VCAT has recently confirmed that an applicant in a building action is not entitled to make a claim against a respondent who has been joined as a concurrent wrongdoer if that claim is out of time under the Building Act 1993.
In Adams v Clark Homes Pty Ltd (Building and Property)  VCAT 1658, Judge Jenkins struck out a claim by the developers of three units against the architect who designed the units.
Originally, the developers had commenced proceedings against the builder of their units. Before the expiration of the ten-year limitation period under the Building Act 1993, the builder named the architect as a concurrent wrongdoer under Part IVAA of the Wrongs Act 1958. As a result, the architect was joined to the proceeding. Later, but after the expiration of the limitation period, the developers filed their points of claim against the architect.
Her Honour held that the builder had permissibly limited its liability under the proportionate liability scheme by naming the architect as a concurrent wrongdoer and by joining him to the proceeding as a respondent for that purpose. The builder was not required to bring a third party claim against the architect. Furthermore, nothing in the Wrongs Act permitted the developers to bring their claim against the architect out of time. The ten-year limitation under the Building Act is to be applied strictly.
The take home lesson is that if you are going to commence an action that can be described as “apportionable” under Part IVAA of the Wrongs Act, make sure you make a claim against all concurrent wrongdoers before the expiration of the relevant limitation period. If you fail to do so, you may be unable to recover 100% of your loss and damage.
Originally published on the Commercial Bar Association website. To view it, please click here.