Borg Superannuation Company Pty Ltd v Supplying Electrical Services Pty Ltd [2025] VCC 730

1. There were some photographs placed into evidence which clearly showed the installation of the brackets in the valleys of the roof rather than on the ridges. The photographs are not sufficiently clear to demonstrate the buckling on a visual inspection, nor of the deterioration of the roof by way of rusting and water ingress.
2. A further report which was discovered, albeit not included in the materials that were filed on the application itself, indicates similar installation defects. That is a report by a Mr Ratkavic, who said, that upon his inspection on 31 August 2023, that:

"Roof at the above was inspected for leakage. We found that the electric solar panels had been installed with the mounting brackets in the tray sections of the roof sheeting causing blockages in the trays which in turn raises the water level too high in the sheet trays causing capillary action between the sheet laps and accelerated corrosion. The sheeting has been badly damaged by foot traffic causing the sheets to lack fall and pond water in certain areas. Sheeting has been penetrated with fasteners in the tray bases and overtightened causing the sheet to buckle and hold water around the solar brackets. Thus leaking through some of the fasteners as well."

1. This material suggests that the installation was faulty in a number of respects.
2. Mr Thomas for the defendant complained that the nature of the allegations in the Statement of Claim directed attention, not so much to the damage caused by water ingress which occurred in February 2023, but rather to the damage that was done to the roof at the time of installation and the only and loss and damage sought was the replacement of the roof. To the extent that the Statement of Claim directed itself to the replacement of the roof, rather than rectification of the damage caused by the water ingress, he said there was a disconformity between the case that the plaintiff seeks to run now and the case as it was pleaded.
3. In Mr Thomas's submission, that change has consequences for, the nature of the cause of action and most particularly, for when time might have commenced to run for limitations purposes.
4. Mr Thomas says that for limitations purposes, given that attention was directed to the faulty installation and the damage caused being damage to the roof, the cause of action accrued at the time that the installation occurred. Under those circumstances, he says, that for the purposes of both contract (where time runs from the date of the breach) and tort (where time runs from the time that damage to the roof was caused), the relevant time started to run at the time of installation. As a consequence he says that the limitations period expired 6 years after installation of the system in 2014.
5. This submission appears to be correct, having regard to the way that the cause of action was framed in the statement of claim.
6. However, the submissions made by Mr Tsalanidis for the plaintiff, had a different emphasis. The emphasis not so much on the faulty installation leading to the necessity to replace the roof, but rather on the damage caused as a consequence of the ingress of water. Mr Tsalanidis' position was that the question of when the deterioration in the roof that may have been caused as a consequence of the faulty installation commenced to occur, is a matter that requires both further investigation and expert evidence. To clarify, he says that it is one thing to say that the faulty installation caused water to pool in the valleys of the roof by reason, for example, of the improper placement of the bracket feet in the valleys, rather than on the ridges. It is another thing to know when the pooling of that water started to cause the roof itself to deteriorate or break down. He submitted that it was only upon the roof starting to deteriorate or break down that damage commences. In respect of a cause of action in negligence, he submits that it is only upon that damage commencing to occur that the cause of action accrues and time starts to run for limitations purposes.
7. Mr Thomas rightly conceded that for a claim in negligence damage occurs at the point that the roof starts to deteriorate (perhaps by rusting) as a consequence of the pooling of water. He also conceded that it is impossible to know when that deterioration, beyond simply the pooling of water, commenced to occur. He also rightly and properly conceded that that question is a matter of expert evidence to be given at trial.
8. He did emphasise that the question of when the relevant damage was first discovered, in this case, sometime in 2023, is not a relevant factor. And that is because this is not a case of pure economic loss, but rather it is a case of actual damage to property. I think both parties were at one on that point.
9. Having regard to those concessions, it seems to me that it is right that the cause of action in this case based upon the pooling effect of water consequent on the faulty installation, is not complete until the roof itself starts to suffer some physical deterioration. It is also the case that when that deterioration commenced cannot be known without expert evidence.
10. The test on a summary judgment application is as set out in Lysaght Building Solutions (t/as Highline Commercial Construction) v Blanaklo Pty Ltd:[1]

(a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a "real" as opposed to a "fanciful" chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the "hopeless" or "bound to fail test" essayed in General Steel;

(c) it should be understood, however, that the test is to some degree a more liberal test than the "hopeless" or "bound to fail" test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence."

1. I also note that the High Court has emphasised that the power to order summary judgment must be exercised with caution: Spencer v Commonwealth:[2]

"The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:

'The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried'

More recently, in Batistatos v Roads and Traffıc Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:

'Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.'

There would seem to be little distinction between those approaches and the requirement of a 'real' as distinct from 'fanciful' prospect of success contemplated by s 31A. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions."

1. I also note that Daly AJ, in Sloan v Arnold Thomas & Becker (No 2),[3] said:

"Traditionally, the Courts have been reluctant to grant summary judgment where the sole issue is whether a plaintiff's claims are time barred, save in the clearest of cases."

1. Bearing in mind the nature of the test just articulated, I cannot be satisfied that the plaintiff's claim enjoys no reasonable, or only a fanciful, prospect of success by reason of the limitations defence that the defendant intends to plead. Without evidence to demonstrate exactly when the physical damage occurred that ultimately led to the water ingress, I cannot conclude that the plaintiff's case enjoys no reasonable prospects of success. I do note that the case that the plaintiff wishes to run now is not the same case as was pleaded in the Statement of Claim. It does appear to me that, at the time the defendant brought its summary judgment application, it did so properly. Nevertheless, under those circumstances, I will dismiss the defendant's application and I will hear the parties on costs.

I certify that these 7 pages are a true copy of the judgment of His Honour Judge Wise delivered on 2 June 2025.

[1] [2013] VSCA 158; (2013) 42 VR 27 at 40, paragraph [35]

[2] [2010] HCA 28; (2010) 241 CLR 118 at 132, paragraph [24]

[3] [2019] VSC 682 at paragraph [22]