Owners Corporation PS720260H v Wilkinson Developments & Anor

... even though s126 may allow the Tribunal to waive compliance with a procedural requirement, the requirement to obtain a certificate of conciliation could not be waived. Section 57A is quite explicit - it contemplates leave being granted by a court to commence an action without a certificate of conciliation. A power to grant such leave is not given to the Tribunal.

... the appropriate order was for the proceeding to be stayed pending the obtaining of a certificate of conciliation. A similar order will be made in this proceeding.[25]

1. From these decisions, it is clear that VCAT's view is that it is not able to waive compliance with the requirement to obtain a certificate of conciliation, where it is possible to obtain one. The Tribunal will stay a proceeding until the certificate has been provided. However, where it is impossible to obtain a certificate of conciliation, s 126 of the VCAT Act may be used to waive the requirement. This view was recently confirmed by Croft J in the Supreme Court, where he held 's 126(2) cannot be invoked where its exercise would conflict with the underlying legislation that created the requirement, as seen in Sharma v Lantrak'.[26]
2. VCAT's approach has been to require a certificate of conciliation be obtained, where this is possible. A proceeding will be accepted as commenced, but will then be stayed while the certificate is obtained. Compliance with the requirement for a certificate of conciliation may be waived in limited circumstances, such as where it is not possible to obtain a certificate. Underpinning this approach is the view that the scheme is consumer protection legislation, and it is not intended to actively prevent persons with genuine disputes from being able to litigate them. The requirement for a certificate is a procedural requirement, and an applicant should not be prevented from proceeding with an application commenced within time. I agree with that approach.
3. I also agree that the requirement for a certificate of conciliation is a procedural requirement. In VCAT this may be cured by the proceeding being stayed pending the applicant obtaining a certificate of conciliation from DBDRV. In the Court, it may be cured either by staying the proceeding until a certificate is obtained, or by granting leave to proceed under s 57A(1)(b).
4. I note the plaintiff's submission that the requirement for a certificate of conciliation is a substantive requirement, and 'cannot properly be characterised as mere procedural requirements capable of being waived.' I disagree. I consider that the following authorities are correct. In any event, I will follow them adopting the principle of comity, or stare decisis, and follow them. The requirement in s 56 for a certificate of conciliation before applying to VCAT has been compared to:

(a) the requirement in s 18 Owners Corporation Act 2006 (Vic) that an owner's corporation must obtain a special resolution prior to commencing a proceeding; and

(b) the requirement in s 87(1) of the Retail Leases Act 2003 (Vic) that an applicant must not issue a proceeding before first obtaining a certificate from the Small Business Commissioner.

1. The Owners Corporation Act requirement was decided to be procedural in Burbank Australia Pty Ltd v Owners Corporation.[27] This was followed in Warren's Plumbing, where DP Aird found that s 56 of the DBC Act is similar,[28] and a proceeding commenced without fulfilling the requirement is not invalid. Rather, non-compliance with s 18 constituted a procedural irregularity which could be cured by subsequent ratification.
2. The Retail Leases Act requirement was recently considered in Wills v Wilson[29] Deputy President Lulham was considering a submission that VCAT lacked jurisdiction because the applicants issued a proceeding before first obtaining a certificate from the Small Business Commissioner. He compared the 'saving provision' in that Act with the one in the DBC Act, and found:

A similar style of saving provision appears in the Domestic Building Contracts Act 1995 (Vic). Domestic Building Dispute Resolution Victoria ('DBDRV') is established by that Act, to administer a scheme for the resolution of domestic building work disputes. Amongst other things it conducts conciliations between disputing parties. Section 56(1) provides that 'A party to a domestic building work dispute must not make an application to VCAT in relation to the dispute unless the chief dispute resolution officer [of DBDRV] has issued a certificate of conciliation to the party certifying that the dispute - (a) was not suitable for conciliation; or (b) was not resolved by conciliation'. Section 56(4) says, 'This section does not affect the validity of any decision made by VCAT any time before, on or after' the establishment of DBDRV. The precise words used in the Domestic Building Contracts Act 1995 (Vic) are not identical to those in the Retail Leases Act 2003 (Vic), but they reflect and record the same concept. > > Neither the Retail Leases Act 2003 (Vic) or the Domestic Building Contracts Act 1995 (Vic) expressly say the Tribunal does not have jurisdiction in the absence of a certificate by the Small Business Commissioner or the chief dispute resolution officer.

In those circumstances I feel compelled to conclude that the intention of the Retail Leases Act 2003 (Vic) was to strongly encourage parties in retail tenancy disputes to engage with the Small Business Commissioner, but not to deprive this Tribunal of jurisdiction if they did not or if the Commissioner concluded that mediation was unlikely to resolve the parties' dispute.

