Bendigo Urban Investments Pty Ltd (ACN 116 632 627) t/as GJ Gardner Homes Bendigo

Interlocutory application by respondent for leave to join another party to seek contribution under section 23B of the Wrongs Act 1958 and for the purposes of a proportionate liability defence under Part IVAA of the Wrongs Act 1958

O'Shea v Bendigo Urban Investments Pty Ltd (Building and Property) [2024] VCAT 665

1. The date by which the respondent was required to file any application to join another party, under paragraph 1 of the Order made 1 November 2023 and as extended by paragraph 2 of the Order made 1 February 2024, is further extended to 17 April 2024, and the respondent is deemed to have filed that joinder application within time.
2. Noting that the respondent's Application dated 17 April 2024 literally sought the joinder of Trevor Showell personally but that the heading of the affidavit in opposition, sworn by Devinda Jayatilake on 4 July 2024, refers to "Trevor Showell Pty Ltd ABN 83 140 558 450", the respondent's joinder application is deemed to have sought the joinder of both Trevor Showell personally and Trevor Showell Pty Ltd ABN 83 140 558 450.
3. The respondent's application that each of Trevor Showell and Trevor Showell Pty Ltd be joined as a party for the purposes of the respondent claiming contribution under section 23B of the Wrongs Act 1958 is granted, and both Trevor Showell Pty Ltd and Trevor Showell are so joined nunc pro tunc with effect from 17 April 2024.
4. The respondent's application that each of Trevor Showell and Trevor Showell Pty Ltd be joined as a party for the purposes of the respondent pleading a proportionate liability defence under Part IVAA of the Wrongs Act 1958 is granted, and both Trevor Showell Pty Ltd and Trevor Showell are so joined nunc pro tunc with effect from 17 April 2024.
5. The principal registrar is directed to amend the register accordingly and to record the address for service of Trevor Showell and Trevor Showell Pty Ltd as Moray & Agnew Lawyers, Level 6, 505 Little Collins Street Melbourne 3000; email - djayatilake@moray.com.au
6. The respondent shall file with the Tribunal and serve on all other parties Points of Claim against Trevor Showell and Trevor Showell Pty Ltd, substantially in the form exhibited to the affidavit of Cathryn Patricia Prowse, legal practitioner, sworn 17 April 2024, by 23 July 2024, but with the addition of a pleading that "Trevor Showell Pty Ltd ABN 83 140 558 450" exists. If the respondent's Points of Claim filed and served under this paragraph does not refer to "Trevor Showell Pty Ltd ABN 83 140 558 450", then this Order shall only have effect as joining Trevor Showell personally as a party.
7. The respondent shall file with the Tribunal and serve on all other parties Points of Defence to the applicants' claim, substantially in the form exhibited to the affidavit of Cathryn Patricia Prowse, legal practitioner, sworn 17 April 2024, by 23 July 2024, but with the addition of a pleading that "Trevor Showell Pty Ltd ABN 83 140 558 450" exists. If the respondent's Points of Defence filed and served under this paragraph does not refer to "Trevor Showell Pty Ltd ABN 83 140 558 450", then this Order shall only have effect as joining Trevor Showell personally as a party.
8. An Order can be made on the papers removing "Trevor Showell Pty Ltd ABN 83 140 558 450" as a party, if appropriate having regard to the contents of the respondent's Points of Claim and Points of Defence, filed and served under paragraphs 6 and 7.
9. The costs of the joinder application are reserved.

