Draper v Building Practitioners Board [2017] VCAT 1402 | Case summary

Draper v Building Practitioners Board (No 2) (Review and Regulation) [2017] VCAT 1402

Draper v Building Practitioners Board [2017] VCAT 1402 | Case summary | Zoe

[5]

Mr Draper, the Applicant in this proceeding, is (or was) the owner of a residential property located in Wallan, Victoria. On 5 June 2014, he entered into a domestic building contract with Simonds Homes (Vic) Pty Ltd ('the Builder') for the construction of a residential dwelling on that property. Disputation arose between Mr Draper and the Builder at an early stage of that building process. That disputation led to litigation in this Tribunal, which ultimately culminated in a determination favouring Mr Draper dated 29 April 2016.[1] By that determination, the Tribunal ordered that the Builder demolish the concrete slab and frame that it had already constructed, with a view of rebuilding the same in accordance with the Building Act 1993 and the regulations made thereunder.
Concurrent with that litigation, Mr Draper also raised a number of complaints with the Building Practitioners Board ('the Board') regarding the conduct of the Builder. In raising those complaints, Mr Draper agitated for an inquiry to be conducted into the activities of the Builder and more particularly, its principal director and nominated registered building practitioner; namely, Mr Vallence Simonds.
Mr Draper's complaints were investigated by the Board, with a view to determining whether an inquiry should be conducted into the professional conduct of Mr Simonds. On 11 May 2016, the Board notified Mr Draper that it had determined not to conduct an inquiry into the professional conduct of Mr Simonds (or his ability to practise as a building practitioner). Instead, the Board had determined to conduct a Conduct Review, in lieu of a full inquiry.
Dissatisfied with that determination, Mr Draper commenced this proceeding, seeking a review of the Board's determination not to conduct an inquiry into the professional conduct of Mr Simonds or his ability to practise.
For the reasons that follow, I find that an inquiry into the conduct, or ability to practise, of Mr Simonds is warranted and that an inquiry should be held pursuant to s 178 of the Building Act 1993 ('the Building Act').

[18]

Mr Draper's List of Claims number 40 in total. They include complaints relating to the way in which the Builder was conducting the Civil Proceeding, complaints relating to the as-constructed building works and complaints regarding the administration of the contract between Mr Draper and the Builder. In my view, not all of the matters listed by Mr Draper relate to conduct which can be investigated by the Board. For example, some of those matters relate to the conduct of the Builder in defending the civil claim made against it in the Civil Proceeding. Nevertheless, the categories of complaint, which may have prompted further investigation by the Board, include:
- (a) whether the Builder purported to vary the scope of the building works in contravention of s 37 of the Domestic Building Contracts Act 1995 ('the DBC Act');[4]
- (b) whether the Builder failed to include critical engineering documents in the building contract, in contravention of the DBC Act;[5]
- (c) whether the Builder failed to supply copies of reports and drawings relevant to the construction, in contravention of s 26 of the DBC Act;[6]
- (d) whether the Builder failed to produce design documents which complied with the Building Code of Australia (as it existed at the time), in contravention of s 8 of the DBC Act;[7]
- (e) whether the Builder failed to provide a drainage system in accordance with engineering design, in contravention of ss 8 and 30(4) of the DBC Act;[8]
- (f) whether the Builder failed to construct the frame in accordance with the Building Act and the regulations made thereunder, in contravention of the Building Code of Australia and s 8 of the DBC Act;[9]
- (g) whether the Builder failed to construct the concrete slab in accordance with the architectural and engineering drawings or in accordance with the Building Code of Australia, in contravention of s 8 of the DBC Act;[10]
- (h) whether the Builder prematurely demanded payment of staged progress claims in respect of the Deposit, Base Stage and Frame Stage, in contravention of s 40 of the DBC Act;[11]
- (i) whether Mr Simonds' failure to have personal involvement in the supervision of the building works constitutes 'gross negligence or gross incompetence' demonstrating that he is 'not a fit and proper person to practise as a building practitioner' (s 179(d) of the Building Act).[12]
The Board responded to Mr Draper's complaint by correspondence dated 17 February 2015 which stated, in part:

[37]

