Victorian Civil and Administrative Tribunal|2004-04-02

Lewis v Threadwell [2004] VCAT 547 (2 April 2004)

Domestic Building List - liability of surveyors and building inspectors - breach of contract - breach of statutory duty - negligence - misrepresentation - role of owner/builder - whether breach of statutory duty applicable where pure economic loss - Building Act 1993 Parts 4, 5, 9 and 13 - Building Regulations Part 4 and Forms 10 and 14 1999 s 108 and 159

23-27 February, 1-3 March, 9-12 March, 15 March. 17-19 March 2004

1 The application against the second, third and fourth respondents, is dismissed.

2 The application will be listed at 9.30 am on 19 April 2004 before myself to determine what orders should be made to finally dispose of the application between the applicants and the first respondent.

3 The question of costs between the parties is reserved.

Mr C Moshidis of counsel instructed by Guymer Naidoo

Mr Oliver of counsel instructed by Best Hooper (the 1st Respondent withdrew from the proceedings on the 3rd day of hearing)

1 The applicants are the registered owners of a property at 13 Pier Crescent, Ocean Grove, Victoria ("the property"). In about 1995, the applicants decided to build two units on the property, one unit being three storeys (Unit 1) which they intended to live in themselves and the other unit being two storeys (Unit 2) which they intended to rent.

2 In or about June 1995, the applicants engaged a Mr Pelchen, an architect to draw plans for the construction of the property. However, in the early stages of his engagement, Mr Pelchen discontinued with the arrangement. As a result, Mr Di Cecco, who is an engineer and a draftsman, was engaged to prepare both the plans and the engineering drawings for the premises to be constructed. The second respondent is and was a corporate building surveyor registered pursuant to the Building Act and Regulations made thereunder. The third respondent is a building surveyor also registered pursuant to the Building Act and Regulations and the driving force of the second respondent, while the fourth respondent is a building inspector registered pursuant to the Building Act and Regulations and performed inspections in relation to the building to be erected on the property.

3 The second, third and fourth respondents, operated under a loose arrangement known as Peninsula Building Surveyors Network. By this arrangement, the fourth respondent managed the entity and received 10% of fees for management. The fourth respondent would also receive the fees for inspections and the second and third respondents would divide the balance of the fees amongst themselves after the payment of statutory charges. In this particular instance, the fourth respondent received inspection fees of approximately $300.00. The total fees charged by Peninsula Building Surveyors Network to the applicants was approximately $1400 including statutory charges.

4 On 27 June 1997, the applicants applied to the second respondent for a building permit to erect two units on the property. In the application, it stated that the builder was Colin Van Norenburg and stated that the building practitioner and/or architect was J Di Cecco. J Di Cecco was referred to twice in the application, once as a draftsman and the other as an engineer. Apparently, the application to which I have just referred was not proceeded with and a second application was lodged with the second respondent by the applicant also dated 27 June 1997. That application made no mention of the building practitioner, architect or builder, but again referred twice to J Di Cecco, once as a draftsman and once as an engineer. A building permit was issued by the third respondent on 26 August 1997. That permit was issued pursuant to the second application.

5 The applicant engaged the first respondent to work on the site. There was dispute on the evidence as to the nature of the first respondent's engagement. It was maintained by the second, third and fourth respondents and by the first respondent prior to him discontinuing in the proceeding that he was engaged as a carpenter and would charge $35 per hour to provide some assistance to the applicants in relation to other building matters. On the other hand, the applicants maintain that Mr Threadwell was engaged as a builder.

6 It should be noted at this stage that the dispute between the applicant and the first respondent resolved on the third day of hearing after a compulsory conference had been called. However, the issue remained alive as between the applicant and the second, third and fourth respondents, which meant that in the event that any liability was found on behalf of the second and third respondents, I would need to consider the question of contribution pursuant to s 131 of the Building Act as this proceeding was issued prior to that section being repealed.

7 In any event, the first respondent commenced work on the site on or about 18 August 1997. This was prior to the third respondent issuing the building permit on 26 August 1997.

8 In August 1997, three mandatory inspections were performed. On 27 August, the third respondent performed the mandatory inspection of the preslab (footings), while on 28 and 29 August, the fourth respondent inspected the steel for the slab. It was arranged between the applicants and the first respondent that the frame for the building would be prefabricated. The same was ordered and on 15 September 1997, the first respondent commenced the framing work. Apparently, on 27 October 1997, the applicants requested a frame inspection. The fourth respondent conducted an inspection of the frame the following day on 28 August 1997 but there is dispute on the evidence as to whether further frame inspections were conducted. The applicants maintain that the frame inspection of 27 August was incomplete. All parties agree on this point. However, the applicants maintain no further frame inspections were conducted prior to the frame being passed as being satisfactory. However, the fourth respondent maintains that he conducted a further frame inspection on 29 October before passing the same as being satisfactory and a further confirmatory inspection of 30 October 1997.

9 The building was constructed with large commercial windows facing the Barwon River. It was agreed by all the parties that these windows were made and installed by Howick Industries. It seems clear that these windows were installed without the required internal flashings and drip trays.

10 Towards the end of November 1997, a dispute arose between the first respondent and the applicants. As a result, on 28 November 1997, the applicants ordered the first respondent off the site. The building at that stage had reached lock up.

11 On 1 December 1997, a Simon White, who apparently is not a registered builder, was engaged to perform rectification work in relation to the frame. Two days later, on 3 December 1997, a Mr Hart, who gave evidence in this proceeding, was engaged to prepare an expert's report in relation to defects in the building.

12 On or about 9 January 1998, a Mr Popping who is a renderer commenced work rendering the outside of the building. He gave evidence that the sheeting placed on the frame by the first respondent was done so in an unsatisfactory manner because in certain places it did not have noggings or studs behind the spots where the sheets needed to be nailed. He said therefore he needed to remove some of the sheets and put noggings and studs in the frame so that the sheets could be properly nailed thereto. This added to the expense and forms part of the claim made by the applicant.

13 The building was designed to have three front balconies and some balconies at the rear. There have been problems with the front balconies. It is alleged by the applicants that the balconies were faulty in the sense that they had inadequate stirrups supporting them, they had particle board rather than cement sheeting as their flooring, they did not have a step between the balconies and the premises and were not properly waterproofed. The applicants provided their own waterproof membrane initially but it is clear that that failed. As a result, in July 1998, they engaged Davco, a membrane supplier, to inspect the decks and arrange for them to be retiled. That work was performed by F C Walker and sons in August 1998 who re-supplied the membrane for the front decks and retiled. There were two final inspections by the third respondent in relation to the occupancy permit, viz on 19 August 1998 and 1 September 1998. As a result of the second inspection on 1 September 1998, the occupancy permit was issued. It should be noted that some months prior to this time, the applicants had begun occupying the premises.

14 Some considerable time later, in approximately 2001-2002, it was discovered that the decks of the premises are unsatisfactory and are indeed rotten and that the poles holding up the decks and the stirrups are unsatisfactory. As a result, a Mr Irwin was engaged to demolish the decks and rebuild them. It is noted that each of the front decks when rebuilt protruded a further 900mm than originally planned and built in the original decks. It is also noted that the rebuilt decks had a different design with steel posts and plates rather than with Oregon wood posts on metal plates.

APPLICANTS' CLAIM AGAINST SECOND, THIRD AND FOURTH RESPONDENTS

15 The contractual cause of action is made by the applicants only against the second respondent. The applicants plead a breach of terms of a building surveying agreement ("the agreement"), and a breach of implied terms of the agreement. The non-implied terms of the agreement are contained in a letter on the letterhead of Peninsula Building Surveyors Network, which letter is undated. The relevant parts of that letter read as follows :

We try to help where we can to ensure a smooth transition in the completion of your project.

Built in to the permit fee, is an allowance for the carrying out of mandatory inspections.

A list of these inspections is included as part of the permit face sheet (form 2).

Would you please contact Stuart or Phil to arrange a suitable time for these. It is important to give us notice so we can be sure to cover your inspection. Usually letting us know the day before is sufficient.

16 There appears to be little in the express terms of the agreement that gives rise to allegation of breach or contention in this proceeding.

17 The allegations of breach are based on the following implied terms :

a) the services would be rendered with due care and skill

b) the services would be fit for the purpose which services of that kind commonly are bought as it is reasonable to expect having regard to the price of the services, the terms of the sale and other relevant circumstances;

c) the services would be reasonably fit for the particular purpose for which they are acquired; and

d) the services would be such as might be expected to achieve their desired result.

18 It is clear that whether or not a term should be implied is not only a question of reasonableness of the term which is sought to be implied but one of necessity. See Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 346-7 per Mason J, Stephen J 344, Wilson J 392, Brennan J 404. It is further clear that the onus is upon the applicant to demonstrate that the proposed term ought to be implied into the parties' commercial bargain.

19 Mr Moshidis, who appeared as counsel for the applicants, stated that the second respondent failed to ensure that the mandatory inspections were properly carried out by the third and/or fourth respondents. In particular, he pointed to the fact that the frame inspection was passed in circumstances where the wrong verandah stirrups were used, there were structural defects with the wind portal frame, particle board was used on external decks which board should not have been used, there was a lack of inspection of load bearing columns of the frame, the structural integrity of a joist had been compromised and the frame inspection as a whole was inadequate and/or not carried out at all. Mr Moshidis also referred to the fact that the occupancy permit should not have been issued because a Form 14 issued pursuant to the Building Regulations was defective, there was the serious structural problems with the works which are referred to above, the performance requirements of the Building Code regarding weather proofing had not been complied with and, as a consequence, there was water ingress to the living area of both units and the wrong box guttering had been installed. (I will deal with all these matters in some detail below).

20 For a term to be implied, the following criteria must be met :

b) the term must be necessary to give business efficacy to the contract;

c) the term must be so obvious that it goes without saying

d) the term must be capable of clear expression; and

e) the term must not contradict any expressed term.

21 Save for the term that the service would be rendered with due care and skill which is sought to be implied in the pleadings, all the other terms which are sought to be implied, appear to fix the building surveyor with the type of duties that one might expect in a trade practices action or a sale of goods action as to quality or as to fitness for purpose. The role of a building surveyor is fixed by the legislation, and is tied to certification in accordance with minimal requirements as set out in the Building Act, the Regulations and the Building Code Australia (BCA). In this particular instance, it must be remembered that the second respondent is not employed either as an architect or designer where some such terms may be implied. In this particular instance, the second respondent is obliged to comply with the BCA and various statutory requirements and to exercise due care and skill.

22 The applicants also appear, to be relying on the Building Act 1993, the Building Regulations 1994 and the BCA to imply terms into the agreement between themselves and the second respondent. However, in my view, it is somewhat difficult for the applicants to maintain that a legislative enactment is a contractual document save and except to say that they should carry out their duties with due care and skill. It was conceded by Mr Aghion, counsel for the second, third and fourth respondents, that his clients had a duty to carry out their services with due care and skill.

23 The applicants allege that the second, third and fourth respondents have engaged in misleading and deceptive conduct that is likely to mislead and deceive. This claim is made pursuant to s 108 and/or s 159 of the Fair Trading Act 1999.

a) as to the second respondent, that it would ensure that the third respondent and fourth respondent when conducting mandatory inspections would ensure that such inspections would be carried out in a competent manner and to a professional standard;

b) as to the third respondent that he would ensure that he and the fourth respondent when conducting mandatory inspections would ensure that such inspections were carried out in a competent manner and to a professional standard; and

c) as to the fourth respondent, that when conducting mandatory inspections would ensure that such inspections were carried out in a competent manner and to a professional standard.

25 Mr Moshidis submitted that the applicants relied on the representations of the second, third and fourth respondents as detailed above, and that the second, third and fourth respondents did not perform the work in accordance with the representations in issuing the building and occupancy permits and carrying out the necessary inspections. As a result, Mr Moshidis claimed that the applicants relied on the representations to their detriment and have consequently suffered loss and damage.

26 However, there does not appear to be any or any sufficient evidence of reliance by the applicants upon the representations. Mr Lewis in his evidence said that because he had no knowledge of the building industry, he relied on the building surveyor for direction. However, it is clear from the evidence of Mr Lewis that the applicants took on the position of owner/builder vis a vis the second, third and fourth respondents. Further, there does not appear to be any evidence which I accept that could lead to the conclusion that the second, third and fourth respondents would do any more than perform their statutory duty. I note, that the letter which I have quoted above from the Peninsula Building Surveyors Network does no more than confirm the engagement of the second respondent, confirm that the second respondent will ensure a smooth transition in the completion of the project and perform mandatory inspections.

27 Mr Moshidis cited Futuretronics International Pty Ltd v Gadzhis [1992] VicRp 63; (1992) 2 VR 217 for the proposition that a primary statement acted upon at a later time can be actionable under the Fair Trading Act. He therefore concluded, that it was possible for the applicants to rely on conduct that occurred after the entering into the agreement with the second respondent as constituting misleading and deceptive conduct within the meaning of the Fair Trading Act.

