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[2011] ACTSC 23
Supreme Court of the ACT
2011-02-17
Gray J
Original judgment source is linked above.
[2011] ACTSC 23 (17 February 2011)
LITIGATION - certifier approving plans for building work comprising extensions to an existing dwelling - building extensions constructed over a sewerage line and encroaching on plaintiff's sewerage easement - plaintiff relocating the sewer - claim of economic loss against certifier - claim dismissed with costs.
NEGLIGENCE - duty of care - duty of building certifier to utility service provider - economic loss - issue of vulnerability - whether provides cause of action - no duty arising - negligence established.
TORT - alleged breach of statutory duty - Building Act 1972 (ACT), Building Regulations 1972 (ACT), Utilities Act 2000 (ACT) - building certifier issuing building approval - duty to utility service provider - economic loss - whether cause of action made out - no statutory duty owed to utility service provider.
Building Act 1972 (ACT), ss 30, 31, 33A, 34, 34A, 37, 38A, 40, 53
Construction Practitioners Registration Act 1998 (ACT), ss 8, 25, 26
Utilities Act 2000 (ACT), ss 123, 124, 125
Explanatory Memorandum, Construction Practitioners Registration Bill 1998
O'Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464
Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1
Sunderland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424
The Ombudsman v Moroney [1983] 1 NSWLR 317
Moorabool Shire Council v Taitapanui [2004] VSC 239; (2006) 14 VR 55; [2006] HCATrans 328; [2006] VSCA 30
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
AND: STRONACH BUILDING GROUP PTY LTD ACN 066 801 465
1. The plaintiff's claim against the first defendant be dismissed with costs.
1. ACTEW Corporation Ltd, the plaintiff, is a government owned corporation and, at the relevant time, was responsible for the sewerage network in the Australian Capital Territory.
2. At the relevant time, John Ivan Mihaljevic, the first defendant, was a person who was appointed a certifier under s 31 of the Building Act 1972 (ACT) (Building Act).
3. Stronach Building Group Pty Ltd, the second defendant, is a company operated by Barry Riad Stronach, the third defendant. The third defendant is a licensed builder under the Building Act.
4. The plaintiff has settled its claim against the second and third defendants and the matter proceeds against the first defendant.
5. The plaintiff claims against the first defendant for breach of statutory duty and negligence in respect of his approval of building work comprising extensions to the existing dwelling at Block 16, Section 23, Campbell in the Australian Capital Territory (the property), where the building extensions to the property were constructed over a sewerage line and encroached on a sewerage easement. The plaintiff claims as economic loss the cost to it of relocating the sewer which is said to be the result of the first defendant's breach of statutory duty and/or negligence.
6. The property was the family home of Gordon and Jacqueline Burridge as owners under a Crown Lease. Mr Burridge had a terminal illness and his wife wished to care for him at home. The home was a two-storey duplex and it was proposed to add a ground floor extension to accommodate a bedroom and ensuite at ground floor level.
7. In early 2001, Mr Stronach was contacted and he arranged for plans for the extension to be prepared. Those plans, consisting of a Site Plan, a plan showing the existing and proposed ground floor plan, and a plan showing the building elevations (the Plans), were prepared by a draughtswoman engaged by Mr Stronach and are dated 9 March 2001. The Site Plan does not show any easements or the location of a sewer main.
8. By letter dated 14 March 2001, representations were made to the Minister of Urban Services by Mrs Burridge seeking expedition of planning approval for this project. As a consequence, it appears that the plans were dealt with by what was described as a "same day" approval as far as the planning requirements were concerned.
9. The owners engaged Mr Stronach and his company as designer and builder for the project. Mr Stronach was the holder of a builder's licence under the Building Act. On 20 March 2001, a building contract was signed by the owners. Part A of the Application by Owner for Building Approval appointing Mr Mihaljevic as certifier was also signed by the owners on that date. Mr Mihaljevic was entitled under the Construction Practitioners Registration Act 1998 (ACT) (Construction Practitioners Registration Act) to perform services as certifier in relation to the work (see s 30(2)(b) of the Building Act). That Application by Owner for Building Approval also contains a Part B which is to be subsequently completed by the certifier concerning his approval and a Part C giving notification of the builder and his insurance which is also to be subsequently completed by the certifier.
10. On 22 March 2001, Mr Stronach presented a Single Dwelling Development Application to Planning and Land Management (PALM) for approval under the Land (Planning and Environment) Act 1991 (ACT). The plans accompanying that application were stamped "Approval Granted" on that day on the basis of being a "Same Day Plan Approval".
11. Mr Stronach then provided the approved plans to Mr Mihaljevic. When Mr Stronach provided those plans, he informed Mr Mihaljevic of the same day approval from PALM and of Mr Burridge's illness which presumably explained the same day approval. On 23 March 2001, Mr Mihaljevic signed the Site Plan under the stamp "Building Approval approved under s 34 of the Building Act 1972". Mr Mihaljevic also completed Part B of the Application by Owner for Building Approval by signing "Approved under Section 34 of the Building Act 1972".
12. A copy of the plans was lodged with the Department of Urban Services for stormwater clearance and on 28 March 2001, the copy of the Site Plan was endorsed "STORMWATER SECTION PLAN APPROVED FOR EASEMENT CHECK".
13. On 29 March 2001 a copy of that plan, under a cover sheet of Mr Mihaljevic's company, Certified Building Solutions Pty Ltd, was provided to "ACTEW Electrical and Water". The ACTEW Corporation Electrical Section recorded its approval and made a comment on the cover sheet (but not the plan) on 30 March 2001.