The above correspondence indicates that the panel undertaking the Conduct Review only considered some of the items raised by Mr Draper. This is, in part, because of recommendations made by Jon Weuers, the Senior Technical Adviser appointed under s 177 of the Building Act to investigate the conduct of Mr Simonds. Mr Weuers reviewed and assessed all of the allegations raised by Mr Draper. He also reviewed the contract documentation and conducted a site visit to assist him in that process.
Ultimately, Mr Weuers reported that only four of the allegations raised by Mr Draper warranted further investigation. Those allegations comprised:
- (a) a claim that critical engineering drawings had not been provided to Mr Draper;
- (b) a claim that variations had been undertaken in contravention of s 37 of the Domestic Building Contracts Act 1995; and
- (c) a claim that a deposit had been demanded prior to the requisite warranty insurance having been procured.
In relation to Mr Draper's allegation that the frame had not been constructed in accordance with the Building Code of Australia, Mr Weuers opined that although there were questions as to the adequacy of the frame, it had been approved by the relevant building surveyor and in those circumstances, he suggested that any further investigation should focus on the building surveyor, rather than the Builder. Finally, Mr Weuers did not recommend any further action in relation to, what might be regarded as Mr Draper's greatest grievance; namely, the level of the concrete slab vis-a-vis the finished ground level. Mr Weuers considered that this allegation had already been investigated by an engineer previously appointed by the Authority, pursuant to s 44 of the Domestic Building Contracts Act 1995, who concluded that the finished floor levels were generally consistent with the approved drawings (as amended).
As indicated above, following the conclusion of the Conduct Review, the Board advised Mr Draper on 11 May 2016 that it had determined not to conduct an inquiry.

[38]

