On 17 August 2023, the Court of Appeal in the Victoria Supreme Court handed down its decision in Krongold v Thurin [2023] VSCA 191. This decision is a further instalment in a long running domestic building dispute between homeowners, David and Lisa Thurin (Thurin) and their builder, Krongold Constructions (Aust) Pty Ltd (Krongold).
In the first decision, it was held that VCAT does not have jurisdiction to hear a case that involves the interpretation or application of federal legislation. Consequently, the matter was referred to the Supreme Court.
Issues arose regarding the effect of the referral and how it interacts with limitation periods in the Building Act 1993 and the joinder of the architect, Casper Architecture and Design Pty Ltd (Casper), and plumber, Swan Hardware & Staff Pty Ltd Limited (Swan Hardware) as concurrent wrongdoers.
These questions of law were referred to the Court of Appeal to be answered.
The Court of Appeal said:
A referral of a proceeding to the Supreme Court pursuant to section 77 of the VCAT Act invokes the jurisdiction of the Court and once jurisdiction is enlivened, the filing of a fresh initiation process would not be necessary.
For the reasons stated in response to question 1, Thurin were not barred by the 10-year limitations periods in the Building Act. That is, ss 134 and 134A do not apply because the making of a referral is not an ‘action’ being ‘brought’. Krongold had made submissions that the building action in VCAT stopped time for that action only and that the post-referral action in the Supreme Court must be brought within the 10-year limitation period. The Court of Appeal did not accept this.
The third and more complex point was whether Casper and Swan Hardware would be treated as parties in the referred Supreme Court proceedings. The Court of Appeal held that the invalid joinder of these third parties (given the application of federal jurisdiction matters) was not retrospectively validated by the section 77 referral. This means that Casper or Swan Hardware would need to be properly joined again and at that stage the court would deal with the expiry of any limitation period arguments in accordance with ‘conventional principles relating to the joinder of parties’.
While this provides clarity in relation to section 77 and whether a referral requires a fresh proceeding to be commenced, it does not resolve the practical problems that currently beset VCAT and its jurisdiction to determine claims that involve the interpretation or application of federal legislation.
We recommend clients keep an eye on expiry dates for limitation periods and seek advice where issues arise about which jurisdiction in which to commence a claim.
To discuss this further or for more information please contact:
Kelvin Tay
Senior Associate
T: +61 3 9611 0148 | M: +61 413 557 157
E: ktay@sladen.com.au
Alicia Hill
Principal
T: +61 3 9611 0180 | M: +61 484 313 865
E: ahill@sladen.com.au
Ben Wyatt
Principal Lawyer
T: +61 3 9611 0115 | M: +61 409 173 928
E: bwyatt@sladen.com.au
