Liability of Certifiers for defective building - Certifier appeal decision of Supreme Court

28/03/2017

The NSW Court of Appeal is currently weighing the issue of whether a person who has bought a defective building can sue the Certifier of the building.

In the case of Chan v Acres in 2015, the NSW Supreme Court found that a Certifier who had failed to notice that a building was defective was liable to a Purchaser of the building who had suffered damage because the building could not be lived in.

In that case, the Plaintiff had purchased a building in Ku-Ring-Gai Council area of Sydney.  After buying the building, the Plaintiff found that a new extension which had been built at the house was defective and not fit for habitation.  The seller of the building was an Owner-Builder who had obtained plans from an Engineer to erect an extension.  The Builder of the extension had not constructed the building in accordance with those  plans.  The extension was found to be defective.

The Principal Certifying Authority was Ku-Ring-Gai Council.  A Certifier from the Council had inspected the new construction on several occasions but failed to notice that the building was not built in accordance with the engineering plans..

The Purchaser of the building sued the Council claiming that it had been negligent in failing to notice that the new building was defective. She claimed the cost of rectifying the new building from the council.

The Supreme Court heard the case and decided that the Certifier was guilty of breaching its duty of care to the Purchaser of the building and awarded the Purchaser damages.

The Supreme Court held that the Certifier was under statutory obligations which protected Purchasers of buildings which had been certified. Those statutory obligations arose due to the Environmental Planning and Assessment Act in New South Wales.

The Ku-Ring-Gai Council has appealed to the NSW Court of Appeal and the hearing of the Appeal came before the Supreme Court of New South Wales in November 2016.  The Council argued that the Supreme Court was incorrect in its decision that a Certifier of the building would be liable for damage caused by a Builder.

The Court of Appeal will be handing down its decision shortly.

Please do not hesitate to contact Richard Watson our experienced Building & Construction Lawyer or Shereen Da Gloria his assistant should you have any queries or concerns or if you are faced with this situation and are unsure as to who is responsible for a defective building.

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