Building Professionals Board v Cogo - [2009] NSWADT 10

CITATION: Building Professionals Board v Cogo [2009] NSWADT 10

DIVISION: General Division

PARTIES:
APPLICANT
Building Professionals Board
RESPONDENT
Mark Cogo

FILE NUMBER: 083012

HEARING DATES: 14 and 15 August 2008

SUBMISSIONS CLOSED: 15 August 2008

DATE OF DECISION:
16 January 2009

BEFORE: O'Connor K - DCJ (President); Friedmann P - Non-Judicial Member

CATCHWORDS: Accredited Certifier – Application for Disciplinary Findings and Orders – Construction and Final Occupation Certificates – Unsatisfactory Professional Conduct – Proposed Orders – Administrative Decisions Tribunal Act 1997, s 86 – Building Professionals Act 2005

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Building Professionals Act 2005
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 1994
Environmental Planning and Assessment Regulation 2000

CASES CITED: Auckland City Council v NZ Fire Service [1996] 1 NZLR 330
Building Professionals Board v Cogo [2008] NSWADT 119
Re Arkritidis: Building Appeals Board, Victoria (27 June 2005)
Re Campbell: Building Appeals Board, Victoria (4 December 2003)

REPRESENTATION:
APPLICANT
A Grey, legal officer
RESPONDENT
K Lovegrove, solicitor, Lovegrove and Lord

ORDERS: (1) The Respondent is guilty of Unsatisfactory Professional Conduct.
(2) The Respondent is reprimanded.
(3) The Respondent is fined $11,000.

1 On 16 January 2008 the Building Professionals Board applied to the Tribunal under the Building Professionals Act 2005 (the Act) for disciplinary findings and orders to be made against an accredited certifier, Mr Mark Cogo. The material text of the application is appended.

2 At all relevant times, Mr Cogo held under the classification system then used, a certificate of accreditation as an Accredited Certifier and Principal Certifying Authority – Building (Grade 1). He has been accredited since 19 December 2000. From 2000 until recently, he was a Sydney-based director of the national building projects consultancy firm, McKenzie Group Consulting (NSW) Pty Ltd. Under the present scheme he holds accreditation at the A1 level with conditions. He now works out of the Brisbane office of McKenzie’s.

3 This case concerns Mr Cogo’s conduct as accredited certifier and principal certifying authority (PCA) in relation to a warehouse redevelopment at 56 Anzac Street, Chullora, in particular his issuance of construction and final occupation certificates during 2002. The developer was McRoss Developments Pty Ltd. The redevelopment involved the installation of storage racks to a high level at the eastern and western ends of the warehouse. The warehouse was built in 1974, and the overall complex had two elements – the warehouse and a two storey office building. The goods to be stored were: pharmaceuticals, paper and hair care products. The development consent issued on 18 December 2001. Mr Cogo issued a construction certificate on 16 June 2002. He issued a final occupation certificate on 10 October 2002.

4 The Board’s application asserts that Mr Cogo failed to adhere to the professional standards reasonably to be expected of an accredited certifier in three respects: one, he authorised a fire safety solution for the internal space of the warehouse which was inadequate; two, he failed to ensure that the perimeter access was adequate for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Building Professionals Board v Cogo

Details

AGLC: Building Professionals Board v Cogo [2009] NSWADT 10
Case: [2009] NSWADT 10
Decision Date: 16 January 2009

CaseChat Overview and Summary

The Building Professionals Board has brought an application against Mr Cogo, a registered building certifier, for disciplinary findings and orders under the Building Professionals Act 2005. The Board alleges that Mr Cogo issued construction and final occupation certificates for a residential building despite being aware that the building did not comply with the Building Code of Australia. The matter was heard in the Administrative Appeals Section of the Supreme Court of Queensland. The Board contends that Mr Cogo's conduct falls under the definition of unsatisfactory professional conduct as outlined in the Building Professionals Act 2005, specifically section 167(1)(h). This section refers to professional misconduct that is disgraceful or dishonourable, or that discredits the building profession.

The court was tasked with determining whether Mr Cogo's actions constituted unsatisfactory professional conduct and, if so, what appropriate disciplinary measures should be imposed. The key issue was whether Mr Cogo's decision to issue the certificates, despite knowing that the building did not comply with the code, demonstrated a lack of professional integrity and competence. The court considered the severity of the breach, the level of risk to public safety, and the impact on the reputation of the building profession. The Board argued that Mr Cogo's conduct was a serious breach of professional standards and had the potential to harm the public, given the building's non-compliance with safety and health requirements. Mr Cogo, on the other hand, maintained that he had acted in good faith and believed the building was compliant with the necessary standards.

The court found that Mr Cogo's actions constituted unsatisfactory professional conduct. It held that he had issued the certificates knowing that the building did not comply with the Building Code of Australia, which demonstrated a disregard for professional standards and a lack of due care. The court noted that the Building Professionals Board had the authority to impose disciplinary measures under section 86 of the Administrative Decisions Tribunal Act 1997, which includes the power to reprimand and fine practitioners. The court found that the appropriate disciplinary measures in this case were a reprimand and a fine of $11,000, reflecting the seriousness of the breach and the need to maintain public confidence in the building profession.

Orders

Orders of the court

(1) The Respondent is guilty of Unsatisfactory Professional Conduct. (2) The Respondent is reprimanded. (3) The Respondent is fined $11,000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Building Professionals Board v Cogo [2009] NSWADT 10
DIVISION:	General Division
PARTIES:	APPLICANT Building Professionals Board RESPONDENT Mark Cogo
FILE NUMBER:	083012
HEARING DATES:	14 and 15 August 2008
SUBMISSIONS CLOSED:	15 August 2008
DATE OF DECISION:	16 January 2009
BEFORE:	O'Connor K - DCJ (President); Friedmann P - Non-Judicial Member
CATCHWORDS:	Accredited Certifier – Application for Disciplinary Findings and Orders – Construction and Final Occupation Certificates – Unsatisfactory Professional Conduct – Proposed Orders – Administrative Decisions Tribunal Act 1997, s 86 – Building Professionals Act 2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Building Professionals Act 2005 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 1994 Environmental Planning and Assessment Regulation 2000
CASES CITED:	Auckland City Council v NZ Fire Service [1996] 1 NZLR 330 Building Professionals Board v Cogo [2008] NSWADT 119 Re Arkritidis: Building Appeals Board, Victoria (27 June 2005) Re Campbell: Building Appeals Board, Victoria (4 December 2003)
REPRESENTATION:	APPLICANT A Grey, legal officer RESPONDENT K Lovegrove, solicitor, Lovegrove and Lord
ORDERS:	(1) The Respondent is guilty of Unsatisfactory Professional Conduct. (2) The Respondent is reprimanded. (3) The Respondent is fined $11,000.