Friday 15th February 2019
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The New Zealand Institute of Quantity Surveyors has decided more training is the best penalty to impose on immediate past president Jeremy Shearer after a Building Disputes Tribunal adjudicator described his conduct as “punitive,” “vexatious,” “disingenuous” and “egregious.”
Russell Lund, who was the lead contractor on the project to refurbish the Balclutha Centennial Swimming Pool, laid the complaint against Shearer last year after the project ended up costing more than six times the original $1 million estimate.
The adjudicator, John Green, made it clear in his judgment that the main culprit in creating what he called “a complete" was Shearer.
The Clutha District Council, owner of the pool built in 1970, and Lund agreed to make Green’s judgment public in March last year, a year after Green delivered it. Lund lodged his complaint to NZIQS shortly after that.
In his judgment, Green said that the project was "essentially a complete mess from the outset. Taken overall, it would be a kindness to say the administration of the contract was bizarre.”
“I am left with the impression that the engineer was at least careless with the truth,” Green said. Shearer was the engineer responsible for overseeing the contract.
The reason for the blowout in costs was a result of Shearer failing to treat Lund fairly and Shearer “crossed the line of being unreasonable in the context of assessing Lund’s payment claims,” Green said in deciding the dispute largely in Lund’s favour.
In a letter to Lund dated Feb. 13 this year, nearly a year after the complaint was lodged, Brian Nightingale, chair of NZIQS’s professional conduct committee, outlined his committee’s findings.
Nightingale said that Shearer’s actions fell below the standards of conduct required by the NZIQS in that he failed in his role as engineer to provide the "utmost care” and had accordingly breached the institute’s code of conduct.
“The committee has concluded that the breach is not sufficiently serious to constitute negligence or incompetence and that there was no evidence of bad faith or unconscionable behaviour on the part of Mr Shearer such as to require the complaint to be referred to the Disciplinary Board,” Nightingale’s letter says.
“The committee have recommended ….. that the NZIQS Council impose requirements for the professional development or training of Mr Shearer,” the letter says.
Shearer’s LinkedIn page shows he’s a development and project consultant at Flanders Marlow and operates in Otago and Southland and has been in that position since April 2013.
He lists SPIIRE, Forest Products Holdings and Arrow International as previous employers.
In his judgment, Green said Shearer is clearly a "very experienced and capable engineer."
But he said problems with the project were as fundamental as uncertainty about when the contract was formed.
The council sought tenders for the pool renovation in November 2010 and, after several extensions, tenders closed on Jan. 31, 2011.
By then, the costs had already blown out to nearly $3.67 million, including a $70,000 contingency.
At that time, the council had envisaged that it could re-open the pool before Christmas 2011 – it didn’t actually open until June the following year.
The council and Shearer treated April 12, 2011, as the start of the contract and the official completion date was supposed to be Nov. 12.
But Green found both parties to the contract didn’t actually sign it until October 2011, even though work had begun in May 2011 when Lund was first granted access to the site.
“In the construction sector, it is not uncommon for there to be an offer, followed by a series of counter-offers where each party successively seeks to impose different terms.
“In some cases, the battle is won by the man who fires the last shot, the other party being taken to have agreed the other’s terms by conduct in proceeding to perform the contract without objection.
“This process is often referred to as the ‘battle of the forms,’" Green notes.
Shearer “was confused” about various matters and admitted as much in a June 2011 email that said: “I am very confused”. Green says “I am left with the impression that the engineer was at least careless with the truth.”
In the end, Green declared the completion date was “at large” or non-existent other than that Lund needed to have completed the work within a reasonable time, taking into account “council interference in practical completion.”
The process was further complicated by the council and Shearer making various changes to the work, even after the contract had been signed, but also refusing to allow any extensions of time to take account of the delays they had caused. At one point, the council had even brought in separate contractors.
The Building Disputes Tribunal last year ordered Clutha District Council to pay Lund's firm almost $1.9 million in final settlement of the contract.
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