identified in the table below. Beneath the table, I have summarised the role, qualifications and background of the witnesses, and my assessment of their evidence. Name Role Called by Jie Xin Xu Shareholder of the plaintiff. Director and company secretary of the plaintiff. Specialist pain-medicine physician. Plaintiff Hesther (Carine) du Plooy Shareholder of the plaintiff. Director and company secretary of the plaintiff. Chief Executive Officer of the plaintiff. Plaintiff Emma Stroud Shareholder of Fitness Cartel OP. Operations manager of the Fitness Cartel gymnasium business. Defendants Cameron Butterly Club manager of the Fitness Cartel gymnasium business. Defendants Hannah Chadwick Spa manager of the Merse Wellness Spa. Defendants Dr Jie Xin Xu 47 Dr Xu is a specialist pain-medicine physician who regularly performs procedures in hospital environments. Dr Xu holds Bachelor of Medicine and Bachelor of Science degrees. Dr Xu is qualified as a pain specialist through the College of Anaesthesia, Faculty of Pain Medicine. He completed a Fellowship in Intervention on Pain Medicine in 2021. There was no challenge to his medical expertise. 48 Dr Xu is one of four appointed directors of both the Hospital and Perth Day Hospital Freehold Pty Ltd, as well as being a joint company secretary of both companies. Dr Xu holds 30% of the shares in the Hospital and in Perth Day Hospital Freehold Pty Ltd. Together with his wife, he is the beneficial owner of the shares in both companies. -- 16 of 131 -- [2026] WASC 314 LUNDBERG J Page 17 49 Dr Xu gave his evidence in a considered and deliberate manner, listening carefully to the questions and seeking clarification where necessary. It was apparent that Dr Xu was seeking to assist the court when answering questions and was a cooperative witness. I generally accept his evidence, unless indicated in these reasons. 50 To the extent there was a submission made that Dr Xu's evidence might be influenced by his ownership and directorship of the plaintiff, and his economic interest in the success of the Hospital, I do not accept such a submission. I did not assess Dr Xu as having given his evidence in a manner which was swayed in this way. Similarly, I did not assess the evidence of Ms du Plooy as having been affected by her economic interest, or her roles, in the Hospital. Ms Hesther du Plooy 51 Ms du Plooy is the chief executive officer of the Hospital. She has held that position since July 2024. Her duties include responsibility for the overall management and operation of the Hospital. This extends to patient services, staffing, and regulatory compliance. 52 Ms du Plooy is an experienced clinical governance specialist having some 34 years' experience in the healthcare sector. She holds a Bachelor of Nursing degree, a Master of Health Research, a business qualification, and is also a trained National Safety and Quality Health Service Assessor. 53 Ms du Plooy holds 10% of the shares in the plaintiff and the related company which owns Unit 10, in a beneficial capacity. Ms du Plooy is also a director and company secretary of both entities. 54 Ms du Plooy gave her evidence in a considered way, listening carefully to the questions. I generally accept her evidence unless indicated in these reasons otherwise. There was no challenge to her qualifications. Ms Emma Stroud 55 Ms Stroud is the operations manager of the gymnasium facility operated by Fitness Cartel OP. Ms Stroud has a business and marketing degree and has been involved in the fitness industry for some 10 years, predominantly in establishing and managing gyms for Goodlife, World Gym and the Fitness Cartel franchises. -- 17 of 131 -- [2026] WASC 314 LUNDBERG J Page 18 56 Ms Stroud beneficially holds 18% of the shares in Fitness Cartel OP. The balance of the shares are held by Mr Theng. 57 Ms Stroud has no construction background or qualifications, but I accept she has experience in the management of gymnasiums and experience, developed over years in the industry, in observing the correct practices to be followed in gymnasiums in terms of the operation of gym equipment. 58 Ms Stroud gave her evidence by video link and there were some delays with the transmission but not so significant as to impact the court's ability to understand her evidence and assess the weight of her evidence. Ms Stroud was cross-examined extensively, and during the course of her evidence she accepted there had been failures by Fitness Cartel OP to produce certain documents and recognised that certain steps taken by the business were not best practice. Nonetheless, I generally assessed her as being an honest and cooperative witness. Mr Cameron Butterly 59 Mr Butterly is the club manager with the Fitness Cartel gymnasium business. He has not held that role for long, having commenced with the business only on 3 June 2026. He has a role to manage team performance, the financial performance of the business, the overall operations, and occupational health and safety issues. Mr Butterly gave his evidence in a clear and direct manner and did his best to assist the court, including locating CCTV footage retained by the gymnasium (being internal footage of the gymnasium) in a prompt manner when called for the plaintiff. I accept his evidence, unless indicated otherwise in these reasons. 60 I should mention at this point that Mr Butterly gave some evidence in relation to his examination of the gymnasium's CCTV footage of the front entrance, to show the effective opening and closing times for the Hospital on certain dates.17 That evidence can be put to one side once it is appreciated that the Hospital has rear entry points which are not shown on the CCTV footage of the front entrance. No firm conclusions can be drawn from his evidence in this regard, therefore. Ms Hannah Chadwick 61 Finally, in terms of lay witnesses, Ms Hannah Chadwick gave evidence. She is the spa manager with the business 'Merse Wellness 17 ts 183 – 188. -- 18 of 131 -- [2026] WASC 314 LUNDBERG J Page 19 Spa'. She has held that position since March 2026. The spa business is located on the ground floor of the main building at the Site, directly below the Pilates Reformer room of the gymnasium business. Ms Chadwick gave her evidence in a direct and helpful manner. I accept her evidence. Expert witnesses called at trial 62 The expert witnesses called by the parties are identified in the table below, followed by a summary of their qualifications and experience, and the court's assessment of their evidence. Name Role Called by Martii Warpenius Director of Reverberate Consulting. Expert witness in acoustics and vibration. Plaintiff Imran Khan National technical director of E-LAB Consulting. Expert witness in acoustics and vibration. Defendants Michael Sander Principal with MDS Structural Engineering. Expert witness in structural engineering. Plaintiff Andrew van der Meer Consulting engineer. Expert witness in structural engineering. Defendants Expert witnesses in acoustic and vibration matters 63 The court received evidence at trial from acoustic and vibration experts briefed by both sets of parties. Both experts are highly qualified, and I accept they hold the necessary qualifications to express the opinions they gave to the court. The experts prepared detailed reports after they had each conducted testing at the Hospital to assess noise and vibration impacts. 64 The experts testified at trial in a concurrent expert session, with some limited evidence given by the experts in a separate session. 65 The separate session took place prior to the concurrent expert session and addressed a specific issue as to whether the CCTV footage of activities within the gymnasium had been provided to, and reviewed -- 19 of 131 -- [2026] WASC 314 LUNDBERG J Page 20 by, Mr Khan, but not disclosed in his expert report. I accept the evidence given by Mr Khan to the effect he was offered the CCTV footage by a representative of the defendants but was not provided with any such footage, and accordingly he did not mention this in his report. I have drawn no adverse finding against Mr Khan arising from this particular issue. Mr Martti Warpenius 66 The plaintiff engaged Mr Martti Warpenius. Mr Warpenius is a director of Reverberate Consulting. He has been practising in the acoustics and vibration field since around 1987, when he commenced a Master of Engineering Science Degree. Mr Warpenius holds a Bachelor of Mechanical Engineering (First Class Honours) and a Master of Engineering Science. 67 Mr Warpenius holds affiliations as a member of the Australian Acoustical Society, a member of Engineers Australia, and is a former chairman of the Association of Australian Acoustical Consultants. 68 I accept that Mr Warpenius has extensive experience in the fields of acoustical engineering and vibration, which includes experience in environmental noise and architectural acoustics. 69 Mr Warpenius prepared a detailed report for these proceedings which was filed on 2 July 2026.18 He had also produced an earlier report for the plaintiff dated 27 May 2026, which was relied on in the course of the interlocutory injunction application.19 Mr Imran Khan 70 The defendants engaged Mr Imran Khan to prepare an expert report for the proceedings. Mr Khan is the national technical director at E-LAB Consulting and has held that role since August 2024. That business provides engineering services to the building industry. One of the services it provides is acoustic engineering services such as noise and vibration assessments, acoustic analysis, and acoustic design and modelling. 71 Mr Khan has been an acoustic engineer for around 20 years. His experience is predominantly in noise and vibration. In this field of 18 Exhibit 109. 19 Exhibit 60. -- 20 of 131 -- [2026] WASC 314 LUNDBERG J Page 21 expertise, he has worked on projects in Western Australia and in the Middle East. 72 Mr Khan holds a Bachelor of Technology (Mechanical Engineering), a Master of Science (Mechanical Engineering), and a Diploma in Acoustics & Noise Control (Institute of Acoustics, UK). He holds professional memberships with Australian Acoustic Society (M.AAS), with the Institute of Acoustics, United Kingdom (MIOA), and with Engineers Australia (MIEAust). 73 Mr Khan prepared a detailed report which was filed on 2 July 2026.20 74 There were differences of opinion between Mr Warpenius and Mr Khan which I will address later in these reasons. Expert witnesses on structural engineering matters 75 The structural engineer experts gave their evidence in a concurrent sessions. 76 Mr Sander and Mr van der Meer met to confer on the first day of trial, 13 July 2026. They produced a concise joint expert report.21 In substance, Mr van der Meer recorded his general agreement with the report of Mr Sander apart from the 'minor issue of building damage due to vibration'. Mr van der Meer did not agree with Mr Sander's prediction of the 'structural damage to level 1', with Mr Sander expressing the view that 'there could be non-structural but minor superficial … damage to some wall finishes'.22 Mr Michael Sander 77 The plaintiff engaged Mr Michael Sander to prepare a report for these proceedings. Mr Sander has been practising in the field of professional structural and civil engineering since 2003. 78 He holds a Bachelor of Engineering (Civil, First Class Honours) and Bachelor of Commerce (Financial Accounting) from the University of Western Australia. He is presently a registered engineer with Engineers Australia and holds Chartered Professional Engineer status with that organisation (MIEAust). He is listed in the National Engineering Register, and his registration with Engineers Australia has 20 Exhibit 221. 21 Exhibit 223. 22 Exhibit 223 [2(b)]. -- 21 of 131 -- [2026] WASC 314 LUNDBERG J Page 22 been active since August 2004 and he was granted status as a chartered engineer in November 2012. 79 Mr Sander holds registration as a professional engineer in several States in the structural field. He has been employed as a Forensic Structural Engineer since around January 2016, providing structural and forensic engineering services to the insurance industry. 80 In his capacity as a principal with MDS Structural Engineering, Mr Sander had been engaged by Perfect Practice, on behalf of the Hospital, to provide engineering advice during the course of the construction. Mr Sander's prior involvement and role in the matter was appropriately disclosed in his report and by the plaintiff's solicitors. 81 Mr Sander's prior role in 2024 can be seen in Exhibit 9, a letter from MDS Structural Engineering to Perfect Practice. The letter was authored by Mr Sander. That letter records Mr Sander's inspection of the Site and of Unit 10 prior to any construction works being undertaken, to assess the feasibility for the installation of a lift in the entrance, the feasibility for an access ramp, to review the suspended false floor and load capacity, and to review the roof structure. 82 For the purposes of these proceedings, Mr Sander prepared an expert report dated 3 July 2026.23 83 There was no challenge to Mr Sander's qualifications or experience. He gave his expert opinions in a constructive manner and was of assistance to the court. 84 The defendants submitted that Mr Sander, given his prior role as a consultant to the plaintiff in the construction of the Hospital, lacked the impartiality ordinarily expected of an expert witness.24 To some extent, I accept that Mr Sander sought to justify the work he had undertaken for Perfect Practice, the consultancy engaged by the plaintiff, but I did not regard that as undermining the general force of his evidence. 85 There is one exception to the above, which is the evidence Mr Sander offered as to the unsuitability of Unit 8 for the gymnasium business. That conclusion was otherwise not supported by the evidence and strikes something of a discordant note when the joint expert report of the two structural engineers is examined. I therefore do not accept his conclusion in this regard. 23 Exhibit 111. 24 Defendants' closing submissions [91]. -- 22 of 131 -- [2026] WASC 314 LUNDBERG J Page 23 Mr Andrew van der Meer 86 Mr van der Meer was engaged late in the piece, given the expedited nature of the litigation, but was able to prepare an expert report and to give evidence at trial. His report is dated 10 July 2026, and was served on the last working day before trial.25 87 Mr van der Meer is a principal structural engineer and a registered builder. He has a Bachelor of Engineering degree and a Masters in Engineering Science, both from UWA. He has been a registered builder since 1987 and has some 45 years of experience in the field of engineering, and even lengthier experience with the Western Australian building industry. 88 As one might anticipate given the above, there was no challenge to Mr van der Meer's qualifications or experience. As with Mr Sander, Mr van der Meer gave his evidence in a constructive and forthright fashion. His evidence was of assistance to the court. 89 As a result of the pleading issue arising in relation to the defendants' defence, certain aspects of Mr van der Meer's report were not adduced when the report was tendered. I refer to [22] and [27] of his report, which contained opinions as to the large concrete slab spans supporting Unit 10.26 Relevant legal principles 90 It is necessary to set out the principles applicable to the tort of private nuisance, which the court must apply in considering the plaintiff's action. The tort of private nuisance 91 The common law recognises as actionable a claim in nuisance, being a field of tort liability.27 Such actions may be brought for public or private nuisance. These species of the tort are quite distinct.28 92 The concern of the former species of the tort is interference with a public or common right,29 while the latter species of the tort is 25 Exhibit 224. 26 ts 455. 27 Fleming, The Law of Torts (11th edition, 2024) [19.10]. 28 Shogunn Investments Pty Ltd v Public Transport Authority of Western Australia [2016] WASC 42 [107] (Kenneth Martin J) (Shogunn). 29 Attorney-General v PYA Quarries Ltd [1957] 2 QB 169. -- 23 of 131 -- [2026] WASC 314 LUNDBERG J Page 24 concerned with the protection of proprietary interests in land,30 but is not confined to the actual use of the soil. An action in private nuisance extends to the pleasure, comfort and enjoyment which a person normally derives from occupancy of land.31 That said, the focus of the action remains on a diminution in the utility and amenity value of the land itself, rather than the personal discomfort of, or personal injury, to those who are occupying the land.32 93 The present action, which is brought by the plaintiff day hospital, involves a claim in private nuisance. Recently, the High Court of Australia restated the principles which are applicable to such claims, in the case of Hunt Leather. That case arose out of the construction works associated with the Sydney Light Rail project, in which various businesses complained about the noise and dust generated by the construction works, and the presence of hoardings and barricades along the roads during the construction. 94 It is necessary for this court to apply to the present case the principles as stated by the High Court in that decision. 95 Drawing from the joint reasons of Justices Gordon and Edelman in that case, there are two distinct elements of such actions.33 96 First, it is necessary for the plaintiff to establish that the use by the defendant of the defendant's land has caused a substantial interference with the plaintiff's ordinary use of its land. As I will explain in more detail, the term 'ordinary use of the land' means the ordinary uses of land in the relevant locality, which involves consideration of both the purpose of the use, and the means by which that purpose is achieved. In examining this element of the cause of action, it is not necessary to consider whether the defendant's use is, or is not, ordinary or unreasonable. The focus remains on the impact on the plaintiff's use of the land. 97 Second, it is necessary to assess whether the defendant has a justification or excuse for causing the substantial interference. That is, the defendant may establish, and it bears the onus in this respect, that it 30 Fleming, The Law of Torts (11th edition, 2024) [19.20], [19.70]; Gartner v Kidman (1962) 108 CLR 12, 22 (Gartner); Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53; (2025) 100 ALJR 89 [12] (Hunt Leather). 31 Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79; (2012) 42 WAR 287 [118] (McLure P, Buss JA, as his Honour then was, agreeing) (Southern Properties). 32 Hunt Leather [94]. 33 Hunt Leather [94] – [111] (Gordon and Edelman JJ), and [259] (Beech-Jones JJ agreeing). -- 24 of 131 -- [2026] WASC 314 LUNDBERG J Page 25 was using its land for a common and ordinary purpose, by means which involved it being 'conveniently' done. I will return to explain this aspect of the tort in due course. 98 I will return to explain these elements below. 99 More broadly, as the High Court recognised in Hunt Leather, the paramount problem which arises in the law in this field is the need to: …strike a tolerable balance between conflicting claims of neighbours, each invoking the privilege to exploit the resources and enjoy the amenities of his or her property without undue subordination to the reciprocal interests of the other.34 100 This balancing of interest might also be described by using colloquial phrases such as 'give and take' or 'live and let live'.35 101 Commonly, but not exclusively, the conflict which arises in these matters is between residential land use, on the one hand, and neighbouring industrial enterprises, on the other. 102 A contemporary example, set in an urban context, can be found in Ammon v Colonial Leisure Group Pty Ltd.36 That case concerned noise complaints emanating from The Raffles Hotel in Applecross, with the plaintiff having acquired a nearby apartment, forming part of the same strata complex as the hotel. The nuisance claim did not succeed. Another example, emerging from a rural context, can be seen in the Victorian decision of Uren v Bald Hills Wind Farm Pty Ltd,37 a case in which a wind farm had received numerous complaints from neighbouring residents and landowners as to noise from the wind turbines. That claim was upheld. 103 In the present case, in contrast, the competing uses are both commercial in nature. An example of competing commercial uses in a nuisance context can be seen in the decision of Marsh v Baxter,38 in which a fully organic farming business in the Kojonup region brought claims against a neighbouring conventional farmer who had sown and harvested a crop of genetically modified canola, which found its way 34 Fleming, The Law of Torts (11th edition, 2024) [19.80]; Hunt Leather [57] and [94] (Gordon and Edelman JJ), [18] (Gageler CJ). 35 Hunt Leather [39] (Gageler CJ). 36 Ammon v Colonial Leisure Group Pty Ltd [2018] WASC 280 (Ammon) It should be noted that an appeal to the Court of Appeal was subsequently dismissed: Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; (2019) 55 WAR 366. 37 Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145 (Richards J) (Bald Hills). 38 Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1 (Marsh v Baxter). -- 25 of 131 -- [2026] WASC 314 LUNDBERG J Page 26 onto the organic farm. The trial judge and a majority of the Court of Appeal found there was no actionable nuisance. 104 The outcome in each of these prior cases was naturally dependent on the particular factual context. Further explanation of the legal principles 105 The principles applicable to the determination of a private nuisance claim, as stated by Gordon and Edelman JJ in the High Court in Hunt Leather (Beech-Jones J agreeing), have also been relatively recently summarized by Doyle JA in Enkelmann v Stewart,39 a decision of the Queensland Court of Appeal. 106 I did not understand the parties to be in disagreement as to the applicable principles, rather the contest in the present case concerns the application of those principles within the factual context. However, some explication of the principles is necessary for the purposes of this action. 107 In Hunt Leather, the High Court affirmed that the foundational test for private nuisance was as stated by Baron Bramwell in Bamford v Turnley.40 The test, as stated in 1862, made reference to the conduct of a defendant which, despite involving a substantial interference with the plaintiff's ordinary use of land, would be justified or excused from liability for nuisance. 108 The approach of Baron Bramwell is said to have been focused upon two matters. First, the purpose of a particular use and, second, the means or manner of that use. The only conduct of a defendant that would be 'excepted' from constituting a nuisance was a use of land for a common and ordinary purpose, by means that involved it being 'conveniently done'.41 On Baron Bramwell's approach, the existence of a use of land by a defendant that was not for a common and ordinary purpose (or a similar description) was the criterion of liability for the cause of action.42 109 As noted, in Enkelmann v Stewart, Doyle JA, with whom Bond and Bradley JJA agreed, conveniently summarized the applicable 39 Enkelmann v Stewart [2026] QCA 67. 40 Bamford v Turnley (1862) 3 B & S 66; 122 ER 27; Hunt Leather [94] – [104]. 41 Hunt Leather [100]. 42 Hunt Leather [100]. -- 26 of 131 -- [2026] WASC 314 LUNDBERG J Page 27 principles as accepted by Gordon and Edelman JJ in Hunt Leather as follows:43 [14] First, the claimant in such a claim must establish that the use of the respondent's land causes a substantial interference with the claimant's ordinary use of its land: [96]. The 'ordinary use of the land' means the “ordinary uses of land in the relevant locality, which involves consideration of both the purpose of the use and the means by which the purpose is achieved”: [94]. At this point of the analysis consideration of whether the respondent's use is or is not ordinary or unreasonable does not arise. The focus is on the impact on the claimant's use of the land. … [15] Second, the respondent may have a justification or excuse for causing that substantial interference if the respondent established that it was using its land “for a common and ordinary purpose, by means which involved it being 'conveniently done'…”: [97]. 110 With respect, I regard this summary as an accurate statement of the principles which must be applied by this court. 111 The correct analysis first requires a consideration as to whether the use of the defendants' land has caused a substantial interference with the plaintiff's ordinary use of its land. 112 This first level of analysis was described by the defendants in their opening submissions as requiring the plaintiff to prove that one or more of the defendants is causing a substantial interference with the plaintiff's enjoyment of Unit 10 for purposes that are 'ordinary'. This means, consistent with the reasonable expectations of the locality.44 113 Doyle JA addressed the phrase 'common and ordinary' as used in the private nuisance context. His Honour explained the phrase as follows, again by reference to the decision in Hunt Leather: [16] The expression 'common and ordinary' refers to a use which is “reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society” [106]. Their Honours described as apt the description that this was an “expectation that people 'must conform to the habits of the community'”: [104]. This is explained on the basis that both neighbours doing so will mean the conduct of one will create a reciprocal nuisance to the nuisance caused by the (like) conduct 43 Enkelman v Stewart [14] – [15]. 44 Hunt Leather [94] – [95]; DS [5]. -- 27 of 131 -- [2026] WASC 314 LUNDBERG J Page 28 of the other which are both of comparatively trifling character: [104]. 114 Gordon and Edelman JJ explained the concept as follows: [107] The identification of whether a purpose is common and ordinary should be made at the proper level of generality by reference to reasonable expectations based upon what is common and ordinary in a locality. The exercise of identifying the purpose at the proper level of generality can sometimes be finely balanced but it will be guided by the conduct that is said to be the infringement. [108] Thus, "where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner", it will not be a nuisance for a plaintiff to experience, in their use of land, the consequences of the defendant's use of land for the purposes of that particular trade or manufacture in that locality. For instance, the noises during the night considered in Clarey v Principal and Council of the Women's College were noises for the common and ordinary purpose, consistent with the lease and locality, of residential "accommodation of university students ... [who] keep late hours and in the course of doing so will make such noises". And there was no nuisance in Southwark London Borough Council v Tanner from the noises, made for ordinary purposes and heard in neighbouring flats with inadequate sound insulation, of "not only the neighbours' televisions and their babies crying but their coming and going, their cooking and cleaning, their quarrels and their love making'. (footnotes and citations omitted) 115 The alleged interference must also be 'unreasonable', which involves a potentially broad enquiry, as recognised by Gageler CJ in Hunt Leather. His Honour referred in this regard to the following observations of McLure P in Southern Properties:45 To constitute a nuisance, the interference must be unreasonable. In making that judgment, regard is had to a variety of factors including: the nature and extent of the harm or interference; the social or public interest value in the defendant's activity; the hypersensitivity (if any) of the user or use of the claimant's land; the nature of established uses in the locality (eg residential, industrial, rural); whether all reasonable precautions were taken to minimise any interference; and the type of damage suffered. 116 Gageler CJ noted that this was not a novel approach and recognised that courts have historically 'insisted that the finding of a 45 Southern Properties [118]. -- 28 of 131 -- [2026] WASC 314 LUNDBERG J Page 29 nuisance is a contextual, fact-rich, determination dependent on a long list of considerations'.46 117 The types of considerations which have been assessed include the time of the alleged nuisance, its length, its intensity, the neighbourhood in which it takes place, the number of people affected, the respective benefits of the competing activities, and so on. 118 His Honour endorsed the observation that, although these factors can be stated in the abstract, they will 'manifest themselves very differently in different cases and so taking them into account rails against any attempt to conclusively prioritise certain activities as more fundamental than others'. 