1. If I were to adopt an approach consistent with VCAT in the present matter, I would first consider if it is possible for DBDRV to issue a certificate of conciliation. It is not, as:

(a) DBDRV is not able to accept an application after 10 years from the occupancy permit, certificate of final inspection, date of practical completion, or date of the building contract [30]; and

(b) A party may not refer a domestic building work dispute to DBDRV if proceedings in relation to the matter in dispute have commenced in VCAT or in a court.[31]

1. I would then consider what is the purpose of the statutory scheme, and conclude that it is not to deprive an applicant the opportunity to commence a proceeding provided they have done so in time. In VCAT this policy may be implemented using s 126 VCAT Act to waive compliance. In the Court it is by using the power to grant leave s 57A(1)(b).

1. The plaintiff will suffer irremediable prejudice if leave to commence this proceeding then for now is refused. The proceeding would be either stayed or struck out. The plaintiffs' Counsel described it as a 'zombie proceeding' in that it is unable to live (to proceed) or die (to be dismissed).
2. The plaintiff will be unable to obtain a certificate of conciliation from DBDRV as the time limits to do so have expired.
3. There is no power for this Court to transfer or refer the proceeding to VCAT.
4. The plaintiff could commence a new proceeding at VCAT and seek a waiver of the requirement to provide a certificate of conciliation relying on Brennan but is likely to be met with the defence that the time limit to commence a building action under s 134 of the Building Act has expired.
5. Even if the defendants advised they will not take the time defence, and the proceeding were not out of time, VCAT will not have jurisdiction because a legally arguable federal matter has been genuinely raised. The plaintiff would be without a forum to resolve their dispute.
6. On the other hand, the defendants did not identify any prejudice they would suffer if leave were granted. This is not surprising, as the only conceivable prejudice would be that they will be required to meet a domestic building claim without having had the chance to attend conciliation run by DBDRV, assuming the application was deemed suitable. That situation is easily remedied if the parties agree to early mediation or other form of alternative dispute resolution available in the Court.

1. For the reasons stated and in accordance with r 84.03 of the County Court Civil Procedure Rules 2018 (Vic), I affirm the order of the Court constituted by the Judicial Registrar on 22 August 2025.
2. As the plaintiff has been successful in this application, unless any alternative orders are proposed within 7 days, I propose to order that the defendants must pay its costs of and incidental to the application for review on a standard basis, to be taxed in default of agreement.

I certify that these 25 pages are a true copy of the ruling of her Honour Judge Kirton delivered on 12 December 2025.

[1] Domestic Building Contracts Act 1995 (Vic) ss 45F, 46E.

[2] Dawn v Carlisle Homes [2025] VSCA 58 [153] ('Dawn'), citing Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216, 234 [35], [37].

1. [4] Thurin v Krongold Constructions (Aust) Pty Ltd (2022) 72 VR 403 [58]-[59] ('Thurin').

[6] Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55; (2012) 250 CLR 503, 519 [39].

[7] Interpretation of Legislation Act 1984 (Vic) s 35(2A)(d).

[8] Interpretation of Legislation Act 1984 (Vic) s 35(a).

[9] Waters v JRW Enterprises Pty Ltd [2024] VSCA 77 [44] (Walker JA, Ferguson CJ and Ginnane AJA agreeing at 1, 85).

[10] Victoria, Parliamentary Debates, Legislative Assembly, 10 December 2015, 5537.

[11] Warren's Plumbing & Drainage Services Pty Ltd v Sharma [2018] VCAT 883 ('Warren's Plumbing').

[12] Brennan v N & K Morrice Pty Ltd [2019] VCAT 1950 ('Brennan').

[14] Brennan (n 11) [23]; Warren's Plumbing (n 10) [18].

[15] Owners Corporation 1 Plan No PS543073S v Eastrise Constructions Pty Ltd [2019] VCAT 1639 ('Eastrise').

[17] Lendlease Engineering Pty Ltd v Owners Corporation No 1 PS526704E [2022] VSCA 105 ('Lendlease').

[19] Building Act 1993 (Vic) s 134.

[20] Domestic Building Contracts Act 1995 (Vic) ss 45(3), 45A(b).

[21] Warren's Plumbing (n 11) [18].

[23] Sharma v Lantrak Pty Ltd [2018] VCAT 911 ('Sharma').

[26] Paramount Investments Group Pty Ltd vs Club Fogolar Furlan Melbourne [2025] VSC 90, [103].

[27] Burbank Australia Pty Ltd v Owners Corporation [2015] VSC 160 [40] - [41].

[28] Warren's Plumbing (n 11) [16]-[20].

[29] Wills v Wilson [2025] VCAT 1022.

[30] Domestic Building Contracts Act 1995 (Vic) ss 45(3), 45A(b).

[31] Domestic Building Contracts Act 1995 (Vic) ss 45(5), 45A(d).