(a) the respondent built a double story townhouse and garage (the 'Building') under a Building Contract.

(b) the occupancy permit was issued on 24 July 2013.

(c) the applicants purchased the property in December 2013.

(d) there are significant defects with the Building.

1. The applicants claim damages, interest and costs from the respondent.
2. The grounds for the joinder application are set out in the affidavit of the respondent's solicitor that accompanied the joinder application. In general terms, the respondent claims the interested party (the plumber) was subcontracted to carry out the claimed defective building work and should be joined to the proceeding for the purposes of a claim for contribution under ss23B of the Wrongs Act.
3. The interested party opposes the joinder application, contending that:

(a) the proposed claim for contribution is a building action as defined in s129 of the Building Act 1993 (Vic) ('Building Act') and therefore statute barred under s134 of that Act.

(b) there is no claim for contribution available against the interested party under s23B of the Wrongs Act as the interested party has no liability to the applicants for their claimed damage.

(c) the application to join the interested party is out of time as the filing of the application for joinder pursuant to s60 of the VCAT Act is not 'commencing a proceeding' within the meaning of the Wrongs Act.

1. The applicant is in general agreement with the interested party's submissions.

Is the proposed claim against the interested party statute barred under the Building Act?

1. If the application for joinder for the purposes of a claim for contribution in accordance with the s23B of the Wrongs Act is a 'building action' under the Building Act (which the interested party submits is the case) the limitation period for commencing the action is, pursuant to s134A of the Building Act, 10 years after the date of issue of the compliance certificate issued in respect of plumbing work. This date is 2 July 2023.
2. Deputy President Aird found in Smith v Henley Arch Pty Ltd (Building and Property) [2019] VCAT 2024 that a claim for contribution under the Wrongs Act is not a 'building action' as defined in s129 of the Building Act.
3. I adopt Deputy President Aird's findings, reasoning and analysis in that decision.
4. Accordingly, I find that a claim for contribution under the Wrongs Act is not a building action. As a result, the limitation set out in s134 of the Building Act has no relevance to this application for joinder.

Does Part IV of the Wrongs Act apply?

1. The interested party submits that s23A(1) of the Wrongs Act[1] means that contribution can only be sought from a party that is directly liable to the wronged party (whether tort, breach of contract, breach of trust or otherwise). The applicant cites Alexander v Perpetual Trustees WA [2004] HCA 7; (2004) 216 CLR 109 as authority confirming this meaning.
2. The interested party contends that no such direct liability to the applicant exists in either statute, contract, tort or otherwise. Accordingly, any claim for contribution (should the respondent ultimately be found liable to the applicant in the substantive proceeding) is doomed to fail and the application to join the interested party should be refused.
3. Put another way, in order for a claim for contribution to succeed in this matter, the applicant must be able to demonstrate that - at least prima facie - it could have taken direct proceedings against the interested party for the claimed damage (whatever the legal basis of liability).
4. I accept the interested party's submissions that the applicant has not established it has any grounds to recover compensation for the claimed damage from the interested party.
5. In applying s60 of the VCAT Act, it is sufficient if a case sought to be raised against a proposed joined party is 'open and arguable'.[2] I am not satisfied that the application to join the interested party to the proceeding establishes any open and arguable case for joinder for the purposes of s23B of the Wrongs Act.
6. On these grounds, I dismiss the application to join the interested party to the proceeding.

Is the commencement of the proceeding (to join the interested party) out of time?

1. As I have dismissed the application to join the interested party on other grounds it is not necessary to consider the interested party's submissions on this point any further.

[1] Which sets out definitions for the purposes of Part IV of the Wrongs Act, in which section 23B is found.

[2] Zervos v Perpetual Nominees Limited [2005] VSC 380 per Cummins J at paragraph 11.