28 However, the circumstances of the Futuretronics case make it clear that the circumstances there are very different to the present. In that case, the plaintiff was the vendor of real estate that was auctioned. The defendant made a bid at the auction of $M2.25 and the property was knocked down to him. After the conclusion of the auction and all other prospective buyers had disappeared, the defendant refused to sign the contract. Paragraphs 3 and 4 of the headnote summarise what Ormiston J found to be the law in this situation :

3. It is wrong to view the incurring of every contractual obligation as an unqualified promise to perform the stipulated act, amounting to a representation as to future conduct within the meaning of s.10A of the Fair Trading Act.

Wright v TNT Management Pty Ltd (1989) 15 NSWLR 679 and Wheeler Grace& Pierucci Pty Ltd v Wright [1989] FCA 127; (1989) ATPR 40-940 considered.

4. However, any contractual promise would amount to an implied representation that the promisor had the intention and ability to carry out the promise. But it is only if it becomes apparent that the promise cannot be enforced that it is permissible to inquire whether the promise was of so little substance at the time it was made that the promisee can be said to have deceived or misled at the time of acceptance of the promise.

It is wrong to view every contractual obligation as an unqualified promise to perform the stipulated act. Indeed it is rare that a contractual promise is not in some way qualified by some reciprocal obligation to be performed by the promisee or by some other circumstance. If the promise induced the other party to enter into the agreement, as one can readily accept it would, then it is that promise and the circumstances then surrounding it which must be examined. The promise can only be said to be misleading or deceptive if it was in some way inaccurate; otherwise every unfulfilled mutual contractual promise will constitute misleading or deceptive conduct, a consequence which I cannot believe those who drafted the Act intended. If intention be relevant, the promise may be misleading if the promisor had no intention to fulfil it at the time it was made and accepted. If intention be irrelevant, then the promise may be misleading if the promisor had no ability to perform at that time. If one were to go to the breach to determine whether there has been misleading or deceptive conduct, the beach may, but only may, provide some evidence from which one would infer that the promisor never intended or never had the ability to fulfil his obligation. Otherwise, if one combines the promise and breach, the question must arise : in what way has the plaintiff been deceived or led into error? If it be said he was misled into entering into the contract, then the breach is irrelevant, for that breach could have played no part in misleading him. If one moves to the later stage, it is possible that the two events might induce the other party to make some further step, but the promisor's combined actions could not be characterised as misleading or deceptive at the time the promisee was induced to accept the promise because the breach had not occurred at that stage. In my opinion, the mere acceptance of the promise by the promisee cannot ordinarily be qualified as being led into error.

30 Thus, in this case, it clearly cannot be said that at the time any promise may have been made by the second, third and fourth respondents, it was not intended to be carried out by those parties. In my view, it would be quite wrong to say that the second, third or fourth respondents in this particular case have, in any way, conducted themselves in a misleading or deceptive fashion as referred to in the Fair Trading Act. Mr Aghion stated in this case, the only promises that were made, was that the work performed would be performed competently, professionally and in accordance with the Act and Regulations. Mr Aghion submitted that if that was the promise that was made, the proper remedy is in contract. On the whole evidence of this case, I agree with that submission.

31 It is noted, that Mr Moshidis referred to State of Western Australia v Bond Corporation Holdings [1990] FCA 522; (1990) 99 ALR 125 for the proposition that if a person makes a representation about a future matter that person has the burden of proving that he or she had reasonable grounds for making that representation. This proposition has been given statutory recognition by s 4 of the Fair Trading Act which reads as follows :

(1) For the purposes of Part 2, if a person makes a representation about a future matter, including the doing of, or refusing to do any act, and the person does not have reasonable grounds for making the representation, the representation is deemed to be misleading.

(2) In any proceeding under this Act concerning a representation made by a person about a future matter, the person making the representation bears the burden of proving that he or she had reasonable grounds for making the representation.

32 In this particular instance, in my view, on the whole of the evidence, it is clear certainly at the time that the representation was made, that the second respondent would act competently, professionally and in accordance with the Act and Regulations and that it would cause the third and fourth respondents to do the same and it intended to carry out that representation. I also note what Ormiston J said in the Futuretronics case and in my view, it would be imposing a totally unreasonable burden on the second, third and fourth respondents in this situation to suggest that any representation made by them as to future conduct was either deceptive or misleading within the meaning of the Fair Trading Act.

33 The applicants claim that the second and third respondents have been negligent in the use of their professional skills. The applicants claim negligence against the third and fourth respondents in that they allege that those respondents owed the applicants a duty of care to ensure that the building surveying services

b would be fit for the purpose for which services of that kind commonly are bought and is reasonable to expect having regard to the price of the services, the terms of sale and other relevant circumstances;

c would be reasonably fit for the particular purpose for which they were required; and

d be such as might be expected to achieve the desired result.

In the present case, the Third Respondent did not exercise skill in carrying out his inspections or ensuring that the Fourth Respondent he had appointed to carry out the frame inspection exercised skill and care as the duty owed to the Third Respondent is non delegable ... For example, the Third Respondent issued the occupancy certificate in circumstances where the frame inspection had not been carried out properly (or at all) by the Fourth Respondent and where the final inspection had not been carried out properly (for example, the non compliant box gutters were not noted or queried by the Third Respondent).

35 In support of this proposition, Mr Moshidis referred to Taitapanui v HIA Insurance Services (2003) VCAT 375 (unreported 8 April 2003). In particular to paragraph 6.29 where Senior Member Young noted :

The building surveyor is to exercise professional skills in examining plans and specifications and in carrying out inspections to ensure that the building work for which he has been appointed the building surveyor is in conformity with the requirements of the Act and Regulations and this is his sole function. This requires a certain amount of skill and knowledge, the building surveyor does this for a commercial fee.

In the present case, the statutory duty cast on the Third Respondent by s34, s35, s37 and s41-48 is an important one concerned with public safety. Mr du Chateau, in his second expert report, at paragraph 4.3.4 quotes from the Building Commission and states that 'the building surveyor's role is primarily the structural integrity and public safety of a building'.

In the present case, the combination of the statutory duty of inspection, imposed on the Third Respondent, and the potential for serious danger to those persons who entered the Applicants property, coupled with the fact that the Third Respondent was under a statutory and common law duty to identify any non-compliance with the Plans indicates that the Third Respondent owes a duty of care to the Applicants either to inspect frame or else to ensure that it was properly inspected by the Fourth Respondent.

