Brirek Industries Pty Limited v McKenzie Group
Consulting (Vic) Pty Limited  VCC 294
In this case, the County Court of Victoria has adopted a more
limited reading of the scope of s134 of the Building Act
1993 (Vic) ('the Building Act'),
concerning the limitation period for building actions, than earlier
decisions of the Victorian Civil and Administrative Tribunal
('VCAT'). It is the first court (as
opposed to VCAT) decision, of which we are aware, dealing with the
scope of the section.
Section 134 of the Building Act provides as follows:
'Despite anything 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 V of
the Certificate of Final Inspection for the building
'Building action' is defined (in s129) as an action for
damages for loss or damage arising out of or concerning defective
building work. 'Building work' is defined to include the
design, inspection and issuing of a permit in respect of building
There has been controversy, however, as to whether s134 creates
a new 10 year limitation period for Victorian building actions or
merely creates a 'long stop' beyond which the six year
limitation periods for tort and / or breach of contract (under the
Limitations of Actions Act 1958 (Vic) ('Limitations of
Actions Act')) cannot extend, for example, in the case of
latent defects. The 'long stop' interpretation has been
favoured by certain commentators but in two decisions of VCAT,
Thurston v Campbell  VCAT 340 and Hardiman v
Gory  VCAT 267, it was held that s134 created a 10 year
limitation period for Victorian building actions which replaced the
limitation periods imposed by the Limitations of Actions Act.
In this case, Shelton J rejected the above VCAT decisions and
favoured the 'long stop' interpretation of s134. He also
held that the section only applied to claims in negligence.
His Honour stated as follows:
'My reading of section 134 is that it does not enable a
building action to be brought when it might not otherwise have been
brought . Rather, it prevents a building action from being brought,
in negligence, outside the 10 year period referred to the section.
Its purpose is to limit the common law position where the
limitation period only runs in negligence from when defects in the
building work were first known or manifest (see Pullen v Gutteridge
 1 VR 27 at 71). ... ... I have concluded that section 134 of
the Building Act only applies to claims in negligence with respect
to defective work and does not extend the six year contractual
Whilst this clarification of the meaning of s134 is to be
welcomed, it appears that it may create greater uncertainty in
relation to limitation periods for building actions than the
broader approach of the VCAT decisions.
We understand that the decision is being appealed to the
Victorian Supreme Court where it is expected to be heard late this
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