119 The judgment which is required for the purposes of the analysis is evaluative and inherently normative.47 120 Newnes and Murphy JJA described the approach to the substantial interference question in the following terms, with particular reference to the issue of sensitivity of the plaintiff, and emphasising the objective nature of the analysis: [770] Whether a particular use of land substantially interferes with the use and enjoyment of another's land is to be judged objectively. At least in the absence of physical injury to land, the locality of the district will generally be relevant to what constitutes substantial interference with the use and enjoyment of land, and regard is had to what an ordinary average resident of that district ought reasonably to have expected under the circumstances. [771] An interference which “alone causes harm to something of an abnormal sensitiveness does not of itself constitute a nuisance”: Clerk & Lindsell on Torts. A person is not, therefore, entitled to relief merely because they may happen to be unduly sensitive to noise or smell or any other form of interference with their property: Munro v Southern Dairies Ltd; albeit, the position will be different if the activity causing the interference was done maliciously: Christie v Davey; Hollywood Silver Fox Farm Ltd v Emmett. [772] As Lord Robertson, delivering the opinion of the Privy Council, explained in Eastern & South African Telegraph Co Ltd v Cape Town Tramways Companies Ltd, a person cannot increase the liabilities of his neighbour by applying his or her own property 46 Hunt Leather [33], quoting from Priel, "Land Use Priorities and the Law of Nuisance" (2015) 39 Melbourne University Law Review 346, 373. 47 Hunt Leather [24]. -- 29 of 131 -- [2026] WASC 314 LUNDBERG J Page 30 to special uses, whether for business or pleasure. A person who puts their land to an abnormally sensitive use cannot thereby unilaterally enlarge their own rights and obtain a higher right to limit the operations of their neighbours than someone who does not put their land to such a use. 121 Their Honours then made reference to the decision in Robinson v Kilvert,48 in which the defendant had remained in occupation of a cellar but had leased the premises above to the plaintiff who kept a stock of paper which was sensitive to heat. The defendant landlord carried on the business of manufacturing paper boxes in the cellar. This business required hot, dry air. As events transpired, the heat from the cellar raised the temperature of the plaintiff's premises, damaging the plaintiff's stock of paper. A claim in nuisance was brought, and dismissed. Cotton LJ concluded that:49 It would, in my opinion, be wrong to say that the doing [of] something not in itself noxious is a nuisance because it does harm to some particular trade in the adjoining property, although it would not prejudicially affect any ordinary trade carried on there, and does not interfere with the ordinary enjoyment of life. 122 Thereafter, it will be necessary to consider whether the defendants have a justification or excuse for causing that substantial interference if the defendants establish that they were using their land for a common and ordinary purpose, by means which involved it being 'conveniently done'. 123 The onus is on the defendant to show that their activity is 'conveniently done'.50 124 The phrase 'conveniently done' means a use that reasonably minimised the extent of the interference. 125 Gordon and Edelman JJ accepted in Hunt Leather that a defendant does not bear an impossible onus of negating every imaginable allegation that the means adopted for the use of land were not conveniently done. A plaintiff bears an evidentiary onus to identify the respects in which the defendant's use of land is not conveniently done.51 48 Robinson v Kilvert (1889) 41 Ch D 88. 49 Robinson v Kilvert (94). 50 Hunt Leather [113]. 51 Hunt Leather [111]. -- 30 of 131 -- [2026] WASC 314 LUNDBERG J Page 31 126 Their Honours noted that the requirement that a defendant establish that their use of land, for common and ordinary purposes, was 'conveniently done' has been described as a requirement that the defendant's use of land be 'necessary for the common and ordinary use' or, perhaps more accurately, as a requirement that the defendant's use of land be 'reasonable according to the ordinary usages' or 'reasonable in the circumstances'.52 127 Further, their Honours observed that the assessment of whether a defendant's activity on their land for common and ordinary purposes is 'conveniently done' requires consideration 'not merely of the convenience of the defendant, but also the convenience of the plaintiff'. In other words, the assessment involves consideration of the relative interests of each of the parties in all the circumstances.53 The question as to whether the purpose of the use in question is 'natural' (i.e. common and ordinary) is determined by reference to the locality of the land and the associated reasonable expectations, according to Gordon and Edelman JJ.54 128 Plainly, questions of fact and degree will be involved in this analysis and require a consideration of the relative interests of each of the parties in all the circumstance. Further, as Doyle JA observed in Enkelmann v Stewart, difficult questions may arise as to the appropriate level of generality at which to identify the common and ordinary usage. 129 Taking the foregoing matters together, the High Court explained in Hunt Leather that a plaintiff will be expected to put up with substantial interference with their enjoyment of land if the purpose of the plaintiff's enjoyment is not common and ordinary.55 Equally, a defendant will not be liable for a use of land for a purpose that is common and ordinary and by means that are convenient.56 130 Essential to the tort is the principle of reciprocity, or 'give and take'. In the decision of the United Kingdom Supreme Court in Fearn v Board of Trustees of the Tate Gallery,57 which was carefully examined by the High Court in Hunt Leather, Lord Leggatt explained the principle as follows: 52 Hunt Leather [111]. 53 Hunt Leather [113]. 54 Hunt Leather [114]. 55 Hunt Leather [101]. 56 Hunt Leather [101]. 57 Fearn v Board of Trustees of the Tate Gallery [2024] AC 1 [31]-[33]. -- 31 of 131 -- [2026] WASC 314 LUNDBERG J Page 32 This principle of reciprocity explains the priority given by the law of nuisance to the common and ordinary use of land over special and unusual uses. A person who puts his land to a special use cannot justify substantial interference which this causes with the ordinary use of neighbouring land by saying that he is asking no more consideration or forbearance from his neighbour than they (or an average person in their position) can expect from him. Nor can such a person complain on that basis about substantial interference with his special use of his land caused by the ordinary use of neighbouring land. By contrast, a person who is using her land in a common and ordinary way is not seeking any unequal treatment or asking of her neighbours more than they ask of her. 131 In the present case, both parties made reference to the decision of the High Court in Clarey v Principal and Council of the Women's College.58 132 The facts may be briefly stated. The landlords of a property which was being used as a women's college commenced an action under residential tenancy legislation, seeking an order for recovery of possession on the basis that the tenants had been 'guilty of conduct which was a nuisance or annoyance to adjoining or neighbouring occupiers'. The allegation was that the student residents had made considerable noise late at night, which had disturbed the neighbouring landlords in their sleep. 133 The High Court unanimously accepted in Clarey that a nuisance would arise from the use of property for unusual purposes which produced substantial injury. However, the court concluded that the noises of the students were only noises of the kind which were incidental to the occupation of premises as a dwelling, and within the reasonable expectations of a landlord who let premises to university students. Key issues to be determined in these proceedings 134 Having regard to the pleaded cases of the parties, the submissions advanced at trial, and the evidence presented, the following key issues will require determination in these proceedings: 1. Does the plaintiff have standing, as a tenant of Unit 10, to bring a claim in private nuisance against the defendants? 58 Clarey v Principal and Council of the Women's College (1953) 90 CLR 170 (Clarey). -- 32 of 131 -- [2026] WASC 314 LUNDBERG J Page 33 2. Has the plaintiff demonstrated that the plaintiff's use of the Unit 10 premises is for purpose that are 'ordinary', in the sense that the proposes are consistent with the reasonable expectation of the locality as to the use of the land? 3. Has the plaintiff demonstrated that there has been a substantial and unreasonable interference with the plaintiff's use of the Unit 10 premises for the 'ordinary' purposes referred to above, which has been caused by the defendants' conduct? There is a degree of overlap in the issues relevant to issues 2 and 3, it should be noted. 4. Assuming the plaintiff has demonstrated the above matters, have the defendants established that: (a) the use of the Unit 8 premises as a fitness gymnasium is for a common and ordinary purpose; and (b) this use has been 'conveniently done'? 5. If the plaintiff has demonstrated a basis for its claim in private nuisance, and the defendants have failed to establish the lawful ground of justification or excuse, the court must then consider the remedy which should be granted in favour of the plaintiff, if any. 135 Each of these matters must be established on the balance of probabilities, being the civil standard of proof. 136 I will return to these issues once I have set out the factual findings of the court. Factual findings as to the Site Overview 137 I will now set out the factual findings which the court has made, on the evidence presented at trial, concerning the Site and the businesses operating on the Site. 138 On the first morning of the trial, the court and the representatives of the parties attended at the Site to conduct a view of the commercial building which is at the centre of this dispute. -- 33 of 131 -- [2026] WASC 314 LUNDBERG J Page 34 139 At common law, that process does not permit the court to gather extraneous evidence and apply it to the determination of the issues.59 Rather, a view or an inspection of a location involves an out of court examination of a location when not in operation and without witnesses providing further explanation of the events.60 140 In the present case, the view assisted the court to properly understand the structure and layout of the building, and the relative locations of the businesses which operate on the Site. Further, the view permitted the court to readily digest the evidence led during the trial. 141 It is convenient at this point to provide an outline of the Site, the buildings on the Site, and the businesses which operate from those buildings, as well as a description of the locality. This factual discussion is based, in general terms, on uncontentious evidence led at trial, although the parties were in disagreement as to the precise relevance of the locality (and its scope) and the relevance of the businesses which have historically operated from the Site. A description of the Site and the locality 142 The Site is located less than 10 kilometres from the Perth central business district, within an urban precinct which is predominantly (if not exclusively) industrial, surrounded by offices, showrooms, furniture stores, car yards, warehouses, lighting stores, a funeral home, a gym equipment store, and retail outlets. It is evident there are other gyms in the general vicinity. 143 The envelope of the Strata Plan contains two buildings, with 10 strata units spread across the buildings. The extract from the Strata Plan below shows the two separate buildings on the Site, one being on the western side and the other on the eastern side of the land. 59 Scott v The President, Councillors and Ratepayers of the Shire of Numurkah (1954) 91 CLR 300, 313 (Dixon CJ, Webb, Kitto and Taylor JJ). 60 Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 [193] (Heydon J). -- 34 of 131 -- [2026] WASC 314 LUNDBERG J Page 35 Image 1: Extract from the Strata Plan for the Site 144 The various units within the strata plan are delineated in the additional sheets in the Strata Plan. Sheet 1 of the Strata Plan shows that the single-story building to the west contains Units 1 to 6, which includes a smoking accessories business, a podiatrist, and a massage store. This smaller building is separate to, and wholly detached from, the larger building to the east of the plan. 145 Neither the smaller building, nor the businesses within it, were the focus of evidence in the proceedings. 146 The larger building to the east contains Units 7 to 10. This building and the businesses within it were the primary focus of the trial. This building is depicted in sheets 2 to 5 of the strata plan. 147 The main building on the Site houses both the Hospital and the fitness gymnasium, and has three floors. 148 The ground floor houses the 'Douglas Hi-Fi' business in Unit 7, which is a specialist retailer of home entertainment and audio-visual equipment, and the 'Merse Wellness Spa' business which sits in part of Unit 8. The spa is affiliated with Fitness Cartel OP, with Mr Theng having a shareholding in the spa business.61 149 The first floor houses the Hospital in Unit 10, a chiropractor business in Unit 9 called 'Beyond Health' which sits directly above the 'Douglas Hi-Fi' business, as well as part of the gymnasium in Unit 8 61 Being Merse Wellness Western Australia Pty Ltd. -- 35 of 131 -- [2026] WASC 314 LUNDBERG J Page 36 which sits directly above the spa. Mr Theng owns the chiropractor business.62 150 The second floor is used exclusively by Fitness Cartel OP and includes two mezzanine areas. The gymnasium sits directly above the front portion of the Hospital. 151 The plaintiff produced an aide memoire during trial which helpfully (and accurately) showed the Units within the main building, annotated to show the businesses operating in those units and the footprint of the businesses above and below. I have extracted portions of the aide memoire in Attachment A to these reasons. 152 As the structural engineering expert engaged by the defendants explained in his report,63 the main building is 'basically a concrete, brick and steel structure', with its concrete footings buried in sand, and with 'reinforced concrete columns and load bearing brick walls supporting two levels of concrete slabs'. The roof is supported by a structural steel framework. 153 The Site itself is located on Scarborough Beach Road, at the corner of Sundercombe Street. Scarborough Beach Road has two lanes in each direction and is a main corridor which runs from the central suburb of Mount Hawthorn to the coastal suburb of Scarborough Beach. It is a busy thoroughfare. The history of the Site 154 Evidence was led, primarily by the defendants, as to the historical uses of the Site, the relevance of which was the subject of debate at trial. I will return to the relevance of the historical uses in due course. 155 For present purposes, the evidence discloses the following matters, although I consider the evidence as to the presence of gymnasiums in the building prior to Fitness Cartel OP was vague at best, particularly as to the specific type of gymnasium.64 156 The main building was initially constructed in the early 1980s and was originally branded as 'Sports City'. Over the years, the main building has had a number of different businesses operating from the premises. 62 ts 302. 63 Report of Andrew van der Meer dated 10 July 2026 (Exhibit 224). 64 Mr Butterly's evidence on these matters was imprecise and based on second hand information including information obtained from Google. -- 36 of 131 -- [2026] WASC 314 LUNDBERG J Page 37 157 When the Hospital proprietors purchased Unit 10 it was vacant, but it had immediately before then been used as an administrative office by the St John of God Hospital, but not for any medical procedures. 158 A bowling alley had previously been situated within the main building, although there was some uncertainty in the evidence when this was, or where within the main building it was located. On the balance of probabilities, I find that the bowling alley was situated within Unit 10, at some earlier point in time prior to the offices of the St John of God Hospital being located in that unit. 159 The space used by Fitness Cartel in Unit 8 has previously been used as a fitness gymnasium, branded as 'Zest' and then 'Goodlife' in around 2010, but the Goodlife gymnasium business had vacated the premises by around 2015.65 160 The premises at Unit 8 had been vacant for some years prior to being acquired by its current owners and then leased to the Fitness Cartel business.66 Ms du Plooy gave evidence, albeit hearsay in nature, that the last tenant in Unit 8, before that space was left vacant and was then later leased to the Fitness Cartel business, was not a gymnasium.67 161 There was some dispute on the evidence as to the nature of the prior gymnasium businesses at the Site. Mr Sander, who disavowed any expertise in gymnasiums, favoured the understanding that the building contained a gymnasium from about 2003 until around 2014, which he described as 1980s-style gym rather than a modern high- intensity facility with 24/7 access, heavy powerlifting, and specialised machinery.68 The operations of the Hospital 162 The plaintiff now operates a private day hospital from Unit 10 through a leasing arrangement. 163 The plaintiff obtained approval under the Private Hospitals and Health Services Act 1927 (WA) to operate from the premises. The 65 ts 223 - 226. See also Exhibit 225, the Google images produced by Mr Butterly, which I admitted without the notations thereon. 66 ts 152. 67 ts 152. 68 ts 452. -- 37 of 131 -- [2026] WASC 314 LUNDBERG J Page 38 plaintiff was granted a licence to conduct the hospital as a 'Day Hospital – Class B' pursuant to s 26D of that legislation.69 164 The licence permits the plaintiff to treat a maximum of 42 adult patients at any one time, in the classes of pain management and endoscopy. 165 The Hospital has retained several specialist doctors to practice at the premises. 166 The licence issued to the Hospital requires that the building, any renovations, and the equipment within the building, comply with the guidelines issued by the Health Department, which I will address below. The licence also requires the Hospital to comply with all applicable Australian Standards. 167 The Hospital occupies the premises under a formal lease with Perth Day Hospital Freehold Pty Ltd, which was executed in June 2024.70 The lease has a term of 10 years, with a commencement date of 1 June 2024, and an option term of 10 years from 1 June 2034.71 168 The leased premises are described as being 'All the Land and part of the Building located at Unit 10, 454 Scarborough Beach Road, Osborne Park WA 6017 and having an approximate area of 2015 m2 as hatched on the Plan (page 1)'.72 169 The 'Permitted Use' of the premises is stated to be a 'Day Hospital'.73 170 The Hospital commenced its operations, in the sense of receiving and treating patients, on 3 June 2026. Since then, it has operated from Monday to Friday, 7.00am to 8.00pm. The Hospital intends to open on Saturdays in the future. 171 Unit 10 is owned by Perth Day Hospital Freehold Pty Ltd which acquired title to the land on 6 June 2024.74 That company has the same directors and shareholders as the plaintiff, including Dr Xu and Ms du Plooy. 69 Exhibit 52. 70 Exhibit 11. 71 Exhibit 11, items 3, 4, 14 and 15. 72 Exhibit 11, item 1. 73 Exhibit 11, item 10. 74 Exhibit 12. -- 38 of 131 -- [2026] WASC 314 LUNDBERG J Page 39 172 The Hospital is wholly situated on the first floor of the building, with front access obtained through stairs from the Scarborough Beach Road side of the building. There are two lifts which may be used to access the Hospital, one at the front and one at the rear of the building, as well as rear stair access. 173 The Hospital has four operating theatres, 21 recovery bays, 16 discharge lounge chairs in the recovery area, three admission rooms and three consulting rooms, together with associated administrative offices and a reception area. One of the operating theatres is shown in a photograph in Attachment B. 174 The consultation rooms in the Hospital are located towards the front of the building, to the left as you enter the reception area. 175 The cross-section of the building in Attachment B is taken from the report prepared by Mr Sander,75 showing the Scarborough Beach Road side of the building to the left of the image. The yellow section of the building is the front portion of the Hospital, to the south of grid line 5 (south being to the left on the image). The Hospital is located between grid lines 1 and 11. As can be seen, the yellow section of the Hospital effectively sits beneath the main weights area of the gymnasium business in Unit 8, described as Zones 2 and 3. 176 It may be accepted that the Hospital was constructed to the exacting standards required by Federal and State Authorities for such hospitals, as was submitted by the plaintiff.76 I refer to the evidence of Dr Xu and Ms du Plooy in this regard, which I accept generally. I will address these standards below. 177 When the plaintiff's related entity purchased Unit 10, the building was vacant.77 It had previously been used by St John of God Hospital as an administrative or office building, not for medical procedures. 178 The owners then carried out extensive upgrades, changing the classification of the building from a Class 5 building (which is a standard office) to a Class 9 facility. This involved improvements in power supply, improvements in hydraulics, improvements in water and 75 Exhibit 111. 76 Plaintiff's closing submissions [2]. 77 ts 46. -- 39 of 131 -- [2026] WASC 314 LUNDBERG J Page 40 also stabilisation of floors which, when it was purchased, were not in a state suitable for a hospital.78 179 To the extent there were improvements and upgrades needed to the common property and infrastructure on the Strata Plan, the costs of these works was borne by the Hospital, not shared among the other strata owners. It was apparent from the evidence that the construction process had the effect of improving the common property on the strata plan for the benefit of all of the owners, without there being a direct cost to the Strata Council or the other owners to fund these improvements.79 180 The extent of the improvements and upgrades can be seen in Exhibit 22, being a letter from Perfect Practice, the business which assisted the Hospital with the design and construction process. That letter, dated 28 February 2025, sets out the costs of the hydraulic/fire services and the electrical services on the Site which were upgraded by the Hospital, in the region of $800,000. 181 In his evidence, Dr Xu addressed his objectives in establishing the Hospital:80 We decided to create this hospital out of need for the community. There is a lack of theatre operating spaces in Perth, in all of Australia, and we wanted to make a state-of-the-art facility, because none of the current hospitals' set-up is optimal for what we would like. So this facility is state-of-the-art, catered to our needs, for pain management and also endoscopy, so cancer screening. We made a very - we made a commitment, despite the cost, to have the latest equipment in the hospital so we can perform the most precise and most effective treatments for pain and for cancer screening. 182 The community need for the Hospital was not the subject of particular dispute at trial. However, the defendants emphasised during the course of the trial that the Hospital is also a private, profit-oriented venture, owned by Dr Xu, Ms du Plooy and others. Patients using the facility are required to pay for the services provided, either directly or through insurance arrangements. Dr Xu accepted as much in his evidence, although he also testified that the Hospital management were 78 ts 47. 79 ts 125; Exhibit 26 (Letter from the Hospital to the other strata owners). 80 ts 46. -- 40 of 131 -- [2026] WASC 314 LUNDBERG J Page 41 in discussions with government regarding the possibility of providing services to the public health system.81 183 It was evident from Ms du Plooy's testimony that she was directly involved in the design and engineering steps in the construction process for the Hospital, and attended every 'engineering meeting'. Her view in this regard was that it was important for the 'clinical governance' part of the Hospital to be involved in these processes, rather than to separate them and operate as two teams.82 184 As earlier noted, the Hospital has engaged several medical practitioners to provide medical services from the premises, including pain specialists and gastroenterologists. 185 The pain management services include administering nerve blocks and epidural steroid injections, as well as radiofrequency ablation and facet joint injections. These procedures involve inserting needles into the spine or nerves of the patients. Dr Xu explained this as follows:83 DR XU: So under sedation I perform spinal-based injections for pain management. These require targeted placement of needles near the patient's spine and inside the spine, with the deposit of a combination of medications and also a term that we call radiofrequency ablation, which is essentially burning the nerves. MR BENNETT: What equipment do you use for that? DR XU: The equipment that I use is a radiofrequency ablation machine. The needles that I use to place at the targeted areas. A portable X-ray machine, and on the anaesthetic side, the anaesthetic sedation machine, breathing apparatuses, and on occasions I would be using an ultrasound machine as well. MR BENNETT: Why do you use the X-ray machine and - what role does that play? DR XU: The nature of my procedures are risky in terms of they carry inherent risk. I have to be very precise in where I place the needles, and the X-ray machine guides me to that locality. 81 ts 56. 82 ts 122-123. 83 ts 45. -- 41 of 131 -- [2026] WASC 314 LUNDBERG J Page 42 186 The endoscopic services extend to gastroscopy and colonoscopy, both of which are in effect cancer screening services. These procedures are also performed under light sedation. 187 The Hospital is equipped with four theatres which include ceiling mounted equipment such as pendants with surgical lighting and gas lines, and visual monitors which work in conjunction with imaging equipment. 188 The Hospital has several consulting rooms which are intended for use by the pain specialists and gastroenterologists, to meet with patients and book them in for procedures. As Dr Xu explained, the medical practitioners will undertake their standard consultation and examination in these rooms. Dr Xu had planned to occupy one of the consulting rooms but testified that he has been delayed in doing so because of the vibration and noise being experienced. Dr Xu explained it was 'quite frankly quite distressing [and] does not build confidence into the facility'.84 189 Dr Xu provided an explanation as to the importance of the admission process in a hospital, which I accept.85 The process of surgery and safe procedures commences with the admission process for patients. That is, the process starts when the patient first steps into a hospital. This is because most patients are anxious and stressed before they undertake their medical procedure. Medical professionals seek to ensure their patients are as comfortable as possible. 190 Patients at the Hospital are checked in by the hospital staff and further assessed before they reach the pre-operative bay. The patient is then undressed, given a surgical gown, seen by nurses, and then assessed by an anaesthetist. Only when the anaesthetist assesses the patient to be safe for a procedure will the patient then be taken into the operating space, then sedated, and thereafter the medical procedure is performed. 191 After the procedure, Dr Xu explained that the patient is taken into the recovery bay, whilst still recovering from sedation and under the care of the anaesthetist. The patient is handed over to the nursing recovery staff in the recovery bay at this point for further monitoring. This may take around one or two hours, depending on how fast the patient recovers. 84 ts 51. 85 ts 44. -- 42 of 131 -- [2026] WASC 314 LUNDBERG J Page 43 192 If the patient is then clinically stable and has no complications, the patient will be transferred to the discharge lounge, where the patient will be further monitored and provided with food and drink. The patient will continue to be observed as to their clinical stability. If the patient is clinically stable at this point, the patient can be discharged home. 193 Dr Xu testified, and I accept, there is an anaesthetic risk if a patient is sedated while distressed. Patients who are under distress require more sedation than someone who is not. Because a higher amount of sedation is required, the patient will have a higher chance of have breathing difficulties and find it harder to recover from the procedure itself. Further, patients tend to be clinically unstable, in the sense of having high blood pressure when they are distressed. This can increase the risk of strokes and cardiovascular events with the patient. 194 Dr Xu testified, and I accept, that the majority of the procedures which have been carried out at the Hospital have not been ad hoc. That is, they have not been performed on the day without a pre-assessment of the patient. He explained that, prior to any procedure, he would first examine the patient at his clinic to assess their risk and suitability for the procedure and suitability for sedation. 