14. A stamp from ActewAGL - Water Division was also placed on the cover sheet. It read: "Note - All services and structures to be located clear of easements sewer/water Not Approved" and the box next to "Not Approved" had a tick placed in it. Under that typeface was handwritten in block letters "EXTENSION ENCROACHING SEWER EASEMENT 2.5m. NO RECORD OF APPROVAL FOR CARPORT". It was signed and dated under the hand of Ted Milczarek, Easement Officer, 2 April 2001. The plan had a courier service stamp of 5 April 2001 indicating it was couriered to Mr Mihaljevic's company on that date.
15. On 4 April 2001, the Application by Owner for Building Approval (Parts A and B completed) had been lodged by Mr Mihaljevic with the ACT Building, Electrical and Plumbing Control (BEPCON), Department of Urban Services with a copy of the plan that had been approved by him as certifier on 23 March 2001. There was, apparently, no notification of any matter from this branch of the government.
17. On 14 June 2001 there was an inspection report by Mr Mihaljevic "Satisfactory to proceed under section 37 [of the Building Act 1972]".
18. On 11 July 2001, Mr Mihaljevic signed a final inspection report "Satisfactory to issue C of O [certificate of occupancy] under section 53(3) [of the Building Act 1972]". He also signed off on the Certificate of Completion of the Building Work on 11 July 2001, which certifies that the building was fit for occupation and use.
19. On 13 July 2001, a plumbing inspector noted that the addition to the residence encroached on the easement for the block and a recommendation was made that the certificate of occupancy be withheld until the matter was resolved.
20. Ultimately, a certificate of occupancy was issued on the basis of remedial work to be performed. The easement did not, in fact, contain the actual sewer main which was located outside of it. However, both the easement and the sewer main had already been encroached upon by the carport extension that had been built over both the easement and the sewer main over 10 years earlier. No record exists showing any approval for that extension. The remedial works involved relocating the sewer main, extensive works and landscaping. The plaintiff met that cost and now seeks to recover it from the defendants in this action. As I have said earlier, the matter now only proceeds against the first defendant, Mr Mihaljevic.
21. Paragraph 11 of the second further amended statement of claim alleges:
By reason of sections 33A, 34 and 34A of the Building Act 1972, the first defendant owed the plaintiff a statutory duty to:
(a) ensure that he had consulted with the plaintiff before approving plans for the extension; and
(b) determine whether the carrying out of the building work to construct the extension would result in the contravention of the Utilities Act 2000 before approving plans for the extension.
In breach of his statutory duty and/or negligently, the first defendant approved the plans for the extension and certified the building of the extension pursuant to the Building Act 1972.
A. Particulars of breach of statutory duty
(i) approving plans for the extension before consultation with the plaintiff;
(ii) approving plans without ensuring that the building of the extension would not interfere with the sewerage main running through the property;
(iii) approving plans which did not comply with the statutory requirement for such plans in that:
(A) they did not depict the location of the plaintiff's sewerage easement;
(B) they did not show any point of connection of a pipe on the land to the sewerage system; and
(C) they did not include the most recent pre-existing plans.
B. Particulars of negligence
(iv) approving plans without ensuring that the building of the extension would not encroach upon the plaintiff's sewerage easement main easement;
(v) permitting work to continue and certifying such work under the Building Act 1972 notwithstanding the plaintiff's notification (by its agent, ActewAGL) that it disapproved of the plans because the proposed extension would encroach on the plaintiff's easement main easement;
(vi) failing to ascertain the exact location of the sewerage main before approving the plans and/or certifying the building work;
(vii) failing to ensure that the plans contained reference to the plaintiff's easement over the land;
(viii) failing to ensure that the plans took account of the location of the sewerage main;
(ix) the plaintiff refers to and repeats particulars A.(i) to (iii) above.
23. Whether there is a statutory duty alleged in the pleadings to have been breached so as to give the plaintiff a cause of action against Mr Mihaljevic depends upon the construction of the legislative provisions relied upon by the plaintiff.
24. In considering whether a breach of a provision of the Scaffolding and Lifts Act 1912 (NSW) gave a cause of action to a person injured in a lift. Dixon J in O'Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464 said (at 477-478):
It is a question of some difficulty whether a civil remedy is given to a person injured in consequence of the breach of that clause. Such a person may, of course, maintain an action of negligence and rely upon the failure to comply with the statutory regulations as evidence of negligence. But it is a different question whether the enactment itself confers a distinct cause of action. The received doctrine is that when a statute prescribes in the interests of the safety of members of the public or a class of them a course of conduct and does no more than penalize a breach of its provisions, the question whether a private right of action also arises must be determined as a matter of construction. The difficulty is that in such a case the legislature has in fact expressed no intention upon the subject, and an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy. As an examination of the decided cases will show, an intention to give, or not to give, a private right has more often than not been ascribed to the legislature as a result of presumptions or by reference to matters governing the policy of the provision rather than the meaning of the instrument. Sometimes it almost appears that a complexion is given to the statute upon very general considerations without either the authority of any general rule of law or the application of any definite rule of construction.
25. In Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 (at 424), Brennan CJ, Dawson and Toohey JJ observed:
A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. The question is one of the construction of statute, although as Dixon J pointed out in O'Connor v S P Bray Ltd, an examination of the statute "will rarely yield a necessary implication positively giving a civil remedy".
(Footnotes omitted.)
26. A further important qualification is that "... there is no action for breach of statutory duty unless the legislation confers a right on the injured person to have the duty performed" (see Northern Territory v Mengel (1995) 185 CLR 307 (at 343-344), per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ and Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 (at 58) per Gummow J).