The Tribunal's function in reviewing the Board's decision is prescribed under s 51 of the Victorian Civil and Administrative Tribunal Act 1998. That provision states, in part, that the Tribunal, in exercising its review jurisdiction in respect of the decision, has all the functions of the original decision maker and any other functions conferred by the enabling enactment (the Building Act). Under s 51(2) of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal may:
- (a) affirm the decision under review;
- (b) vary the decision under review;
- (c) set aside the decision under review and make another decision in substitution for it; or
- (d) set aside the decision under review and remit the matter for reconsideration by the original decision maker.
This means that the Tribunal examines the question under consideration afresh. As I indicated to Mr Draper during the course of the hearing, this does not mean that the Tribunal examines the correctness or otherwise of the Board's reasoning process but rather, the Tribunal's role is to make the correct or preferable decision having regard to the evidence heard and submissions made in the review hearing before the Tribunal.
In Shalit v Architects Registration Board of Victoria,[14] Senior Member Dea helpfully and succinctly set out what she considered to be relevant matters for the Tribunal to consider when assessing whether an inquiry should be held under the Architects Act 1991. Although that decision related to the professional conduct of an architect, I consider that many of the matters highlighted by Senior Member Dea have equal application in the context of this review hearing:
1. As discussed in my 2013 reasons, the matters to be considered in making that assessment [to hold an inquiry] are as follows:
  - The power given to the Board [Architects Registration Board of Victoria] under section 18 of the Architects Act to determine that an inquiry should or should not be held under Part 4 into the registered architect's fitness to practice or professional conduct is entirely discretionary and unfettered;
  - In exercising that power, regard ought to be had to the purpose for which the Board was created and to its duties. The Board's powers and duties include regulating the professional conduct of architects and providing a procedure for complaints. So, when considering whether a particular complaint ought to be referred to an inquiry, the decision-maker must have in its mind whether or not the conduct complained about might engage that regulatory function. That is, it ought to turn its mind to whether, if established, the conduct could be regarded as falling within one of the grounds contained in section 32 of the Architects Act;
  - The threshold for referral to an inquiry is not high. Having said that, there must be more than a bald assertion;
  - In general terms, I consider that the Board's policy as set out earlier is a reasonable approach to deciding when to refer a matter. I noted that a proviso was that the Board ought not to give too great weight to the fact that the architect may refute the allegations. The fact that there is a dispute about the matters in issue is not enough to decide against referral;
  - Some assessment of the strength of the available material should be made but the decision-maker ought not to pre-judge which factual matters will be established after a proper hearing when all parties can present evidence and that evidence can be tested;
  - It is not necessary for the decision-maker to have a final view about whether there has been a breach of section 32, but it ought to be satisfied that, if the facts alleged are established, a notice raising an alleged breach of section 32 can be prepared;
More recently, in Wallin v Architects Registration Board,[16] Member Wentworth adopted a similar approach when considering whether the Architects Registration Board should hold an inquiry into the professional conduct of an architect:
1. In determining whether an inquiry should be held, the threshold question is whether there is prima facie evidence of conduct which, if proven, might fall within one or more of the grounds for disciplinary action set out in s 32 of the Act. It is not a high threshold but there should be more than 'a bald assertion'. I do not need to resolve conflicting evidence, nor do I need to reach or express a final view on whether the grounds are proven, but I must be satisfied that there is evidence of conduct which engages the disciplinary function, warranting inquiry.[17]
In the present case, there are findings made in the Civil Proceeding that the Builder breached the Building Act and, by inference, possibly also the DBC Act. Of particular significance, the finished floor level of the concrete slab vis-a-vis what was the originally stipulated finished ground level. This ultimately led to orders being made requiring the Builder to demolish the concrete slab, which also necessitated dismantling the timber frame.[18] The Board concedes that the findings and orders of the Tribunal in the Civil Proceeding meet the 'threshold'. In particular, it concedes that breaching the Building Act or the DBC Act could give rise to disciplinary sanctions under s 179 of the Building Act.
However, the Board points to other factors which may also inform the Tribunal's discretion whether or not to order an inquiry. It submits that merely meeting the 'threshold', of itself, may not always justify that an inquiry be held. These include:
- (a) disciplinary proceedings are intended to be protective and not punitive in nature;
- (b) a Conduct Review has already been conducted;
- (c) there are no open 'live safety issues';
- (d) the long period of time that Mr Simonds has been registered;
- (e) Mr Draper's success in the Civil Proceeding; and
- (f) Mr Simonds' cooperation with the Conduct Review and his willingness to address areas of concern for the benefit of future customers.[19]
I accept that the exercise of the Tribunal's discretion must be informed by all relevant factors and not simply because a building practitioner has engaged in conduct that might give rise to disciplinary sanctions. Satisfying that 'threshold' is only one factor, albeit an important factor, influencing the Tribunal's discretion.
However, Mr Draper submitted that there are many other 'contraventions' on the part of the Builder and all of those should be considered by the Tribunal in the exercise of its discretion. He prepared comprehensive written submissions detailing what he considered to be conduct on the part of the Builder, and Mr Simonds personally, which justified or warranted an inquiry being conducted. The Board has responded to each of the categories of allegations set out in Mr Draper's submissions.
Therefore, it is important to consider those submissions in light of the evidence and submissions given during the course of the review hearing, the findings made by the Tribunal in the Civil Proceeding, and the matters raised by Mr Draper in his initial complaint to the Board. What follows is my consideration of those matters, which I have categorised into broad headings based on the allegations raised by Mr Draper in his written submissions. I then consider those alleged 'contraventions' in light of the Board's closing submissions.

[39]