37 In support of this proposition Mr Moshidis referred to paragraph 294 in the judgment of Eames J in Toomey v Scolaro Concrete Constructions Pty Ltd [2002] VSC 279 (unreported 17 August 2001) :

In determining whether a duty of care exists, the primary requirement is analysis of any legislation and of the respective positions occupied by parties to the events. The statutory duty case on the relevant surveyor by ss 34, 35, 37 and ss 41-48 was an important one, concerned with public safety. The combination of the statutory duty of inspection, imposed on Young(the employee of Bigridge) the contractual duty, and the potential for serious danger to that class of the public which would be at risk by using the building with an unsafe balustrade, coupled with the fact that the surveyor was under a statutory contractual and common law duty to identify any errors and anomalies which made the plans non-compliant all suggest to me that there was, indeed, a duty owed to the plaintiff by Bigridge either to inspect the balustrade or else to ensure that it was properly inspected. The risk of a member of the public being injured by falling over a balustrade, the deficiencies of which have not been identified by an inspection, was reasonably foreseeable, in my view. The finding that here is such a duty of care seems to me to accord with well recognised principles, and insofar as proximity remains a requirement for establishing a duty of care, it clearly exists as between the surveyors and the plaintiff, although there is not a direct relationship by virtue of contract between them.

38 Mr Aghion stated that the applicants' case in regard to the alleged negligence of the third and fourth respondents appear to be based on the contractual nexus between the applicants and the second respondent, and are unrelated to any notion of the existence of a duty owed by the third and fourth respondents so as to prevent harm being caused under neighbour principle that founds the duty of care and negligence. He stated that the notion of a duty of care is a duty to prevent a particular kind of harm, not a duty to achieve a particular expected result. The former suggest reliance and is a tortious duty while the latter suggests expectation and is contractual. He suggests that what the applicants have in fact done is to confuse an implied contractual term with a duty in negligence.

39 Applying what Senior Member Young said above, it is clear that the duty of a building surveyor and inspector is to act in conformity with the requirements of the Act and Regulations and this is his sole function. Thus, in my view, it would be wrong to burden a surveyor or inspector with issues in relation to design, supervision or workmanship except insofar as those issues relate to the Act and Regulations. The issues of design, supervision and workmanship are for an architect or supervising builder, not for a surveyor or inspector who is exercising a statutory function. It must also be remembered that Toomey's case involved personal injuries and consequently public safety, while the present proceedings involves pure economic loss (see below).

40 Mr Moshidis submitted that the third respondent had breached his statutory duty by failing to carry out inspections properly or ensuring that the fourth respondent carried out his inspections properly. As a result, Mr Moshidis stated the second respondent breached its statutory duty to the applicants. He relied on s 34, 35, 36, 37 and 38 of the Building Act 1993. Those sections read as follows :

34. Inspections at mandatory notification stages

On being notified that a mandatory notification stage has been completed, the relevant building surveyor must cause the building work concerned to be inspected.

35. Inspection of building work - general powers

The relevant building surveyor may cause building work for which a permit has been issued under Part 3 to be inspected at any time whether or not a mandatory notification stage has been completed.

The relevant building surveyor may cause any building work to be demolished, opened or cut into or tested if this is reasonably required to facilitate the carrying out of an inspection for the purposes of this Act or the regulations.

(1) After inspecting building work, the relevant building surveyor or a person acting on behalf of the relevant building surveyor may direct the person who is in charge of carrying out the building work to carry out work so that the building work complies fully or substantially with the building permit issued in respect of the work, this Act or the building regulations, as the case required. (underlining supplied).

(2) If a person fails to comply with a direction under this section, the relevant building surveyor may cause a building notice to be issued under Part 8 or may take any other action permitted by this Act or the building regulations.

(4) If a direction is given orally, the person who gave the direction must confirm it in writing without delay to the person to whom the direction was given.

(1) The relevant building surveyor must issue a certificate of final inspection on completion of the inspection following the final mandatory notification stage of building work if -

(a) an occupancy permit is not required for the building work; and

(b) all directions given under this Part in respect of the building work have been complied with.

(2) A certificate of final inspection is not evidence that the building or building work concerned complies with this Act or the building regulations.

41 Mr Moshidis referred to paragraph 5.1 of the Taitapanui case where Senior Member Young stated :

A breach of statutory duty is where it has been held that a statutory duty gives rise a private right of action in tort for its breach. The question of whether a specific statutory duty also creates a private right of action is determined as a matter of construction of the relevant legislation : O'Connor v SP Bray [1937] HCA 18; (1937) 56 CLR 464 at 477-9. The inference of such statutory duty by the court has more often been found in cases of the breach of industrial safety provisions in both statutes and regulations and where the relationship between the parties is that of employer and employee : see s.14-2 of Torts Law and Principle by D Baker and Ors, 2002.

42 I again note that this particular case is not a case concerning safety but is concerning pure economic loss. While it may be maintained that had the balconies of the property collapsed people may have got injured, in fact that did not happen. This is a case that concerns pure economic loss. That is, damages arising from replacement of defective building work which the applicant maintains became necessary was a result of the breaches of statutory duty of the respondents. Mr Moshidis states that Senior Member Young in Taitapanui did not say that breach of statutory duty was for exclusive economic loss and that he submitted that if there had been a direct contractual relationship in Taitapanui between the applicants and the building surveyor, the decision may have been different in relation to liability for a statutory duty.

43 However, Taitapanui's case was very different from the present. In that case the building surveyor did not call evidence and therefore the factual findings there are of little assistance here. There the construction of the house in question was a disaster, the only question was in relation to quantum was whether the house needed to be rebuilt or have extensive renovations. Further it is noted, by Senior Member Young at 4.2 that the plans are completely inadequate and appear in effect to have been done by a thumb nail dipped in tar.

44 Mr Aghion also referred to paragraphs 5.3 and 5.4 of the decision of Senior Member Young in Taitapanui to support his submission that breach of statutory duty should be based on personal injury rather than pure and economic loss. At those paragraphs the Senior Member stated :

In their second amended points of claim dated 2 September 2002 at para 29, the owners did not identify a specific section of the Act or a regulation from which a private right of action is said to flow. The claim is couched in terms that the Act and regulations generally create a private right of action. Nor, in the allegations of breach of statutory duty at para 30, do the owners identify any specific section of the Act or regulations that gives rise to a private right of action as to statutory duty.

This is not an action involving personal injury as was Toomey's case and is not legislation specific for the protection of industrial employees. Accordingly, I find that there was no private right of action given generally in the Act or the regulations and that the claim for breach of statutory duty must fail.

