respondent. Proceeding dismissed. The Tribunal found the claim time-barred by s 5(1)(a) Limitation of Actions Act 1958 (Vic) because the cause of action accrued on delivery in September 2008 and the six-year...
Key principles
The applicant's claim for breach of the implied conditions of merchantable quality and fitness for purpose is statute-barred because the cause of action accrued on delivery in...
Even on the merits, the applicant failed to discharge the evidentiary burden to show that the dry rot was more probably caused by a defect present at delivery rather than by...
Issues before the court
Which statutory regime applies to windows supplied in 2008: the ACLFTA (2012) or the Fair Trading Act 1999 (Vic)?
When does a cause of action for breach of contract (implied conditions) accrue, and is the claim time-barred?
What is the burden of proof and evidentiary standard to establish causation for alleged defects in supplied goods many years later?
May the Tribunal consider defences not raised by the respondent where parties are self-represented?
Plain English Summary
Mr Griffiths bought timber windows from Valley Windows in 2008 and discovered dry rot in one roof window in 2019. He filed a VCAT claim in November 2019 alleging the window was not of merchantable quality or fit for purpose. Member Feeney held the applicable law was the Fair Trading Act 1999 (Vic) but found any breach would have occurred on delivery in September 2008; the six-year limitation period expired in September 2014, so the claim was out of time. The Tribunal also found, on the evidence, that the applicant failed to prove the rot was more likely caused by a defect at delivery rather than by post-delivery storage, priming, painting, installation or maintenance; there was no expert evidence and no reliable contemporaneous evidence. The proceeding was dismissed (Reasons [15]–[17], [31]–[32]).
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
The applicant, Mr Geoffrey Griffiths, purchased timber-framed windows from the respondent, Valley Windows Pty Ltd, in 2008. A company statement shows a purchase on 24 July 2008 and delivery evidence indicates the windows were delivered on 2 September 2008 (Reasons [9], [23]).
On 10 August 2019 the applicant became aware that one roof window had three sections of dry rot. The applicant filed a VCAT application on 14 November 2019 seeking $2,915.64 and alleging breaches of implied conditions (merchantable quality; fitness for purpose) and other consumer-style claims (Reasons [1]–[2], [9], [30]).
The hearing took place on 30 September 2020 before Member N Feeney who heard evidence from the applicant and from Mr Colin Sharples, the respondent's general manager (Reasons [3], [7]).
Member Feeney concluded that the Australian Consumer Law as enacted in the ACLFTA (2012) did not apply to a 2008 supply; the Fair Trading Act 1999 (Vic) governed the rights and implied conditions for this transaction (Reasons [4], [10]–[14]).
The Tribunal found that, even accepting the implied terms in Division 2, Part 2A of the FTA (merchantable quality and fitness for purpose), any breach would have occurred on delivery in September 2008, and therefore the six-year limitation in s 5(1)(a) Limitation of Actions Act 1958 (Vic) meant a claim could not be brought after September 2014 (Reasons [15]–[16]).
The Tribunal also found, as an alternative and independently, that the applicant had not proved on the balance of probabilities that the dry rot was caused by a defect present at delivery; there was no expert evidence and insufficient contemporaneous evidence, and the respondent's account (that post-delivery exposure, failure to prime/paint/install/maintain, or flashing and location effects caused the rot) was at least as probable (Reasons [19]–[32]).
The proceeding was dismissed (Order; Reasons [15]–[17], [31]–[32]).
Why the court decided this way
Two legal pillars underpin the decision.
Choice of statutory regime and implied terms:
The Tribunal first determined the governing statutory scheme. Goods supplied in 2008 fell within the Fair Trading Act 1999 (Vic), since that Act applied from 1 September 1999 until its repeal on 30 June 2012 (Reasons [10]). Division 2 of Part 2A of the FTA implies conditions into contracts for supplied goods of domestic use, including merchantable quality and fitness for purpose (Reasons [11]–[14]). The Tribunal therefore framed the substantive claim under those implied terms (Reasons [11]–[14]).