195 Once a patient is assessed as suitable, Dr Xu has performed a number of operations involving spinal-based injections for pain management at the Hospital, with the patient under sedation. These procedures require 'targeted placement of needles near the patient's spine and inside the spine, with the deposit of a combination of medications and … radiofrequency ablation, which is essentially burning the nerves'.86 196 Dr Xu explained that equipment used in these procedures includes the radiofrequency ablation machine, a portable X-ray machine, an anaesthetic sedation machine, breathing apparatuses, and an ultrasound machine.87 197 Dr Xu testified that the nature of his procedures means they carry an inherent risk, and he needs to be very precise as to where he places the needles. The X-ray machine assists to guide the clinician to the correct location on the patient. 86 ts 45. 87 ts 45. -- 43 of 131 -- [2026] WASC 314 LUNDBERG J Page 44 The construction of the Hospital 198 The process for the construction of the Hospital occupied the proponents for around two to three years. 199 The process involved not only securing development and building approvals in the usual way, from the relevant local government authority, but also compliance with the specific guidelines which apply in this State to the construction of private hospitals. Dr Xu described these guidelines as 'very stringent',88 which accords with my assessment of the documentary materials produced in evidence. 200 The plaintiff had pleaded that the planning of the Hospital 'revolved around ensuring it would provide best-practice clinical care, patient comfort and streamlined workflow for health professional'.89 That assertion was supported by the evidence led at trial. Development and building approvals 201 On 10 October 2024, the City of Stirling issued an approval in respect of the development application for Unit 10, pursuant to the City of Stirling Local Planning Scheme No. 3 and the Metropolitan Region Scheme.90 202 The approval letter indicated the approval was given under the Planning and Development Act 2005 (WA) only, and that a building permit must also be obtained prior to commencement of any works.91 The 'Notice of Conditional Approval' attached to the letter included a number of conditions, and described the proposed development as 'Change of Use – Office to Hospital'. 203 On 25 November 2024, a building permit was issued by the City of Stirling to Arconn Pty Ltd, the builder, for the building works to be undertaken at Unit 10.92 The permit was valid for a two year period. 204 The permit described the nature of the building work as 'Certified Building Permit - Internal & external alterations & additions to existing building including a change of use & new pumps & tanks'. The BCA class of the building was identified as 'Class 9a', with a secondary class 88 ts 47. 89 FASOC [13]. 90 Exhibit 13. 91 Exhibit 13. 92 Exhibit 16. -- 44 of 131 -- [2026] WASC 314 LUNDBERG J Page 45 being 'Class 10a'. The uses of the building were identified as 'Medical Centre, Pumps & Tanks'. 205 The estimated value of the works was $8.25 million. The LARU Guidelines 206 The evidence discloses that a three stage process was undertaken by the owners, which required around three years to complete.93 Full accreditation approval was not achieved until 11 June 2026.94 In general terms, the process involved the following: (a) First, it was necessary for the Hospital to submit detailed plans to the Licencing and Accreditation Regulatory Unit within the Department of Health (which was referred to in the evidence as LARU). By letter dated 14 March 2024, a principal consultant at that unit invited the Hospital to submit its plans.95 (b) Second, subject to approval, the next step involved building works which were reviewed in order to comply with the standards imposed by LARU. (c) Third, representatives of LARU would undertake a further review once the construction works for the Hospital had been undertaken. 207 The requirements imposed by LARU are detailed within Exhibit 18, which is described as the Western Australia Health Facility Guidelines for Engineering Services. These requirements include guidelines for noise tolerance for various rooms within a hospital.96 I will refer to this document as the LARU Guidelines. 208 The preamble to the LARU Guidelines states:97 The Western Australia Health Facility Guidelines for Engineering Services (The Guidelines) are the engineering design, operation and maintenance guidelines for public and private health facilities in Western Australia. The Guidelines are presented in the form of minimum acceptable requirements for major metropolitan tertiary/acute care hospitals. 93 ts 47. 94 Exhibit 63 (NSQHS Certificate of Accreditation for Perth Day Hospital). 95 Exhibit 10. 96 Exhibit 18 (section 8). 97 Exhibit 18 (section 1.1). -- 45 of 131 -- [2026] WASC 314 LUNDBERG J Page 46 While based on standards for major hospitals, the Guidelines allow for a risk-based approach to design for all facilities. The application of the Guidelines for each specific healthcare facility covered by the Regulatory Framework must consider facility type, model of care, patient acuity, project scope, location, and strategic importance. All projects submitted to LARU for review will be assessed from a perspective of patient safety, quality of care, and readiness for normal and emergency operations. 209 The LARU Guidelines expressly set out the engineering guidelines which are to be applied to the construction of day hospitals (and other facilities covered by the guidelines). The guidelines are described as have been prepared following input from 'Western Australian healthcare design engineers and consultants, private and public health facilities, services and individuals'.98 210 Section 8 of the LARU Guidelines is headed 'General & Environmental Requirements'. It addresses the construction standards which are applicable, the acoustic services, layout and capacity, seismic restraints and other matters. 211 The acoustic services are to comply with requirements of 'the relevant Australian Standards, environmental regulations and the Licence Holder/Applicant's Risk Management Plan'. As a minimum, the acoustic services shall address the Noise Regulations, internal noise levels, internal sound insulation, reverberation time, and vibration and structure borne noise.99 212 A table of 'sound insulation parameters of rooms' is included in the LARU Guidelines. The tolerances differ according to the type of room and whether clinical or a staff area, as noted below (these are the noise tolerance of the 'receiving room'): (a) consulting rooms (being clinical areas) – designated as 'low'; (b) medical imaging rooms and operating theatres (being clinical areas) – both are 'very low'; (c) meeting rooms and private offices (being staff areas) – both are 'low'; and (d) reception and waiting areas (being staff areas) – 'high'. 98 Exhibit 18 (section 1.4, section 4.7.1, and Appendix 'Laru Decision Tree'. 99 Exhibit 18 (section 8.2.2). -- 46 of 131 -- [2026] WASC 314 LUNDBERG J Page 47 213 The LARU Guidelines refer to 'impact isolation' in the following terms:100 Impact noises due to various sources such as footfall and trolleys shall be controlled at the floor surface where possible. Impact sound insulation requirements for each room should be adequately designed so the noisy activities from one room do not interfere with the need for quiet in adjacent space below. Impaction sound isolation requirements for floors or slabs are provided based on the activity noise in one room to the noise tolerance in the adjacent room. 214 A table has been included setting out the 'Impact Isolation Performance Requirements of Floors/Slabs from Above', which provides:101 … the minimum sound insulation requirements for various areas. The sound insulation requirement to be applied shall be established by assessing the privacy between a pair of rooms in each direction and the higher sound insulation requirement shall be selected for the partition separating the two rooms. The airborne sound insulation performance of various partitions and floors is generally available in terms of weighted standardised impact sound pressure level (LnTw). The degree of performance is typically indicated by lower LnTw values (e.g. lower values indicate higher performance and represents a reduced impact noise level impacting on the floor below 215 The minimum LnTw for operating and procedure rooms is 55, according to the LARU Guidelines, with the minimum for general offices and the lobby or waiting areas being 60. 216 As to vibration, the LARU Guidelines state:102 Vibration in occupied spaces shall not exceed the just perceptible level defined by AS 2670.1: Evaluation of human exposure to whole-body vibration – General requirements. Vibration precautions should include: • dynamic balancing of machines 100 Exhibit 18 (section 8.2.11). 101 Exhibit 18 (section 8.2.12). 102 Exhibit 18 (section 8.2.14). -- 47 of 131 -- [2026] WASC 314 LUNDBERG J Page 48 • isolation of sources of vibration from vibration transmission paths (e.g. machines from pipes, ducts, support structures, lifts, and the like) • piping being designed to avoid pressure pulse noise or being fitted with effective pulse dampers • structures being isolated from ground transmitted vibrations • equipment being selected and supported to avoid operation at resonant frequencies Construction and related works 217 The Hospital adduced in evidence documentary material which showed the extent of the works required for the construction and fit-out of the Hospital at Unit 10. 218 This material included a geotechnical investigation conducted by Structerre Consulting in April 2025,103 a fire engineering report undertaking in May 2025,104 a set of invoices from equipment suppliers in respect of items purchased by the Hospital,105 and a voluminous set of technical drawings.106 219 The technical drawings include the designs for the pendants or surgical booms attached which were to be attached to the ceiling, the clamps associated with the pendants, the foundations for the Hospital, the design for the lifts and plant room, and the designs for the steel works in the building and the bracing required. 220 The technical drawings bear out the plaintiff's pleaded contention that the 'ceilings of the operating theatres have been specially designed to accommodate the weight of the pendants and other equipment necessary to perform the operations carried out at the Hospital'.107 221 This material also included a report on the inspection of the suspended slab steel reinforcement installation process in October 2025, to assess whether the construction was done in conformance with the approved structural plans.108 103 Exhibit 24 (Geotechnical Investigation Report of Structerre dated 29 April 2025). 104 Exhibit 25 (Fire Engineering Report of E-Lab Consulting dated 30 May 2025). 105 Exhibit 132. 106 Exhibits 133 to 212. 107 FASOC [26]. 108 Exhibit 156. -- 48 of 131 -- [2026] WASC 314 LUNDBERG J Page 49 The Fitness Cartel gymnasium business Overview 222 The third defendant, Fitness Cartel OP, operates a 24 hour fitness gymnasium from Unit 8, through a franchising arrangement with the first defendant. 223 The gymnasium business operates as a 'Fitness Cartel franchise'. It commenced business in November 2025. Fitness Cartel OP operates the gymnasium business as sub-franchisee to Fitness Cartel WA, and as lessee of the premises under a ten year lease from the second defendant.109 224 The premises at Unit 8 are owned by the second defendant.110 The second defendant obtained title to the premises on 24 January 2025.111 The premises are described in the lease as follows:112 That part of the building contained within permanent walls constructed upon all that piece of land … situated at Unit 8, 454 Scarborough Beach Road, Osborne Park WA 6017 and being the land more particularly described as Lot 8 In Strata Plan 8188, comprising 1492.00m². 225 The lease is a 10 year lease with two options of five years each.113 226 The lease commenced on the earlier of the 'Fitout Period' or the date that the lessee commenced trading from the premises.114 227 The footprint of Unit 8 is spread across the first floor, the second floor and two mezzanine floors, with various identified zones (referred to as Zone 1 to Zone 5 across the footprint of the business). The layout of the various floors of the Fitness Cartel gymnasium business, and the several zones, is set out in Exhibit 129, a diagram of each floor prepared by the defendants. Based on the view of the Site on the first day of trial, I assessed the diagrams as being an accurate representation of the gymnasium layout. 228 The gym itself is accessible from the front entrance adjacent to the Hospital entrance, with the office, reception, creche and Reformer Pilates rooms located on the first floor. Adjacent to the gym, also on 109 Exhibit 17. 110 Exhibit 19. 111 Exhibit 19. 112 Exhibit 17, Description of Land. 113 Exhibit 17, items 4 and 16. 114 Exhibit 17, item 5. -- 49 of 131 -- [2026] WASC 314 LUNDBERG J Page 50 the first floor, is the separate business referred to as 'Beyond Health', which is a chiropractic business (located in Unit 9). Staffing and member behaviour 229 As for staff at the gymnasium, Mr Butterly explained that the business employs staff during weekdays who regularly check on the activities of members in the various zones.115 I accept that these staff regularly monitor the active parts of the gymnasium, and that the staff are trained to speak to members who are not behaving correctly or properly, or who are misusing the equipment. The staff can also monitor or utilise the CCTV footage of the other zones when the staff are situated on the first floor, being Zone 1. 230 I accept that staff members are able to issue warnings to members for inappropriate conduct, if necessary.116 Ms Stroud gave evidence as follows:117 MS STROUD: … so we have two receptionists, at least two receptionists on the front counter itself from 6 am to 8.30 pm, Monday to Friday, and then 7 to 6 on the weekends, including three membership consultants which also assist with this and a club manager as well. That's not including - we also have a Hyrox manager, a reformer manager and a creche manager, which it is all their responsibilities to assist with member satisfaction but also member assistance. MR DAVIS: If a member is not doing exercises properly, what steps were taken to deal with that? MS STROUD: So we have a really - a really good team, so usually if it is a minor incident, it is reported to the club manager, so either myself at the time, or now [Mr Butterly], then we review footage and obviously assess what has been done. If it doesn't align with what our core values are and what we actually stand for and our terms and conditions, then we terminate their membership itself. However I have given my team - when I say "my team", I'm saying my personal training team, if they witness something that is of a more serious nature, that does - it clearly goes above our terms and 115 ts 221. 116 ts 282. 117 ts 282. -- 50 of 131 -- [2026] WASC 314 LUNDBERG J Page 51 conditions - they are to immediately ask the person to remove themselves from the facility and then I'm notified and then I - I deal with the cancellation itself. 231 The defendants tendered the members' code of conduct and terms of entry document (Exhibit 127), which incorporates a section on 'gym floor conduct', among other matters. I accept the staff at the gymnasium business would be able to discipline members for breaches of the code of conduct, although it is evident that a degree of discretion would be involved in this process. 232 In any event, the code of conduct includes the following matters of relevance, together with other conditions concerning respect and broader behavioural standards: Conditions of Entry Fitness Cartel Health Clubs – Member Code of Conduct and Terms of Entry Purpose Fitness Cartel Health Clubs is committed to providing a safe, respectful, hygienic, and professional training environment for all members, staff, and visitors. These Member Rules, Code of Conduct, and Terms of Entry apply to all individuals entering or using any Fitness Cartel Health Club facility. Compliance with these rules is a condition of membership and facility access. Fitness Cartel reserves the right to refuse entry, suspend access, terminate memberships, or permanently ban individuals who fail to comply with these terms. … 2. Gym Floor Conduct 2.1 Equipment Use Equipment must only be used for its intended purpose and in a safe manner. 2.2 Unsafe Behaviour Horseplay, reckless behaviour, misuse of equipment, or unsafe lifting practices are prohibited. -- 51 of 131 -- [2026] WASC 314 LUNDBERG J Page 52 2.3 Re-Racking Equipment Members must return all weights, plates, dumbbells, and accessories to their designated locations immediately after use. 2.4 Cleaning Equipment Members must wipe down equipment after use using the cleaning products provided. 2.5 Reporting Equipment Issues Members must immediately notify staff of any malfunctioning, damaged, or unsafe equipment. 2.6 Excessive Noise or Weight Dropping Excessive weight dropping, yelling, or disruptive lifting behaviour is not permitted. 2.7 Courtesy During Peak Periods Members must be considerate of others during busy periods and allow reasonable access to equipment. (emphasis added) 233 The agreements entered into between members and Fitness Cartel include conditions concerning the use of equipment and weights, and encourage members to seek assistance from a staff member if they are not sure of the 'correct use or operation of equipment'.118 234 Staff members are not present in the gymnasium between 8.00pm and 6.00am on weekdays.119 235 Mr Butterly was cross-examined about this aspect of the gymnasium's operations, as follows:120 MR BUTTERLY: They would be spoken to and then …. we would then refer them to say "Hey, why don't you book in one of our personal trainers, they can show you how to utilise the equipment in a safe manner" and then they can then work from there. MR BENNETT: It is very difficult to control people carrying out their exercises, would you agree with that? 118 Exhibit 128. 119 ts 226. 120 ts 222. -- 52 of 131 -- [2026] WASC 314 LUNDBERG J Page 53 MR BUTTERLY: I would agree that it would be difficult to stand there and watch every person at one particular time, yes, however, what we can control is making sure everyone's - every member that comes is educated on how to use the equipment as well as all staff that are on duty doing their regular checks, that's part of their requirement. 236 I accept Mr Butterly's evidence in this regard. Mr Butterly also testified that personal trainers (and personal trainer managers) would be present in the gymnasium when staff were not available, such as on weekends and public holidays. Those trainers are not employees of the gymnasium. However, on Mr Butterly's evidence, the personal trainers would also monitor the behaviour of the gym's members. 237 Ms Stroud explained how some of the gymnasium exercises should be properly carried out, emphasising in her evidence that members are told not to drop weights when performing deadlifts, but to lower the weights, and place them down. She accepted however that sometimes the weights are dropped. 238 Ms Stroud also explained that Fitness Cartel offers its members a complimentary session with a staff member to assist to have customer understand how to properly utilise the gym's equipment, as well as having numerous personal trainers on site and regular floor checks by staff (some of which I have mentioned already).121 Ms Stroud testified that:122 … everybody is offered a complimentary session to ensure that they understand how to utilise our equipment. With that being said, we have one of the largest personal training teams and we do this in all of our facilities. So we have a large team that offer assistance if they see anybody that is either struggling or potentially not utilising the equipment. We also have our receptionists do, like, floor checks and also assist with this. 239 Ms Stroud explained that the promotional video in evidence from the Fitness Cartel website, which appeared to show a customer dropping a weight in the course of a deadlift, from a height above his knees, was not from the gymnasium in Osborne Park.123 Rather, it 121 ts 281. 122 ts 281 - 282. 123 ts 267 – 268; Exhibit 116. -- 53 of 131 -- [2026] WASC 314 LUNDBERG J Page 54 depicted a gymnasium on the East Coast, although nonetheless a Fitness Cartel franchise gym.124 240 I accept her evidence in this regard, given her explanation of the different colour of the equipment and the different background shown on the video. 241 Ms Stroud explained that the video (which has what I would describe as a fast cut edit within it) did not show the correct manner of undertaking a deadlift, in any event. MR DAVIS: … Did the dropping of the weight by that person on the video, did that accord with how you, in your experience, say a deadlift should be done? MS STROUD: No. It does not. MR DAVIS: Why not? MS STROUD: It appears - it's very hard because the video has been created in a way that you don't see the full movement and you don't see the full extent of what he's actually doing, so it's really hard to comment of - if it's correct - well, it is incorrect but it's hard to see where it's been cut off or what movements we were doing prior to that. MR DAVIS: What about it makes you say it isn't correct? MS STROUD: Well, most people just don't drop it like that. It's very uncommon. And as you can see, the - it was flashing different videos. Yeah, it's very hard to see what - what was happening prior to that. 242 In these circumstances, I would not place any weight on the video extracted from the Fitness Cartel website to the extent that it was submitted it shows a person inappropriately dropping a weight at the Osborne Park gymnasium. The video was taken at a different gymnasium. In any event, it was included in a promotional video which had been edited and so did not permit an accurate assessment of the technique to be made. 243 According to Ms Stroud, around 95% of the members at the Fitness Cartel gymnasium use the weight machines. The dumbbell zone is one of the most popular areas within the gymnasium, being the area directly beneath the 'Cardio Zone' mezzanine area. Ms Stroud 124 Mr Butterly gave evidence to a similar effect: ts 220. -- 54 of 131 -- [2026] WASC 314 LUNDBERG J Page 55 explained that the pin loaded and plate loaded weight machines were likely next in terms of popularity among the members, followed by squatting and deadlift usage. 244 Use of the Hyrox and Reformer Pilates rooms require specialised memberships to be obtained. Zone 1 of the gymnasium 245 Zone 1 of the gymnasium is depicted in the diagram below, showing the office, the reception area, the café and chill out zone, the creche and the Reformer Pilates room.125 The Reformer Pilates room is on the eastern side of the building accessible down the corridor adjacent to the southern wall of the building. The creche is the centrally located room in Zone 1. Image 2: Zone 1 of the gymnasium (ground floor) 246 The Reformer Pilates room is located directly above the spa business on the ground floor. Zones 2 and 3 of the gymnasium 247 The main gym area of the Fitness Cartel business is located on the first floor (and is referred to as Zone 3), which is accessible by stairs from the ground floor. Zone 3 is a large, cavernous room which houses a multitude of gym equipment including a functional training area, deadlift/squat rack area, pin and plate loaded machine area, and the dumbbell area. Rooms leading off this main room include the Hyrox room on the western side (which is described as Zone 2), changing facilities, and consultation rooms. 125 Exhibit 129. -- 55 of 131 -- [2026] WASC 314 LUNDBERG J Page 56 248 The Fitness Cartel gymnasium uses rubberised weight plates rather than steel weight plates. The latter are used for powerlifting or Olympic style lifting, according to Ms Stroud's evidence. 249 I accept that the Fitness Cartel gymnasium does not promote Olympic style lifting at its premises, and members attending the gymnasium are not engaged in this type of activity. Olympic lifting involves lifting a barbell loaded with weight plates from the ground to the overhead position with two specific styles, being: (a) the snatch and the clean and jerk; and (b) deadlifting.126 250 The above description comes from the Gym Acoustics Guidance Report published in the United Kingdom, which I understood from the acoustic experts to be an authoritative guidance document. The report explains that the weights involved in Olympic lifting 'tend to be higher and can be lifted from the ground and dropped from above head or waist height, so often are set up on platforms.' 251 The Hyrox room is shaded green in the diagram below, being the smaller room to the western side. The main gym area is shaded in purple. The Hyrox room is located above the chiropractor business. 252 The main area, Zone 3, has a series of speakers attached to the northern wall, quite high up. The speakers run the length of the wall. The speakers provide the music for the Zone 3 area. Image 3: Zones 2 and 3 of the gymnasium (first floor) 126 ProPG: Gym Acoustics Guidance Report from March 2023 (Exhibit 8), the Gym Acoustics Guidance Report. -- 56 of 131 -- [2026] WASC 314 LUNDBERG J Page 57 253 Some further explanation of these parts of the gymnasium are appropriate at this point. 254 Starting with the Hyrox training room, it was uncontentious that Hyrox, a subject matter on which plaintiff's counsel appeared to be as knowledgeable as the witnesses, is a worldwide movement which combines an eight kilometre run with eight different workstations.127 The eight kilometres is broken down into eight one-kilometre increments, with contestants performing an exercise, then running a kilometre, then performing another exercise, and so on. It is a timed event, although to be clear the Hyrox room in the gymnasium is used solely for training purposes, not for competition. 255 Hyrox competition requires high intensity fitness training. 256 The Hyrox room enables members of the Fitness Cartel gymnasium to train for the event, with different activities available in the room. The room provides training with rope pulling activities, medicine ball exercises (or wall ball exercises), farmer's carry, a Ski Erg machine, a Row Erg machine, sled pushing, sled pulling, and sandbag walking lunges. 257 The sled is around 200 kgs and is pushed or pulled on an astro turf surface.128 258 The Ski Erg machine is a rowing machine which is upright which allows the member to pull down wires using the resistance of a circular fan around 45 centimetres in diameter.129 The machine is not bolted to the floor, such that it can be moved around. 259 The 'farmer's carry' referred to in the evidence is an exercise routine in which the member carries kettlebells in each hand and walks around, say about 200 metres in total.130 The kettlebells are around 16 to 32 kgs in weight. 260 The medicine balls, or 'wall balls', which are around 6 to 9 kgs, are used by members to throw at a target which is attached to the squat racks, with intermittent exercises in between the throwing actions.131 127 ts 200. 128 ts 202. 129 ts 203. 130 ts 204. 131 ts 204. -- 57 of 131 -- [2026] WASC 314 LUNDBERG J Page 58 261 The Row Erg machine is similar to the Ski Erg machine, save that it is on a horizontal platform. The machine is mobile and can be moved around.132 262 With the sandbag walking lunges, the member, perhaps unsurprisingly, uses a bag filled with sand, which he or she places over their shoulder, hold onto the handles of the sand bags, and then performs a lunging exercise in a walking format.133 263 So, within the Hyrox room, the members of the gymnasium will manually operate the equipment and devices therein, through lifting, carrying, pushing, and pulling the weights and equipment. 264 The Astro Turf on the floor in the Hyrox room is not padded.134 265 In the main open area, which is Zone 3, the gymnasium offers its members a dumbbell lifting area (which sits on a raised platform), a deadlift / squat rack area, pin and plate loaded machine areas, as well as an area for functional training designed for functional movement using pin-loaded and smith machines, cable machines, squat racks, wall balls and equipment similar to that which is used in the Hyrox room.135 266 The evidence was not clear as to whether all of the large weight machines are bolted to the floor,136 but the machines are sufficiently heavy as to be unlikely to be capable of being moved by a member. Some of the machines appear to be bolted and some are not. 267 I took from the evidence of Mr van der Meer, the structural engineering expert, that energy transference into the floor or slab from the use of a machine would increase if the machine was bolted to the floor and, conversely, the amount of energy transferred to the floor would be reduced if the machine simply rested on its own weight.137 268 The kettlebells are made of a lightweight metal, up to a maximum of 32 kgs. Ms Stroud testified that she had not seen members dropping kettlebells to the floor, and explained that to do so could potentially injure a member so was not advisable.138 132 ts 205. 