45 Toomey's case while being a case where a breach of statutory duty was found, it was said by Mr Aghion should be confined to personal injuries with which that case was concerned. In that case, the plaintiff fell over a balustrade which was a lesser height than that prescribed. At paragraphs 129 ff Eames J stated as follows :

In Connor v Bray, after reviewing authority, Dixon J observed, at 478, that : 'In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognised by the general principles of the common law'. His Honour added :

'Whatever wider rule may ultimately be deduced, I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operation carried on ...'

Again referring to O'Connor v Bray and the scaffolding and lift regulations therein which were considered

In plain terms the legislative authority has said : 'You must ensure the safety of persons using the lift. Your safety device must prevent the lift from falling. We place upon you the duty of preventing disaster of such a fall'. In my opinion (allowing for the difference between the requirement to 'restrict' rather than to 'prevent' a fall) a very similar analysis could be applied to terms of D 2.16, especially sub-paragraph (b) and its relationship with subparagraph (g). (D216 was the regulation to which Eames J was considering).

46 It is noted, that D216 of the BCA was held to impose a statutory duty on the owner of the building and the builder but not upon the building surveyor and the inspector (see Toomey paragraphs 149-50). Mr Aghion thus submitted, that the second, third and fourth respondents cannot be liable unless it is shown they have breached a specific provision of the Code. Mr Aghion referred to the evidence of Mr Atchison a building engineer who gave expert evidence on behalf of the applicants. He identified provisions in the building code referring to the provision and use of materials. Mr Aghion said that building surveyors and inspectors do not provide or use materials that is for the builder or architect. In this case, the applicants were the builder.

47 Further, Mr Aghion referred to s 34 of the Building Act. He said the only obligation that that section put upon the surveyor was to cause the building to be inspected. It did not oblige the surveyor to do anything else. The building was inspected. He then referred to sections 35, 36 and 37 which gave the building surveyor a discretionary power to do a number of things by the use of the word "may". He said as those powers were discretionary it was not an obligation on the building surveyor to do any of those matters. Therefore he stated that the building surveyor could not be in breach of any statutory duty.

48 In a similar vein, Mr Aghion submitted that s 44 of the Building Act makes it clear that there are only two circumstances in which a building surveyor must refuse an occupancy permit, that is, if the building is not suitable for occupation or if there is not a plumbing certificate pursuant to s 221ZH of the Act.

The relevant building surveyor must not issue an occupancy permit under this Division -

(a) unless the building on the part of the building, to which the permit applies is suitable for occupation; and

(b) if plumbing work for which section 221ZH required the issue of a compliance certificate was carried out in conjunction with the building work on the building or part of the building in respect of which the permit is sought, unless the building surveyor has seen a copy of the compliance certificate.

50 Mr Aghion also said that the Act makes it clear that the issue of an occupancy permit does not necessarily mean that the building complies with the Act or Regulations. In support of this proposition, he cited from s 46. That section reads as follows :

(1) An occupancy permit under this Division is evidence that the building or part of a building to which it applies is suitable for occupation.

(2) An occupancy permit under this Division is not evidence that t he building or part of a building to which it applies complies with this Act or the building regulations.

51 Mr Aghion also referred to the Building Regulations and in particular Regulation 7.1(1) which prescribed times at which the inspections must be carried out. He said if Parliament wanted to prescribe different kinds of inspections it would have done so.

52 Mr Aghion also referred to Regulation 9.1, 9.2 and 9.5 which prescribe that the application for an occupancy permit should be made on a Form 10 and the occupancy permit itself should be on Form 11. He points to the fact that there is no place in these forms as to whether the regulations have been complied with or otherwise. He therefore concludes that Parliament could never have intended that by inspections being passed and an occupancy permit being issued that all Act and Regulations have been complied with. He stated that they are required to do no more than ensure there is substantial compliance.

53 In further support of the submission, he referred to the words in s 37 fully or substantially (emphasis supplied), which he stated show that the permit only needs to be substantially complied with. It does not need to be fully complied with. In my view, the clear reading of s 37 leads to this interpretation. It would be imposing a duty far and above what Parliament had anticipated, if every item in a building had to be individually inspected by a surveyor. What the Act and Regulations require, in my view, is substantial compliance. To this point I agree with Mr Aghion's submissions.

54 Mr Aghion also submitted, that the building plans even though stamped by the surveyor with the permit, did not form part of the permit. He therefore said that the building surveyor was not required to ensure compliance with the plans. He referred to Form 2 and Exhibit 1 which is the building permit in this case, which he said makes no mention of plans. However, the document does refer to the fact that building practitioner and architects who were engaged to prepare documents forming part of the application for this permit. In my view, those words can only mean the plans and possibly specifications. Looking at this matter from a practical point of view, it would be nonsensical, if the plans were not to be part of the permit. The permit is for the work to be done substantially in accordance with the plans. That work can only be found in the plans. However, that does not mean that if the plans have not to be fully complied with, there is a breach of the surveyor's duty. For there to be a breach of the surveyor's duty, it must be shown that :

(a) the property built does not comply substantially or fully with the plans;

(b) the failure is one of compliance with the Building Act or the Building Regulations (or by incorporation the BCA); and

(c) it was reasonable for the building surveyor or the inspector to have picked up the failure at an inspection or mandatory stage.

55 Mr Moshidis submitted that the standard of care was the same whether the notion involved a question of safety and liveability or was for personal injury. In Linsley v Petrie (1998) 1 VR 427, the Court of Appeal found that while there was one standard of care in economic loss claims and personal injury claims, the respective standards of care are different. In that case there was a motor vehicle accident where the property damage claim was decided in the Magistrates Court. A personal injuries claim was brought in the County Court and the defendant claimed there was estoppel because of the decision in the Magistrates Court. As a result the County Court proceedings was struck out. The Court of Appeal held that no estoppel applied. At p 443 ff Hayne JA stated as follows :

The critical step in the reasoning of Adam J in Azzopardi v Bois was that the question in that case was 'not concerned with two distinct duties of care but owed to two different persons but with one duty of care owed by Azzopardi to Bois in the manner of the driving of management of Azzopardi's car'. That conclusion may be contrasted with Brunsden v Humphrey where the majority concluded that the two causes of action under consideration were different because two different kinds of damage had been sustained - damage to property and damage to persons ...