Limitation and evidentiary insufficiency:
The Tribunal applied the familiar accrual rule for contractual breaches: accrual occurs when the contractual obligation is breached (here, on delivery), not when damage is first discovered. The Limitation of Actions Act 1958 (Vic) s 5(1)(a) sets a six-year limit for bringing actions in contract; because the alleged breach occurred on delivery (September 2008), the limitation expired in September 2014. The applicant's commencement in November 2019 was therefore statute-barred (Reasons [15]–[17]).
The Tribunal also addressed causation and proof. Even if limitation did not bar the claim, the applicant bore the burden to prove on the balance of probabilities that the dry rot was caused by a defect present at delivery rather than by subsequent events (storage unprotected, delayed priming/painting, flashing/installation issues, or maintenance failures). The Tribunal noted lack of expert evidence and lack of reliable contemporaneous first-hand evidence about events in 2008; on the evidence it was not satisfied the applicant's account was more likely than the respondent's. Hence the claim would have failed on the merits as well (Reasons [5]–[7], [19]–[32]).
Procedural fairness considerations:
The respondent had not expressly pleaded limitation; however, because both parties were self-represented, Member Feeney considered it fair to raise and consider the limitation defence in the Tribunal's assessment and alerted parties to the relevant law (Reasons [18]).
Before and after state of the law
Before:
The judgment confirms the application of settled principles rather than novel law. It emphasises:
the choice of law point: where a supply occurred before the ACLFTA (2012), the earlier Fair Trading Act 1999 (Vic) governs implied conditions (Reasons [4], [10]–[14]);
the accrual rule for breach of contract and the operation of s 5(1)(a) Limitation of Actions Act 1958 (Vic): the limitation period runs from the date of breach, not discovery of damage (Reasons [15]–[17]);
the evidentiary burden on the claimant in civil proceedings to show causation on the balance of probabilities, and the consequences of lacking expert evidence for technical causes of failure (Reasons [5]–[7], [31]).
After:
The decision applies these principles to a common fact pattern: alleged latent defect in building materials discovered many years after supply. Its practical effect is to underscore two messages for litigants:
be acutely aware of the governing statutory regime at the time of supply; and
where an alleged defect is discovered long after supply, absence of contemporaneous records and expert evidence will seriously undermine causation proof.
The decision does not alter legal doctrine but applies and illustrates these principles in the VCAT context.
Key passages with plain-English translation
Reasons [4]:
Court text: "the ACLFTA does not apply to goods which were purchased or supplied in 2008..."
Translation: The 2012 Victorian ACL law cannot be used to attack a 2008 sale. The older Fair Trading Act 1999 (Vic) controls.
Reasons [11]–[14]:
Court text: Division 2 of Part 2A of the FTA implies terms that the goods are of merchantable quality and reasonably fit for purpose.
Translation: Under the 1999 FTA, if you buy household goods like windows, the law automatically says they should be of acceptable quality and suitable for their usual purpose.
Reasons [15]–[17]:
Court text: "a claim for breach of contract cannot be made more than 6 years after the breach...the time for bringing a claim runs from the date of the alleged breach..."
Translation: For contract claims, you have six years from when the contract was broken (here, at delivery) to sue. Finding damage later (years later) does not extend that six-year window.
Reasons [6]–[7], [31]–[32]:
Court text: The applicant must prove its version is more likely; absent expert evidence and first-hand accounts from 2008, the Tribunal did not accept the applicant's case.
Translation: If you claim a product was defective when supplied, you must show that is more likely than the supplier's explanation. If the problem is technical (timber rot), not having expert proof or early records makes winning much harder.
Reasons [18]:
Court text: The Tribunal may consider an unpleaded limitation defence in the interests of fairness where parties are self-represented.
Translation: VCAT can raise and assess legal defences even if the other side didn't state them, to make sure unrepresented people get a fair hearing.
What fact patterns trigger this precedent
A buyer discovers a structural or material defect in goods many years after delivery (here, 11+ years).
The sale occurred before the ACLFTA (2012) came into force, so the older Fair Trading Act 1999 (Vic) applies.
