A woman who had a litany of complaints about the building of her new home has been awarded more than $150,000 after the certifier failed to point out defects during construction.
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It's understood the house is still far from finished eight years after she bought the land in Casey.
The landowner, Alicia Hyblewski, claimed that walls were badly built with bricks failing to lock together and that damp-proofing was not properly done. She argued that because the certifier approved each stage, defects were not corrected.
The ACT Supreme Court agreed. In addition to the order to pay Ms Hyblewski $156,706, the judge also instructed the certifier to pay costs, which may run into hundreds of thousands of dollars.
It's a case that will resonate because of the long-running controversy over the duties of certifiers in the building industry. In the ACT, they have a formal, legal role to approve building work but they are private companies rather than government officials.
In the court, Justice David Mossop ruled against the building certifier in the legal claim that it "failed to exercise due care and skill in performing his functions as a certifier".
Ms Hyblewski bought the land in Canberra in 2011 for a single storey house. According to court documents, builders proceeded with construction, with each stage cleared by a company called Asset Building Certifiers.
According to the court, "A director and shareholder of that company was Mr Michael Collins who in fact performed the functions of the certifier in this case."
Ms Hyblewski told the court there were defects in walls, with brick work being so poor that walls didn't interlock. On top of that, damp proofing was absent in parts.
She claimed that if the certifier had not approved the building work, it would have been stopped and corrected at each stage.
The court judgement said: "The building progressed and Mr Collins inspected the building work at the stages where that was required, namely, the slab stage, the pre-sheet stage and upon completion of the building work.
"In each case Mr Collins issued a certificate indicating that the work could proceed."
The court said "the approach that he took to the task of certification was inconsistent with his duties under the Act and hence under the contract. Had he performed his statutory and contractual duty then he would have identified the defects."
The court heard Mr Collins had given the go-ahead for work to proceed three times, on November 9, 2012, February 1, 2013 and May 23, 2013.
But Ms Hyblewski was expressing unhappiness about quality.
The court document lists the defects that were found:
- failing to prepare, or prepare properly, the land prior to the installation of the waffle pod slab;
- failing to provide an adequate foundation for the Building Works;
- failing to install, or install correctly, a moisture barrier beneath and/or next to the slab;
- failing to install, or install correctly, a moisture barrier between external concrete slabs and the waffle pod slabs;
- installing perpends in the brickwork which were too large and/or inadequately or incompletely damp proofed;
- installing an infill slab in a manner contrary to the BCA and/or suppliers recommendations;
- failing to install any, or any adequate, damp course;
- installing or allowing to be installed brickwork of poor workmanship, including works that were not plumb, not level, used unmortared joints, uneven, unengaged, over sailed the slab beyond BCA tolerances, had blocked weep holes and/or used broken bricks;
- constructing a shared double brick wall on the boundary of the land and the adjoining property, which served as a party wall where the approved plans called for the construction of two separate walls on the land and the adjoining block;
- and failing to construct brick extensions (nib walls) for the front wall of a bedroom on the premises.
Justice Mossop has awarded Ms Hyblewski $156,706 and ordered the certifier to pay her legal costs.
One estimate put the costs at hundreds of thousands of dollars but short of a million dollars. The litigation has been going on for nearly three years.
