How Can Victorian Building Surveyors End their Statutory Retainers?

How Can Victorian Building Surveyors End their Statutory Retainers?

6 Jul 2020

By Justin Cotton, Director, and Jordan Davies, Senior Paralegal, Lovegrove & Cotton – Construction and Planning Lawyers

In 2020, coupled with the building defects and cladding crisis afflicting Australia and very high insurance premiums and excesses, a diminished work prospectus has left some Victorian building surveyors with no option but to leave the profession altogether.

The question therein lies – how does one go about appropriately and legally ending their statutory retainer as responsible building surveyor (‘RBS’) for a project? This article covers two key statutory processes for ending a building surveyor’s appointment, and discusses some considerations that building surveyors may wish to be mindful of in the event it appears their functions under the Building Act 1993 can no longer be carried out. This article cannot be treated as legal advice, and discusses the topic in general terms. Any advice regarding termination of private building surveyor functions must have regard to the specifics of the case, and an experienced construction lawyer should be consulted.

A Private Building Surveyor (‘PBS’) cannot simply contract totally on their own terms with the owner of a building development – their retainer is largely a statutory one which has key terms determined by the legislature through the Building Act 1993. It follows that ending such an engagement, in circumstances other than seeing the appointment through to completion, requires one to follow strictly the germane statutory processes.

Two Key Termination Mechanisms

Part 6 of the Building Act 1993 contains provisions concerning the appointment, termination, and, importantly, the transfer of functions and appointments of ‘managers’ of building surveyor functions by the VBA. For a building surveyor seeking to end their appointment, Divisions 1A and 3 of Part 6 are of particular relevance, namely the divisions concerning transfer of functions and appointment of managers. The two methods can be considered alternatives. These alternatives may be considered in extenuating circumstances where the building work has not yet been completed or has not been terminated.[1]

Transfer of functions to another Building Surveyor

Section 81 of the Building Act provides that no termination of the appointment of an RBS is to occur without the consent of the VBA. This is subject to an exception in Section 80C, namely where appointment is terminated as a result of a transfer of functions.

Section 80C outlines the circumstances under which a transfer of building surveying functions can occur. This would be the route one would take if one had a willing transferee building surveyor in mind. This process does not heavily involve the VBA, and as a result may be potentially quicker. This is because the process is one fundamentally reliant upon the consent of the owner, transferor building surveyor and transferee building surveyor. In regards to the involvement of the VBA and the relevant council, all that is required is that the form of transfer be in the form approved by the VBA and be lodged with the VBA and council.[2] The transfer is taken to have occurred[3], and thereby the appointment of the RBS deemed terminated, upon the latest of the date of either lodgement of the transfer form with the VBA, Council or the date specified on the form of transfer.[4] After that, it is then the new transferee RBS’s responsibility to notify the owner and builder of the giving effect of transfer.

Section 80C, specifically subsection (2), provides that no transfer may occur unless there is agreement by the person who appointed the RBS (i.e. the owner of the development) and the transferee building surveyor. Attaining the consent of another PBS may be a rarity in the current economic environment, and in light of concerns for potential assumptions of liabilities by the second building surveyor emanating from work carried out by the first building surveyor.

One important consideration for an RBS in this situation is the lack of reviewability of an owner’s decision or transferee RBS’s decision to refuse to allow the transfer, whereas a decision by the VBA under Part 6 Division 3 is reviewable.

Transfer to “Manager” of the PBS’ Business by the VBA

In other circumstances, the Building Act 1993 (VIC) provides that effective termination of a building surveyor’s functions requires the written consent of the VBA.[5] One consideration that must be borne in mind by an RBS when considering this route for ending their retainer is that the VBA’s consent may take time. Essentially this means that best practice would dictate that a PBS act as soon as possible to take steps to communicate with the VBA about the need for a termination of their appointment. There are review avenues under this process for a decision by the VBA.

Section 83B of the Building Act 1993 (VIC) provides that the VBA may appoint a manager of the Building Surveyor’s “business”. The use of the term “business” is interesting, but in this instance it refers to the PBS’s functions under the Building Act 1993.[6] The VBA may appoint that manager if it is of the view that it is “necessary to make the appointment in order to protect the interests of other persons”.[7] The ‘manager’ must be a registered building surveyor or an appropriately qualified employee of the VBA.[8]

The appointment of a ‘manager’ by the VBA for a Building Surveyor’s ‘business’ may occur upon “request” by a building surveyor seeking to end their appointment,[9] but the VBA may also appoint a “manager” if the private building surveyor:[10]

  • Ceased carrying out the functions of a private building surveyor;
  • Has had their registration suspended or cancelled;
  • Has died;
  • Is in prison;
  • Has become a represented person within the meaning of the Guardianship and Administration Act 2019; or
  • Has become insolvent under administration.

This indicates there are a range of practical considerations the legislature had in mind that may inhibit a building surveyor from continuing to act despite an otherwise rather rigid locked-in statutory retainer.

It is important to note that Section 83B came about after some changes made to the Building Act in 2017. The purpose was to incorporate more pragmatic flexibility into the statutory retainers of building surveyors in Victoria.