In his letter to the Board dated 9 February 2015, Mr Draper listed 40 complaints against the Builder. Some of those complaints cross over, while others relate to matters that concern the conduct of the Builder and its legal representatives in the running of the Civil Proceeding. Each of those complaints have been investigated or considered by Mr Weuers, the person appointed by the Authority pursuant to s 177 of the Building Act. Mr Weuers was called to give evidence in this review hearing. Essentially, he adopted what he had set out in his s 177 report, dated 20 July 2015.
Most of the items comprising Mr Draper's letter of complaint are repeated in his written submissions, while others were not agitated during the course of the review hearing. Although Mr Draper gave no evidence in this review hearing, he nevertheless invited the Tribunal to have regard to his written submissions, which he indicated set out the totality of what he wanted to say in this review hearing. In my view, it is appropriate to have regard to Mr Draper's written submissions, despite him not giving any evidence, because:
- (a) they encapsulate most of the items raised by Mr Draper in his initial letter of complaint;
- (b) they focus primarily on the conduct of the Builder and Mr Simonds, rather than raising allegations against other practitioners; and
- (c) they have been responded to by the Board in its closing submissions.
Mr Draper's written submissions raise nine broad categories of complaint under the general heading of Allegations, which he contends could give rise to disciplinary decisions being made under s 179 of the Building Act.[20] In order to make those categories of complaint relevant to the statutory scheme giving rise to disciplinary action, I have attempted to connect those categories of complaint to conduct which, if proven, could result in disciplinary decisions being made against Mr Simonds under s 179 of the Building Act. With that in mind, I set out those categories of complaint as follows:
- (a) the Builder engaged in professional negligence;
- (b) the Builder made misleading statements;
- (c) the Builder failed to procure warranty insurance;
- (d) the Builder failed to contain required information in its building contract, in contravention of s 31 of the DBC Act;
- (e) the Builder varied the building works in contravention of s 37 of the DBC Act;
- (f) the Builder failed to comply with Australian Standards;
- (g) the Builder performed building work in contravention of the warranties set out under s 8 of the DBC Act;
- (h) Mr Simonds is unfit to practise as a registered building practitioner; and
- (i) the Builder demanded payment of progress claims prior to the relevant stage of building work being completed.
What follows is my consideration of each of those categories of complaint, with a view to determining whether they meet the 'threshold' as identified in the extracts of Wallin and Shalit cited above; and to also provide some guidance as to the areas which may justify further investigation by the Board or its successor, the Authority. In adopting that course, I am mindful that, ultimately, it is a matter for the Board (or the Authority) to determine how to frame allegations, the subject of any inquiry. My observations set out below are not intended to fetter that discretion.

[42]

The Board submits that there is no finding in the Civil Proceeding that the Builder engaged in unprofessional conduct, in the sense that its conduct could be said to be conduct that falls short of, to a substantial degree, the standard of professional conduct expected of a building practitioner. I accept that no such specific finding was made by the Tribunal in the Civil Proceeding. However, that proceeding was an inter-party dispute and the Tribunal was not called upon to make any such finding. Nevertheless, the Tribunal was critical of the Builder's conduct. The following passage from the Tribunal's Reasons exemplify this:
1. I regard that Simonds incurring this loss [of having to demolish the works] is a hardship, but that is not one that will be brought upon Simonds by reason of any rectification order, but by reason of its continuing with the framing works when a reasonable builder in the position of Simonds would not have started framing works in light of the particular complaints made by Mr Draper...
The Board further submits that there is no evidence before the Tribunal to satisfy it that the threshold in respect of this complaint has been met. Although that proposition may be correct, Mr Draper urges the Tribunal to look at the conduct of the Builder as a whole, with a view to determining whether that conduct constitutes unprofessional conduct.
In my view, it is open to the Tribunal or the Board (or Authority) to look at the Builder's conduct, as a whole, when considering whether it has engaged in unprofessional conduct. Accordingly, despite the fact that no evidence was given by Mr Draper during the course of this review hearing, I am of the opinion that the Builder's conduct, looked at as a whole, satisfies the threshold. In forming that view, I reiterate that my comments are not to be taken as a finding that the Builder or Mr Simonds engaged in unprofessional conduct but rather, simply that the allegation constitutes something more than a bare allegation and thus, satisfies the threshold.
Ultimately, it is for the Board or the Authority to investigate those complaints which it considers warrant investigation and then to form its own view as to whether there are grounds upon which to raise an allegation that the Builder is guilty of unprofessional conduct.

[46]