1. The respondent ("Builder") was engaged by the applicants ("Owners") to build the dwelling, which is the subject of this proceeding, under a building contract made in July 2011.[1] The Owners sue the Builder for damages, arising from water ingress and associated damage. Trevor Showell or Trevor Showell Pty Ltd[2] is alleged to have been the Builder's waterproofing subcontractor in the construction of the dwelling.
2. The Builder has applied to join Trevor Showell Pty Ltd ("Subcontractor") as a party, to seek contribution under section 23B of the Wrongs Act 1958 (Vic) and for the purposes of a proportionate liability defence under Part IVAA of the Wrongs Act 1958 (Vic). The Builder had raised this as a possibility in the directions hearing held on 1 November 2023, and it was ordered to file and serve its application for joinder by 4 December 2023. By consent, on 1 February 2024 the date to file and serve that application was extended to 26 March 2024. The Builder filed its Application for Directions Hearing or Orders, containing the joinder application, on 17 April 2024. Trevor Showell Pty Ltd was served with the joinder application and had leave to appear at the hearing of the joinder application. Showell was represented by Counsel at that hearing.
3. The Builder submitted that it understood that Showell did not oppose being joined so that the Builder could run its apportionment defence, but did oppose being joined for the purpose of the Builder claiming contribution from him.
4. Counsel for Showell said that they had no position on whether or not they could be joined so that the Builder could run its apportionment defence, but that they opposed being joined for contribution. As I will set out in more detail below, Showell submitted that if section 134 of the Building Act 1993 (Vic) does not make the Builder's proposed claim for contribution statute barred, section 24(4) of the Wrongs Act 1958 (Vic) gave the Builder 12 months to commence its claim for contribution from the date it was served with the Owners' claim, and - on the material filed in the joinder application - that period had expired.
5. The Builder filed an affidavit of Cathryn Patricia Prowse, legal practitioner, sworn 17 April 2024 in support of the joinder application, which exhibited at pages 44-53 of its bundle exhibit the Builder's proposed Points of Defence to the Owners' Points of Claim and its proposed Points of Claim against Trevor Showell. Some consultants' reports are also exhibited to that affidavit.
6. The Owners issued this proceeding on 3 March 2023. They were, and remain, self-represented and the initiating Application form was not accompanied by Points of Claim in the style that would be drafted by a legal practitioner.
7. On page 9 of the Application form the Owners said "Reason for application in attached document". That attachment is one A4 typed sheet. In the document, which does not have numbered paragraphs, the applicants say:
   1. Their Occupancy Certificate was granted on 8 March 2013.
   2. They first notified the Builder of an internal water leak issue on 31 March 2021, when the home was eight years old. They gave the Builder the Specific Purpose Property Report prepared by Rod Poyser Inspections on 24 March 2021.
   3. Not having received a satisfactory reply from the Builder, they engaged 1 - 300- Findleak to prepare a leak detection report, and that firm inspected the house on 17 October 2022.
   4. The Builder engaged its own independent inspection company on 2 March 2023, but it does yet not have an answer.
8. The Owners filed the Rod Poyser Inspections' document with the initiating Application. Mr Poyser said that he had measured moisture in floors and rooms. Next to his photographs called 'image 1' and 'image 2' he wrote 'no sign of leak' and 'no sign of plumbing damage'. In his final paragraph he said, "An invasive inspection is required by a registered plumber to ascertain the source of the water leak". Under the heading 'Important Information - Please Read' there was a series of paragraphs which qualify the report - for example saying at number 7 that concealed defects are not covered, and at 15 saying that plumbing installations are not covered and should be checked by a qualified plumber.
9. The Owners also filed the 1 - 300- Findleak report with the initiating Application. That report was 7 pages in length. On page 1 it said that a leak was detected in the shower recess. On pages 5 and 6 it identified 'areas of non-compliance' by, in effect, asking questions and answering them:

Shower base gradient as per AS 3740 appendix 3 B 3 (1:100)

Tapware penetrations sealed in accordance with AS 3740 2010

Waterstop preventing water escape from the room doorway as per AS 3740 2010 clause 3.0.1.2

Waterproof membrane sound preventing adjoining room damages as per AS 3740 2010 A3.5

Conclusion: both shower recesses for main and ensuite bathrooms have failed the spray test. There is no waterproofing installed around the perimeter of the room. Water entering below the tiles is escaping to adjacent rooms.

