Can a RBS Rely On The Immunity Under s128 of the Building Act 1993? Does It Apply to Them Personally and Their Corporate Entity?

The immunity available to RBS’ for relying on a Reg 126 Certificate under s 238 is conferred by s128 of the Building Act (‘Act’), which relevantly states:

“Immunity for building surveyor relying on certificate

A municipal building surveyor or a private building surveyor appointed under Part 6 is not liable for anything done or omitted to be done in good faith in reliance on a certificate given by a registered building practitioner under section 238.”

Senior Member Walker’s finding in Mazzeo v Camilleri [2021] VCAT 150 at [112] has the effect of preventing the RBS’ from relying on the statutory immunity under s128 of the Act, if they have not carried out their duties in good faith:

"Moreover, the reliance must also be in good faith. Where the deficiencies in the drawings are as obvious as these, it is not acting in good faith to ignore them and pretend they are not there, simply because the design engineer, who was the one who made the mistakes, has given a certificate. Consequently, I do not accept Mr Akritidis’s view that it was reasonable for the Building Surveyor to rely upon the certificate and I find that, if there was any such reliance, it was not in good faith."

Furthermore, at [111] Senior Member Walker pointed out by Eames J in Toomey v Scolaro’s Concrete Constructions Pty Ltd (In Liq) (No.2) [2001] VSC 279 (at para 263), the statutory immunity conferred by s.128 applies only to the individual who is discharging functions under the Building Act as surveyor. It is not said to apply to a corporate surveyor.

Walker SM cited Toomey at [263] as authority for his point. That part of Toomey does indeed say this:

"Although Bigridge was compelled by the statute to nominate an individual building practitioner, and did so in nominating Young, and although Young was entitled to engage Smith to act as the inspector, the provisions of Part 4 of the Act (ss. 33-38) make it clear that the primary responsibility for inspection remains with the surveyor. Nonetheless, the surveyor is entitled to rely on the immunities of s. 128 providing the surveyor acted in good faith in doing so. The statutory immunity, however, applies only to the individual who is discharging functions under the Act as surveyor. It is not expressed as applying to the corporate surveyor."

However, the Court later said at [284]:

"In my opinion, blind disinterest is not good faith and the s. 128 statutory immunity is not available to Young, nor, therefore, can Bigridge gain any indirect protection as to its vicarious liability for any negligence of Young."

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eric@brixtonlegal.com.au
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