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Notable decisions against two LBPs

Posted: 29 January 2019

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The Building Practitioners Board recently handed down significant sanctions against two LBPs and has chosen to publish the details of the matters due to their seriousness and the strong penalties.

The first complaint was made against Dale Kay in Tauranga, and the second against Sam Spence in Auckland. This is a good opportunity for others to learn from these mistakes and avoid similar circumstances.

Dale Kay (C2-01866)

Mr Kay, who holds a Carpentry and Site (area of practice Site 1) licence, was found to have:

  • carried out building work in a negligent or incompetent manner.

The Board heard evidence that Mr Kay was engaged by a lift installation company to install a lift for a homeowner. Mr Kay prepared the house for the installation, including removing structural timber framing and creating a hole in the concrete slab. A building consent was not obtained for this work.

It was clear the work required a building consent, both for the installation of the lift or elevator itself, as well as for the significant amount of structural change. Much of the work did not comply with the Building Code or meet standard practice. Mr Kay had, for example, cut back a large amount of structural framing to 75 mm x 50 mm as opposed to the 100 mm x 50 mm that was called for.

Mr Kay claimed that obtaining a building consent is the homeowners’ responsibility and that the work would have been inspected by an engineer.

On consideration of the evidence, the Board stated an LBP must, as an integral part of the building work, ensure a building consent is obtained if required. Homeowners are not experts in the building process, and in this case both Mr Kay and the lift installation company misled the homeowner as to the need for a building consent.

The Board stated that an LBP cannot contract out of their obligations. Being employed by a company that is hired by a consumer to undertake the work does not mean that the LBP isn’t responsible for their own conduct. While the homeowner, Mr Kay or the lift installation company could have obtained a building consent, Mr Kay neither obtained one nor ensured that one had been obtained before commencing work.

Mr Kay’s work also fell significantly short of acceptable practice and quality. Evidence presented identified that, had the lift been installed as prepared, it would have been unsafe.

The Board considered Mr Kay had been negligent or incompetent in his work. The Board ordered that he pay a fine of $3000 and costs of $2000 and that this decision be published.

Sam Spence (C2-01906)

Mr Spence, who held a Roofing licence (in the area of practice Profiled Metal Roof and/or Wall Cladding), was found to have:

  • acted in a manner that brings, or is likely to bring, the LBP scheme into disrepute.

The Board's inquiry into Mr Spence resulted from a segment on the Fair Go television programme. The work in question was re-roofing work for which Mr Spence had been subcontracted to carry out.

In the early stages of the work concerns about the workmanship were raised, the subcontract for the re-roofing work was terminated and the relationship between the customer and Mr Spence broke down. Both the company he was engaged by, and Mr Spence, demanded a substantial progress payment from the customer. When no payment was forthcoming, Mr Spence used threats of violence and intimidating behaviour to coerce payment from the customer. His behaviour far exceeded what would be reasonably expected in the normal pursuit of a debt in the course of business.

The behaviour demonstrated by Mr Spence was unrelenting and repeated, escalating in a short period of time. Voice messages included threats, obscene and offensive language, and lewd comments of a personal nature. The Board considered that this behaviour brought the LBP scheme into disrepute by using unacceptable methods to try to collect what was a disputed sum of money.

The Board cancelled Mr Spence’s licence for three years and ordered he pay $2500 towards the costs of the inquiry. The Board also decided to publicise their decision.

What we can learn from these decisions

Both matters relate to engaging with consumers in inappropriate ways. Mr Kay attempted to avoid his responsibilities in regards to ensuring a building consent had been granted before commencing building work, and Mr Spence actively threatened and intimidated a consumer for payment.

The Board has high expectations for the behaviour of LBPs. LBPs are regarded as experts in the building process and being a licensed person carries a reputation that you are trustworthy, reliable and accountable. Both of these LBPs fell short of the standards of licensing in different ways relating to consumers.

Treating clients and consumers with respect and ensuring you provide advice that is within their best interests is an excellent way to maintain the positive reputation of the LBP scheme. Failing to act reasonably in your dealings with others may bring you before the Board and result in discipline.

Read these and other past decisions in full on the LBP website.

This information is published by the Ministry of Business, Innovation and Employment’s Chief Executive. It is a general guide only and, if used, does not relieve any person of the obligation to consider any matter to which the information relates according to the circumstances of the particular case. Expert advice may be required in specific circumstances. Where this information relates to assisting people: