When is 10 years 10 years? Domestic Building Dispute Resolution Victoria and the 10 year limitation period

In Owners Corporation 1 Plan No PS 543073S v Eastrise Constructions Proprietary Limited (Building and Property)[2019] VCAT 1629 VCAT has clarified the application of the 10-year limitation period in s.134 of the Building Act 1993 (Vic), particularly whether an application to Domestic Building Dispute Resolution Victoria (DBDRV) pursuant to the Domestic Building Contracts Act 1995 (Vic) constitutes a building action for the purposes of s.134.
 
Section 134 provides a limitation period of 10 years for a building action from the date of issue of the occupancy permit or, if none is issued, from the date of issue of the certificate of final inspection.
 
Importantly, s.129 of the Building Act defines a building action as:

“An action (including a counterclaim) for damages for loss or damage arising out of or concerning defective building work”.
 
The Tribunal states at paragraph 28:
 
“On a clear reading, a ‘building action’ is a claim for damages for loss or damage.  It is difficult to conceive how an application to DBDRV for dispute resolution could be conceived as a claim for loss or damage.  DBDRV’s primary role is conciliation of those domestic building work disputes which it deems suitable for conciliation.  It does not determine the parties legal rights.  Although it has a power to issue ‘dispute resolution orders’ under s.49 of the Domestic Building Contracts Act these are not enforceable.  Section 49B sets out what can be included in a dispute resolution order”.
 
On this basis, the Tribunal found that an application to the DBDRV is not relevantly an action for damages. Only an application to the Tribunal satisfies this definition.
 
Practitioners always need to be mindful of limitation periods, particularly now that the Tribunal has clarified the application of s.134 of the Building Act in relation to applications to the DBDRV where a limitation period is about to lapse. It is prudent to issue an application in the Tribunal where it will be stayed pending the issue of a Notice of Conciliation by the DBDRV.

Michael F Sharkey

MTECC welcomes Peter Murdoch QC

Another leading senior counsel, Peter Murdoch QC, has joined MTECC.  We warmly welcome Peter to our chambers. 

New edition of Brooking on Building Contracts to be released at MTECC’s end of year function

We are pleased to announce that MTECC’s end of year function will feature the launch of the 6th edition of Brooking on Building Contracts.  Many thanks to MTECC member Michael Sharkey, one of the new edition’s co-authors, for making the launch possible.  

MTECC’s end of year function

Date: Wednesday 13 November 2019
Location: Melbourne Bowls Club, Flagstaff Gardens, West Melbourne
Time: 6:00PM-8:30PM

Please RSVP by email to miriam@chancery.com.au by 30 October 2019 for catering purposes.