By Phillip Leaman

14 May 2019

In Victoria, under the Building Act 1993 (Vic), where building work is carried out under a building permit, either an occupancy permit or a certificate of final inspection must be issued by the relevant building surveyor who issued the building permit.

However, there are limited situations where building work is carried out without a building permit:-

  1. Either the particular type of building work is exempt from requiring a building permit; or
  2. The building work did require a building permit, but one was not obtained, and therefore an offence for performing building work without a building permit, has likely been committed.

(“No Permit Building Work”)

VCAT has recently had to consider a claim by an owner against a contractor who performed No Permit Building Work that was allegedly defective. Because there was no building permit, and therefore no occupancy permit or certificate of final inspection issued upon the completion of the No Permit Building Work, the owner and the contractor were in dispute about whether the owner had commenced its claim in VCAT within the limitation period prescribed by section 134 of the Building Act 1993 for ‘building actions’, which states:-

“Section 134: Limitation on time when building action may be brought

Despite any thing to the contrary in the Limitation of Actions Act 1958 or in any other Act or law, a building action cannot be brought more than 10 years after the date of issue of the occupancy permit in respect of the building work (whether or not the occupancy permit is subsequently cancelled or varied) or, if an occupancy permit is not issued, the date of issue under Part 4 of the certificate of final inspection of the building work.”

Because there is no ‘occupancy permit’ or ‘certificate of final inspection’ issued when No Permit Building Work is done, VCAT decided that in its view, the 10 year limitation period under section 135 of the Building Act 1993 does not apply to legal claims that arise from defects in No Permit Building Work.

The consequence of the VCAT’s finding, was that the Builder’s legal argument that the Owner’s claim was commenced after the limitation period prescribed by section 135 expired, did not succeed.

The legal question that then followed from VCAT’s finding that the 10 year limitation period under section 135 did not apply to No Permit Building Work, namely, whether the Owner’s claim was statute-barred from being brought because of the limitation periods under section 5 of the Limitation of Actions Act 1958 (Vic), was not determined by VCAT.

It is important to ensure that if you become aware of water ingress or other defects in building work, that you take prompt steps to take expert advice about the source, and your legal options to recover damages for any building work that is defective.

VCAT Building & Property List Case Reference: Gledhill v Scotia Property Maintenance Pty Ltd (Building and Property) [2019] VCAT 422 (2 April 2019)

As at the date of this blog, it is not known whether the above VCAT decision is, or may be, the subject of an appeal to the Supreme Court of Victoria.

 

For more information please contact Phillip Leaman or a member of the Owners Corporation Team.

 

Disclaimer
The material contained in this publication is meant to be informational only and is not to be construed as legal advice. Tisher Liner FC Law will not be held liable or responsible for any claim, which is made as a result of any person relying upon the information contained in this publication.

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