20A To advance this submission, Mr Cavey highlights that his solicitors, in a letter dated 5 June 2025, refer to as s 134 (1) the Building Act 1993 (Vic) ('Building Act') which relevantly provides:

Limitation on time when building action may be brought

(1) Despite any thing to the contrary in the Limitation of Actions Act 1958 or in any other Act or law, a building action cannot be brought more than 10 years after the date of issue of the occupancy permit in respect of the building work (whether or not the occupancy permit is subsequently cancelled or varied) or, if an occupancy permit is not issued, the date of issue under Part 4 of the certificate of final inspection of the building work.

1. Mr Cavey's solicitors point out that the relevant occupancy permit for the development was issued on 17 April 2015. Accordingly, they contend that the limitation period ended on 16 April 2025 and that the entitlement of the OC to bring any building action against Mr Cavey in the development has been extinguished.
2. Both the OC on the one hand, and Mr Cavey and Buildtruct on the other, refer to the Court of Appeal decision in Lendlease Engineering Pty Ltd v Owners Corporation No.1 PS526704E & Ors[1] ('Lendlease').
3. Mr Cavey and Buildstruct, in their written submissions, highlight [109] in Lendlease, where the Court held:

The addition of a new party when any limitation period applying to the claim by or against that person has expired is not allowed because such an addition would effectively defeat a limitation defence. Although ss 97 and 98 give broad powers to the VCAT to adopt fair procedures, there is nothing in those provisions which suggests that this principle should be ignored or avoided. To the contrary, s 134 is expressed to apply 'despite anything to the contrary in the Limitation of Actions Act or in any other Act or law'.

1. The OC submits that Lendlease is to be distinguished, as the OC in this case filed its joinder application on 26 June 2024 within time, before the expiry of the limitation period on 16 April 2025. This submission crystallizes the key issue which I have to decide.
2. Before I deal with the issue, I must address a preliminary point made on behalf of the OC. This is that the issue of whether the claims against Mr Cavey are statute barred is an issue to be determined at the final hearing.

MUST THE QUESTION OF WHETHER THE DEFENCE OF TIME IS APPLICABLE BE LEFT TO THE FINAL HEARING?

1. In Owners Corporation 1 PS538430Y v H Building Pty Ltd (ACN 091 236 912) (under external administration)[2] Deputy President C Aird held at [40]:

However, where there is any doubt or contest about whether a claim is statute barred, as there is here, it is appropriate to allow the joinder application, and for the party joined to raise a limitations defence, with the issue to be determined at the final hearing.

1. The OC relies on this passage and submits that a joinder hearing is not the appropriate time to determine whether the claim has been statute barred. The legal issues should be determined at the final hearing.
2. I accept that where there is real doubt about whether a claim is statute barred, the appropriate time to determine the matter is at a final hearing when findings can be made about contested facts after all the evidence has been presented and witnesses have been cross-examined. However, the Court of Appeal in Lendlease has made it plain that in a case where there is no controversy about the efficacy of the defence of time, then joinder should not be allowed. It is sufficient to refer the passage from Lendlease extracted at [22] above.
3. Having dealt with that preliminary issue, I now turn to the OC's central submission, which is that it filed its joinder application on 26 June 2024 within time, before the expiry of the limitation period on 17 April 2025. Accordingly, the OC contends that if the Tribunal orders that Mr Cavey be joined to the proceeding, the date on which Mr Cavey is joined is the date on which the application for leave to join him was filed, being 26 June 2024.
4. In Owners Corporation 1 PS538430Y v H Building Pty Ltd (Under external administration) and Ors[3] Deputy President Aird had to deal, for the purposes of an application to strike out made under s 75 of the VCAT Act, the date when a claim for contribution had been commenced. In addressing the issue, the Deputy President made a number of observations, including the following:

(a) The date for commencement of the contribution claim made by the building surveyor against an architect was not necessarily the date when the building surveyor's points of claim against the architect were filed[4].