Mr Draper submits that it was misleading for the Builder to nominate Mr Simonds as the registered building practitioner in circumstances where Mr Simonds had no personal involvement in the building process.
It is common ground that Mr Simonds had no personal involvement in the building project. Nevertheless, he was nominated as the relevant building practitioner both in the building contract and the building permit. Mr Draper alleges the failure by Mr Simonds to have some personal involvement in the building process constitutes gross negligence and gross incompetence on his part or otherwise demonstrates that he is unfit to practise as a building practitioner. Indeed, Mr Draper contended during the course of the hearing that delegating all supervisory functions to other practitioners, such as the site supervisor or foreman, is a form of 'licence lending'.
The allegation assumes that the nominated building practitioner must have some involvement in the building process. However, the legislative framework under which the Builder is entitled to conduct its business does not specify that to be the case. Section 29 of the DBC Act requires that a builder who enters into a major domestic building contract must be registered. In the case of a builder which is a corporation, at least one of the directors must be registered. However, neither the DBC Act nor the Building Act require the corporate builder's director to be personally involved in the construction process, notwithstanding that the director may have vicarious liability under s 179B of the Building Act.
On one view, this situation might be seen as a lacuna in the legislative framework which regulates domestic building in Victoria. In particular, much can be said for the proposition that homeowners who contract with corporate builders should be able to draw comfort from the fact that the natural person who controls that corporate entity is overseeing the building work undertaken by that corporate entity. However, the reality of building does not always lend itself to that comforting thought. Volume builders, such as the Builder, undertake many building projects in any given year. It would be logistically impossible for the nominated registered building practitioner director of a volume builder to supervise every project undertaken by that corporate entity or at the very least, do so in any meaningful way.
Nevertheless, s 179B of the Building Act lifts the corporate veil in circumstances where the corporate builder breaches the Building Act or the DBC Act. In that sense, the risk of vicarious prosecution acts as an incentive to ensure that the nominated registered building practitioner director of a corporate builder engages appropriately qualified and skilled persons to manage, supervise and build each and every building project undertaken by the corporate builder. A failure to do so increases the risk that the corporate builder will breach the Building Act or the DBC Act, which in turn, may ultimately result in the nominated director being found personally guilty of unprofessional conduct or failing to comply with the Building Act or DBC Act. It may also result in the nominated director's registration being suspended or cancelled, which would then prevent the corporate builder from conducting its business, if no other director of that company was registered.
However, delegating responsibility for managing and supervising each of the many building projects undertaken by a corporate builder to district managers and site supervisors is not 'licence lending'. It is a practice which is contemplated by the legislative framework under which domestic building work is undertaken in Victoria. I do not consider the actions of Mr Simonds in that regard to have breached either the Building Act or the DBC Act; nor do I consider that this conduct falls within unprofessional conduct or conduct constituting gross negligence or gross incompetence. As I have already stated, the regulatory regime allows the Builder to conduct its business in that manner. Any change to the way in which the Builder is permitted to operate its business is ultimately a matter for parliament. That said, I do not consider that this allegation satisfies the threshold.
Similarly, Mr Draper submitted that it was misleading for the Builder to hold itself out as the relevant builder in circumstances where the nominated director building practitioner had no involvement in the building process. As I have already indicated, I do not consider that conduct to be misleading, having regard to the legislative framework under which building work in Victoria is conducted.

[64]

In my view, this allegation meets the 'threshold'. Indeed, the allegation was the subject of evidence in the Civil Proceeding and findings were made by the Tribunal which are consistent with what Mr Draper contends. In particular:
1. Also, I find that Simonds failed to inform Mr Draper that if the FFL [finished floor level] in the Amended Site Plan were adopted, the effect of Part 3.1.2.3 of the BCA would be that it would not be possible for the FGL [finished ground level] at slab edge to be at RL 98.58 metres. This is because that Part prescribes, in effect, that the distance between the FFL of a slab and the FGL at slab edge must be no less than 150 mm.
2. These matters, occurring in early July 2014, lie at the heart of Mr Draper's complaints about Simonds's conduct in relation to the construction of his dwelling. They are matters that I have concluded, on the evidence, have caused Mr Draper no small degree of indignation concerning the way Simonds conducted itself during the contract and final design phases.
Later in its Reasons, the Tribunal stated:
1. In this circumstance, in my view Simonds was required to give Mr Draper a notice pursuant to clause 23.0 of the Contract, setting out those matters described in clause 23.2 of the Contract, including the effect of the proposed variation will have on the contract works. I find that Simonds failed to do so.
Although I have formed no concluded view as to whether s 37 of the DBC Act has been contravened, I find, consistent with the findings made by the Tribunal in the Civil Proceeding, that the allegation is not baseless. As indicated above, s 179 of the Building Act enlivens the Board's power to impose a disciplinary decision against the building practitioner if that building practitioner has failed to comply with the DBC Act.
Further, Mr Draper contends that the variation also resulted in an amendment to the building permit. He submitted that the reason given to the building surveyor for the amendment to the building permit was to enable the location of the hot water service to be changed. However, he contended that the location of the hot water service depicted in the original architectural plans did not change in the revised architectural plans that were submitted in support of the building permit variation. According to Mr Draper, the real objective in submitting amended architectural drawings was to allow the builder to delete the agreed FGL markers, which then allowed the building to be positioned lower than what was originally agreed. This, he contends, ultimately led to orders being made that the concrete slab be demolished.
Again, I find that these allegations meet the threshold and warrant further investigation.

