Asset Building Certifiers v Hyblewski

[2020] ACTCA 21

ACT Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Building contracts
3. › Certifier's duty
4. › Implied term to exercise due care and skill
5. › Breach by issuing certificates for defective work
6. › Causation
7. › Whether certifier's breach caused owner's loss
8. › Counterfactual analysis of builder's likely response to written notices
9. › Building Act 2004 (ACT), ss 42, 43, 44
1. Contract
2. › Damages
3. › Proof of loss
4. › Settlement with co-defendant
5. › Whether plaintiff required to prove terms of settlement with co-defendant to establish loss against remaining defendant
1. Evidence
2. › Circumstantial evidence
3. › Inference from circumstantial evidence
4. › Whether inference reasonable and definite or mere conjecture
5. › Counterfactual hypothetical conduct of third party
1. Practice and Procedure
2. › Pleadings
3. › Adequacy of pleading of causation
4. › Whether findings open on pleadings or course of trial

Quick Take

A building certifier's failure to refuse a certificate and issue written notices at a stage inspection is a cause of the owner's loss where a reasonable and definite inference can be drawn that the builder would have rectified defects if denied a certificate, having regard to the coercive nature of the statutory scheme, the builder's contractual obligations, licensing status, and negotiating position. An owner suing a certifier is not required to prove the terms of a settlement with the builder to establish loss against the certifier.