(b) whether a contribution claim is made in the alternative to an apportionment of liability defence or more properly in points of claim, is a procedural formality which does not change the substance of the contribution claim.[5]

(c) The Wrongs Act 1958 (Vic) ('Wrongs Act') does not prescribe how a contribution proceeding is to be commenced, and 'it would appear that the legislature intended that each jurisdiction be free to determine its own processes for the commencement of contribution proceedings.' [6]

(d) It is important to have regard to s 98 (1) of the VCAT Act which provides:

(a) is bound by the rules of natural justice;

(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

(c) may inform itself on any matter as it sees fit;

(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

(e) There is no definition in s 3 of the VCAT Act of 'commence' or 'commencement'.

(f) Although it could have done so, the Tribunal has not adopted the practices or procedures of the Supreme Court in relation to third-party claims, but has developed its own Practice Note.[7]

(g) Joinder of parties in the Building and Property List is governed by paragraphs 21 to 24 of Practice Note VCAT BP1 which provides:

1. An order of the Tribunal is required for joinder of parties. Parties should take all reasonable steps to identify potential parties to a proceeding as soon as practicable, and make applications for joinder in a timely manner and in accordance with this practice note and any directions that may be made.
2. 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.
3. 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.
4. 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.

(h) The Tribunal's requirements for a party to obtain leave to join a party to a proceeding whether for the purpose of seeking contribution or relying in a Part IVAA defence, are unique to the Tribunal.[8]

(i) If the date of filing of an application for joinder for the purposes of contribution is not construed as the date of commencement of the claim for contribution an applicant for joinder would have less than 12 months, as contemplated by s 24(4)(a)(ii) of the Wrongs Act, to commence contribution proceedings.

31 At [26] of her determination, Deputy President Aird accepted as arguable the building surveyor's submission that the date of commencement of a claim for contribution is the date upon which the application for joinder is filed with the Tribunal.

1. In support of its contention the OC also relies on O'Shea v Bendigo Urban Investments Pty Ltd[9] ('O'Shea'), where Deputy President Lulham was concerned with the issue of whether the respondent builder, who was being sued by owners for damages arising from water ingress and associated damage, could join a waterproofing subcontractor, Trevor Showell or Trevor Showell Pty Ltd, for the purposes of a contribution proceeding under s 23B of the Wrongs Act and for the purposes of a proportionate liability defence under Part IVAA of that Act. At [35], DP Lulham stated:

35. 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 as 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. ...

37. 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.

