Time Limits for Building Defect Claims in Victoria Just Got More Complicated

Time limits for building claims in Victoria…just got a whole lot more complicated!

• In Victoria, claimants have 10 years to sue from the date of issue of an Occupancy Permit (OP) or Certificate of Final Inspection (CFI) under section 134 of the Building Act 1993 (Vic) (the Act); and

• But, section 134 does not not apply where there was no building permit.

The case of Gledhill v Scotia Property Maintenance Pty Ltd [2019] VCAT 422 considered how time limits apply where there was no building permit:

• VCAT found section 134 did not apply and instead the section 5 of the Limitation of Actions Act 1958 (Vic) applied and a six-year time limit was imposed.

• Basically, rejecting arguments that a 10 year time limit should apply from practical completion where no building permit was issued.

AND did you know that the new rectification order powers that BPC have don’t require a building permit for those rectification works to be carried out? It says so under section 75E (6) of the Act

• So, the BPC can issue a rectification order for up to 10 years calculated from any of these 3 things:

(1) OP; or

(2) CFI; or

(3) you guessed it…Practical completion.

What - Yep, it says so under section 75B (2) (b) of the Act.

So, this gives BPC a longer time limit for RO works where there is no building permit than applies to filed proceedings in VCAT or Court under section 134.

• Further, despite this new practical completion time limit for ROs there has been no comparable change to section 134 of the Act.

We still seem to face 6 years given Gledhill…I note Gledhill was a VCAT decision and could be challenged in an appellate Court but why didn’t this get addressed with the latest law?

WHAT A MESS…

but there is more…

• Further, the Government (for BPC) has issued a Ministerial Direction stating the circumstances that will allow for an RO to be issued. More or less you need very serious defects like an uninhabitable dwelling etc…

• So, if you want an RO you can apply to BPC and a new time limit regime applies…

• BUT if you get rejected for an RO - you are back to the old / continuing regime applying to VCAT and Court and the time limits that apply there…

• ARE YOU STILL with me?

GET THIS Though:

So, if your builder stuffs up your RO works and you CANNOT get another RO you are probably looking at a Gledhill 6 year time limit…becuase no building permit is required for RO works…

Sorry this isn’t funny, it would be funny if it wasn’t true!

You might say “but what chance of that?” - Well, here is the thing, remedial works can be tricky and often get stuffed up even when they are properly funded.

In short:

• IF you want an RO - We now have a new process in Vic but only for really bad defective works;

• BUT the old regime still applies if you don’t get an RO; and

A 2 tier system is trying to run in unison AND this was proposed as a solution to help consumers…

If you need help with time limits reach out!

This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Tagged as:

• building disputes
• litigation
• building law
• regulatory compliance