[66]

Mr Draper contends that there were a number of defects in the construction of the timber frame, even after it had been inspected by the relevant building inspector. In his s 177 report, Mr Weuers opines that, of the 11 items identified by Mr Draper in his letter of complaint, six appear to be substantiated while one requires further information.
The Board submits that the framing items were found to be unproven in the Civil Proceeding. However, Mr Draper submitted that the Tribunal's finding in the Civil Proceeding did not determine that the work was performed properly. Rather, the Tribunal merely found that there was insufficient evidence for it to conclude that the frame was defective. In other words, it left that question open. I accept Mr Draper's interpretation of the Tribunal's Reasons on this point. Accordingly, I do not consider that the Tribunal made any finding that the frame had been properly constructed.
No further evidence was adduced by Mr Draper in support of his allegation regarding the frame. Nevertheless, Mr Draper referred to the evidence he gave in the Civil Proceeding and also made reference to the relevant Australian Standard, AS1684, in his written submissions. Mr Draper submitted that if defects in the frame were proven, that could give rise to disciplinary sanctions under s 179 of the Building Act and for that reason, the allegations of a defectively constructed frame should form part of any inquiry into the conduct of Mr Simonds.
In my view, the evidence of Mr Weuers, as set out in his s 177 report, lends some support to the allegations raised by Mr Draper. To that end, it would appear that the defects in the frame, included:
- (a) the failure to install roof battens (before claiming that the frame was complete;
- (b) distorted top chords;
- (c) gaps between the connection of the hip and the roof truss;
- (d) the proposed loading of the trusses with solar hot water collectors and an evaporative cooler not being part of engineering design;
- (e) the failure to fully nail or fix certain wall junctions and other connections; and
- (f) excessive cutting of the bottom plate in the ensuite area.
The Board submits that the above defects, even if they satisfied the 'threshold', are minor in their nature and would not justify holding an inquiry. The Board further submits that as the frame has now been demolished, it is no longer possible to investigate this element of work for the purpose of preparing any formal allegation. These factors, it submits, weigh against this allegation forming part of any inquiry.
In my view, the fact that the frame has been demolished does not necessarily mean that the above allegations of defective work cannot be investigated further. Indeed, Mr Weuers gave evidence that he personally inspected the frame before it was demolished. Although some time has elapsed, I do not consider this to be a bar for the Board or the Authority to investigate these matters further and if appropriate, draw allegations to be considered during the course of an inquiry.
Although I accept that some of the items may be classified as minor defects, others are not. In particular, it is unclear whether the structural integrity of the frame would have been compromised by the installation of the solar water collectors or panels and evaporative cooler. Clearly, if that were the case, then the defect would be of some significance.
Ultimately, I consider these matters warrant further investigation and if appropriate be framed into an allegation forming part of an inquiry.

[67]