27. An action for a breach of statutory duty does not require that the act of a defendant be shown to be either intentional or negligent. How the action interacts with negligence is described by Mason J in Sunderland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 (at 459):
According to received doctrine the breach of a statutory duty may itself give rise to a civil cause of action. In England and Australia the separate and concurrent character of causes of action arising from breach of a statutory duty and common law negligence have been repeatedly emphasized: O'Connor v SP Bray Ltd; London Passenger Transport Board v Upson; Downs v Williams. The existence of a statutory cause of action, generally based on strict liability, does not exclude liability for breach of a common law duty of care unless the statute provides otherwise: Hirst v Jessop; Bux v Slough Metals Ltd. On this view, the breach of a statutory duty may both (a) itself give rise to a separate cause of action, and (b) be evidence of negligence at common law: Sibley v Kais.
(Footnotes omitted.)
29. In 1998 the Construction Practitioners Registration Act was enacted to provide for the registration of construction practitioners who may act as private certifiers under the Building Act in respect of building work. Its purpose is to allow for persons not employed by the government to undertake plan approval and inspection functions that had previously been undertaken by government employees appointed as building inspectors.
30. The Act provides for the qualifications to be held by private certifiers, registration requirements as well as a scheme of regulation by way of compliance auditors. An important aspect is the avoidance of any conflict of interest. Provision is made for an ethical code. There is a requirement for professional indemnity insurance against claims for breach of professional duty as a certifier (see generally the Explanatory Memorandum, Construction Practitioners Registration Bill 1998).
31. Certain sections of the Building Act and Building Regulations 1972 (ACT) (Building Regulations), were also enacted to give effect to this scheme of private certification. I now set out and comment upon the provisions that applied at the relevant time.
32. Section 31 of the Building Act makes provision for the owner of the land on which it is proposed to carry out building work to appoint a certifier.
33. Section 33A of the Building Act provides for the application by the owner to the certifier for a building approval. It provides:
33A Application
(1) The owner of a parcel of land may apply, in accordance with this section, to the certifier for a building approval in relation to building work to be carried out on the land.
(2) An application under subsection (1) may be made by an agent of the owner of the parcel of land on the owner's behalf.
(3) An application under subsection (1) -
(a) shall be in writing; and
(b) shall specify -
(i) the name of the owner of the parcel of land; and
(ii) the block, section, division and district (within the meaning of the Districts Act 1966) of the parcel of land; and
(c) shall be accompanied by the prescribed number of copies of the plans relating to the proposed work; and
(ca) if the building work involves the demolition of any building, or the alteration of a building other than a class 1, class 2 or class 10a building - shall be accompanied by a waste management plan; and
(d) shall comply with the prescribed requirements.
34. In my view, this section clearly places responsibility on the owner of the land, or the agent of the owner, to provide the prescribed number of copies of the plans relating to the proposed work to accompany the application to the certifier for building approval. There is no implication to be drawn from this section that would make the certifier responsible for the content of such plans.
35. Section 34 of the Building Act then goes on to provide for the issue of building approvals by the certifier. The provisions relevant to this matter are:
(1) Subject to section 34A, the certifier to whom application for a building approval is made shall issue the approval if he or she is satisfied that -
(a) the application complies with subsection 33A (3); and
...
(c) the plans that accompany the application comply with the prescribed requirements; and
(d) the prescribed requirements relating to consultation with, or obtaining the consent or approval of, any person, body or authority, have been satisfied; ...
36. It seems to be clear that s 34 of the Building Act requires the certifier, in particular, to be satisfied that the plans provided by the owner comply with the prescribed requirements and that the requirements concerning consultation and approval have been satisfied. The section is not framed in a way which creates a duty on the certifier to carry out the designated actions. It is a mandatory requirement on the certifier to issue the approval upon being satisfied of the matters set out in the section. Taken in conjunction with s 34A of the Building Act, it could only conceivably be said that s 34 provides a checking role for the certifier without any obligation as to the content of the plans. Nor can I see any necessary implication of a responsibility on the part of the certifier to carry out the prescribed requirements. In such circumstances, I am not prepared to construe the combination of ss 34 and 34A of the Building Act as, of themselves, evincing a legislative intention to provide a ground for civil liability on the certifier.
37. The prescribed requirements referred to in s 34(1)(c) of the Building Act are those set out in ss 12 and 13 of the Building Regulations. Those sections relevantly provide:
12 Plans - general requirements
(1) For the purposes of paragraph 34(1)(c) of the Act, the following are prescribed requirements in relation to plans to accompany all applications:
...
(b) the plans shall show any area marked on a certificate of title or deposited plan as an easement;
(c) the plans shall show any point of connection of a pipe on the parcel of land to -
(i) the sewerage system; and
(ii) the water main; and
(iii) the stormwater system;
and, if a point of connection is proposed to be altered during the building work, the plans shall show the proposed alteration;
...
(1) For the purposes of paragraph 34(1)(c) of the Act, the following are prescribed requirements in relation to plans to accompany an application in relation to building work that involves the erection or alteration of a building:
...
(d) unless the application relates solely to the erection of a new building, the plans shall -
(i) include the most recent existing plans, including any amendments made to the plans during the building work to which the plans relate; and
(ii) show the existing building and the proposed alterations on the same plan in such a way that the existing building and the proposed new part of the building are clearly distinguishable;
...
38. The prescribed requirements set out in s 34(1)(d) of the Building Act concerning consultation consent or approval are those set out in s 15 of the Building Regulations. The relevant provision is:
15 Consultation and consent
(1) The requirements for the purposes of paragraph 34(1)(d) of the Act, are that the following consultations take place or consents or approvals be obtained:
...
(f) consultation with ACTEW Corporation Limited in relation to -
...
(ii) any encroachment of the proposed building or proposed new part of the building, as the case requires, onto an easement; and
...
...
39. It may be noted that consultation with the entity ACTEW Corporation Ltd is required only in the circumstances predicated in s 15 of the Building Regulations. The consultation is required "in relation to" any encroachment. That circumstance will generally only be determined by the approved plans demonstrating that there is such a circumstance. If, as in the present case, the plans do not show the encroachment, I do not consider that it can be reasonably assumed that the provision has the effect of creating a statutory duty on a certifier to ensure that the consultation referred to in s 15(1)(f)(ii) of the Building Regulations takes place.
