Hyblewski v Bellerive Homes Pty Ltd - [2019] ACTSC 44

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Hyblewski v Bellerive Homes Pty Ltd
Citation:	[2019] ACTSC 44
Hearing Dates:	18, 19, 20 and 21 February 2019
DecisionDate:	1 March 2019
Before:	Mossop J
Decision:	See [128]
Catchwords:	BUILDING AND CONSTRUCTION – Building Act 2004 (ACT) – defective building works – statutory and contractual duty of the certifier – breach of duty by certifier in issuing stage certificates – failure to carry out statutory function of certifier with due care and skill – damages flowing from breach of contract – quantification of damages for remedial work – remoteness – recovery of damages for loss of rent – evidence presented at trial contrary to pleaded claim – apportionment of damages not available
Legislation Cited:	Building Act 2004 (ACT), ss 19, 28, 37, 42, 42(1), 42(1)(c), 42(1)(d)(i), 42(2), 43, 43(2), 43(3), 44, 44(2), 44(2)(a), 44(2)(b), 44(5), 88, 140, 141, 141(1) Building (General) Regulation 2008, ss 31, 31(b), 32, 32(1)(b), 32(2), 33 Planning and Development Act 2007 (ACT)
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Alexander v Cambridge Credit Corp (1987) 9 NSWLR 310 Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Dunn v Hanson Australasia Pty Ltd [2017] ACTSC 169; (2017) 12 ACTLR 138 George v Rockett (1990) 170 CLR 104 Hadley v Baxendale (1854) 9 Exch 341; (1854) 156 ER 145 C Czarnikow Ltd v Koufos [1969] 1 AC 350 Wenham v Ella (1972) 127 CLR 454
Text Cited:	Explanatory Statement, Building Bill 2003 (ACT)
Parties:	Alicia Hyblewski (Plaintiff) Bellerive Homes Pty Ltd (First Defendant) Asset Building Certifiers Pty Ltd (Second Defendant)
Representation:	Counsel B Buckland (Plaintiff) J Moffett (18 February 2019) M Mascitti (19 February 2019) (First Defendant) S Adair (Second Defendant)
Solicitors Aulich Civil Law (Plaintiff) Kamy Saeedi Law (First Defendant) Sparke Helmore Lawyers (Second Defendant)
File Number:	SC 258 of 2016

MOSSOP J:

Introduction

This is a claim by an owner of land against a building certifier who, it is alleged, failed to exercise due care and skill in performing his functions as a certifier. In particular, it is alleged that the certifier should not have provided stage certificates that allowed the construction to proceed when there were defects in the building work.

The plaintiff is Alicia Hyblewski. She purchased the land in May 2011 and at the same time executed a contract with a Bellerive Homes Pty Ltd (the builder) for the construction of a single-storey house on the land. The builder is the first defendant. Asset Building Certifiers Pty Ltd (Asset) is the entity engaged by the plaintiff to perform the functions of a certifier under the Building Act 2004 (ACT) (the Act). A director and shareholder of that company was Mr Michael Collins who in fact performed the functions of the certifier in this case. Asset was a two dollar company through which he and his wife conducted business.

Chronology of dispute

It is…

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.

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Details

Case: [2019] ACTSC 44
Decision Date: 1 March 2019

CaseChat Overview and Summary

The case of Hyblewski v Bellerive Homes Pty Ltd involved a dispute between the plaintiff, Hyblewski, and the defendant, Bellerive Homes Pty Ltd. Hyblewski, the purchaser of a property, sought damages for alleged defective building works. The dispute was heard by the Supreme Court of the Australian Capital Territory, where the plaintiff sought damages for the defective construction of a house that resulted in significant issues, including water ingress and structural problems. The plaintiff claimed damages against Bellerive Homes Pty Ltd, the builder, and the certifier of the construction works, alleging breaches of statutory and contractual duties in issuing stage certificates for the building works.

The primary legal issues before the court were whether the certifier had breached their statutory and contractual duties by issuing stage certificates without due care and skill, and if so, whether damages could be claimed for the remedial work and loss of rent. The court needed to determine whether the evidence presented at trial aligned with the pleaded claims and whether damages for loss of rent were recoverable. Furthermore, the court had to consider if the plaintiff could apportion the damages between the builder and the certifier.

The court held that the certifier had indeed breached their statutory and contractual duties by failing to carry out their statutory function with due care and skill. The breach of these duties led to the issuance of defective stage certificates, which contributed to the defective construction. Regarding the damages, the court found that the plaintiff could recover for the costs of remedial work necessitated by the defects. However, the court held that damages for loss of rent were not recoverable as the loss of rent was not a direct consequence of the defective construction. Additionally, the court noted that the evidence presented at trial did not support the pleaded claim that the loss of rent was due to the defective construction. Consequently, the plaintiff could not apportion the damages between the builder and the certifier.

The final orders of the court were that the certifier was liable for the costs of remedial work, and the builder was not liable for damages for loss of rent. The court did not allow for apportionment of damages between the builder and the certifier.

Orders

Orders of the court

See [128]

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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