1. Mr Cavey's written submissions in response were short. The first point made was that the addition of a new party to a proceeding is tantamount to commencing another action, that is, the addition of a new party is not procedural. In this, Mr Cavey placed reliance on the decision of Judge Jenkins, sitting as a Vice President of the Tribunal in Adams v Clark Homes Pty Ltd ('Adams').[10] In this case, her Honour adopted a number of findings I had made in Tsobanis v Katsouranis ('Tsobanis').[11]
2. In that case, the owner Ms Tsobanis had acquired a house in 2005 which had been built by the first respondent, Mr Katsouranis. The occupancy permit was issued on 17 August 2004 and accordingly Ms Tsobanis had until 17 August 2014 in order to bring a proceeding in relation to any building action relating to the house. She elected to initiate a proceeding on 7 August 2014 but did not name all the respondents she ultimately indicated she wished to sue at that time. She attempted to join three new respondents after 17 August 2014. Each of those respondents successfully applied for a declaration that they had not been joined as respondents and received an order removing them as a party.
3. One of the findings made in Tsobanis that is relevant to the present case is that limitation periods are substantive rather than procedural. This principle was confirmed in John Pfeiffer Pty Ltd v Rogerson.[12] Accordingly, the late issuing of a proceeding is not a procedural issue which the Tribunal can readily cure under s 127, or any other provision of the VCAT Act.[13]
4. The second finding, made in the light of the Court of Appeal's decision in Agtrack (NT) Pty v Hatfield,[14] was that there was no scope for the application of the 'relation back' principle applied in Agtrack, where amendments had been made to an existing action against a respondent.
5. Thirdly, I found that s 126 of the VCAT Act could not be used to extend the time limit imposed by s 134 of the Building Act.
6. Mr Cavey, noting that he was not a party to the proceeding when the application had been issued, submitted that this could not be cured as a procedural matter. Following Tsobanis, and the authorities upon which that decision was based, I accept that submission.
7. Mr Cavey noted that the date of issue of the occupancy permit in respect of the building work that was the subject of the proposed claim against him was 17 April 2015. He submitted that the OC had until 16 April 2025 to bring a building action claiming loss and damage against him. The OC had failed to do so and was now out of time. The Tribunal has no power and is unable to override a limitation period which is provided by a statute. Here Mr Cavey relies not only on Tsobanis but on the decision of Wheeler J of the Supreme Court of Western Australia in Bainbridge & Ors v Lawton & Ors.[15]
8. The proposition that the Tribunal has no power to override a statutorily imposed limitation period is, of course, unimpeachable.
9. However, in the present case, I consider that the principle is beside the point because the effect of O'Shea is not to ignore the s 134 limitation period, but to recognise its force. The effect of O'Shea is simply to treat the date of the joinder of a new party not as the date that the order was made, but the date that the application for joinder was made.
10. I acknowledge the observation made by Mr Reid on behalf of Mr Cavey at the hearing that under s 60 of the VCAT Act, joinder of a party to a proceeding is only effected when the Tribunal makes an order that the person be joined. That has long been recognised to be the case, as was acknowledged in the 2002 decision of Leonora Group (Wonthaggi) Pty Ltd v Bass Coast Shire Council,[16] which was followed in Tsobanis.[17]
11. However, as Mr Oldham highlighted at the hearing, the situation in Tsobanis is to be contrasted with the present case, because in Tsobanis, the application to join new parties (who had not initially been named in the application) was made after the limitation period had expired.[18] I accept Mr Oldham's submission on this point, noting that Ms Tsobanis had waited until only 10 days before the expiration of the s 134 limitation period before she initiated her proceeding, and then sought to clarify information about one party and join two others by an email sent on 18 September 2014,[19] which was more than a month after time had expired. She provided further information in an email dated 14 October 2014.[20]
12. Mr Oldham also referred to Adams,[21] in which he had been involved as a solicitor for the respondents. He informed me that the respondents had joined the architect within time, but the applicant owners had sought to join the architect outside the limitation period.[22] So Adams is also to be distinguished.
13. I find, for these reasons, that Tsobanis and Adams do not govern the present case.

1. I acknowledge Mr Reid's submission that filing an application for joinder is merely a procedural step, and that the joinder itself only takes place upon the order of the Tribunal.[23] However, I do not accept that the date of the joinder must be the date that the order is made. I prefer the view expressed about this by Deputy President Lulham observed in O'Shea.
2. If I follow O'Shea, there will be no contradiction of the long recognised principle, reaffirmed in 2022 by the Court of Appeal in Lendlease, that 'The addition of a new party when any limitation period applying to the claim by or against that person has expired is not allowed because such an addition would effectively defeat a limitation defence.'[24]
3. In O'Shea, Deputy President Lulham observed at [36] '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.'
4. I, respectfully, adopt this observation. I add that for a range of reasons including fairness, consistency and efficiency, that where a legal issue arises in a proceeding which has been determined after proper consideration by the Tribunal on a previous occasion, the Tribunal should follow the earlier decision of the Tribunal unless there are good reasons for not doing so. This must particularly be the case where the Tribunal has endeavoured to give guidance as to the operation of its own Practice Note.
5. I respectfully adopt the approach embraced by Deputy President Lulham in O'Shea and find that the date upon which the application to join Mr Cavey was made was the date from which the joinder will operate.
6. I note this approach is consistent with the fairness of the situation. If the alternative approach, of holding that the date of joinder is the date of the Tribunal's ultimate order for joinder, a number of practical difficulties for parties will arise by reason of the Tribunal's current lack of resources.
7. I acknowledge that I cannot rely on the Tribunal's overarching obligation arising under s 97 of the VCAT Act to 'act fairly and according to the substantial merits of the case' to override s 134 of the Building Act, and I do not rely on s 97 in this manner. However_,_ I note that the approach I am taking is consistent with s 97.
8. As I am disposed to follow O'Shea, the argument that the joinder application is made out of time cannot succeed, unless the joinder application itself was made out of time. This brings us to Mr Cavey's second basis for opposing his joinder.