133 ts 205. 134 ts 205 and ts 282. 135 Exhibit 216 shows several pieces of equipment within Zone 3. 136 ts 206. 137 ts 462. 138 ts 280. -- 58 of 131 -- [2026] WASC 314 LUNDBERG J Page 59 Zones 4 and 5 of the gymnasium 269 By separate stairs, customers are then able to ascend to the 'Cardio Zone' and the 'Booty Zone' which are located on the mezzanine floors (also referred to as the second floor). The 'Cardio Zone' is referred to as Zone 4 and the 'Booty Zone' is referred to as Zone 5. 270 These zones are depicted in the diagram below, with the 'Booty Zone' to the western side, above the Hyrox room, and the 'Cardio Zone' on the eastern side of the building, above the dumbbell area. Image 4: Zones 4 and 5 of the gymnasium (second floor) 271 The 'Cardio Zone' is used for cardiovascular exercise and machine-based resistance training. The gymnasium offers its members various pieces of equipment in this area, such as treadmills, cross trainers, upright and recumbent bikes, rowing machines, stair climbers and pin-loaded resisted machines. 272 The pin-loaded resistance machines operate by allowing a member to select a desired weight using a pin, so that members can perform controlled resisted exercises. 273 The 'Booty Zone' is described as a dedicated lower-body strength and conditioning area, designed to target the muscles in the area of the body which the name of the zone suggests. The equipment offered includes glute driving machines, hip abduction machines, leg press machines, plate-loaded resistance machines, cable machines and various dumbbells. All of the equipment is manually operated by members through lifting, pushing, pulling and similar movements. -- 59 of 131 -- [2026] WASC 314 LUNDBERG J Page 60 274 There is no padding beneath the floor in the 'Booty Zone' area. 275 The leg press machines which are available are not bolted to the floor and have a maximum weight usage of around 400 kgs, although the evidence did not suggest this was the average weight which would be employed by a member using the machine.139 The machines are operated by an individual with a weight that comes down on the person, and then they push that weight away. It is not advisable to let the weight go in any uncontrolled manner, given the potential impact on the person's legs.140 276 The Fitness Cartel gymnasium has incorporated specialist impact washers in the leg press machines. These are integrated rubber stoppers which cushion the carriage at the end of its travel which the business obtained from 'Technogym', which is a brand of equipment used by gymnasiums.141 277 The pin loaded machines used by the gymnasium have a maximum weight of around 120 to 140 kgs. The weights in those machines do not touch the ground. Ms Stroud further explained the operation of the equipment and machines in her evidence, which I accept, in the sense that she explained the correct manner to use the equipment and machines.142 The Merse Wellness spa 278 The spa is a separate business to the gymnasium business and is not operated or directly owned by the defendant entities. However, Mr Theng holds shares in the entity which runs the spa business, is a director of the entity, and there is an obvious connection between the businesses. It is convenient to briefly explain the spa business at this point. 279 Members of the gymnasium receive a degree of access to the spa, which is located on the ground floor. It is referred to as the 'bathhouse recovery zone' in the gymnasium membership documents. The spa is beneath the Reformer Pilates room which is located on the first floor of the gymnasium. 139 ts 206. 140 ts 206. 141 ts 274. 142 ts 275 – 277. -- 60 of 131 -- [2026] WASC 314 LUNDBERG J Page 61 280 The spa has magnesium hot tubs, ice baths, steam rooms, saunas and infrared therapy available for the members of the gymnasium. The spa opens quite early, around 5.30am and closes around 9pm on weekdays. It opens from 7am to 7pm on weekends. The spa has around 1,400 visitors each week, both members and casual customers. The bathhouse in the spa can take a maximum of 20 persons at once. 281 The arrangement of the spa business was explained by Ms Chadwick as follows:143 Just to the left of reception is a storeroom/office. Then once you go through to the entry, on our left-hand side is the bathhouse area, when in the bathhouse we have the magnesium pools, the cold plunges, the saunas, steam, and our shower area. We also have our salt cave in that area which is a smaller 2 x 1 space and then directly in front of the … walkway is our changing area. To the right of the facility is the bathrooms and then to the right along the back is where we have our rejuvenation lounge which is a quiet space where we have things, red light, compression boots and massage guns. 282 Ms Chadwick testified that she had never heard any noise or vibrations from elsewhere since she has worked in the spa (noting that she commenced in March 2026).144 Nor had she received feedback or comments from the customers about noise or vibrations. I accept her evidence in this regard. 283 Ms Chadwick described the environment of the spa as being 'quite serene'145 and offering a 'place of mindfulness' for customers. Further: … especially during the hours of our quiet mornings, which is between 5:30 am and 8.30 am, we have no talking in the facility. So that's completely silent other than if the bubbles are on in the pool and our music and yes, again, no feedback from those quiet mornings of noise. We get plenty of feedback about what other guests are doing and if they're chattering, the members will certainly tell us, but we've never had a complaint about noises from above. 284 Ms Chadwick was obviously aware of the business arrangement between the spa and the gymnasium, in the sense that around half of the spa's customers are also members of the gymnasium. However, Ms Chadwick was not familiar with Mr Theng and did not know he held an interest in the spa business or was a director of the entity which owned the business. I accept her evidence in this regard – there was no 143 ts 230. 144 ts 231 – 232. 145 ts 232 -- 61 of 131 -- [2026] WASC 314 LUNDBERG J Page 62 reason for Ms Chadwick to be familiar with the ownership and directorship structures behind the business of which she was only an employee. The construction and fit out of the Fitness Cartel gymnasium 285 Ms Stroud was able to give general evidence about the process of the construction and fit out of the Fitness Cartel gymnasium, having had involvement in these processes from around June 2025 when the space in question was vacant (or an 'empty shell' as she described it).146 286 Ms Stroud testified that the costs of the construction were around $3.6 million and described some aspects of the build including the installation of some new flooring and new beams. The particular documents tendered to show the costs did not prove up this overall figure, though. I refer to Exhibit 27, described as a schedule of leasehold improvements, which includes a cost in the vicinity of $1.4 million. In addition, there was a fit out contribution cost identified in the formal lease, which is Exhibit 17, of $855,000. As I say, these numbers do not quite add up to $3.6 million. 287 The lease identifies the yearly rental for Unit 8 as $358,080 for the 'main area' and $60,000 for the 'mezzanine area', being a total of $418,080 per year. The outgoings are $74,060 per year. 288 No direct evidence was led from the builders, engineers or designers involved in the construction and fit out of the gymnasium premises. The builders were James Barker & Sons from Gelorup in Bunbury. It is evident that before those builders commenced construction of the gym no studies were undertaken to determine the vibration effects on other occupiers within the strata complex.147 289 Ms Stroud was certainly unable to point to any such studies. 290 Ms Stroud was also unable to say whether the appointed builder had any experience building gymnasiums in a multi-level building. 291 This was despite the fact Ms du Plooy had raised with the purchasers of Unit 8 the need for the design of the Fitness Cartel Gymnasium to take account of the Hospital.148 Ms Stroud was apparently aware of Ms du Plooy's approach in this regard, but was 146 ts 254. 147 ts 303. 148 ts 129. -- 62 of 131 -- [2026] WASC 314 LUNDBERG J Page 63 unable to offer any evidence as to what steps Fitness Cartel took to ensure the construction of the gymnasium avoided interference with the Hospital.149 292 Ms Stroud was cross-examined as to whether there was any feasibility report that detailed the effect of vibration on the building and other occupants, but she was not aware of those matters. 293 Ms Stroud had no particular construction experience and had no real direct knowledge of the steps taken by the gymnasium to prevent or minimise interference in the businesses of the neighbours in the complex. Her evidence to the effect that she was under the impression that the gymnasium had taken 'substantially enough' steps in this regard, based on her experience with other facilities,150 is very general, unsupported by any documentary material, and a matter on which I will give very little weight. There is no direct evidence that any vibration or sound minimisation professionals were engaged by the gymnasium and the persons engaged by the gymnasium were in the nature of persons having gym equipment and layout experience. 294 By way of particular example, the initial installation of speakers in Zone 3 was undertaken in a manner which contributed to noise and vibration being generated through the strata complex, which was a design oversight. The issue was ultimately managed, well after construction, by reducing the volume of the speakers. 295 Overall, the evidence presented by the defendants to explain the process of construction of the gymnasium business, in the period leading up to November 2025, was sparse and lacked any cogency. In addition, as I have elsewhere indicated, the absence of certain witnesses and documentary material provides a basis for the court to draw appropriate adverse inferences in this regard. Factual findings as to the material events commencing in March 2025 296 I will now record the factual findings of the court as to the materials events which emerged from the evidence, for the period from March 2025 onwards, to the extent they are relevant to the matters in issue. 149 ts 304. 150 ts 306. -- 63 of 131 -- [2026] WASC 314 LUNDBERG J Page 64 297 We start with an email exchange in March 2025 in which senior representatives of the parties spoke to each other in optimistic terms about their role as neighbours. 298 This optimism did not survive that calendar year. Events in March 2025 299 In March 2025, Ms du Plooy informed a director of the owner of Unit 8, Mr Lai, that site vibration would be a 'big issue' for the Hospital and its surgeries.151 Ms du Plooy noted the follow points: 4. Vibration and Structural Engineering– as discussed during our first meeting on site vibration is a big issue during surgeries, Ryan explained that some work has been done to curb this which I really appreciate, can you please share the vibration studies done with me. I agree we are going to be neighbours for a long time and is hoping for a positive relationship. As I explained to Ryan our building process is more complicated and very regulated, started with the first approval in February 2024, so changing on what has been approved not an option at this late stage of construction for us and appreciate your understanding of this. 300 This email was sent in response to an email from Mr Lai which had referred to the parties getting along as 'long term neighbours'.152 301 In June 2025, the Hospital wrote to the other strata owners, informing them of the infrastructure upgrades to the premises, which the Hospital would fully fund.153 The circular letter, which was polite and constructive in its terms, refers specifically to the fire protection system upgrade. 302 The construction works for the Hospital continued in the months that followed, as did the fit-out works for the Fitness Cartel OP gymnasium, which commenced its operations in December 2025. 303 On 20 and 29 December 2025, Ms du Plooy sent text messages to Ms Stroud at Fitness Cartel regarding noise and vibration issues she was experiencing. Ms du Plooy made the following statements in her text messages:154 151 Exhibit 23 (email from Ms du Plooy to Mr Lai sent on 26 March 2025). 152 Exhibit 23 (email from Mr Lai to Ms du Plooy sent on 25 March 2025). 153 Exhibit 26. 154 Exhibit 28. -- 64 of 131 -- [2026] WASC 314 LUNDBERG J Page 65 Hi Emma don't want to be a pain but the weight being dropped is really bad right now and been going on for a while, the vibration is so bad and is going to damage our sensitive equipment thank you [text on Saturday 20 December 2025 at 2.30pm] I have light fixings falling due to the heavy vibration at this moment from the weights. Have no choice but to take this further if it don't stop immediately. We can hear the floor crack under the weight. Have to send my staff home due to the noise [text sent on Monday, 29 December 2025 at 10.21am] 304 Ms Stroud responded by text on 29 December 2025:155 Hey Carine, I'm not onsite today, but I'm more than happy to monitor and assess what may be occurring tomorrow. I'm a little unsure what you're referring to regarding the noise, as I'm consistently at the facility. Let's touch base tomorrow and discuss further once I can review this in person [text sent on Monday, 29 December 2025 at 12.05pm] 305 Ms du Plooy responded, explaining her earlier text: The noise and vibration from the weights. I will be on site Tom [meaning 'tomorrow'] [text sent on Monday, 29 December 2025 at 1.49pm] Events in January 2026 306 Ms du Plooy then sent an email to Ms Stroud on 11 January 2026 at 1.13pm as follows:156 Can you please let me know when the move of the gym and additional support as you mentioned will take place, this matter as discussed is urgent as the constant vibration is causing damage and the noise is unacceptable. I appreciate that you are trying to fix this but it is impacting our business. 307 Ms Stroud indicated by reply email that she was meeting with her business partners on 13 January 2026 and would lock in a date for the changes within the gymnasium.157 155 Exhibit 29. 156 Exhibit 31. 157 Exhibit 32. -- 65 of 131 -- [2026] WASC 314 LUNDBERG J Page 66 308 A further email was sent to Ms Stroud by Ms du Plooy on 17 January 2026, indicating that the directors of the Hospital were 'really concerned about the noise and vibration'.158 Ms du Plooy requested an update from Ms Stroud as to when Fitness Cartel 'will be moving the weights area and installing the additional padding'. Ms du Plooy states in the email that she had told the directors that Ms Stroud had 'committed to the first two weeks of January', but she observed in the email that 'the noise and vibration still the same so I assume nothing happened yet'. 309 On 20 January 2026, Ms du Plooy sent a specific email request to Ms Stroud to have the gymnasium refrain from using weights while the Department of Health undertook its next inspection. The email states: Can you please ensure nobody uses weights Thursday between 0900 and 1600. That is when Department of Health will be here. It is unfortunately vibrating badly throughout our building and can have a negative impact on your business as well. Any update on the padding and moving of weights? Events in February 2026 310 In February 2026, the Hospital commissioned an acoustic specialist firm (Herring Storer Acoustics) to undertake an acoustic review of the noise received from the gymnasium. The author of that report was not called as a witness and I need not dwell on the substance of the matters dealt with in the report, although it is evident a copy of the report was provided to Fitness Cartel OP by the Hospital at the time. 311 On 9 February 2026, a representative of Douglas Hi-Fi sent a text to Ms Stroud regarding the 'continuous noise from weights being dropped both generally over the last few weeks … but especially the last hour or so'.159 312 On 10 February 2026, correspondence was sent to the directors of the defendants, including to Ms Stroud, by the solicitors for the plaintiff.160 The letter raised the plaintiff's concerns with the noise emanating from the gym (music and impact of falling or dropped weights), which was said to exceed the regulatory requirements by a considerable margin. Further, the letter raised a concern with the 158 Exhibit 33. 159 Exhibit 35. 160 Exhibit 36. -- 66 of 131 -- [2026] WASC 314 LUNDBERG J Page 67 vibrations caused by heavier weights being dropped immediately above the Hospital (and specifically above a key treatment area). This was said to cause an unacceptable transmission of vibration. 313 The solicitors stated that both 'the noise and the vibration are antithetical to the proper administration of the hospital's activities' and asserted this conduct amounted to a common law actionable nuisance. 314 The solicitors for the plaintiff further stated: My client observes that its independent experts record that the excess in noise exceeds the regulatory noise level by 13 dB(a). This can be remedied by you adjusting and undertaking to keep adjusted the volume of music played by your music system. My client understands that you would need to reduce the volume by at least 5 dB(a). In respect to the weights area, this can be addressed by: 1. re-orientating your gym so that the heavy weights are not positioned where they are; and 2. installing an additional layer of floor matting with a thicker matting or installing plywood or a similar material of at least 15 mm thick under the existing floor matting. 315 A less than constructive response was sent by the then solicitors for the defendants on 13 February 2026.161 This resulted in draft court documents being served by the solicitors for the Hospital on 19 February 2026, and then a further (more constructive) response from the Fitness Cartel's then solicitors on 23 February 2026.162 This latter correspondence, while denying the actionable nuisance, set out further steps the gymnasium would undertake to resolve the dispute. The letter foreshadowed that: (a) Fitness Cartel shall immediately reduce the volume of the music at the leased premises by 5dB(A); (b) within 7 days from the date of this correspondence, Fitness Cartel shall finalise the procurement of, and install additional floor platforms and matting, such that the flooring upon which weight lifting activities shall be conducted will comprise of: (i) 15mm of existing rubber; (ii) a platform; and 161 Exhibit 38. 162 Exhibit 39. -- 67 of 131 -- [2026] WASC 314 LUNDBERG J Page 68 (iii) a further 20mm of rubber; (c) within 7 days from the date of Fitness Cartel attending to the matters set out at 3(a) and 3(b) above, with your client's consent, our clients shall arrange for their own acoustic assessment of your client's premises for the purposes of satisfying all of the parties that any alleged nuisance (the existence of which is, for the avoidance of doubt, denied) is addressed; and (d) further to 3(c) above, we are instructed that our clients propose that both experts attend your client's premises on the same date so that an agreed position can be reached as to the adequacy of the measures outlined at 3(a) and 3(b) above and, if required, further discussions can be had as to whether further measures are necessary. Events in March 2026 316 Around March 2026, Fitness Cartel OP commenced taking steps to acquire further equipment and materials to address the noise and vibration issues in the gymnasium, and to have its own solicitors commission their own acoustic report, from the firm Stantec.163 317 I accept that Fitness Cartel took steps during March 2026 to reduce the music being played in the gymnasium by around 5 dB. 318 The Stantec report, which is dated 30 March 2026, refers to testing being undertaken by Stantec within the Hospital between 4 March 2026 and 10 March 2026. The author of the report, Mr Benjamin Martis, reached the following conclusions from his testing: 4.1 Music noise Attended measurement results have been presented below in Table 4. Music noise was found to exceed the EPNR criteria by 8-9 dB, however, discussion on the findings is provided in Section 5. Music was found to be faintly audible (particularly low frequencies (bass) and drums) when no other noise was being generated within the Day Hospital. Air conditioning noise was noted to be significant within the room. … 163 Exhibit 41. -- 68 of 131 -- [2026] WASC 314 LUNDBERG J Page 69 4.2 Weight dropping noise The overall unattended noise logging results have been provided in Appendix A. A sample selection of worst-case LASmax measurements have been summarised in Table 5, and assessed to determine compliance with the relevant criteria. This does not represent the complete list of recorded weight dropping events. Weight dropping events were confirmed by listening to recorded audio and in some cases cross-referenced against CCTV footage from the gym, provided by Fitness Cartel. One-second noise data was assessed for impulsiveness, as defined by the EPNR. All weight dropping events were found to be impulsive at the receiving location. At least one high noise event was found to be due to extraneous noise, such as a vacuum cleaner within the Hospital. The worst-case weight dropping events were found to exceed the EPNR criteria by 5-15dB. Discussion on the findings is provided in Section 5. 319 The reference to EPNR is a reference to the Noise Regulations. Mr Martis measured the noise exceedance to be 9 dB above the assigned criterion in the Noise Regulations. 320 In broad terms, Mr Martis agreed with the recommendation which had been made by the acoustic specialists engaged by the Hospital (referred to as the 'HSA Report'), to reduce the music in the gymnasium by 4 dB to 5 dB. 321 As to the dropping of weights, Mr Martis concluded in his report that: After the HSA Report, Fitness Cartel installed additional rubber matting on top of the existing rubber matting in the squat rack area. Despite this, the worst-case weight dropping events measured by Stantec were found to be more significant than previously measured (5-15 dB exceedance compared to 0-8 dB). Stantec confirmed that weight dropping can occur throughout the gym tenancy. It was found through review of CCTV footage and noise data that even weights dropping onto the floor in the HIIT training room at the front of the tenancy can transfer significant noise across the concrete floor slab and into the Perth Day Hospital below. 322 Mr Martis then proposed several recommendations for consideration by Fitness Cartel: -- 69 of 131 -- [2026] WASC 314 LUNDBERG J Page 70 • We agree with the HSA recommendation to consult with a specialist isolation supplier for flooring upgrades to reduce impact noise. Consideration should also be given to vibration sensitive equipment or procedures within the Day Hospital. • Areas or activities such as dead-lifting or kettle bell throws would likely also require dedicated isolation platforms. • No weight dropping should occur directly on to the concrete floor slab. Consider provision of clear signage indicating that the dropping of free weights is unacceptable. • To mitigate amenity impact, consider encouraging heavy weight sessions to occur outside of the Day Hospital operating hours, for example on weekends. 323 The author of the Stantec report did not give evidence at trial. Events in April 2026 324 The court has received in evidence, by consent, the diary notes taken by several Hospital staff members, recording their experiences of noises and vibrations within the Hospital on: (a) Friday, 17 April 2026; (b) Monday, 20 April 2026; (c) Tuesday, 21 April 2026; (d) Wednesday, 22 April 2026; and (e) Thursday, 23 April 2026.164 325 The diary notes have been annotated to reflect the names of the authors, who are identified as three administrative officers of the Hospital. The authors were not called to testify at trial. 326 The diary notes were taken prior to any injunction imposed by the court, and prior to the flooring improvements being taken by the defendants within the gymnasium business. The diary notes also relate to a period before the Hospital had commenced treating patients. The notes were taken at the same time as the vibration monitoring was being undertaken by Mr Warpenius, which I will describe below. 164 Exhibits 47, 48, 49, 50 and 51. -- 70 of 131 -- [2026] WASC 314 LUNDBERG J Page 71 327 The diary notes are thorough and, on their face, record the experiences of the author as to sounds or vibrations they heard of felt. On occasions, the authors experienced around 16 events during an hour, on some occasions six events, with the pattern being inconsistent. 328 The sounds or vibrations are variously described in the diary entries using the following terms, although the descriptions are varied: (a) 'bang' (or 'bong'); (b) 'drop'; (c) 'vibration floor'; (d) 'many little drops'; (e) 'weight movement'; (f) 'bang vibration'; (g) 'bang (loud)'; (h) 'bang, bang, bang (v)'; (i) 'bang, bang, bang, bang '; (j) 'drop x 5 (v)'; (k) 'movement'; (l) 'constant banging'; and (m) 'bang x 6 (medicine ball)'. 329 In the absence of the authors giving evidence to explain the diary notes, it is difficult for the court to obtain a comprehensive impression of the magnitude or severity of the events which are noted. What can be said is this: (a) The court does not doubt the authenticity or genuineness of the entries. There was no suggestion to the contrary. (b) Further, on their face, the diary entries reflect a consistent series of events experienced by the administrative staff of the Hospital, over a five day period, by which they personally observed sounds or vibrations emanating from a location other -- 71 of 131 -- [2026] WASC 314 LUNDBERG J Page 72 than the Hospital itself. That is, it may be inferred that the staff perceived that the events did not emanate from the Hospital itself. (c) So, collectively, the diary entries record there was a consistent impact heard and felt within the Hospital by the staff between 17 and 23 April 2026, caused by the activities within the gymnasium. 330 Commencing on 16 April 2026, Mr Warpenius undertook vibration monitoring at the Hospital. 331 On 27 May 2026, Mr Warpenius provided his first report to the plaintiff containing the findings from his April testing.165 Mr Warpenius explained in the report that he had been commissioned by the plaintiff to conduct vibration monitoring at the Hospital, which he undertook over a week commencing on Thursday, 16 April 2026. During the monitoring, the Hospital was isolated so that staff were prevented from accessing the rooms in which monitoring was being conducted. 332 Mr Warpenius undertook monitoring work in three locations (which are show in one of the figures in Attachment B): (a) the Director of Nursing's office; (b) the recovery area; and (c) one of the operating theatres. 333 In summary, Mr Warpenius found 87 vibration exceedances over four monitored weekdays, which he attributed to gymnasium activity, and he concluded that vibration levels were excessive in all three monitored spaces. 334 Mr Warpenius' report is very thorough, and I accept he undertook the vibration recording in an appropriate manner, using appropriate vibration recording equipment, and by reference to the applicable standard (save for the use of the intermittent criterion). 335 The defendants submitted that this testing 'took place under conditions entirely controlled by the Hospital' and was correlated with the subjective diary entries recorded by the Hospital staff to which I 165 Exhibit 60. -- 72 of 131 -- [2026] WASC 314 LUNDBERG J Page 73 have earlier referred.166 Nonetheless, I do not consider this weakens the conclusions he reached, and which are supported in his report. 336 Mr Warpenius used the vibration criteria within AS2670.2 - 1990, which based on a reference curve with a specific multiplier for various spaces within the Hospital, depending on the sensitivity which is appropriate. 337 In the operating theatre and the recovery area, Mr Warpenius assessed the results against sensitive-use criterion, being Curve 1 and Curve 1.4 respectively under AS 2670.2 - 1990. In the Director of Nursing's office, Mr Warpenius assessed the results against the more lenient Curve 4 criterion, with maximum recorded levels reaching Curve 20, which he regarded as being unacceptable even for a workshop. 338 Mr Warpenius concluded that the results he recorded show the floor vibration was induced by activity external to the Hospital itself. 339 Mr Warpenius expressed his conclusions as follows: • Multiple daily instances of excessive vibration were measured at all three monitoring locations • The maximum measured vibration on the operating theatre floor is excessive and is more appropriate for an office space, not for the sensitive activities within the operating theatre. • The maximum measured vibration on the recovery area floor is excessive and is more appropriate for an industrial workshop, not for an area where patients are recovering. • The maximum measured vibration on the Director of Nursing office floor is excessive, even if it were an industrial workshop, let alone for general activities within offices 340 Based on his findings Mr Warpenius concluded that the floor vibrations 'unacceptably interfered with the hospital operations and activities'.167 341 As addressed later, it must be recognised that Mr Warpenius' conclusions are based on his use of the intermittent criterion under the standards. In my view, the more appropriate approach, in the present circumstances, is to apply the transient criterion favoured by Mr Khan. 166 Defendants' closing submissions [56] – [57]. 