1. In paragraph 7 of her affidavit sworn 17 April 2024, Ms Prowse deposed that it became apparent that it would be difficult for the Builder to formulate its pleadings for the purpose of any joinder application without first seeing the Owners' Points of Claim, "including because [the Builder] would need to determine whether the [Owners' ] claim is apportionable for the purposes of Part IVAA of the Wrongs Act 1958".
2. The Owners prepared a document which they entitled "Points of Claim " on 12 March 2024. Like the attachment to the initiating Application, that document was not expressed in the style that would be drafted by a legal practitioner. Nevertheless, it clearly contains allegations that:

[page 1] the Owners had a building contract with the Builder dated 21 July 2011, under which the Builder built the dwelling for a contract price of $274,984.00 which was paid in full by the Owners;

[page 1] the Certificate of Occupancy was issued on 8 March 2013;

[para 2] the Owners notified the Builder of "major water leaks in two in situ shower recesses ... on 30 March 2021"

the Builder did not take appropriate investigative or rectification actions.

[para.s 5 - 9] the Builder owed the Owners a duty of care, which the Builder had breached

[para.s 34 - 36] the Builder owed the Owners obligations under terms implied into the building contract under the Domestic Building Contracts Act 1995, and the builder breached obligations by not complying with AS3740-2010 Waterproofing of Domestic Areas and AS3740-2010 Appendix 3 B3 which, they allege, requires the gradient of shower base to fall 1: 100.

[para.s 37, 38 and 39] the Owners also reference AS3740-2010 clause 3.10.1 as to the sealing of tapware penetrations, AS3740-2010 clause 3.9.1.2 concerning the installation of water stops, and AS3740-2010 clause 3.5 concerning the need for a sound waterproof membrane to prevent damage to rooms adjoining wet areas

[para.s 44 and 45] the Owners say that a claim against the Builder for negligence is a 'building action' within the meaning of section 129 of the Building Act 1993, in relation to which there is a 10 year limitation period in accordance with section 134 of the Building Act 1993

[para 58] the Owners say that the persons who investigated the water ingress ruled out the most obvious water leak entry points, and that the Builder's Aftercare Manager raised, on several occasions, the possibility of the ensuite leak being from the in situ shower recess. The Builder's failure to engage a specialist water leak company to investigate further exacerbated the damage to the dwelling.

1. Many paragraphs contain allegations that the Builder failed to take action after 30 March 2021 and engaged in a strategy of "delay ignore avoid deny and deflect". A legal practitioner might have used the term "unconscionable conduct" in relation to this aspect of the Owners' Points of Claim.
2. In any event, the Owners' Points of Claim does not contain any specific allegation that the Builder had engaged a waterproofing subcontractor in the construction of the dwelling. One would have thought that the Builder would have records of having engaged subcontractors.
3. I make no criticism of the Builder's legal practitioners, because I am looking at this with the benefit of hindsight, but I can see nothing in the Points of Claim of 12 March 2024 that substantially adds to the attachment to the initiating Application and the reports of Rod Poyser Inspections and 1 - 300- Findleak, in terms of the Builder considering whether the Owners' claim in the proceeding is apportionable for the purposes of Part IVAA of the Wrongs Act 1958 (Vic). So the time that elapsed between the Builder's receipt of the initiating Application in March 2023 and its receipt of the Points of Claim in March 2024 served no purpose.
4. The Builder's proposed Points of Defence to the Owners' Points of Claim, exhibited to Ms Prowse's affidavit, contains these matters:

[para 2(a)] it admits that it was engaged by the Owners to construct the dwelling, pursuant to a building contract executed on or about July 2011

[para 5(a)] it objects to pleading to the Owners' allegation that it owed them a duty of care, essentially on the basis of 'pleading points', but admits that it was carrying on business in Victoria as a builder

[paras 3 and 6] [whilst responding to aspects of paragraphs 3, 4 and 6 - 114 of the Points of Claim] it objects to pleading to the Owners' allegations of the Builder's acts and omissions after 30 March 2021 because they "relate to steps that the Owners allege that [the Builder] did or should have taken to rectify the alleged defects and not the basis upon which the Owners claim that [the Builder] has a liability to rectify those alleged defects"