1. An application to join Mr Cavey was made pursuant to orders made by Member Marks at a directions hearing on 2 May 2024. Member Marks, in Order 3, directed the OC to serve on Mr Cavey and the respondents a copy of its joinder application and draft Amended Points of Claim together with its supporting affidavit by 20 June 2024.
2. At the time when the OC first applied to join Mr Cavey as a respondent, its solicitors were R Berman Lawyers. A principal of that firm, Ms Richelle Berman, made an affidavit on 25 June 2024 in support of the application made to join Mr Cavey. Exhibited to this affidavit, as Exhibit RB-9, were Proposed Further Amended Points of Claim dated 25 June 2024 ('2024 Proposed FAPOC').
3. On 20 June 2025 Callum Ernikiolis affirmed an affidavit on behalf of Buildstruct and Mr Cavey in opposition to the proposed joinder. Relevantly, he deposed, at [16], that Ms Richelle Berman sent an email on 16 October 2023 advising that the OC intended to join Mr Cavey in this proceeding.
4. However, no action was taken until 26 June 2024, when Ms Berman filed the OC's an application to join Mr Cavey.

THE OC'S JOINDER APPLICATION DATED 26 JUNE 2024

1. The OC's joinder application made 26 June 2024 comprised (among other things):

(a) an affidavit in support affirmed by Ms Richelle Berman on 25 June 2024; and

(b) the 2024 Proposed FAPOC.

1. It is clear that the Tribunal accepted that an application to join Mr Cavey had been properly made, because, as noted, the application was set down for hearing on 3 September 2024. The fact that the hearing was vacated by order of the Tribunal made 27 August 2024 is not to the point.
2. On 13 March 2025, the Tribunal made orders listing the hearing of the OC's joinder application against Mr Cavey on 2 July 2025.
3. As noted above, because it has effectively been conceded by Mr Cavey that because the OC has an open and arguable case against him, then the joinder should be allowed unless there is an effective limitation of actions defence. Accordingly, if the application for joinder heard before me on 2 July 2025 is found to have been based on the 2024 Proposed FAPOC, there can be no issue with it.
4. However, the position is more complicated than this.
5. On 28 February 2025, Ms Berman filed with the Tribunal a notice of solicitor ceasing to act.
6. Mr Oldham's firm commenced to act for the OC on 23 April 2025. On 3 June 2025, Ms Amy Fettes of Mr Oldham's office sent an email to the Tribunal on behalf of the OC which:

(a) confirmed that Oldham Construction Lawyers now acted for the OC;

(b) referred to the OC's application seeking to join Mr Cavey to the proceeding dated 26 June 2024; and

(c) attached:

(i) an affidavit in support sworn by Daniel Oldham on 3 June 2025; and

(ii) a proposed 'second amended points of claim' (2025 Proposed FAPOC) seeking to bring further and new causes of action against Mr Cavey.

1. At the hearing, Mr Reid highlighted that the email from Mr Oldham's office which served the documents to be relied on at the hearing enclosed both an affidavit of Mr Oldham made 3 June 2025 and a new pleading, namely the 2025 proposed FAPOC. Mr Reid said that on the face of the email what the OC was attempting to do was to replace the 2024 proposed FAPOC with the 2025 version. On this basis, he submitted 'That would mean that the application for joinder in accordance with the practice note is not actually made until the receipt of this email.'[25]
2. Mr Oldham's response was that there was only one application for joinder, and that was the application made on 26 June 2024. The application specifically relied on what is referred to as 'the Birman material'. He submitted that what had been proposed in the email of June 2025 was to amend the Proposed Amended Points of Claim that supported the application. It was not a new application.[26] I note that this was consistent with his statement at the outset of the hearing that he relied on the application and the Points of Claim filed in June 2024.[27]
3. Mr Oldham sought to justify the proposed amendment to the 2024 proposed FAPOC by minimising the changes. He contended that they were not substantive, and went on:

It's just that it jumbles the particulars and puts them at the back instead of in the body of the pleading. So all I've attempted to do is to tie in what the causes of action are, which are pleaded originally in paragraph 10 of the original points of claim. So essentially, there is no new application, so I don't need to issue a new application.[28]

