Australia: Lacrosse judgment summary

Last Updated: 15 April 2019
Article by Jonathan Newby, Cathryn Prowse and Mathew Deighton

In brief - final orders have now been made in the closely followed Lacrosse litigation, the first case to go through the courts system to examine the liability for buildings which have been constructed using aluminium composite panels (ACPs) on a building's façade.

In addition to the well publicised make-good costs in the amount of $5.7m awarded for reinstating the building after the fire, on 1 April 2019 the Victorian Civil and Administrative Tribunal ordered the further amount of just under $7m to be paid for the costs of bringing the building into compliance, various other heads of claimed loss and interest.

These amounts are ultimately payable by the design consultants in the same proportion as the first tranche of damages orders and brings the amount awarded to $12,747,929 plus costs.

The design consultants, who between them were held liable for having contributed 97% of the damages, must pay that share of the total amount awarded.

Much has been reported about the case. As the Tribunal's reasons for decision state, some factors which led to the outcome are very much specific to the Lacrosse case and guided by the evidence given by some of the witnesses.  Other factors will have more lasting impact.  Here is our assessment of the most critical findings as they relate to all cladding cases.

Compliance of Aluminium Composite Panels

An enduring argument promoted in cladding cases is that combustible ACPs fell within the "Deemed-to-Satisfy" (DTS) provisions of the Building Code of Australia 2006 (BCA) and as such, did not have to be assessed for combustibility. The Tribunal found that the ACPs used on the external walls of Lacrosse Apartments did not meet the DTS provisions of the BCA as at June 2011. The two bases upon which entities have argued DTS compliance were addressed by the Tribunal and the findings were that:

  • the ACPs were used in a way that mean they were part of an external wall and not an 'attachment' and as such could not be said to be BCA compliant pursuant to a DTS pathway for 'finishes' or 'linings'; and
  • the polyethylene based core was a constituent part of a 'laminate' (within the meaning of C1.12(f) of the BCA) and as such ACPs were not compliant by reason of the DTS provision permitting the use of combustible bonded laminates, where each 'laminate' must be non-combustible, on external walls.

What was not considered in the Lacrosse case was where ACP material is used in a manner which the BCA considers an attachment to a building. A situation where an ACP has been genuinely used as an attachment is a rare one and even then the suggestion that a combustible ACP is compliant when so used can attract its own controversy.

For the majority of ACP uses, the Tribunal's interpretation of the relevant provisions of the BCA confirms that the only means by which an ACP could be used as part of an external wall of a Type A construction is by way of a performance solution.

The owners' claims against the builder

The Tribunal's findings in relation to the Owners' claims against the builder for breaches of the implied statutory warranties under the Domestic Building Contracts Act 1995 (Vic) clarified some areas, but due to a tactical decision by the Owners very late in the trial, one area was unresolved.

The overarching points are that:

  • a builder's obligation pursuant to the statutory warranties are not qualified or limited by any obligation of reasonable care and skill (hence the builder was found to be 100% liable to the Owners, despite a finding that the builder did not fail to exercise reasonable care); and
  • after the hearing on evidence had concluded, the Owners withdrew any reliance on the warranty requiring work to be carried out in a proper and workmanlike manner. As a result, the Tribunal was not required to consider whether a breach of this warranty might involve a failure to take reasonable care (and by extension, constitute an apportionable claim).

Liability of the consultants

The Tribunal's decision on this front can possibly best be described as giving primacy to the contractual terms parties in fact sign up to, rather than their generalised understanding of what is usual practice within a profession. In upholding the builder's various claims against the professional consultants, the Tribunal found as follows:

  • while the obligations under the consultants' contracts required the professionals to exercise reasonable care, they were not able to be limited by reason of what the professional argued was 'usual practice';
  • the certification issued by the Building Surveyor and the report issued by the Fire Engineer, both of which represented that a design incorporating the use of ACPs in the external façade was BCA compliant, constituted actionable misleading and deceptive conduct;
  • the Tribunal confirmed its acceptance of the typical 'waterfall' contractual regimes which exist whereby a contractor (engaged under a D&C Contract) engages a number of specialist professionals to cover acknowledged shortcomings in its own expertise and passes down risk to subject matter experts; and
  • where a builder is able to show that it complied with the various specifications and instructions given to it by the expert building professionals which it engaged, then it stands a better chance of resisting a finding of negligence in relation to the use of ACPs.

Colin Biggers & Paisley acted on behalf of the builder (L.U. Simon Builders Pty Ltd).

Jonathan Newby Cathryn Prowse Mathew Deighton
Commercial litigation Insurance
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Jonathan Newby
Mathew Deighton
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions