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Certifier found liable for building defects

In the case of Asset Building Certifiers Pty Ltd v Hyblewski [2020] ACTA 21, a home owner succeeded in claiming against a private certifier in relation to building defects.

Alicia Hyblewski was the owner of a house in Casey in the Australian Capital Territory. Ms Hyblewski entered in to a contract with Bellerive Homes Pty Ltd for the construction of a single storey dwelling.

Ms Hyblewski engaged Asset Building Certifiers Pty Ltd as the principal certifying authority. Michael Collins performed the role of the certifier in the employment of Asset Building Certifiers Pty Ltd.

The decision at first instance

At first instance the Court found that:

  • It was common ground that the certifier was liable for defects which would not have occurred had the certifier done his job to the requisite contractual standard and that the certifier may not be in a position to detect every defect which amounts to a breach of the building contract.
  • It was found that the contract between the certifier and Ms Hyblewski contained an implied term that the certifier would carry out the certification work with all due care and skill within the context of the residential building law in the ACT (Building Act 2004 (ACT)).
  • Mr Collins, in undertaking his role of a certifier, clearly failed to comply with both his contractual and statutory duty because:“Had Mr Collins performed the duties of a certifier with reasonable care and skill then, relevantly, following the pre-sheet and final stage inspections no certificate would have been given …

Accordingly, Ms Hyblewski was successful in claiming against the certifier at first instance.

The decision on appeal

The certifier appealed the decision on numerous grounds but was unsuccessful.

The certifier argued that there was no evidence that the builder would have rectified the defects the certifier brought the defects to the builder’s attention.

On appeal the Court found that:

  • The defects were evident upon inspection by the certifier using reasonable diligence and the certifier had the power and the obligation to issue a written notice and withhold a certificate so that works could not proceed further until the defective works were rectified and built in accordance with the plans.
  • The building work should have come to a standstill and remained at a standstill until the builder rectified the then-current defects.
  • There are three possibilities what would the builder have done if he had been given directions to rectify the work and was denied a certificate:
    1. The builder could have abandoned the works and been liable for a breach of contract.
    2. The second possibility is that he may have continued to build without a certificate. This second alternative can be dismissed as a competent certifier would have reported this breach to the regulatory authority and the builder’s building licence would be, at least, at risk and he would also be liable to prosecution.
    3. The third possibility is that he would have complied with directions to rectify the work and build in accordance with the plans.

By permitting the building work to progress, the certifier is a cause of the defects. Further building defects could not have occurred if the certifier was not in breach of his contract.

Please note, this article is based upon a decision of the Supreme Court of the Australian Capital Territory Court of Appeal and that the law in this jurisdiction may differ from the law in New South Wales.

The information provided in this article is general information only and should not be relied upon as legal advice or be used as a substitute for obtaining legal advice. The specific circumstances relating to you impact upon your legal rights and obligations and personal legal advice based upon your circumstances should be obtained. This area of law changes frequently and the law may have changed after the time this article was prepared, up-to-date legal advice should be obtained. Please do not hesitate to contact Williamson Lawyers if we may be of assistance.

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