O'Brien v Building Professionals Board

O'Brien v Building Professionals Board - [2009] NSWCA 141 - NSWCA 2009 case summary — Zoe

[19]

Compliance with development consent and Building Code of Australia (1) A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters: (a) that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 79B) are not inconsistent with the development consent, (b) that the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made). (2) A certifying authority must not issue a construction certificate for subdivision work unless it is satisfied that the design and construction of the work (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 79B) are not inconsistent with the development consent. (3) Subclause (1) (b) does not apply to the extent to which an exemption is in force under clause 80H or 80I, subject to the terms of any condition or requirement referred to in clause 80H (6) or 80I (4). . . 10 A "certifying authority" is defined in s 4 of the EPA Act to include a person who is authorised to issue Part 4A certificates. Part 4A certificates include construction certificates: EPA Act, s 109C(1)(b). Section 81A(2)(a) provides that the erection of the building cannot be commenced until the construction certificate for the building work has been issued by an accredited certifier. When doing so the accredited certifier is a "certifying authority". The EPA Regulation 1994 described the functions of a certifier. First, the certifying authority must endorse the application for a construction certificate with the date of its receipt: Cl 79A(2). Next the certifying authority may require any additional information that is essential to the certifying authority's proper consideration of the application: Cl 79B(1). In this case the construction certificate states that the application was received on 21 August 2000 and the requirement for further information was made within 14 days of receiving the application for the construction certificate: Cl 79B(2).

[52]

26 Mr Finianos' recollection. The developer, Mr Diab Finianos, also recalls Mr Cohen saying at the 25 July meeting that he did not see any problems with the construction plans. In particular, he recalls him saying: Basically, under the current rules, it is my job to make sure that the construction plans are consistent with the DA plans. That allows us to make changes at the CC stage without having to go to court or council again with a new DA. Looking at the plans now, the only change of any great substance I can see is the change to the car park. . . . [C]hanging the car park won't affect anything above ground. I don't see it as being a problem with the current DA. I could certify the changes at the CC stage. Anything below ground, it doesn't need a new DA. What you have to do is make sure that you have done everything you are supposed to do as a precondition to the issuing of the CC. 27 Mr Cohen's recollection. Mr Cohen remembers the meeting and admits that he assessed a set of plans. He gave four different answers to questions about his recollection of the plans he looked at the meeting. First he said that the plans that he assessed were the DA plans, not the plans that were subsequently attached to the construction certificate. Next, he said that the plans he looked at in mid-2000 could have been the construction certificate plans, but denied that the plans showed only one level of car parking. His third answer was that he could not give a definitive answer to the question about which plans he was looking at during the meeting in mid-2000. He remembers a reference to "stacked parking", but not to one level of car parking instead of two. Finally, he said it was possible that if draft construction certificate plans had been prepared before the July meeting, they would have been discussed at the meeting. He denied that he told the developer and the architects that he could certify the plans despite the fact that they did not correspond with the development application drawings because anything below ground did not require any further application to Council.

[55]

The practice in my company is that whoever issues a construction certificate is the PCA and that is still the practice in the company today. After transferring a file to Mr O'Brien, and upon his appointment as PCA, I have no further involvement with the project insofar as matters concerned this construction certificate. 33 In oral evidence Mr Cohen said that he recalls giving Mr O'Brien the file, even though the company was in disarray at the time and he and Mr O'Brien were not on speaking terms. At that time, the relationship between Mr Cohen and Mr O'Brien was acrimonious. Mr Cohen said he transferred the files because Mr O'Brien wanted work, or it may have been because he was going on leave. He said he specifically recalls Mr O'Brien asking for work and recalls handing him the file without any discussion. Mr O'Brien's evidence was that Mr Cohen did not transfer the Northmead file to him and there was no understanding that he would be the PCA and issue the construction certificate in his own name. He says his version of events is supported by the following facts: a) Mr Cohen had had meetings with the builders and the architect and was familiar with the project; b) at this time Mr Cohen and Mr Moy, were negotiating to purchase Mr O'Brien's share of the company. Given his imminent departure from the company it would not have made sense to transfer projects to him; c) the development is situated in Northmead, an area normally processed by staff at the Castle Hill office, not the Liverpool officer where he was based. 34 Finding. We are satisfied that Mr Cohen did not transfer the file to Mr O'Brien and assume that he would become the PCA, because: 1. The relationship between them at the time was acrimonious. Mr O'Brien had commenced proceedings in the Supreme Court to wind up the company. They came to a confidential resolution in relation to that matter. One component of the calculation as to Mr O'Brien's share of the business was the number of clients that he currently had. Mr Cohen knew that the more files Mr O'Brien had in his name, the greater the value of his interest in the firm and the more he would have to be paid out in any settlement. In the midst of such a dispute, Mr Cohen would not have given Mr O'Brien files even if he was going on leave.