It may be accepted that a road user owes a single duty to take care not to injure those persons whom the user may reasonably foresee will be injured if that care is not taken and there is sufficient relationship of proximity between the person injured and the proposed tortfeasor. Accordingly, it may no longer be appropriate to examine questions of duty of care by reference to the interests of the plaintiff that are to be protected and it would follow that the analysis by Machin may therefore be of no assistance. However, whether or not that is so, it seems to me that Adam J was right to say, as he did in Azzopardi v Bois, that in a case of this kind there are not two distinct duties of care owed by the allegedly negligent driver. That is, the driver does not owe one duty to avoid damage to the property of A, and another, different, duty to the same person to avoid personal injury ...

But to decide that Linsley owed Petrie but a single duty of care does not conclude the matter.

The estoppel which now is said to be created by the determination of the earlier Magistrates' Court proceedings is not an estoppel against contending that Linsley owed Petrie a duty of care, it is an estoppel against contending that in the particular circumstances of this collision, there was a breach of that duty.

Counsel for Linsley submitted that to distinguish between the standard of care to be exercised to avoid damage to Petrie's property and the standard of care to be exercised to avoid damage to her person would be to draw distinctions without difference where, as here, the property that was damaged was nothing but the vessel containing Petrie and by reason of collision with which she was injured both in her property and her person.

As I have already mentioned, if, as Adam J pointed out in Azzopardi v Bois there are different factors which may bear upon apportionment of responsibility between parties according to whether the plaintiff claims damage for personal injuries or for damage to property, why may there not be different factors which bear upon whether one of the drivers breached the relevant standard of care according to whether the resulting damage was to person or to property? In my view, there may. The steps which a driver may reasonably be expected to take to avoid colliding with an empty supermarket trolley may be very different from the steps that that driver must take to avoid colliding with a child.

It must be acknowledged that there will seldom be any difference in outcome according to whether the collision gives rise to damage to property or damage to person. But the question whether parties are estopped from re-litigating an issue is not to be answered according to some predictions whether, in any particular case, re-litigation of the matter would, or might lead to a different outcome. The question is whether parties should be precluded from seeking to obtain a different outcome.

Because the nature of the damage sustained may, in at least some cases, reflect upon the standard of care required of the parties, I do not consider that the issue of breach of duty determined in an action of property damage is the same issue as falls to be determined in the claim for damage of personal injuries.

56 Thus, in my view, it is clear that the standard of care required in a personal injury case, is very different to the standard required in one of pure economic loss. This is thus a very different case from what Eames J was required to decide in Toomey. (I refer to the quotes above that I have given from Eames J in relation to that matter). The fact that there was some possibility in the future that the applicants' claim there could have been personal injury in my view is not to the point. That is speculation. What we have here is a case involving pure economic loss nothing more.

57 In this particular instance, the building permit was issued on 26 August 1997. In July of 1997, the 1996 Building Code came into being.

58 Section 10 of the Building Act reads as follows :

10. Application of new building regulations to building work

(1) A building regulation or an amendment to a building regulation, does not apply to the carrying out of the building work in accordance with a building permit existing immediately before the building regulation or amendment commences.

(2) A building regulation, or an amendment to a building regulation, does not apply to the carrying out of building work if the relevant building surveyor is satisfied, and certifies in writing, that substantial progress was made on the design of the building before the building regulation or amendment commenced. (emphasis supplied).

59 Mr Newey, the third respondent, gave evidence that he was satisfied that substantial progress had been made in the design of the building before the 1996 Building Code came into being. However, the only writing he made as to such a matter was on his check list where he stated, assessed under BCA 1990.

60 Mr Aghion submitted that I should find that the writing made by Mr Newey on the check list, coupled with his evidence, is sufficient to find that the 1990 BCA is the applicable building code. However, s 10(2) makes it clear that there should be a certificate in writing stating that substantial progress was made on the design of the building before the building regulation commenced. While I do not believe it is necessary for the word certify to be used, the Act makes it very clear that there needs to be a writing that the building surveyor was of the view that substantial progress had been made. There is no written record of that view in this case. Under those circumstances, even though Mr Newey held the view that a substantial progress had been made, the Act had not been complied with and thus it is the 1996 Code that is applicable rather than the 1990 code.

61 The applicants maintain that Ray Threadwell (the first respondent) is the builder in this particular instance and that he has been successfully prosecuted for breaches of the Domestic Building Contracts Act, as if he was the builder. Evidence was given about this in the hearing before me. While that may be the case, the evidence that was heard before me strongly suggests that it was the applicants who were acting as owner builders. It was Mr Lewis that signed the application for a permit and no mention of Mr Threadwell was made on the permit application at all. Further, while Mr Lewis in his first witness statement suggested that it was Mr Threadwell that arranged some of the inspections, in a different statement he said he was not sure. Mr Newey and Mr Miller, the third and fourth respondents, both maintained that it was Mr Lewis who arranged for the inspections. It was Mr Lewis who purchased all the materials, and took part in the day-to-day matters concerning the construction of the building. It is noted, that both applicants even laid the membrane to the front balconies themselves. In paragraph 10 of the witness statement, Mr Lewis states :

After this, my wife and I decided to construct the homes as owner builders.

62 Thus looking at all the evidence as a whole, certainly from the point of view of the second, third and fourth respondents, in my view, it was reasonable for them to take the view that the applicants were the owner builders.

Matters relied upon by the applicants as constituting breaches

63 Mr Moshidis summarised the evidence as constituting the breaches which his clients allege. He stated :

The evidence led by the Applicants against the Second, Third and Fourth Respondents will be summarised and dealt with under the following categories :

a. The frame inspection should not have been passed in circumstances where light-weight verandah stirrups had been used in lieu of heavy duty design plates specified in the engineering plans;

b. the frame inspection should not have been passed by reason of the structural defects in the wind portal frame;

c. the frame inspection should not have been passed in circumstances where particle board flooring had been used on external decks

d. the frame inspection should not have been passed in circumstances where there had been a lack of inspection of load bearing columns some of which were covered by blue board and ply wood sheeting;

e. the frame inspection should not have been passed in circumstances where the structural integrity of a joist, that was visible at the time of the frame inspection, had been compromised;

f the frame inspection of the property was inadequate and/or not carried out at all and accordingly the frame inspection should not have been passed;

g the final inspection of the property was inadequate and the occupancy permit should not have been issued in circumstances where;

* There were serious structural problems with the works

* The Performance Requirements of the Building Code regarding weatherproofing had not been complied with. The front balconies of Unit 1 and Unit 2 had not been properly weatherproofed. The lack of weatherproofing was caused by the use of particle board flooring, the lack of a step down between the internal and external floors, the lack of flashings to the window frames, the inadequate detailing/installation of the waterproofing membrane and the inadequate detailing to the front edge with no drip line. Consequently, there was substantial water ingress into the living area which compromised both the structural integrity and liveability of Unit 1 and Unit 2; and

* A 140mm box gutter had been installed to the upper levels in lieu of the 350mm box gutter indicated on the stamped drawing.