40. As far as the prescribed requirements set out in ss 12, 13 and 15 of the Building Regulations are concerned, Ms Needham SC, who appeared as counsel for Mr Mihaljevic, stressed that the requirement placed by s 34 of the Building Act was that the certifier be "satisfied" in respect of them. She cited The Ombudsman v Moroney [1983] 1 NSWLR 317 (at 322) per Street CJ as a state of mind that is subjective. I do not have any difficulty with that proposition insofar as it requires advertence to the matters of which satisfaction is required and objective matters which could reasonably support that state of mind.
41. The further aspect of what is alleged as Mr Mihaljevic's breach of statutory duty is the way that the Utilities Act 2000 (ACT) (Utilities Act) bears upon Mr Mihaljevic's responsibilities as certifier. Sewerage networks are protected under the Utilities Act. Section 124 of that Act provides:
124 Interference with networks
(1) A person must not interfere with a network, or a network facility, unless authorised to do so by a responsible utility.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(2) In a prosecution for an offence against subsection (1), for the purpose of establishing whether an action interfered with a network or a network facility -
(a) it is sufficient to prove that, when the action occurred, there were reasonable grounds for believing it was likely to interfere with the network or facility; and
(b) the offence may be found to be proved even if, at that time, the defendant did not believe the action would be likely to interfere with the network or facility.
42. Interference with a network is defined in s 123 of the Utilities Act to include an action that interferes with its safe or efficient operation, inhibits or obstructs lawful access to it or is likely to have that effect.
43. It may be accepted that the building work certified by Mr Mihaljevic, which was to be constructed over the sewerage easement, was likely to have the effect of inhibiting or obstructing access to the network for the purpose of ss 123, and 124 of the Utilities Act, but Mr Mihaljevic's responsibility in that regard must be dependent upon his knowledge of that circumstance.
44. Section 125 of the Utilities Act gives certain rights to a utility charged with responsibility for a network. That section provides:
(1) This section applies if a responsible utility is satisfied that a structure or activity on, under or over land or water interferes, or is reasonably likely to interfere, with the network or a network facility.
(2) The utility may give the land-holder written notice to take whatever action is necessary to stop the interference with the network or facility, or to remove the likelihood of that interference.
(3) The notice must -
(a) indicate the structure or activity; and
(b) require the land-holder to take stated action to stop the interference, or remove the likelihood of the interference, within a stated period; and
(c) contain a statement about the effect of subsection (5).
(4) The stated period must be no less than 14 days starting on the date the notice is given to the land-holder.
(5) If the land-holder does not comply with the notice -
(a) the utility may do whatever is necessary to stop the interference or remove the likelihood of the interference; and
(b) the reasonable expenses thus incurred by the utility are a debt due to the utility by the land-holder.
...
45. Paragraph 11 of the second further amended statement of claim seeks to link consultation with the plaintiff with the carrying out of the building work as a contravention of the Utilities Act. The breach of statutory duty pleaded is to "ensure that he had consulted with the plaintiff" and "determine whether the carrying out of the building work to construct the extension would result in the contravention of the Utilities Act 2000 before approving plans for the extension".
46. For the reasons that follow, it is not possible on any fair construction of the Building Act, Building Regulations and the Utilities Act, in my view, to find a statutory duty having the characteristics pleaded by paragraph 11 of the second further amended statement of claim.
47. On the basis of the provisions to which I have referred, Mr Crowe SC, who appeared as counsel on behalf of the plaintiff, submitted that Mr Mihaljevic had not discharged the duties imposed upon him by these provisions.
48. Ultimately, I did not understand his submission to be that Mr Mihaljevic was necessarily in breach of a statutory duty but rather that he was in breach of his duties as a professional certifier in not ensuring that the plans showed the easement, not consulting with the plaintiff and in permitting the work to continue notwithstanding the notification that he had received of the extension encroaching on the easement. However, to a significant extent the allegations that Mr Crowe makes as to what he seeks to characterise as breach of statutory duty found the plaintiff's claim for negligence.
49. In the first place, I am not able to agree that the first defendant owed a statutory duty to ensure that the plans that he was being asked to approve showed the easement. The duty to provide proper plans would seem to lie firmly on the builder/designer or owner. It may be noted that s 8(2)(b) of the Construction Practitioners Registration Act prohibits a certifier from preparing drawings intended to be used in relation to the building work. The clear responsibility is that of the owner of the property through the builder/designer to provide appropriate plans to the certifier. The certifier's role is to assess those plans. That does not oblige the assessor to do more than accept the accuracy of the plans and assess the issue of whether approval should be granted on that basis.
50. In the present case, Mr Mihaljevic claims that he asked Mr Stronach if there was an easement on the property and he was told that there was not. Mr Stronach denies this but he said that he was satisfied from what the owner showed him about the manholes on the property and that the owner told him of the approval of the carport and solid brick façade, that there were no easements.
Existing features. Now, as a draftsperson her brief was only to draft up the plans, wasn't it?---Yes.
It wasn't to go and undertake searches for easements and sewerage diagrams, was it?---I don't know. I - last night I looked through some other files, five files before that case and five files after that case, and what I discovered was that it's a long time ago and unfortunately what we do when a job finishes, we take out what we believe at the time to be not relevant and dispose of those and we keep what we think is relevant. So from the limited data that I've got on file in some cases the DPs were given to us by clients, copies of. In other cases there was a request to go and search the building file. In this particular case we didn't search for a DP, I didn't, and she wasn't instructed to, because - yes.
And - - -
HIS HONOUR: The DP is a deposited plan, I take it.
MS NEEDHAM: It is?---Sorry, yes.
