I will consider each in turn although for reasons which will become apparent, in a different order.

1. Affidavits by Peter McGann and Ms De Pietro, both dated 13 March 2009, have been filed in support of this application. Both depose to circumstances up to October 2007. It is not clear how the matter once again came to the attention of the owners corporation, its manager, or its solicitors. I heard from the bar table that Ms Di Camillo initially had the care and control of the file when she was employed by Bradley Lawyers, who were the owners corporation solicitors at the time; that she subsequently left Bradley Lawyers to set up her own practice and took the file with her; and that Bradley Lawyers are once again acting for the owners corporation. However, I do not have any evidence before me as to the dates on which each of the solicitors had the care and control of the file.
2. Counsel for the owners corporation said that Ms Di Camillo had declined to provide an affidavit. However, an affidavit by the owners corporation's current solicitors might well have assisted me in understanding the delay since October 2007, and the reasons for the eventual filing of the application in April this year, noting it is dated 17 March 2009. Similarly, I do not have any affidavit material from a member of the owners corporation.
3. Whilst there is only a partial explanation for the delay, this is but one of the matters to be taken into account in deciding whether to exercise my discretion under s126.

1. It is conceded that the first VMIA became aware that the owners corporation contested the decision was when this application was filed in April 2009. There does not appear to have been any communication between the owners corporation current solicitors and VMIA before the application was filed.

1. VMIA relies on an affidavit of Alison Gawthorn, supervisor, of 1 September 2009, in which she deposes to the circumstances surrounding the establishment of the Domestic Building (HIH) Indemnity Fund, following the collapse of HIH. She deposes to VMIA suffering prejudice if this application is allowed because

the scheme is in its winding down phases in that the number of open claims is fast reducing. Given the lapse of time since the insolvency of HIH and the terms of the original policies for which claims can be made against the DBIF, it is believed that almost all claims for which indemnity will be provided have been notified.

1. As DP Cremean (as he then was) said in Clifton Properties Corporation Pty Ltd v Litewaite Constructions [1999] VCAT 49 at [10]

Without an extension of time under s126, a party is free from the possibility of an appeal once the time in which to seek review has expired. This, in my view, is a vested right (see Gionaka Pty Ltd v HGFL, DBT, 30 July 1996) which is not lightly to be disturbed

1. However, it seems to me that any prejudice to VMIA if I grant this application, and I am not persuaded there is any, would be slight. There are 112 open claims, and it is clearly anticipated there are more to come, although how many is unclear.
2. Further, I agree with counsel for the owners corporation that there is no evidence that VMIA will, in any way, be prejudiced in its ability to defend the application for review. The builder is a party to this proceeding, and there is no suggestion that files or evidence have been misplaced.

Whether the delay may result, if the Applicant for extension is successful, in the unsettling of other people or of established practices

1. In her affidavit Ms Gawthorn simply adopts this wording. She then deposes to VMIA having rejected 1500 claims since the DBIF was established; 34 since July 2007. It was submitted by counsel for VMIA that if an extension of time were granted it would open the floodgates and encourage similar applications from others whose claims had been rejected.
2. However, Ms Gawthorn does not depose to the grounds of rejection, nor to the number of claims which have been accepted. It is not clear, for example, how many, if any claims, have been rejected on the same or similar grounds here: that the claim was made after the expiration of the period of insurance. Again, even if there is a flow-on effect I anticipate it will be slight, and in any event, each and every application for an extension of time under s126 will be considered on its merits.

1. VMIA rejected the claim on the grounds it was made outside the insurance period. The policy of warranty insurance applies for a period of 6½ years from the date of the final occupancy permit (21 July 1999). One of the issues is whether, under the terms of the relevant policy, the claim was to be made on the builder or on the insurer within the 6½ year period. Counsel for VMIA conceded there was an arguable case to be determined if the extension of time is granted.

Considerations of fairness as between the Applicant and other persons otherwise in a like position

1. I have no evidence of 'other persons otherwise in a like position'.

Whether it is fair and equitable in the circumstances to extend time;

1. This is an unfortunate situation for the owners corporation which has entrusted the management of its affairs, and the resolution of the tiling issue including the making of the claim to VMIA, and against the builder, to a manager, an architect and solicitors. It seems, on the evidence before me, that it has been let down by at least two of them. There is no evidence that there has been any difficulty in obtaining instructions from the owners corporation or that it has been given advice which it has chosen to ignore as in World Link Assets Pty Ltd v James Kay [1999] VCAT 5.
2. It was suggested by counsel for VMIA that the owners corporation would not be prejudiced, if this application was refused, because the builder is still solvent and is a party to this proceeding. I reject this. If I was to refuse the application; and the owners corporation was to succeed against the builder; and if the builder was subsequently placed into liquidation; and if the relevant policy applies (about which I make no finding); the owners corporation would not have the protection of the builders warranty insurance.
3. Having regard to the Hunter Valley principles, and ss97 and 98 of the VCAT Act I am persuaded that in all the circumstances it is fair to grant this application.
4. I will reserve the question of costs with liberty to apply.

[1] 2nd edition, page 437, 3rd edition page 533