Mr Draper raised a number of issues which he contends constitute breaches of the statutory warranties under s 8 of the DBC Act. Although he gave no evidence in support of his allegations, he nevertheless pointed to various findings made by the Tribunal in the Civil Proceeding, as well as referring to documents produced during the course of this review hearing. The Board contends that any failure to comply with the statutory warranties must be evidenced by a defect in the work referable to the alleged breach. The Board submits that Mr Draper was unable to prove any such defects before the Tribunal in the Civil Proceeding.
I do not accept that submission. Significantly, in the Civil Proceeding the Tribunal found that the concrete slab constructed by the Builder was contrary to the original site plan, which had nominated FGLs. The Tribunal found that those FGLs were unable to be maintained in light of the FFLs nominated in the amended site plan. This led to the dwelling being positioned lower than what was originally envisaged and ultimately to orders requiring the concrete slab to be demolished.
The Tribunal found that the Builder did not inform Mr Draper that the originally established FGLs were deleted in the amended architectural drawings.
In its Reasons, the Tribunal stated:
1. Having found that the Contract was entered into on 5 June 2014, and that the Site Plan with nominated FGLs comprise part of the Contrary, I have concluded that the Amended Site Plan presented to Mr Draper on 1 July 2014 amounted to a request by Simonds for the works to be varied within the meaning of Clause 23.0 of the Contract.
As highlighted above, Mr Draper alleges that the changes made to the site plan were not in accordance with s 37 of the DBC act. As I have already indicated, that allegation is arguable and in those circumstances, it follows that the allegation that the Builder breached the warranty given under s 8 of the DBC Act that the works will be carried out in accordance with, and will comply with, all laws and legal requirements is also arguable.
Moreover, Mr Draper points to building defects in the as-constructed frame, which he contends were, in part, confirmed by Mr Weuers. As indicated above, those allegations are not baseless. Accordingly, it is open to consider whether those allegations breach r 1502 of the Building Regulations 2006, which states, in part:

[73]

Mr Draper alleges that the Builder prematurely demanded payment of progress claims relating to Base Stage and Frame Stage. Mr Draper pointed to defects in the construction of the concrete slab (incorrect levels) as the basis upon which he contended that it was not open for the Builder to claim Base Stage. Similarly, Mr Draper pointed to the defects in the frame and the fact that the roof battens had not been installed as a basis for his contention that it was not open for the Builder to demand its progress claim for that stage of the building works.
The Board submitted that the Tribunal has made findings in the Civil Proceeding concerning any premature demand for payment of the frame stage. In particular, in its Reasons dated 29 April 2016 the Tribunal stated:
1. In summary, therefore, I accept the submission of the Respondent that, in relation to the frame stage, Mr Draper agreed to a process of approval by an independent and expert certifier, the building surveyor, and to pay upon approval by the building surveyor. That occurred on 14 August 2014.
2. I also accept Simonds's further submission that the contractual regime supports the proposition that payment was due for the frame stage by Mr Draper upon approval by the building surveyor. This is because Simonds remained under an obligation (and has a right) to correct and fix defective works throughout the lock-up, fixing and completion stages. This is demonstrated by clause 37 and 39 of the Contract. The clauses of the Contract must be given a commercial and businesslike construction, and the payment clauses, together with the clauses concerning rectification by Simonds of defects must be read together, and construed harmoniously. Reading these clauses of the Contract, Mr Draper was required to pay the framing stage progress claim after receipt of the notice from Simonds that the stage was complete, and that payment was on account. If Mr Draper wished to assert that there were defects in the frame stage, they could be raised later by him pursuant to the provisions of the contract.
In my view, any question that the Builder prematurely demanded payment of the Frame Stage progress claim has been determined by the Tribunal in the Civil Proceeding. Findings were made which not only bind the parties but also dispel any notion that the Builder prematurely demanded payment of the frame stage progress claim. Therefore, I am not satisfied that the threshold has been met.
In relation to the Base Stage progress claim, I accept that, on one view, an order requiring demolition of that work, could mean that the stage was never properly reached. However, such a 'technical breach' must be seen in the context of the dispute as a whole. In particular, the question whether the concrete slab levels were correct was a matter that required adjudication by the Tribunal following a hearing that lasted many days. It is not a case where the Builder's breach was obvious and to some extent, turned on the question whether the amended site plan was contractually binding. Indeed, both the engineer appointed by the Authority and Mr Weuers investigated the complaint by reference to the amended site plan and found that the levels were correct.
Therefore, when seen in that light, I am of the opinion that this allegation, of itself, does not warrant further examination under the auspices of a disciplinary hearing. Having said that, any decision to prosecute disciplinary action in relation to that 'technical breach' is a matter for the Board or the Authority to consider in the light of the Tribunal's orders and findings in the Civil Proceeding.

Draper v Building Practitioners Board

At a glance

Court

Decision date

Source

Judgment (119 paragraphs)

Draper v Building Practitioners Board (No 2) (Review and Regulation) [2017] VCAT 1402 (15 September 2017)

Parties

Legislation Cited (4)

Cases Cited (2)