HIS HONOUR: That's all right?---But if I could finish, the reason we didn't search for a deposited plan was Mr Burridge had a talk to me and he gave us these plans. He also told me where the manholes were because he'd had the house since it was built, and we also had a carport and a brick - a solid brick façade on the side of the building and he told me that they were approved. Now with those being approved I made an assumption, whether it be right or wrong, that there was no easement there. I was fairly confident there was an easement at the back of the house because of the electricity wires, but with a carport and a solid brick, double solid brick façade, which had been approved, I made an assumption that there was no easement there.
52. As the background facts indicate, Mr Mihaljevic provided a copy of the site Plan to the plaintiff's agent, "ACTEW Electrical and Water". He did so as part of an office practice to provide plans to all bodies where consultation might be required but, he says, and I accept, that it was not provided as part of the consultation required by s 15 of the Building Regulations. As far as this aspect was concerned, he said as to his approval:
Well under regulation 15 the requirement of the Act is to consult with the authorities, specifically with ACTEW, consult with ACTEW if you are encroaching any easements. And since there were no easements shown there was no need to consult so I approved them straight away.
53. Mr Mihaljevic also said that when the plan was returned to his office on 5 April 2001 with the endorsement from ActewAGL - Water Division relating to the extension encroaching the sewer easement with no record of approval for the carport (see [14]), he did not appreciate that it referred to the extension. He explained his position, in cross-examination, as to the plan with the notation:
And you were then asked "Do you have a recollection of either seeing or being told about the document when it came back?". You said "Yes, I do." Can you tell his Honour what that recollection is?", and you said "My receptionist, Mr Nguyen, came to me and said "The carport is not approved on this one". And I turned around to him and I said "Well we're not approving the carport we're approving the extension". "What did you then do about document?" at page 71, answer "Nothing". Is it the case, Mr Mihaljevic that you didn't even look at the document?---Yes, that's correct.
Your obligation was a personal one as a professional certifier to perform the functions of a certifier under the Act, weren't they?---Yes.
I take it Mr Nguyen, the receptionist, was not a certifier?---No, he's not.
If you look at the stamp on page 71, it is, I want to suggest to you, crystal clear that the reason Mr Milczarek had ticked it "Not approved" was the primary reason, I want to suggest to you, was that the extension encroached over the sewer easement?---Yes, I can see that.
Are you telling the court that you didn't appreciate that at the time?---No.
Because you didn't look at the document?---No, because I believe there were no easements on the site.
54. As to Mr Mihaljevic's belief that there was not an easement on the property, Mr Stronach, who was the builder and third defendant, gave evidence of his understanding that if there was a sewerage system or easement, it should have been shown on the plan. He also took the plans to the PALM as part of the "fast track" process. He said:
My understanding still is that they check for easements, because in the past they have made comments about easements.
55. As to Mr Stronach's instructions to and reliance upon the draftsperson, he said:
And what did you say to Ms Gringer when you instructed her?---Well, like obviously I can't remember the exact words, it's - it's a bit of a - it's quite a while ago but I would imagine that I gave her a copy of our pencil drawing, if you like, a sketch. I would have given her a copy of the building, original building drawing, the one that was in reverse. And we also have a - what we call a site measure sheet that's just something we use to take details of - to take details of the existing features.
Of the?---Existing features of the house.
56. He was asked about the information he had obtained from the owner, Mr Burridge:
No, you told us earlier that you relied upon Mr Burridge not telling you there was an easement on the property?---Mr Burridge didn't tell me there wasn't an easement on the property. Mr Burridge showed me where the manholes were and he told me that his carport and brick façade was approved.
And from that, you made an assumption, an active assumption, that there was no need to make any further inquiries because there would be no easement?---That's correct, but that doesn't mean I told Mr Mihaljevic that.
57. Although it is a matter of dispute by Mr Mihaljevic that he was in fact told by Mr Stronach that the property was clear of all easements, that does not seem to matter in light of Mr Stronach's understanding of the position. I say that because, as I have said, it is apparent from the terms of s 33A of the Building Act that the content of the plans are the responsibility of the owner and Mr Stronach, as the builder/designer and agent of the owner. As far as Mr Mihaljevic was concerned, he was entitled to act on the same assumptions as Mr Stronach in respect of an existing extension comprising a carport and a brick façade which had been built next to the boundary of the property. Therefore, he could assume that the existing extension had not been built over an easement.
58. Further, it seems to me that the owner/builder in the present case is in the position of determining the proposal for the building and has the responsibility of complying with the prescribed requirements. In determining whether the prescribed requirement as to what the plans should show has been met, the issue is whether the certifier "is satisfied". That is quite a different concept to "ensuring" a circumstance.
59. In the present case, Mr Mihaljevic was entitled to assume that the plans had been drawn by reference to the certificate of title or deposited plan. The evidence of Mr Milczarek, the Easement Officer of the ActewAGL - Water Division at the time was that about 70% of blocks that had been transferred from the Federal Government to the ACT Government had registered easements over the sewerage and water mains. On this basis, it could not be said to be unusual or out of the ordinary for a certificate of title or deposited plan not to show an easement.
Not all blocks in the ACT have a water, sewerage, electrical or storm water main going through the block. Those plans that have no assets going through the block we don't have any interest in so we stamp them straight away. Out of that 60% of those blocks that have a water, sewerage, electrical, on the sewerage and water side, 70% of them have registered easements. In other words not every block in the ACT has a sewer main running through it or a water main. Is that clear?
61. With that background, I can accept that Mr Mihaljevic had a basis for being satisfied that the plans did not propose any encroachment over an easement or sewer line. He summed up his position as to his satisfaction on that basis, as he said:
The application for building approval where it showed no easements, showed a carport built to boundary. It was previously approved by PALM and then it's finally come to mine [sic], and I had no reason to doubt there were no easements.
