Duty of Certifiers of Building Work - A New Angle

06/03/2019

In New South Wales there is a system by which building professionals “check” that new residential buildings and major renovations have been built to the appropriate standards. This system of certification, which involves the issue of construction certificates and occupation certificates, was at one stage exclusively managed by local authorities.

However in recent times the system was deregulated so that certification can be contracted out to private professionals. These people are called private Certifiers.

The result has been that both municipal authorities and private Certifiers have been able to carry out the role of “checking” whether a building has been constructed to certain standards.

The Certifier does not guarantee that the work carried out is without defects and in accordance with the law. The Certifier has a very limited obligation and duty.  The Certifier is required to carry out a few specified inspections and collect from the Builder and Consultants Certificates that they say the work has been carried out.  The Certificer does not have to check that the work has in fact been carried out as set out in the Certificates without defects and in accordance with the law.

What happens if Certifiers “get it wrong” and a building owner suffers?

It is sometimes the case that a Certifier does not carry out its duties or inspect correctly and an owner suffers a loss as a result of defective building work. In this case, it has proven difficult to recover against a Certifier who has made an error or committed a negligent act.

In New South Wales the Supreme Court case of Chan v Acres exemplified this. The Plaintiff, Ms Chan had bought a house in Sydney with an extension to the main house that had a defective structure. Ms Chan had not arranged for the house to be built but had bought the house in its defective state. Her advisers traced one of the alleged causes of the defects to the Certifier, the Ku-ring-gai Counsel, whose inspector had failed to notice that the engineering carried out was defective when he inspected the ongoing work.

Ms Chan sued the Council for negligence in certifying the building in that it failed to notice the defective engineering. When the case originally reached the Supreme Court the Court held that Ms Chan could sue the Council for negligence and awarded damages to Ms Chan for her loss.

However the Council lodged an appeal to the Court of Appeal. The Court of Appeal reversed the Supreme Court’s decision and held that Ms Chan did not have a right to sue the Certifier. This was because Ms Chan as the purchaser of the land on which the house had already been built was not “vulnerable” in the legal sense.  This meant that she did not have a close enough relationship to the Certifier that the Certifier would realise it ought to take care in carrying out its work. As a result Ms Chan lost her claim against the Certifier.

There is a different angle of claims against Certifiers in the ACT Supreme Court finding in March of 2019 of Hyblewski v Bellerive Homes Pty Limited. In that case, the person bringing the claim was an owner of land. This owner proceeded against the Certifier for breach of contract, because the owner had engaged the Certifier himself, as well as the builder.

The builder commenced the building but during the building process the owner formed the view that the building was defective in its brickwork, the foundations and the slab, including failing to properly prepare fill so that the slab could be constructed over the top of it as foundation to the house. The owner sued the builder and the Certifier. The claim against the builder was that it had carried out defective work. This claim was settled by agreement during the case. However the claim against the Certifier was that he had not carried out the certification work with all due care and skill.

The Court held that due care and skill was to be determined by the ACT ordinance about the duties of builders in building properties. The Court then reviewed what the Certifier had done and found that he had not carried out his duties as Certifier with all due care and skill. This is because if he had used such skill he would have noticed the defects in the building work and he did not do this. As a result of this breach of contract, the Court was willing to award damages to the owner for recovery of the loss suffered.

In the result the claim against the Certifier was successful.

Watson & Watson are experts in building and construction law and litigation and can assist you with enquiries regarding building disputes and building contracts.

If you have suffered as a result of defective building works and are unhappy with or have reservations about your builder or your Certifier whom you believe lacks or lacked a duty of care in certifying the building works in your construction/development please contact Richard Watson Accredited Specialist Building & Construction or his Personal Assistant Shereen Da Gloria to discuss your concerns and seek the appropriate advice without delay.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.