167 Exhibit 60, p 13. -- 73 of 131 -- [2026] WASC 314 LUNDBERG J Page 74 Events in May 2026 342 The court heard evidence as to the remedial steps taken by the gymnasium in response to the complaints from the Hospital, which were predominantly implemented in May 2026. The evidence was largely led from Ms Stroud. 343 I do not accept that all of this remedial work, which was mostly additional flooring improvements, was undertaken as a rushed response to the Stantec report, as submitted by the plaintiff. Some of the steps were initiated before the results of the Stantec report were received. 344 Nonetheless, the remedial measures were not initiated prior to March 2026 and were only pursued by the defendants following the rising temperature of complaints from the Hospital, from Ms du Plooy, and from the Hospital's solicitors. 345 The cost of the flooring improvements was around $40,000, excluding the costs of labour for which there was no specific invoice, noting that employees contributed the labour costs.168 Several invoices from the equipment suppliers were tendered in evidence, which record the purchase and installation of the additional flooring materials and vibration pads.169 346 In summary, the remedial flooring work which was undertaken (and installed in May 2026) included the following:170 (a) in the dumbbell area in Zone 3, which is above the gyms' offices, and in the deadlift area, the original flooring was supplemented with a 20mm layer, then vibration pads, plywood, and a further 50mm rubber tile layer; (b) in the Hyrox room, the original 8mm rubber layer was supplemented with a 60mm rubber tile layer with vibration- reducing nodules. 347 The defendants, through Ms Stroud, presented some images to show the original flooring in each zone (dumbbell zone, deadlift zone, and the Hyrox room), and the remedial work undertaken.171 The images were explained as being AI-generated.172 In those 168 ts 293. 169 Exhibits 42, 43, 44 and 45. 170 ts 292. 171 Exhibits 121 – 126. 172 ts 291. -- 74 of 131 -- [2026] WASC 314 LUNDBERG J Page 75 circumstances, the court can give very little weight to these documents as being accurate representations of the flooring work which was in fact undertaken. 348 The gymnasium also placed signs up within the premises, including on the Hyrox room door from April 2026, as an exhortation to its members to refrain from dropping weights.173 An example of the sign appears in Attachment B. 349 The defendants explained all of the above matters as steps taken by the third defendant 'to lessen any noise and vibration caused by the dropping of weights on the floor', and was described as involving the 'purchasing, and installing in March and May 2026, additional layers of rubberised and plywood flooring above the existing flooring in those areas of the Gym'.174 350 I accept the additional flooring was installed in March 2026 and in May 2026. 351 These are accurate statements which accord with the evidence, but it must be said the steps taken were not overly sophisticated and little technical evidence was led to explain the remedial steps. 352 On 29 May 2026, following receipt of the report prepared by Mr Warpenius, the plaintiff filed these proceedings, seeking urgent injunctive relief. Events in June 2026 353 On 2 June 2026, the court granted an interlocutory injunction in favour of the plaintiff. I have set out the terms of the injunction earlier in these reasons. 354 The acoustic experts undertook further noise and vibration recording work in June 2026, which I will address later in these reasons. Events in July 2026 355 The trial of the action commenced on 13 July 2026. On Saturday, 11 July 2026, both Dr Xu and Ms du Plooy attended at the Hospital together. 173 Exhibit 130. 174 Defendants' closing submissions [50]. -- 75 of 131 -- [2026] WASC 314 LUNDBERG J Page 76 356 In the course of their evidence, both Dr Xu and Ms du Plooy testified as to their impressions of the vibrations they experienced when in the Hospital, both using the term 'bombs' to signify the impact they felt. 357 Dr Xu testified that he would not call the impacts 'vibrations' but would describe them as 'being bombs dropped'.175 He regarded the impact as distressing. Ms du Plooy described the impact as 'very loud' and 'more like bombs being dropped'.176 Ms du Plooy was not present in court when Dr Xu testified and rejected any notion that she discussed her evidence with him when they were together at the Hospital on the Saturday before trial. 358 There is no reason for the court to conclude these witnesses somehow improperly discussed the evidence they would give on this issue. The reality is, as Ms du Plooy explained in cross-examination, that she and Dr Xu had been talking about the issue as 'bombs for a long time'. That is quite understandable, in a small office environment where the vibration and noise issue has been a constant issue, at least for the Hospital, for many months. That they would refer to the dropping of weights using a hyperbolic reference such as this (i.e. 'bombs dropping') is explicable in these circumstances. 359 Ms du Plooy also described the impacts she experienced, at earlier points in time, as being very loud in the morning, and more 'like bangs later on', and then its loud again later in the day.177 She testified it was 'way louder in the morning and lunchtimes and in the afternoons'. On particulars Sundays when at the Hospital, Ms du Plooy described the impact as 'very loud'.178 Her evidence was to the effect that she experienced loud noises and vibrations on most days, with most of the impact being on the weekends. The absence of certain witnesses and documentary material The nature of adverse inferences 360 During the course of the trial, submissions were advanced by both counsel concerning the implications arising from the absence of certain witnesses and the failure to produce certain documentary material. In 175 ts 70. 176 ts 139. 177 ts 138 – 139. 178 ts 139. -- 76 of 131 -- [2026] WASC 314 LUNDBERG J Page 77 closing submissions, both counsel invited the court to draw the adverse inferences identified in Jones v Dunkel179 and Blatch v Archer.180 361 Drawing such inferences is not mandatory. 362 The rule in Jones v Dunkel permits an inference to be drawn that the evidence of the witness would not have assisted the party – not that the evidence would have been adverse to the party. The rule also operates to enable an unfavourable inference to be drawn more comfortably where the uncalled witness appears to be in a position to cast light on whether the inference should be drawn.181 363 As explained by the Court of Appeal, the rule in Jones v Dunkel is accepted to be an application of the maxim that evidence is to be weighed according to the proof which it was within the power of one side to have produced, and in the power of the other to have contradicted.182 The Jones v Dunkel inference is an aspect of the wider inference (and maxim) identified by Lord Mansfield in Blatch v Archer. This maxim bears upon the appropriateness of deciding whether a fact has been proved when only limited evidence is available. 364 Further, it has been held that, where the evidence relied upon by a party bearing the onus of proof does not itself clearly discharge the onus, the failure by that party to call or give evidence that could cast light on a matter in dispute is relevant to determining whether the onus has been discharged.183 365 More fundamentally, the following observations of the plurality in the High Court in Australian Securities and Investments Commission v Hellicar184 should be noted in this analysis: [165] Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the 179 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. 180 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969, 970. 181 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [63]; Knell v QAV Pty Ltd [2020] WASCA 23 [96] - [97]. 182 Knell v QAV [97]. 183 Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 [81]. 184 Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345. -- 77 of 131 -- [2026] WASC 314 LUNDBERG J Page 78 circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles which do not permit the course taken by the Court of Appeal of discounting the cogency of the evidence tendered by ASIC. [166] Lord Mansfield's dictum in Blatch v Archer that “[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted” is not to be understood as countenancing any departure from any of these rules. Indeed, in Blatch v Archer itself, Lord Mansfield concluded that the maxim was not engaged for “it would have been very improper to have called” the person whose account of events was not available to the court. (footnotes omitted) Inferences adverse to the plaintiff's case 366 So far as concerns the plaintiff's case, the plaintiff initially indicated that it would call Mr Mark Hyland to give evidence. A witness outline was filed as to his proposed evidence, but he was ultimately not called. Mr Hyland is the Manager of the business 'Douglas Hi-Fi', which conducts its business from Unit 7 at the Site. Unit 7 is located on the ground floor of the building, beneath the chiropractor business. Douglas Hi-Fi is a specialist retailer of home entertainment and audio-visual equipment. 367 The failure to call Mr Hyland was noted by the defendants in their closing address, there being a submission that a Jones v Dunkel inference should be made that his evidence would not have assisted the plaintiff's cause.185 368 I accept the defendants' submission that an adverse inference should be drawn in the present circumstances. 369 In reaching this view, I recognise that counsel for the plaintiff indicated, by way of explanation for not calling Mr Hyland, that he was seeking to narrow down the volume of evidence at trial.186 However, Mr Hyland's evidence was not likely to be lengthy, so this is not an overly compelling explanation. 370 I also recognise that the plaintiff tendered a text message from personnel at Douglas Hi-Fi, sent to Ms Stroud of Fitness Cartel OP, 185 ts 502. 186 ts 105 and ts 507. -- 78 of 131 -- [2026] WASC 314 LUNDBERG J Page 79 raising a contemporaneous complaint about the dropping of weights.187 There is thus evidence before the court of a noise complaint from Douglas Hi-Fi. In substance, that text message recorded a complaint made by the Douglas Hi-Fi business on 9 February 2026 that there had been 'continuous noise from weights being dropped both generally over the last few weeks … but especially the last hour or so'. Ms Stroud ultimately accepted in her evidence that this text message was received from Douglas Hi-Fi.188 371 The receipt of the text message in evidence does not provide a proper explanation for the absence of Mr Hyland, in circumstances in which a detailed witness outline had been earlier filed setting out his proposed evidence. That evidence was intended to cover the impact on the Douglas Hi-Fi business for the period both prior to the injunction and after it had been imposed. 372 Although Mr Hyland is not affiliated with the Hospital, Mr Hyland's witness outline indicates that he was in a position to cast light on the matters concerning the noise and vibrations from the gymnasium business from January 2026 onwards. I will draw the inference that his evidence as to the impact of the gymnasium business would not have assisted the plaintiffs, recognising however that the court has at least some evidence from February by way of a text message that, at that point in time, the Douglas Hi-Fi business was experiencing noise from the dropping of weights. The noise was of at least a sufficient magnitude to prompt a person at Douglas Hi-Fi to raise a complaint by way of text message. 373 The inference to be drawn is not an inference that Mr Hyland's evidence would have been positively damaging to the plaintiff's case. The inference based on the principle in Jones v Dunkel does not go that far and it would be wrong to use his absence in this way. Inferences adverse to the defendants' case 374 As to the defendants' case, the deficiencies identified by counsel for the plaintiff were more wide ranging. 375 Counsel observed that Mr Theng was not called by the defendants to give evidence. In all the circumstances, given the central role he played for Fitness Cartel OP, and his position as the sole director of the first and third defendants, the court would reasonably have expected 187 Exhibit 35. 188 ts 320. -- 79 of 131 -- [2026] WASC 314 LUNDBERG J Page 80 that he be called. Mr Theng was present at the Site when the court conducted the view on 13 July 2026 and was present in the public gallery of the court during trial. The plaintiff invites the court to draw an adverse inference by reason of the unexplained failure by the defendants to call him.189 376 I recognise that the defendants called Ms Stroud to give evidence, and she was knowledgeable about a range of matters relevant to the proceedings, but the evidence reveals that Mr Theng was actively involved in the issues which have generated this dispute and, as the director of the entities, he was in a good position to cast light on many of those issues. Ms Stroud's evidence was also very generalised in several respects and there were gaps in her knowledge of matters. 377 I agree it is appropriate to draw the inference, specifically to the effect that Mr Theng's evidence would not have assisted the defendants as to the planning and design work undertaken by Fitness Cartel OP, including the manner of engagement of consultants, to address the potential impacts of its business on the Hospital. 378 Mr Theng's absence from the witness box was not the only omission from the defendants' witness line up to which plaintiff's counsel drew attention.190 Counsel emphasised that the defendants had failed to call the following persons without proper explanation. 379 First, no representative from James Barker & Sons was called, such as Mr Harnett or Mr Barker. James Barker & Sons is the company which was engaged to undertake the demolition and construction work for this gymnasium business.191 380 Second, no representatives was called from the engineering firm which was engaged by Fitness Cartel OP to provide it with advice concerning vibration solutions, referred to as 'Embleton'.192 381 Third, no personnel from the business referred to by Ms Stroud as 'Flex Equipment' was called to testify.193 That business was said to be an equipment supplier, which supplied the material installed by Fitness Cartel OP to address noise and vibration issues. 189 ts 474, 480, 507. 190 ts 474. 191 ts 303 – 304. 192 ts 321 – 322. 193 ts 321 – 322. -- 80 of 131 -- [2026] WASC 314 LUNDBERG J Page 81 382 There was no suggestion these persons were unavailable to give evidence. The work undertaken by these businesses, or the equipment and advice they supplied, was recently undertaken or supplied. The evidence is not historical in nature. 383 Allowing for the reality that an expedited trial may mean a litigant has less opportunity to present a fulsome case, and to take steps to marshal the evidence of all relevant witnesses, it was particularly evident at trial that the absence of the above persons, and indeed the absence of contemporaneous documentary material from them to cast light on the quality of the work or advice undertaken, meant there was a lacuna in the evidence. This gap in the evidence is important when one recognises the defendants carry the onus of demonstrating the gymnasium business on their land was being 'conveniently done', to use the well-established phrase which governs the second element of the tort. 384 The absence of the above personnel, without proper explanation, justifies the drawing of the adverse inference in my view, that their evidence would not have assisted the defendants on the issue whether their use of the land was being 'conveniently done'. 385 Further, counsel for the plaintiff drew attention to the absence of supporting documentary information from James Barker & Sons, from Embleton and from Flex Equipment, which may have cast light on the work undertaken and equipment supplied by these businesses. The plaintiff also criticised the lack of documentary financial information to support the claims by the defendants that it had suffered a significant loss of income and great financial detriment arising from the injunction and the restraints on their business. 386 There is considerable force in the submissions made by counsel and the criticisms directed at the lack of corroborative documentary material from the defendants' camp. 387 On occasions, the defendants made reference to the expedited nature of the proceedings as an explanation for the absence of certain evidence (and witnesses) in support of their position. The trial of the action was certainly brought on in an expedited fashion, given the nature of the relief sought and following the grant of an interlocutory injunction. 388 In my view, the expedited nature of the proceedings does not operate as a complete panacea to excuse the defendants from the failure -- 81 of 131 -- [2026] WASC 314 LUNDBERG J Page 82 to produce this documentary material, or to call the witnesses in question. I say that for these reasons. 389 First, although the proceedings were commenced in late May 2026 and the trial dates were set down from early June, the defendants were on notice of the claims much earlier. The solicitors for the plaintiff had written to the defendants as early as 10 February 2026.194 That letter raised the spectre of proceedings being commenced in this court. More than this, those solicitors had served draft court documents at an early juncture, as is apparent from the responsive letter from Thomson Geer, the then solicitors for the defendants, which was sent on 23 February 2026.195 390 The defendants were thus aware, or ought to have been aware, that litigation was on the horizon. 391 The defendants, and those who control them, who had access to legal advice from an early point, had the opportunity to gather documentation to support their response to the plaintiff's claim. The presence of this opportunity must be taken into account in assessing the absence of documentary material at trial, and the failure to call witnesses. 392 Second, the documentary material in question is not of some antiquity nor likely to be outside the control of the defendants. I would expect the defendants to be able to produce some financial information showing the effects of the injunction on the gym, being contemporary information likely to be contained on a database or accounting software system. As for the construction material, I observe the gymnasium was only recently constructed and the additional mitigating steps were undertaken in 2026. So, I would not draw the inference that the documentary material was difficult or costly to obtain and produce in the proceedings. 393 Third, to the extent to which any witnesses were out of the jurisdiction, it would have been possible to have them give evidence by video link. Indeed, the defendants called Ms Stroud to testify by video link, even though she was in Spain at the time she testified. 394 The absence of documentary material which one might reasonably expect a party to produce enables the court, in a proper case, to draw 194 Exhibit 36 (Letter from Bennett to the defendants dated 10 February 2026). 195 Exhibit 39 (Letter from Thomson Geer to Bennett dated 23 February 2026, referring to the draft court documents served on 19 February 2026). -- 82 of 131 -- [2026] WASC 314 LUNDBERG J Page 83 inferences against that party. Documentary material as to the defendants' financial position and concerning the building process for the gym is information one would reasonably expect to be available to a party and reasonably expect that party to be able to produce. The failure to produce the material enables the court to draw the inference that the material would not have assisted the party.196 I would draw the inference that this material would not have assisted the defendants' cause. 395 That said, I accept the gymnasium business will have lost income and suffered financially from the restraints imposed. The evidence supports that finding, particularly the testimony of Ms Stroud.197 However, what is important is that the defendants did not produce any documentary material to enable the quantum or extent of these losses to be tested by the plaintiff, or to be quantified in any sensible way. The defendants' contention that the injunction has 'decimated' the gym business simply cannot be sustained in the absence of supporting materials.198 The EP Act and the Noise Regulations 396 The plaintiff's claim, and the relief sought, make reference to the Environmental Protection Act 1986 (WA) (EP Act) and the Noise Regulations prescribed under that legislation. The legislative framework did not attract much attention during the trial, however. 397 A useful summary of the EP Act and the Noise Regulations can be found in the Court of Appeal's decision in Ammon v Colonial Leisure Group Pty Ltd. The following draws on that summary. 398 The EP Act creates various offences which may be committed by the emission of noise from premises in excess of a standard prescribed by regulations. The Noise Regulations do not themselves create an offence, but rather operate to define the circumstances when an offence may be committed under the EP Act. 399 The Noise Regulations exclude certain kinds of noise emission from the standards they prescribe, and provide for the Minister to approve the emission of noise above the prescribed levels where the premises cannot reasonably or practicably comply with the prescribed standard. 196 Jones v Dunkel (1959) 101 CLR 298; Blatch v Archer (1774) 1 Cowp 63; 98 ER 969. 197 ts 295. 198 Defendants' closing submissions [182]. -- 83 of 131 -- [2026] WASC 314 LUNDBERG J Page 84 400 Section 79(1) of the EP Act specifically with noise emissions and provides that a 'person who on any premises ... emits or causes or allows to be emitted unreasonable noise from those premises commits an offence'. 401 Section 3(3)(c) of the EP Act provides, relevantly, that for the purposes of the EP Act, noise is taken to be unreasonable if it is prescribed to be unreasonable for the purposes of the Act. Further, s 51(a) of the EP Act provides that the occupier of premises who does not comply with any prescribed standard for an emission from those premises commits an offence. Under s 3(1), an 'emission' includes an emission of noise. 402 Turning then to the Noise Regulations, pt 2 is headed 'Allowable noise emissions', and contains prescribed standards for noise emissions. 403 The prescribed standards in reg 7 are prescribed for the purposes of s 51, s 59(1)(i), s 60(3)(a), s 62(3), s 65 and s 74A of the EP Act (see reg 4(1)). By reg 4(2), an emission of noise otherwise than in accordance with reg 7 is a prescribed alteration of the environment for the purposes of par (c) of the definition of 'pollution' in s 3A(1) of the EP Act. 404 Regulation 5 provides: 5. Unreasonable noise (1) Without limiting section 3(3)(a) of the Act and subject to subregulation (2), noise emitted in contravention of a standard prescribed under regulation 7 or 11 is to be taken to be unreasonable. (2) Noise is not to be taken to be unreasonable under subregulation (1) if the person causing the noise emission shows that — (a) by virtue of regulation 12, 13, 14A, 14, 15, 16AA(9), 16BA(9) or 16(3), regulation 7 does not apply to the noise emitted; or (b) the noise is emitted in accordance with an approval granted under regulation 18B, 18 or 19B. 405 Regulation 7 provides: 7. Prescribed standard for noise emissions -- 84 of 131 -- [2026] WASC 314 LUNDBERG J Page 85 (1) Noise emitted from any premises or public place when received at other premises — (a) must not cause, or significantly contribute to, a level of noise which exceeds the assigned level in respect of noise received at premises of that kind; and (b) must be free of — (i) tonality; and (ii) impulsiveness; and (iii) modulation, when assessed under regulation 9. (2) For the purposes of subregulation (1)(a), a noise emission is taken to significantly contribute to a level of noise if the noise emission as determined under subregulation (3) exceeds a value which is 5 dB below the assigned level at the point of reception. (3) A level of a noise emission may be determined by — (a) measurement at its point of reception when, to the extent practicable, other noises that would contribute to the measured noise level are not present; or (b) calculation of the level at its point of reception based on measurement of the noise emission at a reference point determined by the inspector or authorised person to be a point where the relationship between the noise emission as measured at the reference point and at the point of reception can be established. 406 Regulation 8 is headed 'Assigned levels'. By reg 8(3), the assigned level for all premises is to be determined by reference to the table incorporated into the regulations (being Table 1), which I have extracted below for convenience: -- 85 of 131 -- [2026] WASC 314 LUNDBERG J Page 86 Table 1 407 While having some general relevance to the present case, particularly in terms of the framing of the relief, I accept that the statutory standards are not determinative when deciding if interference is substantial and unreasonable in the present context. The defendants' submission in this regard should be accepted, and accords with the approach adopted by the Court of Appeal in Ammon v Colonial Leisure Group Pty Ltd.199 408 As the Court of Appeal explained, the Noise Regulations are intended to apply generally throughout the community and provide a legislative response of general application to a range of competing considerations in relation to noise emissions. The definitions in the Noise Regulations have application to the statutory regime, and do not provide for, or control, what is to be unreasonable noise for other purposes. 199 Ammon v Colonial Leisure Group Pty Ltd [131] – [133]. Type of premises receiving noise Time of day Assigned level (dB) LA 10 LA 1 LA max Noise sensitive premises: highly sensitive area 0700 to 1900 hours Monday to Saturday 45 + influencing factor 55 + influencing factor 65 + influencing factor 0900 to 1900 hours Sunday and public holidays 40 + influencing factor 50 + influencing factor 65 + influencing factor 1900 to 2200 hours all days 40 + influencing factor 50 + influencing factor 55 + influencing factor 2200 hours on any day to 0700 hours Monday to Saturday and 0900 hours Sunday and public holidays 35 + influencing factor 45 + influencing factor 55 + influencing factor Noise sensitive premises: any area other than highly sensitive area All hours 60 75 80 Commercial premises All hours 60 75 80 Industrial and utility premises other than those in the Kwinana Industrial Area All hours 65 80 90 Industrial and utility premises in the Kwinana Industrial Area All hours 75 85 90 -- 86 of 131 -- [2026] WASC 314 LUNDBERG J Page 87 409 In contrast, an action for private nuisance has, as its focus, the particular circumstances of this case in a particular locality, to which the common law provides its own standard.200 Exceeding noise levels assigned by the Regulations, while relevant, is not to be equated with a substantial and unreasonable interference under the law of nuisance.201 410 Similarly, whether a party has planning permission under the applicable town planning legislation will not be determinative of the issue in a private nuisance action. To some extent, it may play a limited evidentiary role in identifying the reasonable expectations of the locality, as explained in Hunt Leather.202 Expert evidence – acoustic and vibration experts Overview 411 The acoustic and vibration experts disagreed on a range of matters in their reports and when giving evidence. Both experts are appropriately qualified to give expert evidence on matters concerning acoustics and vibration, and there was no specific challenge to either of the experts' qualifications in this regard. Both experts prepared thorough and reasoned reports for the court addressing the results of their testing, and expressing their conclusions in clear terms.203 412 The experts prepared a joint expert report as well, following their conference,204 which included a further note prepared by Mr Warpenius which addressed a number of matters including an unidentified vibration in 'Operating Theatre 4' on 28 June 2026. Vibration criteria 413 Before I address the conclusions of the experts, there is a preliminary issue to deal with. Both experts assessed the vibrations using the vibration criteria for buildings indicated in AS 2670.2 – 1990. Mr Khan explained these criteria as follows:205 The vibration criteria are presented as one-third octave, root-mean- squared (RMS) acceleration and velocity base curves. The concept of base-curves has been used to assess human comfort. A base-curve (or line) marks the threshold of human perception. The base-curves for 200 Ammon v Colonial Leisure Group Pty Ltd [131]. 