Asset Building Certifiers Pty Ltd v Hyblewski

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Asset Building Certifiers Pty Ltd v Hyblewski

Citation:

[2020] ACTCA 21

Hearing Date:

13 November 2019

DecisionDate:

5 May 2020

Before:

Burns, Loukas-Karlsson JJ and Robinson AJ

Decision:

Appeal dismissed. See [86].

Catchwords:

APPEAL – CONTRACT – Causation – defective building works – nature of the contractual duty owed by appellant to respondent – whether respondent has proved loss – whether finding of trial judge on issue of causation not open – consideration of
ss 44(2)(a) and 44(5) of the Building Act 2004 (ACT)

Legislation Cited:

Building Act 2004 (ACT) ss 42, 43, 44, 45

Building (General) Regulation 2008 s 33

Civil Law (Wrongs) Act 2002 (ACT) ss 41, 45

Court Procedures Rules 2006 (ACT) r 406

Cases Cited:

Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; 149 CLR 155

Ho v Powell [2001] NSWCA 168; 51 NSWLR 572

Hyblewski v Bellerive Homes Pty Ltd [2019] ACTSC 44

Northam vFavelle Favco Holdings Pty Ltd (Unreported, Supreme Court of New South Wales, Justice Bryson, 7 March 1995)

Trustees of Property Cummins (a bankrupt) v Cummins [2006] HCA 6; 227 CLR 278

Parties:

Asset Building Certifiers Pty Ltd (Appellant)

Alicia Hyblewski (Respondent)

Representation:

Counsel

A Cheshire SC with S Adair (Appellant)

P Greenwood SC with W Buckland (Respondent)

Solicitors

Sparke Helmore (Appellant)

Aulich Law (Respondent)

File Number:

ACTCA 13 of 2019

Decision under appeal:  

Court:  ACT Supreme Court

Before:  Justice Mossop

Date of Decision:         1 March 2019

Case Title:                   Hyblewski v Bellerive Homes Pty Ltd

Citation: [2019] ACTSC 44

THE COURT

1. At the trial of this matter, the Owner of land brought proceedings against both the Builder under a building contract and also the Certifier engaged by the Owner in respect to that building contract.

1. On the first day of the trial, the proceedings between the Owner and the Builder were settled. The Owner’s claim against the Certifier proceeded to trial and continued to judgment in favour of the owner: Hyblewski v Bellerive Homes Pty Ltd [2019]

   
   

   ACTSC 44.

1. By an Amended Notice of Appeal, the Certifier appeals from the decision of

   
   

   Justice Mossop (the trial judge) whereby his Honour entered a judgment in the sum of $156,706 together with costs against the Certifier.

1. It is common ground that this appeal is by way of rehearing. See, for example, Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142.

1. At the hearing of the appeal, Mr Cheshire SC with Mr Adair appeared for the Certifier and Mr Greenwood SC with Mr Buckland appeared for the Owner. Neither

   
   

   Senior Counsel appeared at the trial.

1. After introduction of the parties below, for convenience only, we will refer to those parties by way of their respective roles as Owner, Builder and Certifier.

Background

1. In 2011, Alicia Hyblewski (the Owner) purchased land at Casey in…