By Phillip Leaman

2 July 2021

Claimants statute barred in late 2019 or early 2020 to commence a cladding building action may now be open to issue proceedings.  This means Owners Corporations have extra time to make a claim against a builder or other liable party.

But for the new law, any claim by an Owners Corporation against a builder or other party had to be made within 10 years. The Cladding Safety Victoria Act 2020 extends that limitation period for two years.

 

Cladding building actions which have, or would otherwise be barred by the 10 year limitation period to commence proceedings between 16 July 2019 and 1 December 2021 can now be commenced within 12 years from the date of issue of a occupancy permit or certificate of final inspection.

 

Brief outline of purpose of Cladding Safety Act 2020

The Cladding Safety Victoria Act 2020 (“CSV Act”) in it’s entirety came into effect on 1 July 2021.

 

The purpose of the CSV Act is to:-

A) establish Cladding Safety Victoria (“CSV”) as a body corporate for the purposes of administering a cladding rectification program;

B) enable CSV to prioritise buildings for potential financial assistance for cladding rectification work and register owners and owners corporation of those buildings;

C) enable CSV to determine the amounts of financial assistance for cladding rectification work and make payment for those amounts under funding agreements;

D) allow CSV to provide guidance to owners and owners corporations of buildings and other persons and bodies in relation to cladding rectification work in order to mitigate risk;

E) create sufficient regulation-making powers in relation to the exercise of CSV’s functions; and

F) amend the Public Administration Act 2004 to confer the functions of a public service body Head on the chairperson of CSV; and

G) amend the Building Act 1993 to:-

  1. Transfer functions in relation to cladding rectification work from the Victorian Building Authority (“VBA”) to CSV;
  2. Require the VBA to pay to CSV monies collected relating to the building permit levy payable (section 205G(2A) of the Building Act 1993);
  3. Amend the limitation period for specified building actions relating to non-compliant or non-conforming external wall cladding products;
  4. Provide for the subrogation of the Crown to the rights and remedies of owners and owners corporation of building to whom financial assistance is given.

 

Cladding Building Action Limitation Period Extended

Section 53 of the CSV Act extends the limitation period to commence a building action  from 10 to 12 years (section 134(2) and 134 (3) of the Building Act 1993) from the date of issue of an occupancy permit in respect of the building work (whether or not the occupancy permit is subsequently cancelled or varied), or where an occupancy permit is not issued, from the date of issue of a certificate of final inspection.

 

The extension relates to cladding building actions only. Section 134(3) of the Building Act defines a ‘cladding building act’ as “a building action in connection with, or otherwise related to, a product or material that is, or could be, a non-compliant or non-confirming external wall cladding product”.

 

In addition, the extension only applies to building actions which have become prohibited on or after 16 July 2019 but before 12 months after the commencement of section 53 of the CSV Act. According to the end notes, the commencement date for s53 was 1 December 2020.

 

This means that where a cladding building action became or would have become statute barred between 16 July 2019 and 1 December 2021, claimants may avail themselves to the 12 year limitation period to commence proceedings.

 

Tisher Liner FC Law have extensive experience in making claims against builders, architects and building surveyors in respect to defective and flammable cladding and also dealing with Cladding Safety Victoria.

 

For legal assistance in respect to non-compliant cladding claims, please contact Phillip Leaman, Principal on 03 8600 9333 or by email: ocenquiry@tlfc.com.au.