62. On being satisfied that the plans did not show an encroachment onto an easement, the requirement that there be consultation with ACTEW Corporation Limited did not arise for Mr Mihaljevic's consideration.
63. Mr Crowe drew attention to the fact that s 12(1)(c)(i) of the Building Regulations requires the plans to show any point of connection of a pipe on the land to the sewerage system. In cross-examination on this aspect, Mr Mihaljevic explained that if the sewerage connection is made to existing lines that belong to the residence, it is not a connection to the ActewAGL sewerage system. I have no reason not to accept his evidence and explanation as to why no point of connection would necessarily be on the plan. Mr Mihaljevic's view in this regard seems to be supported by the evidence of Mr Milczarek that the other way of protecting water and sewer pipes was by way of "reserves" or "pipe protection envelopes". There is nothing to suggest that connection to pipes protected in this way would be "a point of connection of a pipe on the parcel of land to the sewerage system" that s 12(1)(c)(i) of the Building Regulations requires to be shown on the plans.
64. A further point was made that there was non-compliance with the requirements of s 13(1)(d) of the Building Regulations. That provision requires that the plans shall include the most recent existing plans and show the existing building and the proposed alterations on the same plan in such a way that the existing building and the proposed new part of the building are clearly distinguishable. What is actually required is not terribly clear. Certainly Mr Mihaljevic considered that this section of the Building Regulations was satisfied by the plans that he certified. Technically he may have been wrong and in cross-examination he conceded this.
65. If "the most recent existing plans" referred to in s 13(1)(d)(i) of the Building Regulations means the plans which had been required for approval of the carport extension, then those plans did not specifically show the easement. There is an indication of the stormwater and sewerage lines on one aspect of that plan but not the easement itself. Mr Mihaljevic conceded in cross-examination that he was not aware of the need to provide two sets of plans. In that regard he may be right, as long as the plan provided fulfils the two requirements expressed in the regulation. On any view, the regulation is not drafted to express any clear intention as to what was required to make clear the difference between the proposed and existing plans that the regulation apparently requires.
66. Mr Mihaljevic's default in this regard, if it be so regarded, is only an aspect to be considered in respect of the particulars of negligence pleaded. It is not determinative of any one of them.
The Utilities Act
67. As far as a duty on Mr Mihaljevic to determine whether the extension would contravene the Utilities Act, that seems to be, as pleaded in paragraph 11(b) of the second further amended statement of claim, a matter co-extensive with a duty to ensure consultation with the plaintiff. I am not able to discern any statutory duty under the Building Act that would require Mr Mihaljevic to determine whether the carrying out of the building work would result in a contravention of the Utilities Act.
68. The particulars given of the breach of statutory duty alleged in paragraph 13A(i) and (ii) of the further amended statement of claim, relate solely to Mr Mihaljevic's approval of the plans, presumably under s 34 of the Building Act. That approval, as I have found, did not require consultation with the plaintiff or a positive duty to "ensure" non-interference with the easement on the sewerage main.
69. The other particulars of breach of statutory duty alleged in paragraph 13 refer to the non-compliance of the plans as not depicting the location of the plaintiff's sewerage easement, not showing any point of connection of a pipe on the land to the sewerage system and not including the most recent pre-existing plans (see paragraph 13A(iii) (A), (B), (C)). These particulars do not allege a duty on a certifier to "ensure" that these matters are part of the process involved in the certifier's approval. As I have said earlier, the duty is to be "satisfied" that the plans comply with the prescribed requirements and that the prescribed requirements relating to consultation have been satisfied. It seems to me that unless the plaintiff shows that there were no grounds upon which it was open to the certifier to not form the satisfaction required before approval, it was not possible to derive any relevant statutory duty from the requirement to be satisfied of these matters before approval. I conclude therefore, that Mr Mihaljevic's approval of the plans does not involve any breach of statutory duty owed to either the owner, the builder or to any wider class.
70. The particulars of negligence contained in the second further amended statement of claim, whilst referring to repeating the breaches of statutory duty particularised in paragraph 13A, refer in paragraphs 13B(iv), (vi) and (vii) to a similar expression to the duty of approving plans not ensuring, failing to ascertain and failing to ensure the matters that are contended to be constituted within the statutory duty.
71. The particulars of negligence in paragraph 13B(v) of the second further amended statement of claim add a further aspect relating to Mr Mihaljevic certifying the work for the builder to proceed with the building work above the dampcourse level. That certificate was given on 14 June 2001. The plans with the notation concerning the extension encroaching the sewer easement had been returned to Mr Mihaljevic on 5 April 2001. Mr Mihaljevic's explanation as to why he took no action on the notation has already been noted (see [53]).
72. Section 38A(1) and (2) of the Building Act provides:
(1) There shall be such stages of building work as are prescribed.
(2) A licensee in charge of building work shall not proceed with any building work above dampcourse level unless -
(a) the certifier has received a plan signed by a surveyor registered under the Surveyors Act 1967 specifying the position of the building in relation to the boundaries of the parcel of land on which the building is to be erected and specifying the level that the floor or floors of the building will have in relation to a level specified in the approved plans; and
(b) the certifier is satisfied that the position of the building and the level of the floor or floors are in accordance with -
(i) the approved plans; and
(ii) the conditions to which any compulsory consent is subject.
73. In the present case, Mr Mihaljevic did not receive the survey plan contemplated by s 38A(2)(a) of the Building Act. Nevertheless, he was satisfied in terms of s 38A(2)(b) as to the position of the building and the floor level. At that stage, on 14 June 2001, Mr Mihaljevic reported that it was "satisfactory to proceed".
