Confirmation That the Limitation Period for 'Building Actions' is 10 Years, Not Six

by K&L Gates LLP


The recent Victorian Court of Appeal decision of Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165 (Brirek Case) has settled the appropriate time period, at least in Victoria, in which a 'building action'1 must be brought.

The Brirek Case has removed significant confusion surrounding how the limitation period in section 134 of the Building Act 1993 (Vic) (Building Act) operates alongside that contained in the Limitation of Actions Act 1958 (Vic) (Limitation Act).

Key Point

There is now no uncertainty that the limitation period for commencing any Victorian 'building action' (whether in contract or tort) is found in section 134 of the Building Act, which provides that:

"…a building action cannot be brought more than ten years after the date of issue of the occupancy permit…or, if an occupancy permit is not issued, the date of issue… of the certificate of final inspection of the building work"

The Facts of Brirek

On 5 December 2008, a property developer (Brirek) commenced proceedings in the Victorian County Court against a private building surveyor (McKenzie) contending that McKenzie had breached its duty, in both tort and contract, to appropriately provide relevant building permits. Brirek claimed that, as a result of the alleged breaches, it had suffered loss and damage.

Brirek's claims were brought after the general six year limitation period under the Limitation Act, but before the 10 year period under the Building Act. On the facts of this case, if the former applied over the latter, Brirek would be barred from seeking relief.

The Decision at First Instance

At trial, Brirek contended that section 134 of the Building Act applied to all of its claims, both in contract and tort, such that none was barred for want of time. The key point of contention, however, was whether section 134 applied to the contractual aspect of Brirek's claim.

McKenzie relied upon section 5(1)(a) of the Limitation Act whereby a claim in contract "…shall not be brought after the expiration of six years from the date on which the cause of action accrued" (ie from the date of the breach of the contract).

After placing particular reliance on the second reading speech of the Minister for Planning on the Building Bill 1993 (Vic), Judge Shelton concluded that section 134 of the Building Act had no application to a 'building action' based in contract.

His Honour decided that section 134 of the Building Act only applies to claims in negligence with respect to defective building work and does not extend the six year contractual limitation period in the Limitation Act, as argued by Brirek.

The Court of Appeal's Decision

On appeal, the Court of Appeal noted that the approach of Judge Shelton was unnecessarily constrained. Their Honours decided that actions founded in contract, independent of any tort claim, fall within the scope of section 134 and may be brought within 10 years from the date of issue of the occupancy permit2.

Outcome of the Decision

The Court of Appeal's decision has now provided decisive guidance on when the limitation period for a 'building action' begins and when it ends.

The practical results of this decision are:

  • in the context of a 'building action', the limitation period in section 134 of the Building Act replaces the limitation period in section 5(1)(a) of the Limitations Act3
  • insurance and risk management tools must be structured to reflect the six year limitation period being replaced
  • building owners must be aware that a contractual or tortious 'building action' must be commenced within 10 years after the issue of either:
    • the occupancy, or
    • final inspection certificate.

The case may become relevant in New South Wales, the Australian Capital Territory, the Northern Territory and Tasmania, where legislation containing time limits for commencing contractual and tortious actions for defective building work differ from the relevant general limitation acts4.


Building and construction professionals should seek appropriate advice if concerned that this decision may potentially revive certain 'building actions' previously thought to be statute barred.

[1] Under the Building Act 1993 (Vic) a 'building action' is defined as "…an action (including a counter-claim) for damages for loss or damage arising out of or concerning defective building work."
[2] Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165, [135].
[3] This decision accorded with earlier interpretations of section 134 given by the Victorian Civil and Administrative Tribunal: see Thurston v Campbell [2007] VCAT 340.
[4] See respectively section 109ZK of the Environmental Planning and Assessment Act 1979 (NSW); section 142 of the Building Act 2004 (ACT); sections 159 and 160 of the Building Act 1993 (NT); section 73 of the Development Act 1993 (SA); sections 255 and 266 of the Building Act 2000 (Tas).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© K&L Gates LLP | Attorney Advertising

Written by:

K&L Gates LLP

K&L Gates LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.