[para 115] [ie, responding to para 115 of the Points of Claim] it admits that section 8 of the Domestic Building Contracts Act 1995 applies to the building contract

[para 116] further or alternatively, if (which is denied) the Builder is liable to the Owners for any part of the claim based on negligence or breach of warranties in sections 8(a), (d) and (e) of the Domestic Building Contracts Act 1995, the Owners' claims against the Builder are apportionable within the meaning of Part IVAA of the Wrongs Act 1958.

There follow allegations against Trevor Showell trading as Trevor Showell Tiling and Waterproofing, including that in or around 2012 he carried out the waterproofing of the dwelling. The Builder pleads that Trevor Showell owed the Owners a duty of care to exercise reasonable care in carrying out the waterproofing to avoid pure economic loss, which he breached. The Builder also pleads that Trevor Showell's issuing of a warranty certificate constituted misleading or deceptive conduct contrary to the prohibition in section 18 of the Australian Consumer Law (Victoria), rendering him liable to pay damages under section 236.

1. The Builder's proposed Points of Claim against Trevor Showell follow a similar pattern. The Builder alleges that it engaged him to carry out the waterproofing for the dwelling. Without admission and for the purposes of the Builder's Points of Claim, it repeats the Owners' Points of Claim in relation to the non-compliance of the waterproofing with AS3740 and/or the Building Code of Australia; alleges that Trevor Showell is liable to the Owners in negligence or for misleading and deceptive conduct, and that [at paragraph 5] "in the premises, if the Owners' claim against [the Builder] is not apportionable under Part IVAA of the Wrongs Act 1958 then Trevor Showell is liable to pay contribution to [the Builder] pursuant to sections 23B and 24 of the Wrongs Act 1958".

1. Showell opposes the application that it be joined, and applicable time limits are crucial to that point.
2. The Builder submits that it was not served with the Owners' Points of Claim until 9 June 2023, when it received that document from VCAT. The Builder applied for the order joining Showell on 17 April 2024, which was more than 12 months after the Owners issued the VCAT application, but was within 12 months of the builder being served with the Owners' Points of Claim.
3. Clearly, if the 12 months ran from the date the Builder was served with the initiating Application and its attachment and the reports of Rod Poyser Inspections and 1 - 300- Findleak, in March 2023, the 12 months had expired by 17 April 2024.
4. In summary, the Builder submitted the following:
   1. A claim for contribution is not a "building action" as defined in section 129 of the Building Act 1993, as articulated in Smith v Henley Arch Pty Ltd[3] and Owners Corporation 1 PS538430Y v H Building Pty Ltd.[4]
   2. The limitation period, within which the Builder may seek contribution from Showell, is 12 months from 9 June 2023, because section 24(4)(a)(ii) of the Wrongs Act 1958 says:

Notwithstanding any provision in any statute requiring a notice to be given before action or prescribing the period within which an action may be brought, where under section 23B any person becomes entitled to a right to recover contribution in respect of any damage from any other person, proceedings to recover contribution by virtue of that right may be commenced by the firstmentioned person -

(a) at any time within the period -

(i) within which the action against the first-mentioned person might have been commenced; or

(ii) within the period of twelve months after the writ in the action against the first-mentioned person was served on him -

1. It is the filing of the Application for Directions Hearing or Orders, containing the joinder application, on 17 April 2024 which is the "commencement" of the Builder's proceeding to recover contribution. This is because whilst a claim for contribution can be issued in a Court proceeding as of right, in the Building and Property List of VCAT Practice Note BNBP1[5] requires the intending claimant to first obtain leave to join the person from whom it seeks contribution. The Practice Note includes these words:

Any application for joinder of a party, whether as respondent or joined party, should be made using the Application for Directions Hearing or Orders form. The application for joinder must be accompanied by affidavit material in support and draft Points of Claim as against the proposed party or draft Points of Defence where the proposed party is to be joined as a concurrent wrongdoer for the purposes of Part IVAA of the Wrongs Act 1958. The applicant for joinder must serve a copy of the joinder application and the supporting material on the proposed party and must advise them of the date and time when it will be heard. An application for joinder will be listed for a directions hearing at which time the parties should expect the application to be heard and determined and directions made for the further conduct of the proceeding.