[58]

36 Printing of the construction certificate. Mr O'Brien agrees that the construction certificate was printed by administration staff on Mr Cohen's instructions. We are satisfied that on 12 September, the same day that Ms Everson sent the facsimile to Mr Finianos, she, or someone else in the office, printed out the construction certificate on Mr Cohen's instructions. In relation to the date on the construction certificate, 12 September 2000, Mr Cohen agreed that the accredited certifier handling the file would ask the clerical staff to print the construction certificate when it was ready to be issued. As we have said, the certificate named Mr Cohen as the accredited certifier and bore the date of "12/Sep/2000". That date was generated by the computer when the certificate was printed. The attachments to the construction certificate bore Mr Cohen's stamp which stated, "This is the plan/spec referred to in Essential Certifiers Certificate dated . . . . .Cert. No. . . . . Officer B Cohen Accreditation No 623." One of the administration staff would have stamped the attachments using Mr Cohen's stamp and filled in the remaining details. We accept that it was the company's practice for the date stamped on the annexures to be the same date as the date on the construction certificate. That was the situation for the construction certificate in dispute in these proceedings. 37 Issuing of the construction certificate. On 20 September 2000 the architect, Mr Drummond, informed the builders of the outstanding issues that were delaying the issuing of the construction certificate. On 22 September the builder, Ray Finianos, sent a facsimile to Ms Everson with 'all remaining documents required for the release of the construction certificate.' The construction certificate was issued (released to the builder) on 26 September 2000. 38 Practice in the office. Ms Everson's evidence was that it was the practice when a certifier was absent from the office, and the matter was urgent, for another certifier to sign a construction certificate on his behalf. She said that she would provide the available certifier with the file when advising them of the request. Mr Cohen denies giving Mr O'Brien any authority to sign a construction certificate on his behalf. He said there was no practice that another accredited certifier would sign a construction certificate if the person handling the file was not available and was not aware of that ever having happened. The practice when Mr Cohen worked at Council was that other builders would sign off, because Council was the issuing authority. However Mr Cohen denies that in 2000, he thought the company, rather than the individual certifier, was the certifying authority. That answer is not consistent with the fact that Accredited Certifiers was named on the certificate as the certifying authority. Mr Cohen says that the only reason he became the PCA was because his name was on the construction certificate. Mr Cohen denies that the matter became pressing while he was on leave. When asked why he sent the fax of 1 September, he said it may have been because the client was pressing for the construction certificate. He agreed that sometimes clients need the construction certificate urgently. 39 Mr O'Brien said it was not a common practice in the profession for one accredited certifier to sign for another, however, if the construction certificate was ready to be issued and the accredited certifier was not available, someone else could sign. He said he had signed for other accredited certifier's before, but he can't remember the details. 40 Finding. Despite Mr Cohen's denials, the fact that Accredited Certifiers was named on the certificate as the certifying authority satisfies us that both Mr Cohen and Mr O'Brien wrongly assumed that the company was, in substance, the certifier and that any of the three accredited certifiers who were directors of the company could sign the construction certificate. While the file in relation to the Northmead project was not in evidence, the documentation that was in evidence reveals that Mr O'Brien did not initiate any correspondence with the builder or architects, nor did he sign any correspondence prepared by Ms Everson. The only place his name appears in any of the documentation is on the certificate itself. This leads us to infer that Ms Everson was the person who attended to the necessary detail and it was she who asked Mr O'Brien to endorse the certificate. We are also satisfied, in accordance with the evidence of Ms Everson and Mr O'Brien, that the practice in the office was for another certifier to sign on behalf of the person whose name was on the certificate if the matter was urgent.

[60]

41 Mr O'Brien does not remember exactly when he endorsed the certificate but he agrees that it must have been some time between 12 September, when the certificate was printed, and 26 September when it was issued. If he endorsed it before 22 September, then he did so before the last two remaining items had been provided. However, regardless of whether the endorsement was made before or after 22 September, Mr O'Brien was not performing functions of a certifying authority when he endorsed the certificate. 42 Evidence about capacity in which Mr O'Brien endorsed the construction certificate. Mr O'Brien and Mr Cohen were independent accredited certifiers with different accreditation numbers. Mr Cohen's accreditation number appeared on the certificate. Mr O'Brien endorsed the construction certificate with Mr Cohen's name by writing "B Cohen" next to the word 'signed' on the Construction Certificate. Underneath the line provided for the signature, Mr O'Brien wrote 'per ROB' (Mr O'Brien's initials). Mr O'Brien says that he wrote those words because he was intending to convey that he was signing on behalf of Mr Cohen. Mr O'Brien said that he was merely performing an administrative task. It was Mr O'Brien's belief that Mr Cohen was the certifier, and he was not exercising any power under s 79G. He said the function that he performed was checking that Mr Cohen had been satisfied of the matters he needed to be satisfied of. He said he only satisfied himself about the outstanding items in the 1 September fax. 43 Mr O'Brien agreed that there were functions which could only be fulfilled by a certifier which remained incomplete when Mr Cohen took leave. The Board submitted that Mr O'Brien admitted that he issued the certificate and that he exercised independent functions (or permitted Ms Everson to do so) before issuing the certificate. 44 It is common ground that Mr Cohen was not in the office and that no contact was made with him between 12 and at least 26 September 2000. In that time the only certifier associated with the project was Mr O'Brien. According to the Board, Mr O'Brien may have thought he was merely checking what had already been done, but objectively he was completing the process and acting as the certifier. Regardless of his opinion of his role, his actions must be viewed objectively. Mr O'Brien must take responsibility for what occurred between 12 September and 26 September during which time there was no input from Mr Cohen. In those circumstances, the Board submitted that Mr O'Brien was the certifying authority and that the alleged conduct occurred in connection with the exercise of his functions as a certifying authority.

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