In the current heightened litigious environment, and with the economic shocks of the COVID-19 pandemic, anecdotally one hears of a larger number of building surveyors bringing forward their retirement plans, so it is likely that there is going to be a greater number of requests for the appointment of managers in circumstances where building surveyors have not been able to wind down their practices with sufficient alacrity.

This would be particularly the case in circumstances where a building surveyor is no longer able to attain the mandatory professional indemnity cover, whereupon they would be statutorily barred from continuing to carry out building surveyor functions, thereby arguably falling within the curtilage of one the express grounds for appointment of a Manager by the VBA, namely that “the private building surveyor has ceased carrying out the functions of a private building surveyor”.[11]

As the average age of a Building Surveyor is 55 years of age, over the next few years, it may be likely that there may be a significant increase in retirees and those who are intent on “[ceasing] carrying out the functions of a private building surveyor”. It does not appear that the legislature intends on prohibiting Private Building Surveyors from retiring in good faith[12] by locking in building surveyors to appointments, especially in cases of projects that, for unforeseen reasons, extend for elongated periods prior to certificates of occupancy being issued.

To ensure that the building surveyor does everything possible to perform their professional service contract, it would behove a surveyor facing adverse external factors impeding upon their ability to carry out their functions, to act swiftly to communicate with the VBA about those circumstances and processes involved with ending the appointment. It is also essential that communication lines are open with the owner of the development who appointed the building surveyor, as a communicative approach is best practice.

A Right of Review by BAB, VCAT & Victorian Supreme Court for a decision under s81 and/or s83B

A decision on the part of the VBA is a reviewable decision, pursuant to either Section 140, enlivening the Building Appeals Board’s jurisdiction, or Section 83R of the Building Act 1993 (VIC), which enlivens the Victorian Civil and Administrative Tribunal’s Review Jurisdiction, which is a merits review jurisdiction. This effectively places the BAB or the VCAT ‘in the shoes of’ the VBA. At VCAT, the decision will be either affirmed, varied or set aside and substituted or set aside and remitted back to the VBA for reconsideration.[13]

In tandem with the right to merits review, there is the right for judicial review at the Supreme Court of Victoria either by way of the Administrative Law Act 1978 or the common law writs of Certiorari, Mandamus, and Prohibition, or through equity seeking equitable injunctions or declarations. This route would usually occur as a last resort in the event that Merits review was unsuccessful or unavailable and if the VCAT, BAB or VBA made what is known as a “jurisdictional error”. The processes involved with this are more laborious and legally exacting than a merits review.

It follows that the Section 83B mechanism of appointing a “manager” leaves open more options for Building Surveyors who may, given the array of extenuating circumstances impacting upon the industry presently, need to end their appointment as responsible building surveyor for certain projects, or all projects altogether.

Conclusion

There are therefore two main avenues under the Building Act for a building surveyor to go about ending their appointment. In many instances, the conciliatory approach under Section 80C may be a good first port of call. However, there may be reasons why the Section 80C consent-based approach may be impractical, and the Section 83B appointment of a ‘manager’ by the VBA more suitable – the PBS may need to end multiple appointments or may be faced with a lack of willing transferee building surveyors. In either case, communication lines should be open and action should be taken at the earliest opportunity. It would be prudent for a building surveyor to consult a well-versed construction lawyer with the specifics of their circumstances so as to ensure that the necessary rigour and appropriate steps are taken with regards to ending their appointment.

 

Footnotes

[1] The Building Act 1993, s 81(2) & (3) provides that an RBS’s appointment terminates upon the termination of building work.

[2] See Building Act 1993 (VIC), s 80C(5).

[3] Ibid.

[4] Ibid, s 80C(6).

[5] Ibid, s 81(1).

[6] Ibid, s 83B(2)

[7] Ibid, s 83B(1)

[8] Ibid, s 83C

[9] Ibid, s 83B(1)(a)

[10] Ibid, s 83B(1)

[11] Ibid, s 83B(1)(g)

[12] See also the VBA website, where retirement is noted as a ground for likely consent for termination of appointment by the VBA; https://www.vba.vic.gov.au/consumers/home-renovation-essentials/ending-employment-private-surveyor/change-building-surveyor.

[13] Victorian Civil and Administrative Tribunal Act 1998, s 51.

 

Lovegrove & Cotton Lawyers to the building industry

For thirty years, Lovegrove & Cotton have represented builders, building surveyors and building practitioners in Melbourne, Canberra, Sydney and Queensland. Justin Cotton is a leading Australian construction lawyer and widely respected in the building fraternity as evidenced by his appointment as Chairperson of the HIA Industrial Relations and Legal Services Committee, and member of the Regional Executive Committee, for HIA Victorian Chapter. Likewise, Doyles Guide ranks Kim Lovegrove as one of the leading construction lawyers in Australia. Lovegrove & Cotton can help practitioners resolve any type of building dispute and are preeminent in the area of building practitioner advocacy. If you wish to engage the firm, feel free to contact us via our website or by emailing enquiries@lclawyers.com.au.