Owners Corporation 1 Plan No PS543073S v Eastrise Constructions Pty Ltd
Parties to domestic building work disputes are required to obtain a certificate of conciliation from the DBDRV prior to issuing proceedings in VCAT or a court. However, Section 134 of the Building Act 1993 (Vic) (‘the Building Act’) limits the time for building actions be brought to 10 years from the date of the occupancy permit, or, where no such permit has been issued, 10 years from the date of the certificate of final inspection. In Owners Corporation 1 Plan No PS543073S v Eastrise Constructions Pty Ltd (Building and Property)  VCAT 1639 (‘Eastrise’), VCAT considered how these two requirements interact and what steps a party to a domestic building work dispute are required to take where the limitation period is due to expire soon.
Eastrise was a case where the Owners Corporation and various lot owners of an apartment building had a dispute with the builder over defective building works. Occupancy Permits for the work were issued on 3 June 2008. Accordingly, the parties in Eastrise were required to have commenced a building action prior to 4 June 2018.
The Owners Corporation applied to DBDRV on 29 May 2018, and were issued with certificates of conciliation on 27 August 2018. The VCAT proceeding was then issued on 27 March 2019.
VCAT then considered whether or not the making of an application to DBDRV within the limitation period constituted the commencement of a building action, or whether it was the making of an application to VCAT or the relevant court that needed to occur within the 10 year period.
The decision: Time limits for applying to the DBDRV
With regards to the limitations date, Deputy President Aird considered whether the referral to DBDRV constituted the commencement of a building action in accordance with section 129 of the Building Act, which provides that a ‘building action’ is an action for damages for loss or damage arising out of or concerning defective work. Deputy President Aird considered whether a DBDRV application could fall within this definition and concluded that “it is difficult to conceive how an application to DBDRV for dispute resolution could be conceived as a claim for loss or damage.”
Following further consideration of the language of the Domestic Building Contracts Act and the powers and functions of DBDRV, Deputy President Aird ultimately determined that making an application to DBDRV does not constitute the commencement of a building action.
What should I do if the limitation date is approaching?
Where the limitation period will expire soon, Deputy President Aird was of the view that parties ought to make an application to VCAT prior to obtaining a certificate of conciliation from DBDRV. The proceeding would then be stayed pending receipt of the certificate of conciliation.
In addition, and depending on the time remaining to commence the action, a person may also wish to make an application to DBDRV which highlights the approaching limitation period, so that the matter can be dealt with urgently by DBDRV. DBDRV triages the applications they received and, where concerns regarding the limitation dates are clearly highlighted and brought to their attention, such matters should be dealt with urgently.
How can Sharrock Pitman Legal assist?
If you require advice on limitation dates or a building dispute, please feel free to contact our litigation team on 1300 205 506 or by email at firstname.lastname@example.org. As Accredited Commercial Litigation Specialists, we are able to provide you with advice regarding your options, in addition to guiding you through the steps that are appropriate in your circumstances.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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He is an Accredited Commercial Litigation Specialist (accredited by the Law Institute of Victoria) and deals with Litigation, Mediation of Disputes, and Law for Charities & Not for Profits. For further information, contact Simon Matters on his direct line (03) 8561 3324.