1. In Owners Corporation 1 PS538430Y v H Building Pty Ltd,[6] Deputy President Aird said that it was arguable that the date on which a claim for contribution was commenced was the date on which the application for joinder was filed. The word "arguable" in Deputy President Aird's formulation established that the Builder faces a low threshold when applying to join Showell[7].
2. In his affidavit sworn 5 July 2024, which I received electronically at 9:47am which was 13 minutes before the commencement of the hearing, Jack Peter Golding of the Builder's legal practitioners, swore that he believed that the Builder had been served with the initiating Application and a Notice of Directions Hearing on 9 June 2023, and that the bases of that belief was that the Notice was dated 9 June 2023 and that the Builder engaged Mr Golding's firm in July 2023. Mr Golding said that after receiving an email from Showell's legal practitioners at 3:14pm on 4 July 2024 he sought instructions from the Builder as to the date it was served with the initiating Application and the Notice of Directions Hearing but that he has "not yet received those instructions". The Builder submitted that 17 April 2024 is within 12 months of 9 June 2023, and that accordingly, the Builder's application to join Showell was made within time.

1. After the Builder had finished making its submissions, I asked Mr O'Shea whether he had anything to say about when the Builder was served. Mr O'Shea was not on oath. He said that he recalled hand delivering the initiating Application to the builder at around 10:30am on a day in March 2023, and that he also recalled hand delivering the Points of Claim on a day in March 2024. He said that when he served the Points of Claim, an employee of the Builder signed for it.
2. This is potentially significant information, given my view that the Points of Claim do not add very much to the substance of the initiating Application and its attachment in the context of the Builder being in a position to consider whether to run an apportionment defence or seek contribution from a sub contractor.
3. Counsel for Showell said that this information from Mr O'Shea demonstrated the problems that arise from the Builder having served Mr Golding's affidavit so late, and his affidavit containing a mere statement of belief. He said that joining a party when the claim against it is stature barred would be a contrary to natural justice. Given the paucity of evidence as the date of service, he asked whether the Builder sought more time to provide evidence.
4. I stood the matter down for a short time, after which Counsel for the Builder said that it did not seek more time and that it wished to proceed on the current material. In stating this position Counsel for the Builder refined his submission, to say that damage was suffered in the last few years, and that the 6 year limitation period commenced from then. Without saying so expressly, it appears that the Builder relies on the Owners' allegation that they first notified the Builder of an internal water leak issue on 31 March 2021, when the home was eight years old. Of course, the date they notified the Builder is likely to have been more recent than the date the house was damaged. The Builder submitted that it had not suffered any loss or damage earlier than 6 years ago and that it was therefore open and arguable that the claim for contribution was commenced within time.
5. I gave the Owners a few days to file and serve an affidavit of service, setting out whether and if so how they had served documents on the Builder, if they chose to do so. They did not do so.
6. In summary, Showell submitted the following:
   1. Being merely decisions of VCAT, Smith v Henley Arch Pty Ltd and Owners Corporation 1 PS538430Y v H Building Pty Ltd are not binding authority. They do not say, emphatically, that a claim for contribution is not a "building action". Smith v Henley Arch Pty Ltd concerned engineering work, not building work. In this case, the Builder's proposed Points of Claim against Showell articulate a claim under section 18 of the Australian Consumer Law (Victoria), which is an action for damages arising out of building work. This takes this case out of the subject matter confronting Deputy President Aird in Smith v Henley Arch Pty Ltd, in which she said at paragraph 22 that the claims of negligence and breach of statutory warranty were not actions for damages for loss and damage and thus were not a building action.
   2. The issuing of the Certificate of Occupancy on 8 March 2013 started the 10 year limitation period under section 134 of the Building Act 1993.
   3. The issue then is whether section 134 of the Building Act 1993 applies.
   4. Section 134 (1) says "Despite any thing to the contrary in the Limitation of Actions Act 1958 or in any other Act or law ..." and so it operates despite section 24 of the Wrongs Act 1958 (Vic).[8]
   5. Therefore, the Builder cannot commence a building action against Showell after 9 March 2023, being more than 10 years after the date of issue of the occupancy permit. It made its joinder application out of time.
   6. The Builder could have filed a proceeding against Showell, rather than seeking leave under the Practice Note. That is how a third party claim is brought in the Tribunal's Civil Claims List, and it is consistent with how such claims are made in Courts.