The claimant relies on implied statutory terms (merchantable quality; fitness for purpose) as the basis for a claim in contract or consumer law.
There is a significant delay between delivery and discovery, no contemporaneous records or first-hand witnesses about storage/handling, and no expert evidence explaining causal mechanisms for the defect.
The defendant can point to post-delivery events (uncovered storage, delayed priming/painting, installation details, location/vulnerability) that could plausibly explain the damage.
In those fact patterns VCAT is likely to:
assess whether the claim is statute-barred by limitation running from the date of breach (delivery); and
consider whether the claimant has produced sufficient evidence (often expert) to prove the defect existed at delivery.
How later courts have treated it
The decision itself cites and situates earlier authorities:
It cites Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165 for the principle that accrual for breach of contract differs from negligence (Reasons [17] and footnote [5]).
It cites Handler v Casey [2019] VSC 599 for the proposition that tribunals may draw attention to unpleaded matters to ensure fairness for self-represented parties (Reasons [18]).
It references and declines to rely on Kounelis v Ross Horton Homes Pty Ltd [2014] VCAT 319 because Kounelis turned on expert evidence not available here (Reasons [32]).
This judgment is an example of VCAT applying established limitation and causation principles rather than announcing new law. It therefore sits as an applied instance of these doctrines rather than a source of new principle. Later tribunals or courts considering similar delayed-discovery building-defect disputes will likely treat Griffiths as an illustration that absence of expert evidence and long delay are problematic for claimants and that limitation runs from breach unless a different accrual rule applies.
Still-open questions
Discovery rule nuances: The Tribunal treated accrual for a contract breach as occurring on delivery. Sometimes courts apply a 'latent damage' or 'discoverability' nuance, particularly in negligence contexts. Griffiths confirms that for breach of contract (implied terms) the limitation ran from delivery, but it does not explore whether any exception or extension (for example, deceit or fraudulent concealment) might apply; those issues were not argued or found here (Reasons [15]–[17]).
Interaction with consumer guarantees statute for older supplies: The decision draws a bright line that the ACLFTA (2012) cannot be used for pre-2012 supplies and proceeds under the FTA (1999). Questions remain as to transitional provisions in other factual matrices, but Griffiths simply applies the temporal rule to these facts (Reasons [4], [10]).
Evidentiary expectations in VCAT for technical building defects: The case emphasises the importance of expert evidence to establish causation for latent building defects after long delays. But it does not prescribe the precise quantum or form of expert proof required; that will remain fact-specific. Practitioners should note that absence of expert evidence may be fatal where technical causation is contested (Reasons [31]–[32]).
Procedural handling of unpleaded defences: The Tribunal exercised discretion to consider limitation despite it not being pleaded by the respondent due to self-representation and fairness. Not all tribunals or judges will take identical approaches; the precise limits of such intervention (when it requires notice/advice to parties, adjournment opportunities, or potential prejudice) were not exhaustively addressed (Reasons [18]).
Reminder: this is a grounded summary and analysis of the VCAT decision Griffiths v Valley Windows Pty Ltd [2020] VCAT 1168. It is legal information, not legal advice. I may make mistakes. Before acting on, relying on, or using any of this content in a legal process, get a qualified Australian lawyer to check it.
Judgment (11 paragraphs)
[1]
The applicant made an application to the Tribunal on 14 November 2019 stating that he had become aware on 10 August 2019 that one timber window out of a house lot of windows supplied by the respondent on 12 May 2008 has three sections of dry rot.
The goods/services do not fulfill all the purposes which I made known to the salesperson or supplier [or] which would have been known to the salesperson or supplier
2. The goods are not fit for all the purposes for which goods of that kind are commonly supplied
[3]
An extra promise was made to me that has not been honoured
The proceeding was listed for hearing before me on 30 September 2020.
I advised the applicant and the respondent, that the ACLFTA does not apply to goods which were purchased or supplied in 2008 and that the guarantees contained in the Australian Consumer Law by virtue of the ACLFTA will not apply to windows supplied by the respondent in 2008 to the applicant.