74. Section 40(1) of the Building Act provides for certification of the completion of the building work. The relevant provisions provide:
40 Completion of building work
(1) Where building work appears to have been completed, the certifier shall, within 7 days of being satisfied that -
(a) the work has been completed in accordance with the requirements of this Act and substantially in accordance with the approved plans; and
(b) the building or part of the building as erected or altered is structurally sufficient, sound and stable for the purposes for which it is to be occupied or used;
give to the building controller -
...
(g) a certificate that the building work has been completed in accordance with the requirements of this Act and substantially in accordance with the approved plans;
...
75. Section 40(1)(h) of the Building Act also provides for advice to be given that the building controller would be justified in issuing a certificate of occupancy.
76. It was not suggested that these provisions create a statutory duty to not certify or to stop the building work. Rather, they were put to me on the basis that these are all provisions which provide an opportunity for Mr Mihaljevic to raise the notification from ActewAGL - Water Division. A fair reading of these provisions does not, in my view, oblige him to do so. However, the provisions may lend some content to a certifier's duty of care to an owner consequent upon such notification.
77. Mr Crowe stressed the objective of the Construction Practitioners Registration Act and the professional responsibilities of private certifiers in "assum[ing] the liability for the adequacy of building work that goes with powers to approve plans for the building work" (citing a passage from the Explanatory Memorandum to that Act). That responsibility does not appear to be in contest and was acknowledged by Mr Mihaljevic.
78. I conclude that the advice given by the ActewAGL - Water Division of the extension encroaching the easement is not a matter relevant to a certifier's satisfaction for the purposes of the provisions to which I have referred. Nevertheless, given the overall professional responsibility of a certifier, I consider that a certifier who has such knowledge may be said to owe a duty to the builder and the building owner to at least inform those persons to whom he owes that duty. Whether or not Mr Mihaljevic was in breach, I do not determine because I am firmly of the view that the plaintiff may not recover damages in respect of any such breach of that duty.
79. Accepting that Mr Mihaljevic was in a position to take steps to deal with the notification given to him by ActewAGL - Water Division, the issue is whether any duty of care arising from this circumstance is owed to the plaintiff where, as a consequence of breach, the plaintiff sustained purely economic loss.
80. Mr Crowe relied almost exclusively upon the reasoning adopted by Smith J in Moorabool Shire Council v Taitapanui [2004] VSC 239 (Moorabool Shire Council) in upholding a decision of the Victorian Civil & Administrative Tribunal (VCAT). In that case, VCAT awarded damages for pure economic loss to subsequent purchasers of a property where a private building surveyor had granted a building permit and the property had been constructed with serious structural deficiencies. Despite some parallel with the present case, the plaintiff, as a public utility, stands in quite a different position to the original owner and subsequent purchasers. Further, the structural defects were attributable to the insufficiency of information obtainable from the application and plans and the large number of defects that should have been picked up on inspection by the building surveyor.
81. Smith J determined Moorabool Shire Council on the basis of the High Court's decision in Bryan v Maloney (1995) 182 CLR 609 (Bryan v Maloney). In that case, a subsequent purchaser of a house successfully claimed from the builder for the economic loss constituted by the diminution in its value. It was after the subsequent purchaser took possession, that cracks appeared in the walls caused by the fact that the builder had built it with inadequate footings.
82. Smith J also considered the High Court's decision in Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 (Woolcock). In that case, a majority of the court (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ) held that the engineering company which designed the foundations of a warehouse and office complex did not owe a duty of care to a subsequent purchaser to avoid damage by way of economic loss.
83. The decision in Woolcock was handed down after the hearing by Smith J in Moorabool Shire Council, but before he gave judgment in that matter. Whilst the decision in Bryan v Maloney was distinguished and commented upon in Woolcock, Smith J proceeded on the basis that Bryan v Maloney was still good law and a binding precedent. He said:
As I read the majority decision in Woolcock , it identified as a significant part of the reasoning in Bryan v Maloney the relationship between the alleged tortfeasor respondent and the original owner which was characterised by the assumption of responsibility by the respondent and "known reliance" by the original owner on the respondent. It also had regard to that relationship in reaching its own decision. It expressly left open, however, the issue of the precise significance of
disconformity between the obligations owed to the original owner under the contract to build or design a building and the duty of care allegedly owed to a subsequent owner . . .
It referred to the fact that the original contract would be a relevant circumstance at least to the extent that it defines the task which the builder or engineer undertook and referred to the difficulty in holding that the respondent owed the appellant a duty of care to avoid economic loss to a subsequent owner if the performance of that duty would have required the respondents to do more or different work than that specified in the contract with the original owner. Their Honours also noted that in Bryan v Maloney there was no disconformity between the duty owed to the original owner and the duty owed to the subsequent owner.
(Footnotes omitted.)
84. In Woolcock (at [19]), the majority discussed the issue of economic loss allegedly suffered as a result of buying a building which is defective. In the present case, the plaintiff's loss is consequential upon the plaintiff exercising its right under s 125 of the Utilities Act and incurring expense in removing interference to its sewerage network. That loss is also to be regarded as pure economic loss.
85. In Woolcock (at [21], [22] and [23], [24]), the court discussed in detail claims of that nature:
If liability were to be imposed for the doing of anything which caused pure economic loss that was foreseeable, the tort of negligence would destroy commercial competition (see per Lord Reid in Dorset Yacht Co v Home Office [1970] UKHL 2; [1970] AC 1004 at 1027), sterilize many contracts and, in the well-known dictum of Chief Judge Cardozo (Ultramares Corporation v Touche (1931) 255 NY 170 at 179 (1931) [174 NE 441 at 444]), expose defendants to potential liability 'in an indeterminate amount for an indeterminate time to an indeterminate class'.
That is why damages for pure economic loss are not recoverable if all that is shown is that the defendant's negligence was a cause of the loss and the loss was reasonably foreseeable.