1. I do not take into account Mr O'Shea's unsworn statement in the directions hearing as to the Owners' service of documents on the Builder. Mr O'Shea only made his vague statement of recollection in answer to a question I asked him. Mr O'Shea was basically observing a dispute between the Builder and Showell. He had not had time in the directions hearing to carefully consider whether the Owners had served the Builder. The Owners declined the opportunity to file an affidavit of service. To prepare an affidavit they would have to have properly considered whether they could give meaningful evidence about service.
2. Section 98(1)(c) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) enables the Tribunal to inform itself on any matter as it sees fit. This power certainly allows me to examine the Tribunal's file. The file shows that the proceeding was issued on 6 March 2023, three days after Mr O'Shea emailed the Application form to the Tribunal, with the attachment, the DBDRV Certificate of Conciliation dated 20 September 2022 and the reports of Rod Poyser Inspections and 1 - 300- Findleak. Senior Member Kirton, as she then was, examined the new file in accordance with standard procedures on 22 May 2023 and instructed registry to list a directions hearing. Registry generated three copies[10] of a Notice of Directions Hearing dated 9 June 2023. At 3:04pm on 9 June 2023 the Registry sent an email to the Builder at its email address, enclosing copies of the initiating Application, notice of directions hearing and details of how to attend the directions hearing by telephone. I know that registry uses standard form text in such emails, and I construe the reference to the Application being enclosed as also meaning that the attachment in the reports of Rod Poyser Inspections and 1 - 300- Findleak were enclosed.
3. The Builder was then represented by Mr Golding, legal practitioner, at the directions hearing on 1 November 2023.
4. Section 140(1)(b)(iii) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) allows documents, including the initiating Application, to be served " subject to the rules, by sending it by electronic communication to the electronic address applicable to [a] company under the rules".
5. Rule 4.10 (3) of the Victorian Civil and Administrative Tribunal Rules 2018 (Vic) allows an applicant, when filing an initiating Application, to provide the email address of the respondent if the respondent has communicated with the applicant in relation to the matter using that email address. Rule 4.10 (4) provides that such an email address is taken to be the respondent's email address for service until the respondent provides another email address to the Tribunal.
6. The Tribunal's file does not show the Builder having written directly to the Tribunal between 9 June 2023 and the directions hearing on 1 November 2023. The Tribunal emailed the Order made at that directions hearing to the parties' legal practitioners on 6 November 2023, by which time under rule 4.10 (4) the Builder's lawyers had become its address for service.
7. In substance, the information I can glean from the file suggests that Mr Golding's belief as to the Builder having been served on 9 June 2023 is correct. I would make a finding that the Builder was served by email on 9 June 2023 in the absence of Mr Golding's affidavit.
8. The Builder filed its application to join Showell within 12 months of 9 June 2023.
9. I acknowledge that VCAT's procedure for joining a third party in the Building and Property List, requiring there to be an application for leave at which the proposed third party may appear and oppose being joined, is different to the procedure in Courts where the third party notice is issued as of right, but may be followed by an application by the newly joined party for summary dismissal. I also acknowledge that in the Tribunal's Civil Claims List (which deals with a far greater proportion of self represented parties and has designed its procedures to be sa simple as possible) a third party claim can be issued as of right. However, I do not accept Showell's submission that the Builder should have acted irregularly, and issued its claim against Showell without leave. It was appropriate for the Builder to comply with Practice Note BNBP1.
10. Whilst I agree that decisions of VCAT are not binding authority (and nor do they purport to be), I take the view that VCAT decisions provide guidance on areas of law. In many contexts VCAT is the only body exercising jurisdiction to make decisions on particular legal issues. I have considered the decisions of Deputy President Aird in Smith v Henley Arch Pty Ltd and Owners Corporation 1 PS538430Y v H Building Pty Ltd, agree with the logic and see no reason for departing from what was there articulated. It follows that the Builder's claim for contribution is not a "building action" as defined in section 129 of the Building Act 1993 (Vic) and therefore the 10 year limitation period running from 8 March 2013 does not apply. Section 24(4)(a)(ii) of the Wrongs Act 1958 (Vic) has the effect that the limitation period, within which the Builder may seek contribution from Showell, is the longer of12 months from 9 June 2023, which had not expired by 17 April 2024, or 6 years from 31 March 2021, when the Owner notified it of the internal water leak issue. That 6 year period has not expired.
11. When an application for leave to join a party is granted, using the procedure in Practice Note BNBP1, I take the view that the date on which the party is joined is the date on which the application for leave to join a party was filed, being 17 April 2024 in this case. Particularly in the current era in which delays in the Tribunal are out of the Tribunal's hands, let alone the parties' hands, it would make no sense to hold that the vagaries of when the Tribunal is able to list an application for hearing is determinative.
12. In the circumstances I grant the Builder's application to join Showell as a party to this proceeding, for both the purposes of claiming contribution and running an apportionment defence. I find that the effective date of Showell being so joined is 17 April 2024.
13. I reserve the costs of the joinder application.