201 Ammon v Colonial Leisure Group Pty Ltd [132]. 202 Hunt Leather [110]. 203 Exhibit 109 (second report of Mr Warpenius) and Exhibit 221 (report of Mr Khan). 204 Exhibit 220. 205 Exhibit 221, p 5. -- 87 of 131 -- [2026] WASC 314 LUNDBERG J Page 88 vibration velocity in the horizontal and vertical direction are shown in Figure 1. Base-curves are defined in one- third octave bands from 1 Hz to 80 Hz and vibration below the base curves cannot be felt by the majority of receivers. The standard notes the following; the multiplication factors provided in Table 4 leads to magnitudes of vibration below which the probability of reaction is low. 414 Mr Khan further explained that the vibration criteria for different occupancy types are obtained by multiplying the base curves by a multiplying factor. The multiplication factor will depend on whether the vibration is classified as continuous, intermittent or transient. 415 The multiplication factors set out in AS 2670.2 – 1990, as extracted in Mr Khan's report, are included in these reasons below (together with a summary of the notes which appear in the standard itself, but not including 'workshops'):206 416 Mr Khan assessed the vibrations as falling with the transient criterion, whilst Mr Warpenius preferred the view the vibrations were intermittent. The experts were both cross-examined on this issue. 417 On my assessment, Mr Khan's assessment better accords with the language of the standard. Mr Khan noted that AS 2670.2 – 1990 expressly acknowledges the difficulty in determining the vibration being transient or intermittent and provides description of each of the 206 Exhibit 221, p 6. See the Australian Standard at Exhibit 2. -- 88 of 131 -- [2026] WASC 314 LUNDBERG J Page 89 types of vibration to accurately classify the type of vibration so the criteria can be applied appropriately. He set out the criteria in this report, as follows: ▪ Transient Vibration – Transient vibration (sometimes called impulsive) vibration is defined as a rapid build-up to a peak, followed by a damped decay which may or may not involve several cycles of vibration (depending on frequency and damping). It can also consist of several cycles at approximately the same amplitude, providing that the duration is short (i.e. less than 2 seconds). ▪ Intermittent Vibration – Intermittent vibration is a string of vibration incidents, each of short duration, separated by intervals of much lower vibration magnitudes. Intermittent vibration may originate from impulse sources (for example pile drivers and forging presses) or repetitive sources (for example pavement breakers) or sources which operate intermittently, but which would produce continuous vibration if operated continuously (for example intermittent machinery, lifts, railway trains and traffic passing by). ▪ Continuous Vibration - continuous vibration is vibration which remains uninterrupted over a time period under consideration. 418 Mr Khan described the relevant activities undertaken within the gym as including the handling and occasional dropping of free weights and dumbbells, which he considered generated impulsive vibration events. He described these events as being characterised by 'short - duration, high-amplitude vibration responses that dissipate rapidly, typically within a period of less than two seconds'.207 419 He then concluded that:208 Having considered the definitions contained within AS 2670 … and experience gained from the assessment of similar facilities, the vibration generated by gym activities is appropriately classified as transient vibration. Assessment of vibration impacts should be undertaken using the AS 2670.2 multiplying factors applicable to transient vibration excitation with several occurrences per day. 420 In contrast, Mr Warpenius preferred the conclusion that multiple vibrations, perhaps one or two second in nature, over an extended period, should be characterised as intermittent vibrations.209 His 207 Exhibit 221, p 7. 208 Exhibit 221, p 7. 209 ts 414. -- 89 of 131 -- [2026] WASC 314 LUNDBERG J Page 90 conclusion in this regard was influenced by his approach to the April testing and the observations he made then. That approach is not persuasive. 421 In my view, the transient criterion is more apt to describe the vibrations emanating from the gymnasium. These are a rapid build-up to a peak, followed by a damped decay, which may or may not involve cycles of vibrations thereafter, as indicated in the definition in the standard. The standard offers the examples of pile drivers or forging presses for the intermittent descriptor, which do not seem equivalent to the vibrations coming from the gymnasium. 422 The conclusion reached by Mr Khan also accords with the descriptor given to weight impacts by the authors of the authoritative Gym Acoustics Guidance Report.210 The portion of that report which describes weight impacts as transient or impulsive does so in the context of a discussion of the British standard which appears to be similar in effect to AS 2670.2 – 1990. Mr Warpenius' opinions 423 As earlier noted, Mr Warpenius undertook vibration testing prior to the litigation, and prior to the injunction being imposed, in April 2026. He undertook additional testing at the Hospital on 20 June 2026, 21 June 2026, 22 June 2026, 27 June 2026 and 28 June 2026.211 This additional testing was undertaken in the offices, the recovery room and in the four operating theatres. So, his measurements in June 2026 were taken in more rooms than the testing in April 2026. 424 Mr Warpenius recorded only 15 vibration exceedances over the four days of testing in June 2026, compared with 87 over four days in April 2026. The maximum measured vibration was up to four times the applicable criterion (being 400 μm/s rms against a 100 μm/s rms criterion in Operating Theatre 2 on 21 June 2026). 425 Mr Warpenius' opinion is that the June 2026 testing results do not contradict, and are consistent with, the original conclusions he obtained in April 2026. He explains that the maximum exceedance factor (approximately 4 times) was similar across both periods, 210 Exhibit 8, p 20. 211 He corrected the dates which appear in his report at Exhibit 109. -- 90 of 131 -- [2026] WASC 314 LUNDBERG J Page 91 notwithstanding fewer discrete exceedances were captured in the shorter June testing windows. He stated as follows in his report:212 The earlier testing revealed exceedances of between 2 and 13 occurrences per day. The June testing revealed a total of ten exceedances over two consecutive days in Operating Theatre 2, and four exceedances in Operating Theatre 3 on the morning of 28 June. Given the maximum exceedances of a factor of 4 between the two periods, this tells me that there is no substantial difference in the vibration magnitudes/exceedances between the April and June testing. 426 Mr Warpenius expressed the opinion, based on the results, that the Fitness Cartel gymnasium generates excessive vibration within the Hospital.213 427 Mr Warpenius' opinion is that the June 2026 testing likely underestimated the true extent of vibration, given its short 'snapshot' duration. Mr Warpenius stated:214 The data generated during the June additional testing is, in my opinion, an underestimate of the potential vibration from the gymnasium. This is because only a brief “snapshot” of potential vibration activity could be measured during these two weekends. There is no assurance from the Gymnasium that the Gymnasium activity measured in April was repeated in June. Indeed, there is no assurance that the April measurements were indicative of the maximum vibration generated within the Gymnasium. By way of example, specific gym vibration testing was conducted between 10.30 am and 11.14 am on Sunday 21 June 2027. During this time the Gymnasium representatives assured that these activities generated the typical maximum vibration from the gymnasium. Our measured results within the hospital contradict this assertion. These results showed at least 15 occasions where higher vibration was measured during the two weekends in June, than during the 10.30am- 11.15 am gymnasium testing period on 21 June. 428 Mr Warpenius also noted the absence of any methodical assessment of the gymnasium's rubber flooring. He observed that the results to date must be considered an 'underestimate of the likely maximum vibration from the gymnasium'.215 212 Exhibit 109, p 5. 213 Exhibit 109, p 5. 214 Exhibit 109, p 6. 215 Exhibit 109, p 6. -- 91 of 131 -- [2026] WASC 314 LUNDBERG J Page 92 429 In summary, Mr Warpenius considered that the April and June data together support the conclusion that the Fitness Cartel gymnasium generates vibrations in excess of the applicable AS 2670.2 - 1990 criteria within the Hospital, including in the operating theatres. Mr Khan's opinions 430 Mr Khan undertook his testing on the weekends of 20 June 2026, 21 June 2026, 27 June 2026 and 28 June 2026, during which time the gym was operating normally (being outside the injunction times). However, technical difficulties precluded recording of noise data on 20 and 21 June 2026. 431 A schedule of simulated gym activities is included in Mr Khan's report, showing various activities undertaken by gym staff in various nominated areas within the gymnasium (which were undertaken on 21 June 2026). Mr Khan notes that where weights were dropped the typical height was in accordance with the typical expected height in the gym for the activities being undertaken. 432 The simulated activities which were undertaken are listed below: (a) dumbbell activities ranging from 1 kg to 50 kgs; (b) deadlifts ranging from 20 kgs to 150 kgs; (c) pin loaded machine weights from 5 kgs to 65 kgs; (d) medicine balls in the Hyrox room from 4kgs to 9 kgs; and (e) kettlebells in the Hyrox room from 6 kgs to 32 kgs. 433 Based on his assessment of the vibrations as being transient, a conclusion with which I agree, Mr Khan used multiplication factors for the vibration criteria of 'one' for the operating theatres, 'two' for the recovery area at night, and '60' for the offices during the day. 434 Using his noise and vibration recording equipment, Mr Khan recorded the results of those phenomena over the days for which results were obtained. -- 92 of 131 -- [2026] WASC 314 LUNDBERG J Page 93 435 As for noise recording, Mr Khan concluded there was compliance with the relevant criteria on 27 June 2026, and only a marginal exceedance on 28 June 2026.216 Mr Khan states in his report:217 Noise monitoring results demonstrate a high level of overall compliance, with the two potential minor exceedances representing isolated events. It is generally accepted in acoustics that a change in noise level of less than 3 dB is unlikely to be perceptible to most people. In this context, the potential marginal exceedance of 0.6 dB and 1.2 dB are considered minor and would not be expected to produce a noticeable change in the perceived acoustic environment. 436 As for the vibrations, the results of Mr Khan's measurements on 20 and 21 June 2026, and then 27 and 28 June 2026, were as follows: (a) In the consult room, Mr Khan concluded that the testing showed compliance with the nominated criteria for both transient and continuous / intermittent criteria on 20 and 21 June 2026, and so no further analysis of the data was undertaken. (b) In the recovery area, there was one exceedance on 20 and 21 June 2026, and eight exceedances on 27 and 28 June 2026, when assessed against the transient criterion (curve 2.0). There were more exceedances (39 and 55 respectively) when assessed against the more stringent intermittent criterion though (curve 1.4). The eight exceedances mentioned were recorded in a 24 hour period with a cumulative duration of only 8 seconds (about 0.01% of the monitoring period). Mr Khan states in his report:218 Given the very limited duration of the exceedances [in the recover area], their transient nature, and the minor magnitude by which the criterion was exceeded, the results indicate a high level of overall compliance. 216 Specifically, only two intervals showed a potential exceedance of the LAmax criterion (0.6 dB and 1.2 dB above the 80 dB threshold, in the early hours of 28 June). Mr Khan regarded them as marginal and likely imperceptible (changes below 3 dB generally being imperceptible). All other intervals complied with LA10 and LAmax criteria under the Noise Regulations. Mr Khan also noted that the audio recordings did not clearly confirm the two exceedances were caused by gym activity and that this could not be verified against gym footage. 217 Exhibit 221, p 25. 218 Exhibit 221, p 25. -- 93 of 131 -- [2026] WASC 314 LUNDBERG J Page 94 The possibility of any adverse impacts to the patients in the recovery area within [the Hospital] based on the measurement data and the probability of vibration exceedances (0.01%) is low or negligible. (c) In operating theatres 2 and 3, multiple exceedances were recorded, but Mr Khan opines these were of longer duration and steady amplitude, unlike the short (approximately one-second) transient signatures he attributes to gymnasium activity. This led him to conclude these exceedances were attributable to an alternative vibration source unrelated to the gymnasium. 437 In summary then, for the measurements undertaken on 20 and 21 June, there were 39 exceedances to the continuous/intermittent criterion, whereas only one exceedance was noted for the transient criterion. Mr Khan noted that the single exceedance to the transient criterion was at the same time that the simulated activities within the gym were occurring, being the drop of 150kg deadlift weight. 438 Further, by way of summary, for the measured levels between 27 and 28 June 2026, Mr Khan recorded 55 exceedances to the continuous/ intermittent criterion, whereas only eight exceedances to the transient criterion. All the exceedance events were of short duration, mostly 1 to 2 seconds (with exception of 1 event being 3 seconds). 439 Accordingly, Mr Khan noted that for the eight exceedances (over 1½ days of monitoring), the criterion was exceeded for eight seconds, which is approximately 0.02% of the time for a typical nine hour day which the Hospital operates, or 0.01% for a 24 hour measurement period. Consideration 440 It is not necessary to further comment on the testing of the music emanating from gymnasium in my view. The focus below is on the experts' opinions concerning the vibrations emanating from the gymnasium. 441 The results of Mr Warpenius' testing within the Hospital in April 2026 reveal a concerning level of exceedances, but this needs to be adjusted somewhat given he applied the more stringent vibration criterion - which I consider is not appropriate. There was nonetheless a considerable pattern of regular of vibrations which were experienced within the Hospital, as can also be seen in the diary entries. -- 94 of 131 -- [2026] WASC 314 LUNDBERG J Page 95 442 The testing in June 2026 was undertaken against the backdrop of the normal operation of the gymnasium together with a simulated testing process. The plaintiff cautions against much reliance on this. The plaintiff submits the court should 'treat the results of the controlled testing with caution and have regard to the real-world use of the premises demonstrated by the CCTV footage summarised'.219 443 Indeed, Mr Warpenius expressed a concern in his evidence that the simulated testing did not adequately replicate the activities responsible for the exceedances he had recorded in April 2026. 444 This concern is not unreasonable, in theory, given no CCTV footage was produced showing the events within the gymnasium during the testing in April 2026. The CCTV footage from 21 and 28 June was presented though, together with footage from 11 July. The plaintiff made detailed submissions as to the conclusions to be drawn from this footage. 445 The footage shows activities in Zone 3 of the gymnasium on: (a) Sunday, 21 June 2026 (from 9.30am to 11.30am); (b) Sunday, 28 June 2026 (from 12.00noon to 1.00pm); and (c) Saturday, 11 July 2026 (from 10.00am to 12.00noon), which was the Saturday on which Dr Xu and Ms du Plooy attended the Hospital immediately prior to the trial.220 446 For my part, I cannot entirely accept the submission of the plaintiff that the CCTV footage produced by the defendants on the third day of hearing demonstrates that the typical use of the gym 'differs materially from the controlled demonstrations and simulated testing relied upon by' Mr Khan. 447 The plaintiff pointed to various examples apparent in the CCTV footage. For example, the footage was said to show members using medicine balls in a manner not replicated in the controlled testing, including permitting medicine balls to fall to the floor outside the Hyrox room and outside areas where additional matting had been installed. Further, the footage was said to show members releasing or returning weights on exercise machines in a manner that causes rebound of the machine and associated weights. 219 Plaintiff's closing submissions [33]. 220 Exhibit 222. -- 95 of 131 -- [2026] WASC 314 LUNDBERG J Page 96 448 From my observations of the footage, apart from some isolated instances of dropping of medicine balls, sudden release of weights and also dropping of weights, the footage on the whole shows normal use of the equipment. The submission of the defendants on this point, supported by the table correlating events and times, should be accepted, in my view, and bearing in mind that hundreds of members were recorded as having used the Fitness Cartel premises on the dates in question,221 and recognising that the gymnasium is a 24 hour operation, so the footage is focused on a small proportion of its operations. 449 The events identified by the plaintiff are isolated. 450 I therefore do not consider the nature of the activities being undertaken during the June 2026 testing as undermining the conclusions of Mr Khan. In effect, the controlled testing using simulated activities was an appropriate approach to adopt, and did not produce any exceedances in vibrations at any locations, as submitted by the defendants, noting that Mr Sander regarded this approach as a sensible testing procedure.222 451 Both Mr Warpenius and Mr Khan undertook appropriate testing in this matter, but I consider the analysis of Mr Khan accords with the relevant standards in the sense he used the transient criterion rather than the intermittent criterion preferred by Mr Warpenius. I have addressed this issue above. Mr Warpenius was also more focused in his evidence on the future risks of vibrations, rather than remaining focused on the results of the vibration testing which had been undertaken, and was in some respects overly defensive about the results of his April testing. Mr Khan's testing also had the benefit of including a triangulation of the data, by checking the results against other monitors. 452 To the extent to which Mr Warpenius suggested in evidence that some of the exceedances might have been caused by the operation of treadmills in the gymnasium, rather than weights, that suggestion seemed to me to be speculative, and not the product of any considered assessment. I would place little weight on that evidence. 453 On my analysis, the court can accept that, as to Operating Theatres 2 and 3, the testing undertaken by Mr Khan identified no exceedances which can be said to have been caused by activity from the Fitness Cartel gymnasium. The exceedances reported by Mr Khan in 221 Defendants' closing submissions [67], [68] – [70]. 222 Defendants' closing submissions [65]. -- 96 of 131 -- [2026] WASC 314 LUNDBERG J Page 97 Operating Theatres 2 and 3 were for a length of time, approximately 30 seconds, which distinguished them from the impulsive/transient nature he would associate with activity from the gymnasium, which lasts for a second or two. 454 Further, over the two weekends in June, Mr Khan identified a total of eight exceedances in the recovery area applying the transient criterion. The exceedances lasted a second each and, in his view, the possibility of any adverse impact on patients would be low or negligible. 455 Mr Khan's opinion, which I accept, was that the source of the longer, non-gym related vibration, was that it was from the Hospital's own mechanical equipment. Mr Khan noted that the mechanical plant was mounted on a lightweight frame on the roof of the Hospital, and this has a significant impact on potential vibration. 456 Mr Khan also concluded, and I accept as reasonable, that many of the exceedances recorded by Mr Warpenius were due to mechanical equipment, as explained by Mr Khan in the joint expert report. Mr Warpenius' further analysis of his results, as evidenced in his further letter within the joint expert report, amounted to a recognition that very few of the exceedances he recorded in June 2026 could be attributed to the dropping of weights within the gymnasium. The defendants' summarised this issue in their closing submissions, correctly in my view, as follows:223 Mr Warpenius did not in his own testing – whether in April or June - identify the source of these longer different vibrations that he accepted did not come from dropping weights in the Gym. In fact, by his letter of 6 July 2026 [in the Joint Expert Report – Exhibit 220] to Mr Khan, Mr Warpenius revised his own findings to show those exceedances that could be attributed to mechanical events, equated to over 70% of his findings being attributed to an alternate source of vibration other than dropping weights in the gym. That left, on Mr Warpenius' own evidence, only 4 potential exceedances over the two weekends of testing that might have been caused by dropping weights in the gym. 457 The evidence presented by the experts, when analysed as above, showed a marked reduction in the impacts on the Hospital, in terms of vibration effects, between those recorded in April and those recorded in June 2026. 223 Defendants' closing submissions [83]. -- 97 of 131 -- [2026] WASC 314 LUNDBERG J Page 98 The spike event recorded on 28 June 2026 458 The experts were not ad idem on a particular 'spike' in the vibration levels recorded in Figure 9 of Mr Khan's report, which I will briefly address.224 459 The spike occurred at around 12.31pm on Sunday, 28 June 2026, in 'Operating Theatre 3' (and elsewhere). It is roughly a 30 second burst of activity. A spike was also evident in Mr Warpenius' results, as seen in Figure 5 of his letter to Mr Khan which forms part of the Joint Expert Report, which he labelled as an 'unidentified vibration'.225 460 The issue was the subject of some cross-examination during the concurrent evidence session, particularly as to whether some explanation could be attributed to this spike.226 461 Mr Khan attributed the spike to mechanical plant on the roof of the Hospital, rather than the gymnasium activity. Mr Warpenius did not accept that explanation. 462 The resolution of this issue, as to the likely cause of the spike, is not a determinative issue in the entire proceedings. 463 However, on the materials presented, the explanation proffered by Mr Khan is persuasive, given this is a vibration event of a long duration. Mr Khan explained in his report that such duration events are more commonly associated with continuous or intermittently operating rotating mechanical equipment.227 Mr Khan stated as follows in his report: ▪ Vibration events of longer duration (typically 20–30 seconds or greater) are more commonly associated with continuous / intermittently operating rotating mechanical equipment, such as air-conditioning plant, fans, pumps, or other building services equipment tuning on or off or operating. ▪ The frequency content and duration of the recorded events suggest that the exceedances are more likely attributable to a fixed mechanical source. This interpretation is supported by the consistent occurrence of exceedances at 40 Hz and the sustained nature of the vibration response. 224 Exhibit 221, p 22. 225 Exhibit 220, p 4 of 8. 226 ts 426 – 429. 227 Exhibit 221, p 24. -- 98 of 131 -- [2026] WASC 314 LUNDBERG J Page 99 ▪ During the site visit, while driving into the project site entering via Sundercombe St, PDH mechanical plant installed on the lightweight steel frame structure is visible (Refer to image in Figure 11). This plant deck and other mechanical plant appear to be in proximity to the operating theatres on Level 1. 464 I would accept the above conclusion, noting that it could not be said by Mr Warpenius, from an admittedly brief review of the CCTV footage, that there was any particular activity within the gym which could otherwise explain the exceedance. Expert evidence – structural engineering experts Overview 465 As earlier noted, there was a large degree of consensus between the structural engineering experts in relation to matters of relevance to these proceedings. 466 Given his prior role in the construction of the Hospital, and his earlier engagement in the course of this litigation relative to Mr van der Meer, Mr Sander was in the position to prepare a more detailed report.228 467 Both experts generally agreed on the basic mechanics of energy transfer through the main building structure. There was some initial disagreement as to the characterisation of the sub floor members in Unit 10, but Mr van der Meer ultimately accepted the members were trusses rather than joists.229 Mr Sander's opinions 468 In his report, Mr Sander explained that: (a) As part of the construction of the Hospital, a new mechanical air conditioning system was required, and several large pieces of plant and equipment were installed on a new platform above the roof of Unit 10. As part of the design process, Mr Sander determined that the existing steel roof design from the 1980s was sufficient for ordinary roof loads, but was inadequate to support the plant and equipment. Accordingly, a new steel platform was designed and new steel posts were installed to improve the structural capacity of the roof structure. 228 Exhibit 111. 229 ts 459. -- 99 of 131 -- [2026] WASC 314 LUNDBERG J Page 100 (b) The building uses load bearing masonry walls to the front of the building, and load bearing concrete columns to the rear portion. There are suspended, reinforced concrete slabs to the first floor, across the entire building. There is a suspended, reinforced concrete slab to the second floor, at the front portion of the building. The building has load bearing masonry perimeter walls (included the side and rear façade walls), stair walls and various internal dividing walls. The building has a steel framed roof structure on low pitch to both the rear and front portions of the building. There is a steel framed, decorative front façade, facing Scarborough Beach Road. Further, there is a suspended timber 'false' floor to the rear portion of Unit 10. (c) The cross section of the main building shows the front portion has two suspended slabs (on the first floor and second floor), directly supported by load bearing walls through to the foundations. Further, the rear portion from gridline 5 has a single suspended slab (first floor), supported on load bearing columns. (d) At gridline 5, the front and rear portions of the building are effectively joined by (i) the first floor slab, which is continuous across the building footprint, but with a step-down at gridline 5; (ii) a masonry wall which runs the length of grid 5, acting as the rear wall of the second floor of the front portion; and (iii) the steel roof above the rear portion which is bolted to the masonry wall and second floor slab, at gridline 5. (e) Mr Sander opined that vibration and noise 'are closely related phenomena' and, in his view, having regard to the structure of the building and the types of materials used in its construction, they are transmitted through the structure from the second floor within the gymnasium in the following manner: (i) acoustic noise (such as music) is transmitted through the air in the second floor, until it reaches the edges of the tenancy, namely the rear masonry wall and/or the second floor suspended slab; (ii) the noise is transferred through the wall at gridline 5 as vibration, into the air cavity above the ceiling of the rear portion of the building; and -- 100 of 131 -- [2026] WASC 314 LUNDBERG J Page 101 (iii) the air vibration (i.e. noise) is ameliorated by the existing insulation located above the plasterboard ceiling of the rear tenancy, but some vibration is transmitted through the insulation and plasterboard and experienced by the occupants as noise. (f) Mr Sander also opined that another pathway for the transmission of noise and vibration was as follows: (i) both acoustic noise and impulse vibrations (such as from gym weights striking the floor) are transmitted directly down into the second floor as physical vibrations; (ii) the vibrations are then transmitted as acoustic vibrations to the ceiling cavity below, at the front areas of the Hospital tenancy, and experienced by the occupants as noise; (iii) the vibrations are also transmitted as physical vibrations directly to the ceiling structures, including the non-load bearing steel framed stud and plasterboard walls, where they cause vibrations in those elements (which are brittle), causing damage such as cracking and movement in their fixings; (iv) the vibration is eventually transmitted through the structure to the first floor concrete slab, where the vibration travels horizontally throughout the first floor areas, including back up through the floor material and through the reception areas of the Hospital; and (v) vibrations that are transmitted to the rear of the Hospital, via the concrete slab on the first floor, and the suspended timber flooring, are then transmitted back up into the surgical areas, including to the steel posts supporting the theatre pendants, causing them to sway and vibrate. 