Civil Law

By Caitlin Holloway

22.03.19

Court finds certifier breached its statutory and contractual duties by failing to identify building defects

The ACT Supreme Court has awarded damages against a building certifier who failed to identify building defects prior to issuing stage certificates for a residential dwelling.

The decision in Hyblewski v Bellerive Homes [2019] ACTSC 44 resolves some of the controversy over the duties of building certifiers in the ACT.

The Plaintiff, Ms Hyblewski, purchased the property in 2011 and a commencement notice was issued by the certifier in late 2012. The building certifier inspected the progress of the building works on three occasions and issued stage certificates, allowing the building works to proceed to the next stage.

Following the final inspection, the Plaintiff inspected the property and expressed concerns over the quality of the building works.

The Plaintiff subsequently commenced proceedings in 2016, claiming the building certifier breached its contractual and statutory obligations by failing to identify several defects in the building works, including:

• The absence of an adequate foundation for the building works;
• The failure to install moisture barriers beneath and/or next to the slab;
• The installation of perpends (vertical layer of mortar) in the brickwork which were too large and/or inadequately or incompletely damp proofed;
• The failure to install any or any adequate damp proof course;
• The installation of brickwork of poor workmanship; and
• Constructing parts of the property in a manner that was not in accordance with the approved plans.

In determining what the contractual duty of the certifier was, His Honour Justice Mossop considered the role of building certifiers in the ACT.

At each prescribed stage of inspection, a building certifier must be satisfied on reasonable grounds that the building work has been carried out in accordance with the provisions of the Building Act 2004 (ACT) (“the Act”).

His Honour noted that this required an assessment of whether the building work is in accordance with the approved plans and whether the building work has been carried out in a proper and skilful way. These requirements were considered “necessary to promote good practice in doing building work so as it is consistent with reasonable public expectations of builders and to protect public confidence in the standards of that work.”

If a building certifier is not satisfied that the work has been carried out in accordance with the provisions of the Act, no stage certificate can be issued, and the builder may not proceed with the works any further.

His Honour stated that this provision is designed to ensure that where the requirements of the Act have not been complied with, the relevant non-compliance is remedied before the works proceed any further, so that defective work is remedied at an early stage and the interests of homeowners are protected.

The building certifier submitted that its standard approach to certification was to search for obvious deviations from the plans or relevant standards, but this did not include identifying minor defects, checking the aesthetic appearance of the building work or the quality of the building work.

It was further submitted by the building certifier that the certifier was not concerned with the deviations from the building plans because it was unable to “second-guess” whether agreement had been reached between the builder and the Plaintiff to depart from the plans and that any departure from the plans would still involve the house being built “substantially in accordance with” the plans, or if not, any deviation from the plans could be rectified upon applying for a certificate of occupancy.

His Honour rejected these submissions, stating that the certifier’s approach to the aesthetic appearance and quality of the building work resulted in a failure to comply with its duties under the Act and that the certifier’s approach to the deviation from the approved plans was manifestly inconsistent with its obligations under the Act.

His Honour further stated that, had the certifier performed its duties with reasonable care and skill, it would have identified the defects and no certificate would have been given, therefore requiring the builder to remedy the defects at an earlier stage.

The building certifier submitted that any damages recoverable by the Plaintiff for the defects was too remote to be recoverable, or alternatively, any liability of the certifier should be apportioned.

His Honour rejected those arguments and awarded damages to the Plaintiff in the sum of $156,706.00 and ordered the certifier to pay the Plaintiff’s legal costs.