1. Mr Oldham confirmed that he pressed the proposed amendment. If the Tribunal was against him on this, he would 'fall back to the original. Because that is the application that is within time.'[29]
2. I accept Mr Reid's submission that a proper application for joinder is made when the supporting material required by the Practice Note, including the Proposed Amended Points of Claim, are filed. It follows, in my view, that only the June 2024 application for joinder was made within time. If the OC wishes to join Mr Cavey, as it does, it must be taken to have elected to rely on the 2024 proposed FAPOC.
3. Accordingly, the order to be made is that Mr Cavey is joined as a party to the proceeding nunc pro tunc with effect from 26 June 2024. The OC will have leave to file and serve the 2024 Proposed FAPOC.

THE OC'S APPLICATION TO AMEND THE 2024 PROPOSED FAPOC

1. Mr Oldham indicated that if the OC's application to join Mr Cavey was allowed only on the basis that the 2024 Proposed FAPOC was filed, he would seek to amend that document by substituting for it the 2025 Proposed FAPOC.
2. I do not think this is a permissible course for the simple reason that amendment of an existing document is different to its substitution by a separate document.
3. It may be that there are specific paragraphs of the 2024 Proposed FAPOC that can be amended without creating new causes of action which will be statute barred. Mr Oldham submitted that this is the case, but he did not embark upon a granular analysis of the amendments he says are permissible.
4. I will take a robust approach to Mr Oldham's application for leave to amend the 2024 Proposed FAPOC. As noted, he effectively said that the amendments are cosmetic, and no new causes of action are raised in the 2025 Proposed FAPOC. If that is right, then the amendments may be aesthetically desirable, but they are not essential.
5. However, there is doubt as to whether the proposed amendments reflected in the 2025 Proposed FAPOC are merely cosmetic. Mr Kalman, on behalf of Mr Tsaganas, the relevant building surveyor, and CodeHQ, his employer, submitted that the changes proposed to the claims against his clients were more than cosmetic. He noted that in the 2024 Proposed FAPOC there is an allegation that his clients have been negligent concerning the provision of builder's warranty insurance. He did not oppose leave being granted to the OC to file and serve that document.[30] He asserted that in the 2025 Proposed FAPOC, the allegations against his clients were expanded to cover mandatory stage inspections.[31] Leave to file the 2025 version was opposed on the basis that it raised fresh allegations which were out of time.
6. I am not sure that Mr Kalman is right, because in the 2024 Proposed FAPOC the particulars of negligence alleged against both Mr Tsaganas and CodeHQ include a reference to the duty of care referred to in Moorabool Shire Council & Anor v Taitapanui.[32] Given that the Tribunal is not a court of pleading, it is possible that this generic reference to the duty of care of a relevant building surveyor is sufficient to cover a myriad of specific complaints. However, that is a matter to be determined at another time, because the matter was not argued at the hearing.
7. The key point is that if I am right, then the 2024 Proposed FAPOC contains very broad allegations against the relevant building surveyor and his employer, and no amendment is necessary. If Mr Kalman is right, then the 2025 Proposed FAPOC contains allegations of new causes of action against the relevant building surveyor and his employer, which are now statute barred.
8. For these reasons, the application for leave to amend the 2024 Proposed FAPOC is dismissed.
9. If the OC considers that purely cosmetic amendments to the 2024 Proposed FAPOC are desirable, then it may make an application for leave to amend that document.
10. I will make orders accordingly.
11. Costs will be reserved.

[1] [2022] VSCA 105.

[2] [2019] VCAT 680.

[3] [2019] VCAT 1485.

[9] [2024] VCAT 665.

[10] [2015] VCAT 1658, [83]-[84].

[11] [2015] VCAT 739, at [69]-[70].

[12] [2000] HCA 36; 203 CLR 503; 74 ALJR 1109: 172 ALR 625.

[14] [2003] VSCA 6.

[15] [2002] WASC 293, [5].

[16] [2002] VCAT 1441.

[17] [2015] VCAT 739, [56]-[57].

[18] Transcript 2 July 2025 ('TS') page 26: lines 6-8.

[19] [2015] VCAT 739, [41].

[21] [2015] VCAT 1658.

[24] [2022] VSCA 105, [109].

[32] [2006] VSCA 30.