469 Mr Sander opined that all of the direct connections between Unit 8 and Unit 10 'act as vibration transmission pathways'. He explained that this primarily 'includes the connection of the masonry walls to the [second floor] slab, then to the masonry walls and supports below [the first floor] slab, which supports the Hospital tenancy'. Further, he was of the view that a 'secondary (and less impactful) pathway is through -- 101 of 131 -- [2026] WASC 314 LUNDBERG J Page 102 the non-structural elements, including ceilings and stud-framed walls, as well as through the airborne connection above the rear portion of the tenancy'. 470 Mr Sander explained that he made acoustic and vibration recommendations to Perfect Practice in February 2024, as appears from his report dated 22 February 2024.230 In his report, he recommended that heavy equipment such as x-ray machines would need to be supported directly on the first floor slab. He also recommended that vibration sensitive equipment such as laser or x-ray machines would likely require fixing directly to the slab, not to the timber flooring. 471 Mr Sander concluded in February 2024:231 …that the main tenancy floor plan loading can be supported by the existing timber false-floor and the underlying concrete, with localised areas of strengthening to the timber needed (or removal of the timber) to facilitate heavy load equipment, vibration sensitive equipment or high-traffic areas. 472 Moving then to Mr Sander's conclusions in his expert report, he expressed the following opinions: (a) The front areas of the Hospital, to the south of gridline 5, are located directly below the gym tenancy. These areas are directly impacted by structure-borne and air-borne vibrations. These areas are primarily for reception, office and administrative tasks, and initial patient consultation, rather than medical procedures. (b) The front area is under the direct structural pathway for vibration from the tenancy above and would be most impacted by those vibrations. (c) The rear area of the Hospital is where the more sensitive procedures take place, including those in the operating theatres. These areas are impacted by a longer, and therefore a more dampened vibration, however those areas are much more sensitive to such vibrations. Mr Sander stated that: Vibrations transmitted through the Level 1 slab cause the surgical examination lights and equipment pendants to move at inappropriate 230 Exhibit 9. 231 Exhibit 9. -- 102 of 131 -- [2026] WASC 314 LUNDBERG J Page 103 times, which is a risk to patient safety and the comfort of both staff and patients. 473 Finally, Mr Sander expressed opinions as to the vibration and noise forces caused by the dropping of weights. He explained his opinions as follows: (a) The dropping of large, heavy weights, suddenly on to the suspended slab causes high-frequency impulse shockwaves to travel through the structure. (b) These waves preferentially travel through the stiffer structural elements, rather than more flexible elements, which means the concrete and masonry elements are most impacted. (c) For instance, if a 200kg weight is dropped from 2m height, it transmits the full potential energy of 3.9kJ through to the slab. (d) The vibration spreads out across the slab depending on its thickness and stiffness, in a complex pathway that can only be accurately modelled by an acoustic consultant. 474 As to the short term and long term impacts of sustained vibration of the Hospital's premises, Mr Sander expressed himself as follows: (a) There are no expected detrimental effects on the building as result of the high-volume acoustic noise (i.e. loud music), on the building. (b) In contrast, however, the strong, high frequency impact vibrations are likely to cause damaging impacts, which cause progressive deterioration over time, including cracking and deterioration of plaster and finishes, leading to fixings and fixtures (wall hangings, lighting and wall-mounted sinks/cabinets) from dislodging and falling, where wall cabinets, light fittings or sinks/basins fall from the wall, there is a high risk of injury or further damage to persons or property, and cracking and deterioration is likely to masonry walls near to, and to the concrete floor directly under the location where the weights are dropped. (c) The above matters will not pose a structural risk but will cause damage to those elements requiring repairs such as repointing of masonry or grinding/topping of the concrete slab. -- 103 of 131 -- [2026] WASC 314 LUNDBERG J Page 104 (d) Mr Sander assessed the potential damage to include the dislodgement over time of brackets supporting pipework, including sensitive medical gasses such as oxygen. (e) Additionally, Mr Sander noted that, where the brackets cause the pipework to crack, there is significant risk of emergency conditions, such as bursting of fire sprinklers or oxygen leaks, which pose risk of fire. Additionally, sensitive medical equipment can easily be damaged by high vibrations, cause them to need to be recalibrated more regularly, or cease to function. 475 Mr Sander assessed the building as having only limited acoustic considerations as part of its original construction. Mr van der Meer's opinions 476 Mr van der Meer's assessment of the main building, following his inspection of the Site, led him to conclude that, as to the issue of noise emanating from Unit 8, there is a possibility that noise penetrates through the east wall of Unit 8 (on grid 5), which allows sound from within Unit 8 to permeate into the roof space of Unit 10.232 477 Mr van der Meer expressed the opinion that, with regard to the noise disturbance to the Hospital, this noise has been airborne and has permeated into the roof space of the Hospital. In general terms, Mr van der Meer agreed with the conclusions expressed by Mr Sander as to the manner in which noise and vibrations are transmitted through the building (with an exception as to the possibility of damage to brick walls and floors of Unit 10, which was expressed by Mr Sander). 478 In his evidence, Mr van der Meer also commented on the distinction between structural strength and structural stiffness, which he described as being quite different.233 Mr van der Meer testified that: Structural stiffness gives you the response of the slab to [the loading]. Structural strength gives you the ability to support the load. It doesn't tell you how much deflection you're going to get. And I understand most of the issues with the day hospital are the fact that you do get transient vibrations noted coming through the floor. 479 I have outlined the evidence of the structural engineering experts in some detail but, as the issues in the proceeding developed, for my 232 Exhibit 224, [21]. 233 ts 458. -- 104 of 131 -- [2026] WASC 314 LUNDBERG J Page 105 part, I have regarded this evidence as less significant to the determination of the matter than the acoustic and vibration expert. Disposition 480 Having regard to the express factual findings identified within [137] to [295] and [296] to [359], and the inferences which can be drawn from the evidence, including the adverse inferences I have identified at [366] to [395], I will now turn to examine each of the issues I identified above at [134] of these reasons, applying the principles set out at [90] to [133] of these reasons. Issue 1 – does the plaintiff have standing to maintain this action? 481 The first issue to address is whether the plaintiff has standing, as a tenant of Unit 10, to bring a claim in private nuisance against the defendants. 482 There was ultimately no dispute on this issue. It is well established that not only may the owner of land bring a claim in private nuisance, but a tenant in actual possession may do so as well.234 483 I therefore accept the plaintiff has standing to bring this action. Issue 2 – is the plaintiff's use of Unit 10 an 'ordinary' one? Consideration 484 This issue focuses on the plaintiff's use of the land, not the defendants' use. As earlier explained, the term 'ordinary use of the land' (or the phrase 'common and ordinary use') means the ordinary uses of land in the relevant locality, which involves consideration of both the purpose of the use, and the means by which that purpose is achieved. 485 These phrases refer to a use which is reasonable according to the ordinary usages of mankind living in a particular society, connected to the expectation that people must conform to the habits of the community. 486 The identification of whether a purpose is common and ordinary must be made at the proper level of generality, by reference to reasonable expectations based upon what is common and ordinary in a locality. The exercise of identifying the purpose at the proper level of 234 Fleming, The Law of Torts (11th edition, 2024) [21.140]. -- 105 of 131 -- [2026] WASC 314 LUNDBERG J Page 106 generality can sometimes be finely balanced, but it will be guided by the conduct that is said to be the infringement. 487 The plaintiff's case, having regard to its pleadings and opening, was focused on the nature of the plaintiff's business as a private day hospital, providing best-practice clinical care, patient comfort and streamlined workflow for health professionals.235 The plaintiff submitted that the use of the premises as a day hospital, at the appropriate level of generality, was a common and ordinary use.236 488 In support of this contention, evidence was led as to the following matters, in respect of which the court has made positive factual findings: (a) the process for the construction of the Hospital occupied the proponents for around two to three years, which involved the engineering and clinical governance teams within (and engaged by) the plaintiff working closely together; (b) the construction of the Hospital was required to be undertaken to the exacting standards required by Federal and State Authorities for such hospitals, including the LARU Guidelines; (c) the proponents wished to establish a state-of-the-art facility using the most precise and effective treatments, which would be optimal for the proponents' needs, for pain management and endoscopy procedures to be performed; (d) the Hospital is equipped with four theatres which include ceiling mounted equipment such as pendants with surgical lighting and gas lines, and visual monitors which work in conjunction with imaging equipment; (e) the Hospital provides pain management services which include administering nerve blocks and epidural steroid injections, as well as radiofrequency ablation and facet joint injections. These procedures involve inserting needles into the spine or nerves of the patients; (f) by way of further explanation, the medical practitioners operate on patients under sedation performing spinal-based injections for pain management, requiring targeted placement of needles 235 FASOC [13]. 236 Plaintiff's opening submissions [5]. -- 106 of 131 -- [2026] WASC 314 LUNDBERG J Page 107 near the patient's spine and inside the spine, with the deposit of a combination of medications and also radiofrequency ablation, which is essentially burning the nerves; (g) the medical practitioners use sensitive medical equipment and apparatus including a portable X-ray machine, an anaesthetic sedation machine, breathing apparatuses, an ultrasound machine, and a radiofrequency ablation machine; (h) the nature of the pain specialist procedures is such that they carry an inherent risk and the medical practitioners must be very precise as to where they place the needles; (i) medical practitioners perform endoscopic services at the Hospital which extend to gastroscopy and colonoscopy, both of which are in effect cancer screening services, and are performed under light sedation; and (j) the Hospital employs staff including administrative and office staff who assist in the operations of the business, and the layout of the building is such that there are reception, consulting and office areas located to the front of the building, where patients are admitted and prepared. 489 In their defence, the defendants maintained that the plaintiff's use of the premises as a private day hospital was not an ordinary use.237 Specifically, the defendants contended that the use of the premises in this manner, as set out within [21] to [24] of the FASOC and largely described in the preceding paragraph of these reasons, constituted an 'exceptionally delicate trade and an abnormally sensitive use of Unit 10'.238 490 Further, the defendants submitted in closing that the Hospital carries out 'exceptionally delicate procedures' which depend on maximum precision.239 The defendants emphasised that the medical professionals on the plaintiff's premises 'demand absolute quiet and absolutely no vibrations in the operating theatres', given they are inserting needles into spines and nerves and performing endoscopy procedures. 237 Defence [29]. 238 Defence [29(d)]. 239 Defendants' closing submissions [5]. -- 107 of 131 -- [2026] WASC 314 LUNDBERG J Page 108 491 Ensuring that the Hospital functions under these conditions is important to permit the Hospital to receive and maintain the regulatory accreditation required for it to operate as a day hospital under the Private Hospitals and Health Services Act 1927 (WA). 492 The above submissions of the defendants should be accepted. Indeed, the defendants correctly observed that the evidence at trial went further and established that all aspects of the use of the Hospital, other than perhaps for the toilets, require the absence of loud noises and vibrations. 493 Ultimately, the defendants submitted that the plaintiff's use of these premises as a day hospital to perform these precise procedures is a 'paradigmatic case of hypersensitive use'.240 494 In closing, the plaintiff sought to narrow its case considerably. Counsel for the plaintiff, in an apparent response to the defendants' emphasis on the hypersensitive nature of the Hospital's activities, referred to the hypothetical reasonable person being potentially a patient in a consulting room at the Hospital,241 or the 'hypothetical reasonable occupier effectively of an office building'.242 Conclusion 495 As I have earlier noted, the issues requiring consideration in relation to issues 2 and 3 overlap to an extent, particularly when it is appreciated that the sensitive nature of the plaintiff's use of the premises may be relevant to the assessment as to whether the use of the premises is 'ordinary', and also as to whether any interference can be characterised as 'unreasonable'.243 496 Focusing at present on whether the plaintiff's pleaded use of the premises is 'ordinary' (or 'common or ordinary'), it must be accepted that the specific and sensitive nature of the medical procedures performed within Unit 10, and its overall purpose as a day hospital treating patients using inherently risky procedures in the sense explained by Dr Xu (and which the court does not regard as unsafe in any way, merely inherently risky given their nature), are matters which are directly relevant and central to the assessment of the use of the premises. 240 Defendants' closing submissions [6]. 241 Plaintif's closing submissions [38.1]. 242 ts 476. 243 Hunt Leather [32]; Southern Properties [118]. -- 108 of 131 -- [2026] WASC 314 LUNDBERG J Page 109 497 But these matters must be assessed, not in isolation, but having regard to the reasonable expectations of the locality in question, which I accept also has a temporal context. That is, it is not static in time. Historical usage, that is prior ordinary use of the premises, and the locality, may be relevant to the assessment.244 498 Of course, questions of degree will be involved in this regard. 499 The Site itself is found in a largely industrial area of Perth, surrounded by offices, showrooms, furniture stores, car yards, warehouses, lighting stores, a funeral home, a gym equipment store, and retail outlets. The Site has two buildings, with the main building to the East housing the two businesses most relevant to this proceeding. The smaller building houses the varied businesses I mentioned earlier in these reasons. The Site sits on Scarborough Beach Road, which is a busy thoroughfare, having two lanes in each direction. 500 The Hospital in Unit 10, which commenced on 3 June 2026, is a lawfully operating business. The Hospital is properly licensed to operate from the premises as a day hospital. 501 In the present case, the evidence as to historical usage of the Site was not particularly crisp, but I have earlier set out my factual findings in this regard on the evidence which was presented. The court has found that the main building on the Strata Plan has been used to house a number of different businesses over time, which have been varied in nature. The fact the main building was branded 'Sports City' is of minimal significance in my view, given the number of varied, non-sport businesses which have inhabited the building. 502 The premises at Unit 10 was previously used as a bowling alley and then as the administrative offices of the St John God of Hospital. Unit 10 has not previously been used as a day hospital, or as a location from which medical procedures were performed. 503 The premises at Unit 8 have previously been used for gymnasiums, although the evidence was not particularly clear as to the nature of those gymnasiums and whether they differ substantially from the Fitness Cartel gymnasium. Unit 8 has housed the 'Zest' and 'Goodlife' gymnasiums, but the Goodlife gymnasium business vacated the premises in around 2015, so some 10 years before the Fitness Cartel business arrived on the scene. Unit 8 was thus vacant for some years 244 Hunt Leather [261] and [298] (Beech-Jones J). -- 109 of 131 -- [2026] WASC 314 LUNDBERG J Page 110 before the defendants acquired the space, probably six to eight years, and the last tenant before Fitness Cartel was not a gymnasium. That lapse of time means the relevance of the prior tenancy as a gymnasium is greatly lessened, but should not be wholly ignored. 504 The evidence discloses that the 'Douglas Hi-Fi' business has been operating from the main building for some years, and the 'Merse Wellness Spa' business also operates from the same building. There is then the chiropractor business which operates presently from the first floor. 505 What then of the locality? It was not in dispute that the immediate area around the Site is industrial in nature, and the Site borders Scarborough Beach Road. The parties referred to particular businesses operating in the vicinity to support different aspects of their contentions, and in order to suggest alignments between their business and others. 506 In my view, in this case, the most important considerations to the assessment of 'use' are the present uses of the main building, the recent uses of the main building, the immediate vicinity surrounding the main building, and the uncontested fact that the building is adjacent to a busy transit route. As I have mentioned earlier, it does not seem to me that an examination of the historical description of the building as 'Sports City' is particularly useful as consideration, and further some care is needed not to simply classify Unit 8 as 'the gymnasium premises' in the main building. There have been varied uses of all of the units in the premises over the years. 507 It also seems less significant in this case to extend the examination of the locality much beyond the immediate area, given the suburb is an industrial zone which contains various commercial buildings and businesses, and so references to the presence of a nearby emergency hospital or health care facility, without much in the way of detail, are of limited utility in the court's analysis. The evidence shows the businesses in the area are varied and far from homogeneous, other than being non-residential. 508 The fact that a part of the premises was used as a gymnasium some years ago is a relevant factor to consider, but I do not regard this feature of the case as a decisive factor when assessing whether there has been an actionable nuisance in 2026 (that is, to control the -- 110 of 131 -- [2026] WASC 314 LUNDBERG J Page 111 assessment of whether the use of Unit 10 as a hospital is an ordinary use). As noted earlier, the broader locality requires assessment. 509 Of course, the plaintiff's claim narrowed in closing. The plaintiff in closing described the hypothetical reasonable person as being a patient in the consulting room at the Hospital, with the focus being on the use of the premises as a commercial office (rather than focusing on the medical operating theatres). This recharacterization of the claim does not assist the plaintiff, in my view, for these reasons. 510 First, the pleaded case cannot be ignored. The case was conducted on, and by reference to, the pleadings. I have detailed the pleaded case earlier in these reasons. The plaintiff anchored its case to the state of the art facility constructed on the site, the sensitive equipment, and the delicate procedures. That is the 'ordinary' use which the plaintiff's contended was the focus of this nuisance claim. Indeed, this was how Ms du Plooy articulated her concerns in her affidavit filed in support of the injunction in June 2026.245 511 Allied to this, it is significant that the proceedings were commenced in late May 2026 on the eve of the Hospital opening, seeking injunctive relief because the Hospital was opening. No damages claim for past nuisance has been pleaded or advanced. The sole relief, of an injunctive nature, emphasises the central importance of the plaintiff's use of the premises as a day hospital, not as an office environment. 512 Second, it is not possible to ring fence an analysis of the use of the front part of the Hospital and the office aspects of the Hospital, from the operating theatres and the medical procedures undertaken within the Hospital. The predominant (and intended) use of the Hospital must be the focus of the analysis to determine the ordinary nature or otherwise of its 'use'. The predominant intended use of the premises by the plaintiff is as a day hospital conducting pain management and endoscopy services. Those are the functions for which it is licensed. 513 Third, as Dr Xu's evidence demonstrates, the necessity for patients to be assessed and admitted in a calm and comfortable manner, without distress, is directly connected to the medical procedures which are to follow, and the risks which may arise through such matters as the administering of anaesthetic. The patients are not being assessed and admitted for some purpose alien to the medical procedures which 245 Exhibit 215 (affidavit of Ms du Plooy), [45] and [46]. -- 111 of 131 -- [2026] WASC 314 LUNDBERG J Page 112 follow. It is therefore not appropriate to view the non-operating portion of the premises as disconnected from the operating theatres (and their function). 514 Having regard to all of these matters, I am of the view that the predominant intended use of the Hospital is for the purpose of assessing, admitting and then treating patients using delicate pain management and endoscopic services. This is a use of the premises which has required the building to be precisely engineered to meet the applicable licensing requirements, and to change the classification of the building from an office environment to a private hospital. 515 Indeed, the establishment of the Hospital on the premises at Unit 10 of the Site involved a significant change in the previous use of the building, from a standard office building for professional or commercial purposes (which is designated as a Class 5) to a health care building of a public nature, namely a hospital (which is designated as a Class 9a). 516 This is the first occasion any unit on the Site has been used as a hospital or for the purpose of conducting medical procedures. 517 The other large unit in the main building has historically, but not exclusively, typically been used as a gymnasium, which is not a delicate use of the building. Nor are the other present uses, being the Merse Wellness Spa and the Beyond Health chiropractor businesses, although the former business is assisted by having a generally quiet environment. Given the nature of its business, one might be tempted to characterise the Douglas Hi-Fi business as being delicate or sensitive, but the failure to call Mr Hylands (and the absence of direct evidence about that business and its sensitivities) precludes, in my view, the court reaching that conclusion. 518 The Site finds itself in an industrial area on a busy thoroughfare. Confining the locality to the businesses in the immediate vicinity yields the conclusion that the locality factor points against the 'use' of Unit 10 as a day hospital as being 'ordinary', in the manner the plaintiff has designed and operated it. Similarly, the history of tenants who have leased the main building in recent years points against the conclusion that the 'use' of Unit 10 as a day hospital is 'ordinary'. 519 In my view, the plaintiff's use of Unit 10 must be assessed on the basis that it is a private day hospital using highly specialised equipment and delicate procedures. -- 112 of 131 -- [2026] WASC 314 LUNDBERG J Page 113 520 That is not an 'ordinary' use of the premises at Unit 10. 521 If Unit 10 had been solely used by the plaintiff as an 'office environment', such as one finds in the reception area and the offices to the front of the building, I would accept that would be an ordinary use of the land. However, that is not the pleaded case and not a proper characterisation of the actual use of these premises. 522 Although I have reached the conclusion that the plaintiff's use of the premises at Unit 10 is not 'ordinary', I will proceed to consider the other elements of the tort. Issue 3 – has there been a substantial and unreasonable interference? Consideration 523 The plaintiff bears the onus to demonstrate that there has been a 'substantial' and 'unreasonable' interference with the plaintiff's use of the Unit 10 premises for an 'ordinary' purpose, which has been caused by the defendants' conduct. 524 The focus in this regard is on the impact on the plaintiff's use of the premises. 525 It is to be remembered that the focus of the action is on the diminution in the utility and amenity value of the land itself. The action is not directed to the personal discomfort of, or personal injury, to the persons on the land. 526 The test is an objective one, with the court being required to have regard to a range of factors, including the nature and extent of the harm or interference, the social or public interest value in the defendant's activity, the hypersensitivity (if any) of the user or use of the plaintiff's land, the nature of established uses in the locality, whether all reasonable precautions were taken to minimise any interference, and the type of damage suffered. 527 To state the test as objective does not preclude the court having regard to the individual experiences of particular persons who have felt or heard the impacts in question. Those personal experiences must be assessed collectively. Ultimately, the court then needs to arrive at an objective assessment of the evidence to determine whether the effect was substantial and unreasonable. -- 113 of 131 -- [2026] WASC 314 LUNDBERG J Page 114 528 I have earlier described the operations of the Hospital. It should be noted that the Hospital is primarily a profit driven enterprise, but it offers important medical services to members of the community in the areas of pain management and endoscopy, with the later service being in the nature of cancer screening. 529 As for the Fitness Cartel gymnasium, that is also a lawfully operating business. The business is primarily profit driven, but it offers health and wellness services to its members through the fitness and training equipment available within the premises. 530 The usual activities of the gymnasium include the operation of heavy weight equipment by its members, such as free weights and weight machines of various types. As earlier explained in these reasons, the weights which members can use are significant. The gymnasium staff encourage their members not to use equipment inappropriately or incorrectly, and to refrain from dropping weights on the floor unnecessarily. Members can be disciplined or banned if they breach the code of conduct. 531 Nonetheless, in a modern high intensity gymnasium, the dropping of weights on occasions cannot be avoided and such activity is likely to create noise and vibrations. Each gym member will perform the exercises in different ways with different levels of control and experience. There will be a variability in the use of the equipment. 532 Starting with the individual impressions of the staff of the Hospital, as well as persons employed in the neighbouring businesses, it is evident that the individual experiences of the vibrations and noise were quite different. 