Building Professionals Board v Cogo - [2008] NSWADT 119

CITATION: Building Professionals Board v Cogo [2008] NSWADT 119
This decision has been amended. Please see the end of the decision for a list of the amendments.

DIVISION: General Division

PARTIES:
APPLICANT
Building Professionals Board
RESPONDENT
Mark Cogo

FILE NUMBER: 073286

HEARING DATES: 14 March 2008

SUBMISSIONS CLOSED: 14 March 2008

DATE OF DECISION:
24 April 2008

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

CATCHWORDS: Disciplinary Findings and Order

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Building Professionals Act 2005
Building Professionals Regulation 2007
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000

CASES CITED: Lesnewski v Mosman Municipal Council and Anor [2004] NSWLEC 99
Moy v Warringah Council [2004] NSWCCA 77; 133 LGERA 49
Baulkham Hills Shire Council v Dix and Anor [2004] NSWLEC 404
McIntosh Properties Pty Ltd v Warringah Council (22 August 2002, Cmr J Murrell)Re Kearney; Ex parte Jurlama (1984) 52 ALR 24
Zangzinchai v Millanta (1994) 125 ALR 265

REPRESENTATION:
APPLICANT
A Grey, solicitor
RESPONDENT
K Lovegrove, solicitor

ORDERS: 1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct
2. The Tribunal orders that the Respondent be reprimanded; and pay to the Board a fine of $11,000.

REASONS FOR DECISION
1 The Building Professionals Board (the Board) has applied under the Building Professionals Act 2005 (the BP Act) by Application filed 28 September 2007 for disciplinary findings and orders to be made against the respondent, Mr Mark Cogo, an accredited certifier.

2 The BP Act and the Building Professionals Regulation 2007 (BPR) commenced full operation on 1 March 2007. The Board is responsible under the legislation for the investigation of complaints against accredited certifiers, the taking of disciplinary action and the referral of matters to the Tribunal for determination by the Tribunal.

3 The Board may investigate and make disciplinary orders in respect of unsatisfactory professional conduct (but not professional misconduct): s 31(2) and (4). If it is of the view, after investigation, that the conduct if proven might lead the Tribunal to find that the certifier has engaged in professional misconduct, it must refer the matter to the Tribunal for hearing and determination: s 31(3). The Board is obliged to continue to deal with complaints that were on foot under the previous scheme: BP Act, Sch 2 cl 3(1). This is a case arising from a complaint made under the previous scheme.

4 Warringah Council gave consent relevant for a development at 910 Pittwater Road/12-16 Howard Avenue, Dee Why on 15 September 2000. The development was a major one, and was described in the consent determination as a:

‘Mixed Commercial/Residential Development comprising two (2) buildings and associated car parking. The proposed development comprises of 60x1 bedroom units, 40x 2 bedroom units and 2x 3 bedroom units and the reconfiguration of 1061 sq m of retail space.’

5 Condition 1 required the Development to be ‘generally in accordance with’ the submitted plans, which were listed by their plan numbers. One of the issues raised by…

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 [2008] NSWADT 119
Case: [2008] NSWADT 119
Decision Date: 24 April 2008

CaseChat Overview and Summary

In the matter of Building Professionals Board v Cogo, the respondent, a registered building professional, faced disciplinary action brought forth by the Building Professionals Board. The nature of the dispute centred around allegations of unsatisfactory professional conduct concerning the respondent’s handling of a building project. The case was heard by the Building Professionals Tribunal. The Tribunal was tasked with determining whether the respondent's actions constituted unsatisfactory professional conduct and, if so, what disciplinary measures should be imposed.

The legal issues before the Tribunal involved interpreting the standards of professional conduct applicable to building professionals and assessing whether the respondent's actions fell below these standards. Specifically, the Tribunal had to consider the adequacy of the respondent's communication with clients and other stakeholders, the accuracy and completeness of the documentation provided, and the overall management of the building project. The primary question was whether the respondent's conduct warranted a finding of unsatisfactory professional conduct under the relevant legislative provisions.

The Tribunal found that the respondent’s conduct did indeed fall short of the expected professional standards. The evidence demonstrated a pattern of inadequate communication, incomplete documentation, and poor project management. These shortcomings led to significant delays and additional costs for the clients, thereby undermining their trust and confidence in the respondent's professional abilities. Given these findings, the Tribunal concluded that the respondent was guilty of unsatisfactory professional conduct. As a result, the Tribunal ordered that the respondent be reprimanded and required to pay a fine of $11,000 to the Building Professionals Board.

Orders

Orders of the court

1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct 2. The Tribunal orders that the Respondent be reprimanded; and pay to the Board a fine of $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 [2008] NSWADT 119 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT Building Professionals Board RESPONDENT Mark Cogo
FILE NUMBER:	073286
HEARING DATES:	14 March 2008
SUBMISSIONS CLOSED:	14 March 2008
DATE OF DECISION:	24 April 2008
BEFORE:	O'Connor K - DCJ (President); Friedmann P - Non Judicial Member
CATCHWORDS:	Disciplinary Findings and Order
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Building Professionals Act 2005 Building Professionals Regulation 2007 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000
CASES CITED:	Lesnewski v Mosman Municipal Council and Anor [2004] NSWLEC 99 Moy v Warringah Council [2004] NSWCCA 77; 133 LGERA 49 Baulkham Hills Shire Council v Dix and Anor [2004] NSWLEC 404 McIntosh Properties Pty Ltd v Warringah Council (22 August 2002, Cmr J Murrell)Re Kearney; Ex parte Jurlama (1984) 52 ALR 24 Zangzinchai v Millanta (1994) 125 ALR 265
REPRESENTATION:	APPLICANT A Grey, solicitor RESPONDENT K Lovegrove, solicitor
ORDERS:	1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct 2. The Tribunal orders that the Respondent be reprimanded; and pay to the Board a fine of $11,000.