BUILDING CERTIFIER’S LIABILITY FOR DEFECTS IN APARTMENT BUILDINGS
Owners and committee members in a building riddled with defects often wonder how the builder managed to get their work “signed off” on completion. Shouldn’t the certifier have noticed that there were inadequate fire separation walls before they confirmed the work was completed properly?
However, certifiers are rarely the focus of a building defects claim because the builder is primarily considered to be responsible for the quality (or lack thereof) of the work. A recent case in the NSW Supreme Court may change that focus.
What is a building certifier?
Building certifiers are responsible for inspecting building work and certifying that the building work has been completed in accordance with the building approval, the Building Code of Australia and other standards. Building certifiers can work for councils or privately as a “private certifier”.
Defects claims
If defects exist in an apartment building, the body corporate may be able to make a claim against the original builder. However, in certain circumstances, a body corporate may have difficulties making a claim against the builder following the recent High Court case of Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36 (the Brookfield Case).
Bodies corporate are now looking at making claims against any other parties to recover the cost of rectifying the defects.
In the recent NSW Supreme Court case of Chan v Acres [2015] NSWSC 1885 (the Chan v Acres) the Court considered whether a home owner could make a claim against an accredited certifier (the equivalent of a building certifier) in relation to defects. The home owner was successful and recovered the cost of rectifying the defects from the accredited certifier.
The decision may be applied by bodies corporate across the various jurisdictions.
The facts of the case
In Chan v Acres, there were significant structural defects at the property.
The home owner made a claim against a number of parties, including the accredited certifier, in relation to the structural defects (and other defects).
The Court found that the accredited certifier should have identified the structural defects at a critical stage inspection and was negligent in failing to do so.
Despite the Brookfield Case, the Court held that the home owner was able to make a claim against the accredited certifier for negligence.
The Court had regard to the following things:
1. The accredited certifier was performing statutory functions.
2. The home owner relied on the accredited certifier.
3. The accredited certifier was in a position to decline to issue a certificate for the work and require the developer to rectify the structural defects.
It is interesting to note that, in Chan v Acres, the accredited certifier admitted that it failed to carry out inspections in an appropriate and professional way.
Applying it to other jurisdictions
Following Chan v Acres, if the body corporate is unable to make a claim against the original builder, there may still be hope of making a claim against a building certifier or council to recover the cost of rectifying defects depending on the circumstances.
In addition, to carrying out inspections of the building at critical stages during construction, the certifier may also be negligent if it fails to ensure that the certificate it issues for the work references and attaches all relevant and appropriate certificates from subcontractors who carried out various works.
Although Chan v Acres would not bind the courts and tribunals in other jurisdictions because it is a NSW case, it would be persuasive. For example, the Queensland Building Act 1975 and Sustainable Planning Act 2009 impose similar functions on councils and certifiers as the NSW legislation that was considered in Chan v Acres.
The building defects and construction team at Grace Lawyers acts for bodies corporate and owners corporations across Queensland, NSW and Victoria and acted in the Brookfield Case.