| Judging Building Surveyors - Part 2 - Effect of | | | | identified a number of serious structural |
| MIG Textiles Decision (VCAT 2005) | | | | deficiencies in the footings. |
| FACTS - MIG owned a block of land in Carlton. It | | | | VCAT decided that the surveyor had been in |
| was to be developed into 4 x 3-storey | | | | substantial default by issuing the permit. Contrary |
| townhouses. The respondent architect, Myer, | | | | to regulations, no specifications had been provided |
| obtained a town planning permit for the | | | | describing the materials and methods to be used |
| development and prepared working drawings. The | | | | and the plans did not identify the particular wall |
| original town planning permit assumed the | | | | material. VCAT described the surveyor's conduct |
| retention of existing retaining walls. The owner | | | | as to mounting to gross carelessness and |
| received engineering advice to the effect that the | | | | incompetence. The Trial Division of the Supreme |
| walls would need to be demolished. During the | | | | Court criticized the building plans, calling them as |
| course of demolition, the local council intervened | | | | though they had been done by a thumbnail dipped |
| to stop work on the project because the degree | | | | in tar. The Supreme Court noted that there were |
| of demolition was greater than that permitted by | | | | many construction defects which should have |
| the town planning permit. MIG had to pay | | | | been picked up by the surveyor in the course of |
| damages to the builder and sustained economic | | | | his inspection - in particular, sub floor defects in |
| loss itself. MIG sued to recover those losses from | | | | the bearers and joists, defects in the roof |
| Myer, alleging that it was the fault of the architect | | | | framing, clear shortcomings in the flashings, and a |
| that the work was stopped and the delay | | | | failure to provide the correct safety glass for |
| occurred. | | | | certain window and door panels. |
| The building surveyor who had issued the building | | | | VCAT concluded that the house was so |
| permit approving extensive demolition of walls | | | | compromised that it needed to be demolished and |
| contrary to the original town planning permit was | | | | rebuilt. |
| not sued. | | | | The Court of Appeal noted that the Taitapanuis |
| Senior Member Walker, an experienced VCAT | | | | did not themselves rely upon anything that the |
| officer, found in favour of the defendant architect | | | | surveyor or his employer, the Shire Council, said |
| and dismissed MIG's claim. Senior Member Walker | | | | or did when they purchased the property from |
| noted that the building surveyor had issued a | | | | the Pozmans. |
| permit for demolition for work without first | | | | The Court of Appeal thoroughly analysed the |
| satisfying himself of the existence of a planning | | | | Building Act 1996. The Court noted the critically |
| permit which would have allowed the demolition. | | | | important role of the surveyor relating to the |
| Evidence called by the developer that in fact the | | | | approval of future construction work and building |
| building surveyor had acted reasonably was | | | | inspectors to regulate buildings which are under |
| rejected by VCAT. VCAT also rejected evidence | | | | construction. The Court of Appeal noted that the |
| from another consultant building surveyor to the | | | | role of the surveyor in respect of building work |
| effect that the project building surveyor could | | | | was not limited to that of issuing building permits. |
| have delegated his responsibilities to Council by | | | | There is a duty to make mandatory inspections, |
| sending in plans for Council to determine whether | | | | and a power to conduct other inspections. The |
| the planning permit covered the removal, | | | | Court noted that a surveyor had broad authority |
| demolition and replacement of walls. Senior | | | | when conducting an inspection. For instance, the |
| Member Walker decided that the project building | | | | occupancy permit should not be granted unless |
| surveyor had a responsibility under the Building | | | | the building to which it applies is fit for occupancy. |
| Act 1993 to satisfy himself/herself that there | | | | The Court of Appeal concluded that Mr. Mellis, as |
| was a relevant planning permit in existence. The | | | | building surveyor, owed a duty of care to not |
| final responsibility was personal and | | | | only the current owner/builder of a property but |
| non-delegatable. However, MIG made the fatal | | | | also to future owners. The Court of Appeal was |
| error of not having sued the building surveyor as | | | | influenced in this finding by the surveyor's gross |
| well as the architect. | | | | failure of reasonable care when performing the |