I asked the applicant and the respondent whether they would like the proceeding to be adjourned so they could both consider their positions in relation to the claim. Both the applicant and the respondent said they wanted to proceed with the hearing today.
I told the applicant and the respondent that I could hear their evidence but I would need to consider whether the applicant was still able to bring a claim against the respondent in relation to a window which was supplied in 2008 and that I would reserve my decision and deliver it in writing at a later date.
At the hearing I heard evidence from the applicant and from Mr Colin Sharples, the general manager of the respondent.
The applicant gave evidence that he constructed his home on the property as owner builder and engaged a building contractor to assist him with the construction of the home.
The applicant and Mr Sharples agreed that the timber framed windows for the home were purchased by the applicant from the respondent in 2008. The applicant produced a statement from the respondent dated 8 August 2008 that showed the purchase on 24 July 2008 of around $70,000 worth of windows.
From 1 September 1999 until its repeal on 30 June 2012, the Fair Trading Act 1999 (Vic) (FTA) applied to disputes arising between purchasers and suppliers of goods and services.[1] Therefore at the time the windows were supplied by the respondent to the applicant the applicable law was contained in the FTA.
The Tribunal has jurisdiction under s.108(1) of the FTA to hear and determine consumer and trader disputes under the FTA. A consumer and trader dispute is defined under s107(1) of the FTA as a dispute or claim arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services. As the applicant is a purchaser of goods or services, namely the windows and the delivery of them, and the respondent is a supplier of those goods or services, I find that the Tribunal has jurisdiction in relation to the dispute between the applicant and the respondent.
Under Part 2A of the FTA conditions and warranties are implied into certain contracts for the supply or goods and/or services. Division 2 of Part 2A applies in circumstances where a contract of supply of goods or services is for not more than $40,000 or is more than $40,000 and the goods or services are of a kind ordinarily acquired for personal, domestic or household use or consumption.
[4]
95. Although I accept that if the joints between the rails and the stiles of the windows had been fully wetted with glue it would have prevented the intrusion of water into joints that were filled with glue I do not find that the windows were not of merchantable quality or unfit for the purpose on that account. In the first place, the function of the glue was to hold the windows together. The exclusion of water from joints filled with glue may have been a consequence of them being glued in that way but that is an incidental benefit.
[5]
96. I accept the evidence of Mr McKinnon, Dr Eilenberg and Mr Cheong that the windows, which were unprimed, should have been promptly painted so as to protect them from the weather within a reasonable time after their arrival on site. They were not painted for some months and even then, the paint coverage was poor. I find that to be the cause of the failure of the windows.
[6]
97. Since I do not find the windows to have been defective the claim against the Joined Party will be dismissed.
[7]
In response the applicant said that there was glue in the windows and he was of the view that it was unfair for the respondent to rely on this decision because he was only notified yesterday that the respondent wanted to rely upon this decision and the respondent had been ordered to provide all the documents upon which it relies by 30 July 2020.
Whilst similar issues arise in this proceeding that are discussed in the Kounelis Decision, each proceeding must be determined according to the facts and evidence presented in that proceeding, not a different proceeding. In the Kounelis Decision the Senior Member had the benefit of expert evidence from 3 experts about the cause of the failure of the windows. In this proceeding I do not have any expert evidence about the cause of the dry rot. As such, I have not taken the Kounelis Decision into consideration in making my determination in this proceeding.
The applicant disputes that the dry rot has been caused by moisture issues arising during the time between delivery and installation of the windows, or due to the windows not being properly flashed, or due to the windows not being property maintained and says that whilst it is impossible to provide evidence of what happened with the windows prior to them arriving at his property, I should find that it is probable that the windows were "damaged" before they arrived at the property.
