Nearly 10 years on from the Brirek[1] decision, how the 10-year limitation on building actions under s134 of the Building Act 1993 applies continues to be a live (and often misunderstood) topic, that is still being refined by the Courts and the VCAT.
Section 134 of the Act provides that a building action cannot be brought more than 10 years after the date of issue of the occupancy permit (or the certificate of final inspection) for that building work.
But recent cases have explored nuances where there are multiple permits and amendments to add claims (building actions) to existing proceedings after the expiry of the limitation period.
The Victorian Court of Appeal in Lendlease[2] looked at a number of these issues, including how the s 134 limitation period applies where there are staged occupancy permits issued for a project. Applying a common sense approach, the Court held that the 10-year limitation period begins from the date of the occupancy permit first issued in respect of the particular work to which the building action relates – not any ‘final’ occupancy permit that may have been issued for later stages in the project.
The Court of Appeal in Lendlease also took an orthodox view to out-of-time amendments to existing claims that was challenged in a recent application before the VCAT in East St Falls[3]. In East St, the applicants argued that proposed amendments to introduce new defects (out of time) to the claim did not introduce new ‘building actions’ but merely added further particulars of the existing breach of warranty already claimed.
They relied on the NSW Court of Appeal decision of Parkview[4], that was decided after Lendlease, in which the NSW Court of Appeal (dealing with the relevant limitation period under the Home Building Act 1989 (NSW)) permitted amendments to add new defects to an existing claim on the basis that the new defects were for a breach of the same contract[5].
The Tribunal declined to follow Parkview, primarily on the basis that the NSW legislation permitted amendments to ‘causes of action’, whereas the Victorian legislation (applied in Lendlease) did not require a cause of action to first be identified – but was concerned instead with the particular defects in the building work and the date of issue of the corresponding occupancy permit (or certificate of final inspection).
Applying Lendlease, the Tribunal considered the amendment in light of the following questions, for each defect proposed to be added:
- what is the particular defect in the work that would constitute a ‘building action’ ?;
- what is the issue date of the occupancy permit that relates to that defect (to determine when the 10-year limitation period commences for that building action);
- did the application relating to that building action arise more than 10 years after the issue date (of the occupancy permit or certificate of final inspection)?
Unless and until the Court of Appeal revisits the issue, these questions provide useful guidance to practitioners and industry professionals about the application of building limitation periods in Victoria.
[1] Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165
[2] Lendlease Engineering Pty Ltd and Owners Corporation No 1 PS526704E [2022] VSCA 105
[3] East St Falls Pty Ltd v L.U Simon Builders Pty Ltd (Building and Property) [2024] VCAT 416
[4] Parkview Constructions Pty Ltd v The Owners – Strata Plan No 90018 [2023] NSWCA 66.
[5] Parkview [103]