64 I will deal with these matters in order except for the question of the adequacy or otherwise of the frame inspection, which I will deal with first.

Whether frame inspection was adequate and/or not carried out at all

65 Mr Miller, the fourth respondent, maintains that he performed frame inspections on 28, 29 and 30 October 1997. Mr Lewis states that Mr Miller in fact did attend the premises for a frame inspection on 28 October 1997 but such inspection was inadequate. He stated that at that time Mr Lewis was sick and only took a cursory look. Mr Lewis is of the view that it is unlikely that the frame inspections that Mr Miller says took place on 29 and 30 October did in fact take place. In paragraphs 77-79 inclusive, in Mr Lewis's witness statement, he states as follows :

During the course of the works, I became concerned that the inspections were not being conducted properly. For example, on 28 October 1997, Mr Stuart Miller, an inspector attended the site to conduct the frame inspection on behalf of Mr Philip Newey. I recall that he was limping badly. He told me that he had just come out of hospital after a gallstone operation. He had a cursory look at the building from ground level and advised me that the frame looked all right. He then left. He was on the site for approximately 10 minutes. He remained at the ground level and did not go onto the first or second floor area. He told me that he could not climb the scaffolding to the upper levels because he was not well and in pain. I recall his words to me were 'there is a lot of sticks and steel in this one'.

I was on the site for the remainder of the day. As it was my birthday (October 28), my wife and I returned to the site late afternoon to watch the sunset. I do not recall Mr Miller or anyone else returning to the site to conduct a further inspection of the frame on that day or any other time that week up to Friday October 31.

My wife and I had made a habit of returning to the site in early evenings to clean up after the day's work both inside and outside, to make the site tidy and safe for all trades. We had been staying until nightfall during the week beginning Monday October 27, because there had been an incident of minor vandalism and theft from the site in the early morning of October 27 which I reported to local police. I do not recall Mr Miller or anyone else visiting the site during this week to conduct a further inspection of the frame.

66 Mr Miller on the other hand, states that he did attend to frame inspection on 28, 29 and 30 October. From paragraphs 8 onwards of his witness statement, Mr Miller states as follows :

On 27 and 28 August 1997, I inspected the steel for the slab for the southern half of the premises and the steel for the slab for the north unit of the premises. I recall that nothing irregular arose during these inspections ...

On 28, 29 and 30 October, I inspected the framework of the premises, including the verandah of the premises and the deck pads. Lewis and Threadwell were present at this inspection. I prepared a document in relation to the inspection which was based on some contemporaneous notes I took of the inspection, which have since been lost or destroyed. Whilst the dates referred to in the document are 28, 29 and 30 October 1998, the reference to the year 1998 is an error, it should be 1997.

On 28 October 1997, I examined the lower floor and first floor of the main building. My major concern was the load path eccentricity at the centre of the structure. Mr Lewis told me that Joe Di Cecco (Di Cecco) a registered building practitioner and design engineer, had also visited the premises and inspected the frame. Unfortunately, due to ill health, I had to abandon the inspection before completing it. I resolved to contact Di Cecco to discuss the frame with him.

On 29 October 1997, I rang Di Cecco at his office and he was not in. I spoke with Cullen. Cullen told me that Di Cecco had been to the premises and was 'reasonably happy' with the framework.

On 30 October 1997, I re-attended the premises to complete the frame inspection. There was no one on site. In my view, the frame was adequate.

67 Mr Moshidis submitted that I should prefer the evidence of Mr Lewis to that of Mr Miller and decide that no frame inspections took place on 29 or 30 October. The basis of this submission was :

(a) Mr Miller's diary notes only contained a diary entry in relation to the applicant's property on 28 October 1997;

(b) the Fourth Respondent's diary is blank for 29 October 1997;

(c) the Fourth Respondent has not tendered a copy of his diary in relation to 30 October (it was brought to my attention that in fact Mr Moshidis had a copy of the diary for that date);

(d) numerous inconsistencies and omissions made in the Fourth Respondent's witness statement and reply witness statement when compared to his inspection notes. For example

* the inspection notes provided that on 28 October Mr Miller "checked out lower floor and first floor of main building".

Mr Moshidis says that this is inconsistent with paragraph 3 of the fourth respondent's reply witness statement where he states, - it is true that I did not look at the upper floors on that day. I just had an operation for kidney stones and I did not feel like climbing the frame without a ladder, so as to inspect the upper level. However, it should be noted, that Mr Miller said that he was able to see a reasonably large portion of the first floor from the ground.

* the notes also state, I decided to return on another day when Mr Threadwell was present so that I could speak to him about the frame, and also when a ladder was on site so that I could inspect the upper levels.

However, the inspection notes reveal that Mr Threadwell was in fact present on 28 October 1997.

* the inspection notes provide that on 28 October, the only activity Mr Miller carried out was a discussion with Mr Di Cecco's assistant whereas in paragraph 4 of his reply witness statement he states, I deny strenuously the implication in Mr Lewis' statement that I never inspected the upper levels. I returned the following day, 29 October 1997, and inspected the upper levels of the frame. He also states, I remember walking around on the frame very carefully, which suggests to me that the particle board was not down.

It should be noted, that photographs taken by the applicant prior to and at the date of 28 October show the particle board was in fact down.

* The inspection notes provide that on 30 October, the Fourth Respondent - Arrived on site. Just before dark. No one about. Looked at the top floor. Checked bracing. Measured fire wall between the units and checked the garage on the south side. Was concerned about bracing to garage but believe shadow clad is effective bracing.

Mr Moshidis states that this is inconsistent with the reply witness statements which provides : at the conclusion of your 2nd inspection, you considered that the frame inspection was complete. However, it does ignore the fact that Mr Miller gave careful evidence of the fact that he was considering the frame inspections which he had performed on the two previous days and decided there were things worrying him which needed to be confirmed and that is why he returned on 30 October.

(e) The Fourth Respondent did not mention the computer program which purportedly sets out dates of the inspection until his reply witness statement.

In my view, it is of little moment that the computer programme was not mentioned under the reply witness statement. It does not detract from the truth of that statement. Further, I note that at an early stage of the hearing, Mr Moshidis, on behalf of his client asked for the opportunity to have the hard disk of the second respondent's computer inspected so as to determine what dates the inspection took place. Permission was given for that inspection. However, the applicants did not take advantage of such permission.

(f) Mr Moshidis stated that the Fourth Respondent during cross-examination, gave evidence that he disposed of his original notes which is inconsistent with paragraph 9 of his witness statement where he states that the notes have since been lost or destroyed.

In my view, this certainly does not show that Mr Miller is not telling the truth. Clearly, "disposing" of notes may be different to "destroying" them but if there is some "hair splitting" distinction between being lost and destroyed in this manner, then I do not think that it is distinction that should be visited on Mr Miller's integrity.

(g) Mr Moshidis said that the inspection notes tendered by Mr Miller are short in detail, contain the wrong inspection dates (eg 1998 instead of 1997), and were not dated.

Bearing in mind that Mr Miller said that he made the notes from original notes that he had about 10 months earlier, it is not surprising that he put the wrong year on such notes. I do not think anything turns on the notes not being dated.

(h) Mr Moshidis said that Mr Miller gave evidence during cross-examination that the inspection notes were prepared 10 months after he allegedly conducted his inspection. This fact was not mentioned in either of his witness statements.

That may be so. But when asked about these matters, Mr Miller was extremely forthright in his answers and gave the same without hesitation and he appeared to me to be giving an accurate account of events.

(i) Mr Moshidis stated that the Fourth Respondent claims to have conducted an inspection of an 8 metre building on 30 October 1997 whilst suffering from ill health, just before dark in heavy rain ... without anyone present to show him where the ladders were.

Bearing in mind that the operation for Mr Miller's kidney stone was performed some time prior to 27 October, without any invasive surgery, it would not be surprising, in my view, that he could have fully recovered from such operation by 29 or 30 October. Further, I accept rain would not stop Mr Miller from carrying out an inspection.

68 In considering Mr Moshidis' claim as to whether the inspections took place or not, I also take into account the mere fact that Mr Lewis did not see Mr Miller inspecting the upper floor of the premises on 29 and 30 October does not mean that Mr Miller did not attend on those dates.

69 Weighed against the matters raised by Mr Moshidis in relation to Mr Miller's evidence, I also note there were several inconsistencies in Mr Lewis' own evidence. For example :

a Mr Lewis claimed that he was able to describe with absolute precision the climatic conditions on particular days some five and half years ago. However, at the same time, he was not able to describe and in fact misdescribed the make, model and body type of Mr Miller's car.

b Mr Lewis asserted in re-examination as to his 1997 diary notes that he would never alter original documents. However, it is noted that in a contract subsequently signed with Mr Irwin, the dates of the one tendered were different from the one in the Tribunal Book where there was in fact no date.

c Mr Lewis gave evidence that Mr Di Cecco signed both permit applications and that his signature appears on both permits. This is clearly wrong. As Mr Lewis admitted that he in fact signed the second permit application.

d Mr Lewis in one witness statement suggested that Mr Threadwell arranged for the inspections save for the final inspection. However, in his statement made to a Peter Brilliant relating to the prosecution of Mr Threadwell, Mr Lewis stated I cannot recall who called for the frame inspection, it could have been Ray or myself. Clearly, the two statements are inconsistent.

e ... describing his understanding of the role of the building surveyor when he stated

i he looked to the building surveyor 'for additional support and direction'; and

ii to carry out specific mandatory inspections and issue certificates of occupancy' and at the time, I did not believe the role of the building surveyor was beyond that.

70 In my view, these two versions are inconsistent with each other. Thus weighing the evidence as a whole, I accept Mr Miller's evidence that he did attend the building site on 28, 29 and 30 October and on each of those occasions examined the frame in the manner which he described. Mr Lewis is unable to say positively or at all that Mr Miller did not attend on those days, and on the balance of probabilities, I find in all probability that he did attend. I also note, that it is likely over a period of time with the annoyance that the applicants have had with this building project, that they have been likely to have reconstructed the events that they thought would have been likely to happen rather than the events that actually happened. On this basis, I accept the fact that Mr Miller did in fact carry out a frame inspection on the dates he stated.

71 Mr Irwin, the rectifying builder, gave evidence that the verandah stirrups that were installed by the first respondent were only 25mm to 30mm in diameter and the wall thickness was only 2mm whereas the stamped engineering plans called for a flat plate which had dimensions of 75mm x 5mm. Further, Mr Irwin stated that the lightweight verandah stirrups had been screwed on with roofing screws whereas the stamped plans called for the plates to be shown to be screwed with 12mm bolts. As a result, the applicants maintain that the fourth respondent while inspecting the frame failed to ensure that there was compliance with the building permit in relation to the verandah stirrups and they submitted that this deviation impacted on the structural integrity of Units 1 and 2.

72 The applicants placed reliance on their expert witness Mr Atchison who stated :

The certifying building surveyor should ensure at the inspection frame that all components of the framework are in place and correctly installed.

73 In a supplementary report dated 3 March 2004, Mr Atchison further stated :

The lightweight verandah stirrups have proven to be structurally inadequate and are a serious deviation from the approved engineering drawings. (underlining supplied).

74 The applicants also used the evidence of Mr Irwin to support their case. Mr Moshidis said that he was a rectifying builder with 35 years experience. And that he gave evidence that the lightweight verandah stirrups were far from adequate in that supporting two balconies of Unit 1 and one balcony of Unit 2 was not the kind of use for which stirrups such as these were made. In fact, they were usually used to support verandah posts.

75 It is clear from the evidence of Mr Miller that he was unable to specifically remember whether the verandah stirrups were in place when he conducted his frame inspection. However, a production of a photograph taken by Mr Lewis on or about 27 October 1997 clearly demonstrates that the stirrups were in fact in place. Mr Miller stated that if he did not note the stirrups, he would have considered them adequate. He said that if he had not considered the stirrups adequate, then he would have either differed to Mr Di Cecco or not passed the frame inspection.

76 It seems clear, that the verandah stirrups that were used and passed in the frame inspection, were different from those referred to in the plan. However, that is not the end of the matter. The question that must be asked is whether the use of the stirrups that was in place was a minor or substantial variation such that could interfere with the structural integrity of the building. Put another way were they substantially different from what was requested by the permit. Clearly, the stirrups were weight supporting so it was possible for them to interfere with the structural integrity of the building but the question is were they insufficient for the structural integrity of the building?.

Lewis v Threadwell [2004] VCAT 547

At a glance

Court

Decision date

Source

Judgment (359 paragraphs)

Lewis v Threadwell [2004] VCAT 547 (2 April 2004)

Parties

Cases Cited (7)