| The reason why the claim against the architect | | | | statutory functions of issuing a building permit. |
| failed was that VCAT was satisfied that the | | | | The Court of Appeal stressed the important role |
| architect had no contractual responsibility to | | | | which a surveyor performs, particularly to |
| determine whether the planning permit would | | | | prospective purchasers of property who will |
| allow demolition which only arose after the | | | | conduct searches of documents such as the |
| planning permit had been issued. VCAT noted that | | | | Section 32 statement attached to contracts of |
| MIG had effectively taken responsibility for | | | | the sale of land. |
| splitting responsibility between Myer to obtain the | | | | The Court of Appeal framed the relevant duty of |
| planning permit and others to obtain the building | | | | care owed by a building surveyor as a duty to |
| permit. VCAT noted, somewhat caustically, that | | | | exercise reasonable care in granting a building |
| the small amount of money saved by the | | | | permit in respect of building work the subject of |
| developer ended up being insignificant by | | | | an application for the permit. The Court of Appeal |
| comparison to the damages ultimately sustained. | | | | warned surveyors that this duty applied equally to |
| Effect of Taitapanui Decision (VSCA 2006) and | | | | future purchasers who, in many respects, were in |
| (HCA 2006) | | | | more vulnerable positions than the original building |
| FACTS - Mr. & Mrs. Taitapanui purchased a | | | | owner. The Court concluded that the surveyor |
| house in 1999 at Torquay. The house was | | | | must have been aware of the risk of economic |
| originally built by owner/builders, Mr. & Mrs. | | | | harm being suffered by a later purchaser in the |
| Watson in 1996. Watson had his own construction | | | | event that the surveyor neglected his statutory |
| company, Watson Construction Pty Ltd. When the | | | | obligations. |
| house had been originally constructed, Wally Mellis, | | | | The Court of Appeal also remarked on whether |
| employed by the Mooroobool Shire Council's | | | | or not the Taitapanuis could have been said to |
| Building Department, had been project surveyor. | | | | consciously rely upon anything actually done by |
| The Taitapanuis subsequently sustained loss and | | | | the surveyor as being causative of their loss. In |
| damage being pure economic loss when part of | | | | many respects, the Taitapanuis (who may not |
| the foundations of the house collapsed. The | | | | have even been aware of Mr. Mellis' original |
| Taitapanuis sued the original owner/builder | | | | involvement) might have found the requirement |
| (Watson Construction) and Mooroolbool Shire | | | | of reliance difficult. The Court side-stepped this |
| Council as Mr. Mellis' employer. Before VCAT, the | | | | defence by holding that the Taitapanuis |
| Taitapanuis were successful both against the | | | | established reliance in the sense of having |
| building surveyor/local Council and original owner | | | | inspected the Section 32 certificate under the Sale |
| builder. Both appealed to the trial division of the | | | | of Land Act which included the building permit |
| Supreme Court. The appeal was dismissed in | | | | granted by Mr. Mellis. |
| 2004. The Municipal building surveyor/Council again | | | | In many respects, Taitapanui is an extension of |
| appealed to the Victorian Supreme Court of | | | | the High Court Authority in Bryan v. Maloney |
| Appeal. Again, the appeal was dismissed. | | | | (1995) to building surveyors. It seems settled law |
| The question before the Court of Appeal was | | | | in Australia that a wide variety of building |
| whether the building surveyor owed any duty of | | | | practitioners such as architects, engineers, |
| care to the Taitapanuis . | | | | draftspersons, builders and surveyors, owe a duty |
| The building permit was issued by Mellis in August | | | | of care to subsequent owners of the house to |
| 1996. Construction commenced later that year. | | | | avoid mistakes leading to future pure economic |
| Mellis issued a certificate of occupancy in January | | | | loss. These decisions may depend upon whether |
| 1997. In July 1997, the Watson's sold the property | | | | these building practitioners owed duties of care to |
| to a Mr. & Mrs. Pozman. Early in 1999, the | | | | first owners to avoid pure economic loss. |
| Pozmans further sold the property to Mr. & | | | | However, having regard to the essential role |
| Mrs. Taitapanui. Defects only became apparent | | | | played by surveyors in the building process, that |
| once the Taitapanuis were owners. Engineers and | | | | salient feature is inevitably likely to be satisfied. |
| consultant builders retained by the Taitapanui's | | | | |