The applicant asserts that the window may have suffered moisture ingress during transportation to the property, but the respondent has given evidence that they were delivered in a covered truck and therefore would not have got wet during transportation. Whilst the respondent asserts that the window may have suffered water ingress between delivery and installation and it appears that all the windows were left uncovered for a period of time following delivery and before being painted and installed, there is no evidence that says how long a time elapsed between delivery and installation. I understand the difficulties of providing sufficient evidence of what may have occurred in 2008 which is now 12 years ago.
In any civil proceeding there is a burden on the applicant to prove that what it says occurred is more probable or more likely than what the respondent says occurred.
Despite the years which have elapsed since delivery, the applicant is still required to prove its assertions that it is more likely the dry rot has been caused by moisture in the window which was present when the windows were delivered than caused by his failure to store, prime, paint, install and maintain the window appropriately after delivery as asserted by the respondent.
[8]
[1] See also Rees v Illawong Retirement Group Pty Ltd (Civil Claims)[2014] VCAT 667 (5 May 2014) at [13]; Teitz v Cost Less Bolts and Industrial Supplies Pty Ltd (Civil Claims)[2013] VCAT 2197 (23 December 2013) at [32].
[5] See for example Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd[2014] VSCA 165 (6 August 2014) at [104] which also considers the differences between when a cause of action accrues for a claim in negligence and when a cause of action arises for a claim for breach of contract.
Griffiths v Valley Windows Pty Ltd (Building and Property) [2020] VCAT 1168 (16 October 2020)
AI Analysis
Outcomerespondent
Disposition:
Proceeding dismissed. The Tribunal found the claim time-barred by s 5(1)(a) Limitation of Actions Act 1958 (Vic) because the cause of action accrued on delivery in September 2008 and the six-year period expired in September 2014; alternatively, the applicant failed to prove causation on the evidence (Reasons [15]–[17], [31]–[32]).
Where Division 2 of Part 2A of the FTA applies the following conditions are implied into a contract for the supply of goods:
that the goods are of merchantable quality[2]; and
if the purchaser expressly or by implication makes known to the supplier the particular purpose for which the goods are required - that the goods are reasonably fit for that purpose[3].
I find that there were conditions implied into the contract for the supply of the windows that the windows would be of merchantable quality and were fit for the purpose as windows on the grounds that:
whilst the contract was for more than $40,000 those windows are goods of a kind ordinarily acquired for personal, domestic or household use or consumption; and
by purchasing windows, it was implied that the applicant would use the windows as windows.
However, I find that it is now too late for the applicant to bring a claim alleging that the respondent has breached these conditions.
That is because if the window which was delivered to the applicant was not of merchantable quality or fit for purpose, then the conditions of the contract were breached upon delivery in September 2008, and a claim for breach of contract cannot be made more than 6 years after the breach of contract occurred[4] which means a claim cannot be made after September 2014. This proceeding was not made until 14 November 2019, more than 5 years after the time for bringing the claim expired.
Although the damage that has resulted from the alleged breach of the contract, namely the dry rot, was not discovered until August 2019, damage is not an essential element of the cause of action of breach of contract and the time for bringing a claim runs from the date of the alleged breach, notwithstanding that damage occurs at some later time.[5]
Whilst the defence of the failure of the applicant to bring his claim within the time required by s.5(1)(a) of the Limitation of Actions Act 1958 (Vic) was not raised by the respondent, I consider that it is fair to consider this as a defence in a similar way that I have considered whether the applicant has a claim under the FTA which was also not raised by the applicant in the proceeding. Both the applicant and the respondent are self represented and as such it is appropriate for me to ensure that both parties are given a fair hearing and that includes ensuring that they are fully aware of the legal position in relation to the substantive and procedural aspects of their cases but without advising them what course should be followed and to do this by drawing attention to the law to be applied by the Tribunal in determining the issues before it and identifying applications or submissions which may be put to the Tribunal[6].
Further, even if the claim by the applicant was not brought too late, I would still not accept that the respondent had breached the implied terms of merchantable quality or fitness for purpose for the following reasons.