533 For example, commencing in around March 2026, Ms Chadwick's evidence was that she had not experienced any noise or vibrations from the gymnasium, nor had she received such feedback from the spa's customers. The spa operates beneath the first floor of the gymnasium, under the Reformer Pilates room. The spa does not sit directly beneath the weight rooms within the Fitness Cartel gymnasium, such as Zone 2 or Zone 3. Accepting her evidence, as I have, Ms Chadwick's recollections of a lack of noise or vibrations may be explicable by reason of the location of the spa business. Ms Chadwick was also not at the Site in the period prior to March 2026, when a number of instances of loud noise and vibrations were reported by Ms du Plooy. -- 114 of 131 -- [2026] WASC 314 LUNDBERG J Page 115 534 Further, the staff of the Fitness Cartel gymnasium who gave evidence, Ms Stroud and Mr Butterly, testified that they experienced sounds or vibrations such as a 'dull thud', or 'nothing at all', when in the gymnasium office, which sits below Zone 3.246 535 The above might be contrasted with the diary notes taken by the administrative staff at the Hospital, and the evidence given by Dr Xu and Ms du Plooy, who both described the vibrations as 'bombs dropping'. I have addressed and explained this evidence above. The course of this evidence stretches back to December 2025 when the Fitness Cartel gymnasium commenced its operations. The noise and vibrations prompted Ms du Plooy and others to raise complaints on a consistent basis with the gymnasium. 536 The impressions of Ms du Plooy and her staff are supported by the results which appear in the Stantec report which was obtained by the defendants' own solicitors. Mr Martis of Stantec concluded that dropping of weights could transmit significant noise into the Hospital below, a fact which is supported by both structural engineering experts. While attempts were being made by the gymnasium around this time, commencing in March 2026, to mitigate the effects of the gymnasium on the neighbouring businesses, it is evident that Mr Warpenius was undertaking tests which revealed multiple and excessive exceedances through vibrations into the Hospital. 537 As explained by the structural engineering experts, when weights are dropped in the gymnasium facility, they are dropped on the first floor slab, not on the slab which sits underneath the Hospital. However, vibrations travel through the columns and walls, and then reach the premises in Unit 10. Conclusion 538 At the outset of these reasons, I noted that the Hospital's initial concerns regarding the loudness of the music emanating from the gymnasium was largely resolved in around March 2026. The evidence does not suggest the music was an issue thereafter. 539 The noise and vibration from physical activities in the gymnasium has, however, been a concern for the Hospital since December 2025, when the gymnasium opened, and has persisted, according to the staff of the Hospital, after March 2026. 246 ts 278 (Ms Stroud); ts 181 – 182 (Mr Butterly). -- 115 of 131 -- [2026] WASC 314 LUNDBERG J Page 116 540 The question raised by these proceedings, is whether this activity has caused a substantial interference in the plaintiff's use of Unit 10, which may also be characterised as unreasonable. These are distinct matters to consider. 541 There is also a need to assess whether the activities within the gymnasium, such as dropping of weights, has been the cause of the noise and vibrations experienced within the Hospital. 542 I accept this casual aspect has, broadly, been demonstrated on the evidence, and is supported by the structural engineering experts in terms of their evidence as to the basic mechanics of energy transfer through the main building structure. Mr Martis of Stantec also concluded that weight dropping in the Hyrox room at the front of the building could transfer significance noise across the concrete floor slab and into the Hospital below.247 543 But not all of the vibrations and noise experienced within the Hospital have their source in the gymnasium. The evidence indicates that certain vibrations could not be attributed to the gymnasium's activities. That was the evidence of Mr Khan, which was to the effect that many of the exceedances recorded by Mr Warpenius in June 2026 were due to mechanical equipment within the Hospital itself, such as the plant on the roof of the building. It is not possible to conclude whether some of the April results may similarly be attributed to this mechanical equipment. 544 As to the question of substantial interference, on my assessment, in the period from the commencement of the Fitness Cartel gymnasium business in around December 2025 through to April 2026, the evidence demonstrates excessive vibration and noise were being experienced within the Hospital, largely caused by the dropping of weights within the gymnasium facility. This was a period of time prior to the Hospital being open to receive patients, but of course during which Hospital staff were working within the premises. 545 The impact was beyond that which a person in an office environment would reasonably expect, as evidenced by the damage to the ceiling fixed clock in the Hospital and the sudden movement of a stack of files in the office of the chief executive officer (which occurred in around March 2026). 247 Exhibit 41 (Stantec Report), p 7 (section 5). -- 116 of 131 -- [2026] WASC 314 LUNDBERG J Page 117 546 Even allowing for some extra sensitivity among the staff of the Hospital when assessing the evidence, the objective indications are that the frequency, intensity and duration of the vibration and noise was such as to substantially interfere with the use and enjoyment of Unit 10 as an office environment during this period. 547 It is notable that the impact was experienced by those within the Hospital environment over many months. Had the impacts of the noise and vibrations been felt, but then promptly addressed by Fitness Cartel, it would be far more difficult to conclude that the interference was substantial. But that is not how the events unfolded. 548 The interference in question did not preclude the Hospital operating, of course, as the business was not open to receive patients during this period. Additionally, the staff were not prevented from going about their daily roles within the Hospital, although they were affected by the noises and vibration, and it may be concluded that it lessened the daily enjoyment of the workspaces. While any injury to, or discomfort felt by, the staff is not the focus of the nuisance action, it is pertinent to note, when assessing the magnitude of the interference, that there is no evidence of medical treatment being required for the Hospital staff or injuries caused by the noises and vibrations which were then being experienced. 549 Dr Xu and Ms du Plooy testified, in general terms, that the noise and vibrations were loud and distressing. 550 In my view, the plaintiff has established that, on the balance of probabilities, prior to the grant by the court of the injunction on 2 June 2026, there had been a substantial interference in the use of the land at Unit 10, which were then being used as commercial offices as explained above. This interference manifested itself primarily as follows: (a) through the repeated dropping of weights within the gymnasium which created unusually loud noises and vibrations in Unit 10, as experienced and recorded by the administrative staff of the Hospital, on 20 and 29 December 2025; (b) through the repeated dropping of weights within the gymnasium which created unusually loud noises and vibrations in Unit 10, -- 117 of 131 -- [2026] WASC 314 LUNDBERG J Page 118 as recorded by Mr Reynolds of Herring Storer Acoustics on 23 January 2026 and 27 January 2026;248 (c) through the repeated dropping of weights within the gymnasium, which created unusually loud noises and vibrations in Unit 10, as experienced by the administrative staff of the Hospital, and recorded by Mr Martis of Stantec, on various dates in early March 2026; and (d) through the repeated dropping of weights within the gymnasium, which created unusually loud noises and vibrations in Unit 10, as experienced by the administrative staff of the Hospital, and recorded by the staff and by Mr Warpenius over various dates in April 2026. 551 From a point in time in around May 2026, it is evident that the impacts being experienced by the Hospital from the activities of the gymnasium decreased markedly. Any interference thereafter has been insubstantial in nature. 552 This may be explained by a combination of the additional flooring treatments and padding put in place by the defendants, the heightened awareness of members of the gymnasium to avoid incorrect and inappropriate use of equipment (prompted by the gym's staff and by the signage erected within the gym), and the greater vigilance of the gymnasium's staff as to the effects of its business on the Hospital. That vigilance, and awareness of the experiences of the staff within the Hospital caused by the gym's activities, appears to have been absent in the period prior to this. 553 There has been, in might be inferred, a distinct change in behaviour of those who use the gymnasium and of the staff members within the gymnasium. 554 Mr van der Meer identified in his evidence some deficiencies in the flooring treatments added by the third defendant, including that the rubber used was too hard.249 Nonetheless, the flooring modifications can be seen to have had a beneficial effect on the dampening the noise and vibrations travelling through the structure, from Unit 8 through to the day hospital in Unit 10. 248 But not on Saturday 24 January 2026, Sunday 25 January 2026 or the public holiday Monday 26 January 2026. 249 ts 460. -- 118 of 131 -- [2026] WASC 314 LUNDBERG J Page 119 555 By the time the testing of the premises was undertaken in June 2026, by Mr Khan and Mr Warpenius, it is evident that the impact of the gym's activities had dramatically been reduced. Mr Khan's assessment, based on the transient criterion in the standard, demonstrated few exceedances at the time of his testing, which included simulated gym activities being undertaken. Mr Khan also identified causes of the vibration and noise which were unrelated to the gymnasium, which I understood Mr Warpenius to largely accept (other than the notable 'spike'), including from the Hospital's own machinery. 556 I should observe that the testing undertaken by both Mr Warpenius and Mr Khan was thorough, but it was undertaken against the background of expedited litigation, requiring prompt preparation of their reports, which were assembled in quick time. The testing undertaken, including the simulation by the gymnasium of its activities may not be described as perfect, but it provides a more than adequate assessment of the continuing effects of the gym activities, in my view. 557 The results obtained, and conclusions reached, by Mr Khan are matters I have given significant weight to in assessing the objective level of interference in the Hospital's use of its premises after June 2026. I do so because that testing provides an objective assessment of the vibration and noise, in preference to reliance on the individual assessments of particular staff members from either camp. I have noted that there is a real difference in the evidence as to the impressions of Ms Chadwick, Mr Butterly and Ms Stroud on the one hand, and Dr Xu and Ms du Plooy on the other hand, concerning the vibrations and noise. 558 It is difficult to reconcile the subjective recollections of 'dull thuds' as against 'bombs dropping', which seem to me to be, on their face, vastly different descriptions of the events. Some care is needed in evaluating this evidence given the disparity in recollections, as was submitted by counsel for the defendants.250 559 This explains why I have given more weight to the expert recording and assessment of the vibration and noise, particularly by Mr Khan, as indicated above. 560 I therefore cannot conclude on the evidence that the interference to the Hospital's premises since May 2026 has been substantial. The 250 ts 494 – 495. -- 119 of 131 -- [2026] WASC 314 LUNDBERG J Page 120 interference previously apparent is not continuing in the same manner or to the same extent. 561 There have been some instances of interference since May 2026, but these have been isolated at best, and the court cannot be satisfied the plaintiff has demonstrated that this interference is likely to continue. 562 In forming this view, the court is conscious that the operations of the gymnasium since 2 June 2026 have been restrained by an injunction, precluding its usual operations. However, the testing undertaken later in June provides the court with an adequate assessment of the likely impact of the real world activities of the gymnasium. 563 For both periods, the interference must also be demonstrated by the plaintiff to be unreasonable, in the sense described earlier in these reasons. A variety of factors is to be considered in this regard. 564 I have already addressed the nature and extent of the harm. 565 A further factor is the social or public interest value in the gymnasium activity, which I consider is a relevant feature to consider. The gym offers a health and wellness service to its members. There is an important social aspect to this service. 566 In the context of the locality, the provision of this service from the Site is consistent with the locality generally and has, albeit some time ago, been a historical use of the premises at this location. As noted earlier in these reasons, and further dealt with below, the gymnasium business did not take adequate steps in the construction of its premises, though, to address the effects of vibration and noise. Those steps were taken in a responsive manner from March 2026. It is relevant to the assessment of reasonableness that proper steps could have been taken much earlier and in a more sophisticated way. 567 The plaintiff itself also operates a business with an evident social utility, being the day hospital. That is a relevant factor here. So too is the fact the hospital conducts delicate procedures from its premises, and may fairly be described as an abnormally sensitive claimant – a factor which points against the resolution of this issue in favour of the plaintiff. 568 To date, the damage suffered by the Hospital has been minimal, if non-existent, in terms of the diminution in utility and amenity value of the land. Mr Sander has identified the risk of long term damage to the -- 120 of 131 -- [2026] WASC 314 LUNDBERG J Page 121 building through the gymnasium's activities, but this was not supported by Mr van der Meer, and I would regard it as speculative at this stage. 569 The analysis of unreasonable interference is rendered complicated in some respects, and perhaps artificial, by the conclusion I have reached that the plaintiff's use of the premises is not 'ordinary'. 570 However, if one examines the use of Unit 10 as a commercial office prior to June 2026, not being a hypersensitive use at that time, I would conclude that the interference being experienced during this period was unreasonable, particularly given the inadequacy of the remedial steps on the part of the gymnasium, recognising that both businesses have a social utility. The simple point is that the gymnasium proprietors had failed to fully appreciate the potential impacts of its operations, and the evidence reveals a consistent impact on the neighbouring businesses (at least on the Hospital and at one point on the Douglas Hi-Fi business). 571 Even in an industrial locality such as this, those impacts ought not reasonably to be tolerated. 572 The interference with the use and enjoyment of Unit 10 during the period prior to June 2026 was unreasonable, when all of the circumstances are considered. I say that on the assumption I am not assessing the interference by reference to the hypersensitive nature of the Hospital (as an operating hospital conducting delicate procedures), but by reference to the use of the premises as an office environment. Further, I recognise the gym provides a health or wellness service to its members, but that could not justify the level of interference which was experienced by the Hospital during that period. 573 From around June 2026, the factual position the court finds is that there was, and is, no substantial interference with the plaintiff's use and enjoyment of Unit 10, and so no question of its unreasonableness arises. Any analysis of unreasonableness in this regard would need to give close consideration to, and recognise the role played by, the hypersensitive nature of the plaintiff's use of the land within the locality of the Site. 574 Those matters, in my view, would render it difficult for the plaintiff to contend, had there been a demonstrated substantial interference by the gymnasium after June 2026, that the interference should be characterised as unreasonable in the manner explained earlier in these reasons. -- 121 of 131 -- [2026] WASC 314 LUNDBERG J Page 122 575 In particular, I accept that 'a plaintiff complaining of an interference with their use and enjoyment of land cannot seek to transform what would ordinarily be regarded as an innocuous interference into an actionable nuisance by the simple expedient of relying on their exceptional sensitivity'.251 576 Had it been necessary to so decide, after June 2026 I would not find that the interference with the use and enjoyment of the Hospital, which was greatly reduced by the steps taken by the gymnasium, was unreasonable. Issue 4 – have the defendants demonstrated a justification or excuse? 577 Given the above conclusions, it is strictly unnecessary to consider whether the defendants have discharged their onus of demonstrating that their use of the land was for a common and ordinary purpose, and was conveniently done. 578 I will however record my findings and conclusions. 579 The first conclusion to state is that the defendants have discharged the onus of establishing that they were using the premises at Unit 8 for a common and ordinary purpose, namely for a fitness gymnasium business. That is evidently a purpose which is consistent with the nature of the locality and resonates with previous uses of the main building, albeit those uses as a gymnasium were some years ago. 580 The more difficult question is whether the use was being 'conveniently done'. That is, has it been undertaken according to ordinary usages or in a reasonable manner in the circumstances. 581 For its part, the plaintiff has discharged the evidentiary onus on it to identify the respects in which the defendants' use of the land was not conveniently done. It did so by focusing attention on the deficiencies in the construction and fit out process of the Fitness Cartel premises, and identifying weaknesses in the remedial steps taken by the third defendant to improve the flooring in the gymnasium. 582 I will turn now to my assessment of the relevant evidence. 583 I will start by considering the construction and fit out process undertaken by the gymnasium business in 2025. 251 Defendants' closing submissions [152], citing Robinson v Kilvert. -- 122 of 131 -- [2026] WASC 314 LUNDBERG J Page 123 584 No documentary evidence was produced to support the taking of any steps in the construction and fit out process which were designed to reduce vibration and noise effects, and the court draws the inference that any such material would not have assisted the defendants in this regard. I refer to the factual findings at [285] to [295] above, and my observations as to the adverse inferences which may be drawn at [374] to [384] above. The oral evidence presented on this issue through Ms Stroud was generalised and lacked any cogency. 585 It is reasonable, in my view, to expect the proprietors of a gymnasium business, which would necessarily involve members using heavy weights, not to mention given the intended presence and operation of the high intensity Hyrox room and the weights and apparatus therein, to take appropriate steps to address vibration and noise impacts, particularly when contemplating the establishment of the business in a multi-level strata complex. 586 The evidence does not support a finding that they did so. 587 At the very least, attention should have been given by the third defendant to complying with the recommendations in the Gym Acoustic Guidance Report.252 That is the report prepared in March 2023 by several authoritative bodies in the United Kingdom.253 It is a report to which the acoustic and vibration experts in this case both had regard. 588 The Gym Acoustic Guidance Report relevantly states:254 Consideration of adverse impacts caused by noise and vibration at the planning stage means preventing problems occurring that could otherwise cause complaints and require formal action to resolve… The acoustic effects of introducing a Gym into a building where existing (and potentially adjacent to) residential and commercial units already in operation cannot be understated and arguably requires an even more meticulous and careful approach to mitigating adverse noise impacts. This is because noise sensitive receivers will not typically be accustomed to noise levels generated by Gym activities, the low frequency noise impact of which could cause subjective adverse effects and/or complaints. 252 Exhibit 8. 253 Being the Acoustics and Noise Consultants, the Institute of Acoustics, and the Chartered Institute of Environmental Health 254 Exhibit 8, section 2.1. -- 123 of 131 -- [2026] WASC 314 LUNDBERG J Page 124 Equally, where a commercial unit may have once accommodated a Gym unit, but goes through a vacant period, adjacent noise sensitive receivers may grow accustomed to quieter background and ambient levels, and therefore this could also lead to subjective adverse effects/complaints once the unit is restarted. 589 The court can comfortably conclude that the defendants did not undertake any sensible steps to address the noise and vibration issues during the construction and fit out process, and were not prompted into action until the Hospital's consistent complaints identified the prospect of litigation being commenced. 590 This is so even though the chief executive officer of the Hospital, Ms du Plooy, expressly raised the vibration issue with a director and owner of the second defendant in March 2025, describing it then as a 'big issue'. As earlier noted, the second defendant is the owner of the premises at Unit 8. 591 The defendants made submissions to the effect that an examination of the steps taken by the gymnasium prior to it commencing operation were in effect irrelevant to the nuisance cause of action.255 I respectfully disagree. Those steps are inherently relevant to the nuisance claim, and to the court's assessment as to whether the defendants' use of its own premises was 'conveniently done'. The required inquiry is not temporally confined to the moment the particular defendant's use begins, in an operational sense. It must extend to the preparatory steps taken by the business to ensure that the impacts of its future business on its neighbours are reasonably minimised. 592 Of course, the evidence demonstrates that the Fitness Cartel gymnasium has taken steps, commencing in around March 2026, to moderate or minimise the effects of noise and vibrations from its facilities. 593 In March 2026, the volume of the music being played in the gymnasium was reduced and there have been few if any impacts from music felt by the Hospital staff since that time.256 594 Commencing in March 2026 and into May 2026, the Fitness Cartel gymnasium has installed additional rubberised and plywood flooring, as well as vibration padding, to moderate the vibration effects from activity within the gymnasium. The gymnasium also erected 255 Defendants' closing submissions [115] – [118]. 256 Exhibit 41 (Stantec Report), p 7 (section 5). -- 124 of 131 -- [2026] WASC 314 LUNDBERG J Page 125 several signs in different areas of the facilities to discourage inappropriate conduct including the dropping of weights. Ms Stroud explained these steps in her evidence.257 595 The steps taken by Fitness Cartel were reactive to the complaints made by the Hospital and its solicitors, and ought to have been taken much earlier in time. The remedial steps were focused on flooring additions and behaviour changes within the gymnasium. 596 Overall, the steps taken since March 2026 have been modest in scale, costing around $40,000, but have at least reduced the primary impact of the gymnasium's activities on the Hospital and its staff, such that the continuing interference to the use of Unit 10 is insubstantial, as I have earlier found. 597 The evidence indicates that the process by which the Fitness Cartel sourced and implemented these new remedial flooring measures was far from sophisticated. Very little documentary evidence was produced to provide the court with a fulsome picture of the new flooring treatments, and no direct technical evidence was led to justify the appropriateness of these steps. The production of AI generated images of the flooring treatments was simply inadequate. 598 Mr van der Meer testified that the new flooring treatment could certainly be improved and was not ideal, such that he considered, from a structural perspective, vibrations could still be transmitted to the Hospital from the gym.258 He suggested further steps including placing rubber layers between the steel plates in the floor. He also made reference to the inclusion of rubber stoppers on the weight machines, but I accept Ms Stroud's evidence, general though it was, that this has already been done by the third defendant in respect of some machines.259 599 In his report in late March 2026, Mr Martis of Stantec commented that there were still significant vibrations felt after the rubber matting was installed in the squat rack area, suggesting the rubber addition did not improve matters. Of course, Mr Martis was not called to testify and his observations in this regard could not be tested at trial. 600 Ultimately, I have found that any continuing interference is insubstantial. 257 ts 293. See Exhibit 130 as an example (in Attachment B to these reasons). 258 ts 460. 259 ts 274 - 276. -- 125 of 131 -- [2026] WASC 314 LUNDBERG J Page 126 601 The remedial steps, it may be inferred, have had the practical effect of greatly reducing the impacts felt in the Hospital, arising from the activities in the gymnasium, particularly in conjunction with behavioural changes implemented within the gym itself. Ms Stroud's evidence as to the behavioural steps taken by the gymnasium should be accepted,260 as I have earlier outlined. 602 The defendants, particularly the third defendant, is presently operating the gymnasium business in a manner that is conveniently done and reasonable, in all the circumstances. Issue 5 – what relief should be ordered? 603 The plaintiff's claim is for permanent injunctive relief. There was no claim for damages pleaded. 604 It must be remembered that the injunction remedy is a discretionary one, with the burden falling upon the plaintiff to persuade the court that such a remedy should be granted 605 Given the conclusions I have reached above that the cause of action has not been established, it is unnecessary to consider the suitability of the injunctive relief sought by the plaintiff. Simply stated, a permanent injunction is not an appropriate form of relief given the findings which have been made, as to the absence of any continuing nuisance by the defendants. Further, the plaintiff has not established that the defendants will, in the future, conduct the gymnasium business (or permit it to be conducted) in such a way as to cause substantial interference in the plaintiff's use of its leased premises. 606 It is pertinent to also observe that the court cannot make a finding that the impact of the interlocutory injunction on the business of the third defendant has been as financially devastating as suggested by counsel for the defendants during trial.261 I refer to the conclusions expressed at [392] to [395] above as to the absence of financial information in the evidence in support of the defendants' contention. The gymnasium has suffered some loss of income, but the extent is not a matter which the court can presently assess on the available evidence, particularly bearing in mind the adverse inferences I would draw in this regard. 260 ts 282. 261 Defendants' closing submissions [182.3]. -- 126 of 131 -- [2026] WASC 314 LUNDBERG J Page 127 Conclusion and orders 607 For the foregoing reasons, the action must be dismissed and the interlocutory injunction granted by the court on 2 June 2026 will be dissolved. 608 I will hear from the parties as to the costs orders which should now be made. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. LM Associate to the Honourable Justice Lundberg 4 AUGUST 2026 -- 127 of 131 -- [2026] WASC 314 LUNDBERG J Page 128 ATTACHMENT A Extracts from the Strata Plan -- 128 of 131 -- [2026] WASC 314 LUNDBERG J Page 129 ATTACHMENT B Images and plans of the Site 1. Photograph taken in October 2023 (from Exhibit 9). 2. Architectural floor plan of Unit 10 (from Exhibit 111). -- 129 of 131 -- [2026] WASC 314 LUNDBERG J Page 130 3. Cross section of the Hospital (from Exhibit 111). 4. Floor plan of the Hospital showing Mr Warpenius' recording locations in April 2026 (Exhibit 60). -- 130 of 131 -- [2026] WASC 314 LUNDBERG J Page 131 5. Photograph of the operating theatre area of the Hospital (Exhibit 6). 6. Photograph of signage placed by Fitness Cartel in April 2026 (Exhibit 130). -- 131 of 131 --