[1] At the time of making its application to join Trevor Showell Pty Ltd as a party, the Builder's formal position was that it was "alleged" to have built the dwelling - see paragraph 5 of the affidavit of Cathryn Patricia Prowse sworn 17 April 2024 in support of the joinder application. However exhibited to that affidavit are proposed Points of Defence to the Owners' claim, and in paragraph 2(a) of that draft pleading the Builder would admit building the dwelling for the Owners.

[2] The joinder application dated on 17 April 2024 names the individual, as do the proposed pleadings filed with the joinder application. However, an affidavit filed in opposition to the joinder application names the company. The abbreviation "Showell" in these Reasons signifies both.

[3] [2019] VCAT 2024.

[4] [2019] VCAT 1485.

1. [5] Practice Note - PNBP1 Building and Property List (Building Disputes) - General Procedures, paragraphs 21 - 24.

[6] [2019] VCAT 1485 at paragraphs 17 - 26.

[7] I note that in paragraph 32 of Owners Corporation 1 PS538430Y v H Building Pty Ltd Deputy President Aird said that it was arguable that the date on which a claim for contribution was commenced was the date on which the application for joinder was filed " where orders are made that any application for joinder be made in accordance with the Practice Note" and that in this case the Order of 1 November 2023 did not say that. That Order did, however, set out the steps to be taken, in terms which were consistent with Practice Note PNBP1. As such I do not consider that the terms of the Order of 1 November 2023 make it unarguable the date on which a claim for contribution was commenced was the date on which the application for joinder was filed.

[8] The opening words are actually "Despite any thing to the contrary in the Limitation of Actions Act 1958 (Vic) or in any other Act or law a building action cannot be brought more than 10 years after..." and hence the significance of Smith v Henley Arch Pty Ltd and Owners Corporation 1 PS538430Y v H Building Pty Ltd.

[9] [2024] VSC 42.

[10] One addressed to the Owners, one to the Builder at its street address and another to the Builder at its email address.