86. Further, the majority noted that Bryan v Maloney (at [26]) relied upon notions of known reliance and assumption of responsibility:
87. In this case, on my analysis of a certifier's duties, the scope of the duty owed by Mr Mihaljevic in terms of the professional relationship between himself and to the owners and perhaps the builder, does not exhibit these characteristics. For this reason, the reasoning adopted in Bryan v Maloney and applied by Smith J in Moorabool Shire Council does not assist the plaintiff in this case.
88. It may be noted that an appeal against Smith J's decision in Moorabool Shire Council was dismissed by the Victorian Court of Appeal in [2006] VSCA 30; (2006) 14 VR 55 and special leave to the High Court was refused in [2006] HCATrans 328. Nothing was said in those cases that affect the distinction that I have drawn between Bryan v Maloney and the present case.
89. As the majority noted in Woolcock (at [23]) (set out above), vulnerability of the plaintiff is an important consideration in cases where there has been held to be a duty of care to avoid economic loss.
90. The plaintiff's pleading in paragraph 10A of the second further amended statement of claim alleges:
10A. At all material times the plaintiff was in a position of vulnerability in relation to the protection of its main and the maintenance of ready access to it -
10A.1 with respect to the first defendant, in that:
(i) it had no way of knowing of the proposed building works unless informed by the first defendant pursuant to the plan approval and consultation process required under section 34 of the Building Act; and
(ii) it had no way of preventing the building works until it was too late by reason of the first defendant's breaches of sections 34 and 34A of the Building Act.
91. I have referred in detail to Mr Milhaljevic's obligations under s 34 of the Building Act. Absent a duty to ensure that the plans showed the encroachment on the easement, these allegations as to the relationship between Mr Milhaljevic and the plaintiff cannot be made out.
92. This case is not like the case of Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 where the plaintiffs could do nothing to protect themselves from the economic consequences suffered by them due to the defendant's negligence. In that case, McHugh J observed (at 227 [118]):
In many cases, there will be no sound reason for imposing a duty on the defendant to protect the plaintiff from economic loss where it was reasonably open to the plaintiff to take steps to protect itself. The vulnerability of the plaintiff to harm from the defendant's conduct is therefore ordinarily a prerequisite to imposing a duty. If the plaintiff has taken, or could have taken steps to protect itself from the defendant's conduct and was not induced by the defendant's conduct from taking such steps, there is no reason why the law should step in and impose a duty on the defendant to protect the plaintiff from the risk of pure economic loss.
93. On the issue of vulnerability, Ms Needham submitted that s 125 of the Utilities Act enabled the plaintiff to protect its interests both by way of a network protection notice and recovery of costs from the landholder. I accept that submission.
94. On the plaintiff's behalf, Mr Crowe suggested that at the time that the economic loss was sustained, the plaintiff, whilst holding an exemption from the Minister to conduct the network, was not a licensed entity under the Utilities Act until 29 June 2001. Even if that technicality prevented the issue of a network protection notice, it does not deny the plaintiff the ability to obtain the reasonable expenses incurred as a debt due by the land holder after that date. The fact that in all the circumstances the plaintiff chose not to exercise its right to recover its loss from the owners because of Mr Burridge's terminal illness, does not deny the available remedy. That is reinforced by the reason given to Mr and Mrs Burridge in a letter dated 9 November 2001 that the plaintiff wished to avoid taking action under the Utilities Act because the owners "were unaware of the legislative breach involved in construction of the home extension in a manner that interfered with the sewer main (noting that "interference" under the Utilities Act, includes obstruction of access to utility assets)". It was the plaintiff's choice not to exercise the remedy available to it.
95. The pleading of vulnerability, as I have noted, is directed to Mr Mihaljevic's alleged breaches of ss 34 and 34A of the Building Act. The thrust of the pleading in that regard is that, had Mr Mihaljevic, as certifier, been obliged to ensure that consultation had taken place with the plaintiff, the plaintiff would have had its attention drawn to the potential encroachment on the easement.
96. In fact, by Mr Mihaljevic providing a copy of the plan to Actew Electrical and Water, the plaintiff was given notice. In other words, strictly the allegation in paragraph 10A.1(i) of the second further amended statement of claim is not made out.
97. Having regard to all the matters to which I have referred, I am not satisfied that the plaintiff has demonstrated known reliance or dependence on the plaintiff the assumption of responsibility by Mr Mihaljevic on the control exercisable by Mr Mihaljevic over the circumstances affecting the plaintiff's interests such as to make Mr Mihaljevic liable to the plaintiff even if it be established that he was in breach of duty to the owners (cf Moorabool Shire Council v Taitapanui [2006] VSCA 30 (at [71]) per Ormiston and Ashley JJA).
98. In view of this conclusion, it is unnecessary to apply ss 25 and 26 of the Construction Practitioners Registration Act to take account of the proposition of the total amount of the damages suffered by the plaintiff attributable to Mr Mihaljevic, the first defendant in these proceedings. The plaintiff settled its claim against the second and third defendants on the basis of liability being apportioned to them of 25%.
99. The plaintiff's claim against Mr Mihaljevic, the first defendant, is dismissed with costs.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Counsel for the first defendant: Ms J Needham SC with Mr W Sharwood
Solicitor for the first defendant: Howes Kaye Halpin
ACTEW Corporation Limited
Mihaljevic & Ors [2011] ACTSC 23
(1937) 56 CLR 464
(1995) 185 CLR 410
(1995) 185 CLR 307
(1999) 200 CLR 1
(1985) 157 CLR 424
(2006) 14 VR 55
(1995) 182 CLR 609
(2004) 216 CLR 515
(1999) 198 CLR 180
(1976) 136 CLR 529
(1997) 188 CLR 159
(1998) 192 CLR 330
(1968) 122 CLR 556
(1970) 122 CLR 628
(1981) 150 CLR 225