Mr Sharples gave evidence that at the time of the sale terms and conditions would have been provided to the applicant. He did not have a copy of the actual terms and conditions that the respondent used in 2008 but provided a copy of their current terms and conditions and said the only relevant difference is that the 7 years "guarantee" that they gave has now been reduced to a 6 year "guarantee". Mr Sharples said the terms state it will be the purchaser's responsibility to ensure all timber products are sealed with a first coat of paint, varnish or sealer to all surfaces, including top and bottom edges, within 30 days of delivery. A minimum of two coats, in total, of paint, varnish or sealer must be applied to all timber products within 60 days of delivery. It will be the purchaser's responsibility to ensure all timber products are stored in a dry area. These terms were not disputed by the applicant.
Mr Sharples gave evidence that the timber framed windows would have had a moisture content of 10% when they were delivered and that they were not primed prior to delivery because that had not been requested by the applicant. He said the respondent does provide a priming service if requested but that it comes at an additional cost "which is not cheap". The applicant did not dispute this.
The applicant and Mr Sharples agreed that the timber frame windows were delivered to the applicant's property by the respondent.
The applicant said the windows were not delivered until 3- 4 months after he purchased them and information produced by Mr Sharples said the windows were delivered on 2 September 2008.
The applicant speculated that the windows may have suffered moisture ingress during transport to his property if the windows were transported without cover. However, Mr Sharples gave evidence that the respondent has been using the same trucks - one for 21 years and the other for 15 years - and both trucks are covered.
Mr Sharples said that the applicant had told him in a telephone conversation last year that the applicant was in China when the windows were delivered to the property by the respondent and that his building contractor lent the windows against a tree(s) and they were not covered. In evidence the applicant said the windows were stored under pallets under cypress trees at the property. He did not say that the pallets provided a waterproof covering.
The applicant has told Mr Sharples that he did not know if the windows had been primed prior to installation or whether they had been primed on all surfaces including the part that gets built into the structure. This was not disputed by the applicant.
In evidence the applicant said that there was no way that the windows were left sitting outside for a month and that he had engaged a reputable building contractor who "would have" painted and installed the windows at "the most appropriate time" but he admitted that he was in China when the windows were delivered and he did not actually know how long the windows were left before they were primed and/ or painted.
The applicant said that he had properly maintained the windows by engaging a contractor to have them repainted every 2 years. He said he would also clean the windows every spring and when he was cleaning a window on the south side of the roof of the home in 2019, he accidently knocked a part of the frame and it broke off. He said he looked at the window again two weeks later and two further parts of the frame broke off.
The applicant said that the reason for the parts of the frame breaking off was dry rot in the window and this was not disputed by the respondent. He said that none of the other windows that the respondent delivered have this same problem.
The applicant claimed that based on internet searches he had conducted, timber framed windows should last 10 to 20 years or even 30 years depending on maintenance, but that due to the presence of dry rot this window would not last that long and therefore the window was not fit for purpose or of a merchantable quality.
Mr Sharples said it is the respondent's position that the dry rot is caused by the windows being left uncovered on site before being installed. He said that even if the timber looks dry before it was installed if moisture had penetrated the timber it could still be moist inside the timber. He also said other possible causes for the moisture are that the windows were not primed properly or not painted quickly enough, the flashing may not have been sufficiently detailed and he also said that the window suffering dry rot is in a vulnerable position in that it is wind affected by its location on the roof and it faces south and therefore it gets no direct sunlight which would assist drying.
Mr Sharples drew my attention to and wishes to rely upon the decision in Kounelis v Ross Horton Homes Pty Ltd (Domestic Building)[2014] VCAT 319 (Kounelis Decision) in which Senior Member Walker made the following findings:
I do not have any expert evidence to assist me determine how or when the moisture that has caused the dry rot entered the timber window, neither the applicant nor the respondent are now able to provide any first hand evidence of what occurred in 2008 and I therefore do not accept that the applicant's assertions the dry rot could have been caused by moisture in the window which was present when the windows were delivered is any more likely than the respondent's assertions that the dry rot could have been caused by the applicant's failure to arrange for the windows to be stored, primed, painted, installed and maintained appropriately after delivery.
As such, I will make an order that the proceeding is dismissed.