The Victorian Civil and Administrative Tribunal (VCAT) does not have the power to make Orders nunc pro tunc, or with retrospective effect. The Victorian Supreme Court has confirmed that a building action is not considered “brought” until VCAT formally joins a party to the proceedings. This ruling clarifies how limitation periods apply to complex building disputes in the state.

Timeline of a delayed joinder

One case that prompted the court’s decision involved construction defects at 426 Hawthorn Road in Caulfield South. The Owners Corporation PS 719168C (OC) filed a claim against a building company in VCAT on 20 December 2019. The building company subsequently sought to join various subcontractors to the dispute.

On 2 May 2024, VCAT granted the OC leave to file an application to join Mr Cavey, a director of the building company. However, the hearing was initially scheduled for September 2024 before being cancelled due to a separate application to transfer the proceedings to the County Court. The transfer application failed, and the hearing for the joinder was eventually rescheduled.

Related Post: NSW court upholds law firm’s unqualified staff billing rates

At the hearing on 2 July 2025, the parties confirmed the occupancy permit for the premises was issued on 17 April 2015. The limitation period under section 134 of the Building Act 1993 (Vic) was applicable to the claim against Cavey, and the respondent had filed its joinder application on 26 June 2024. Cavey argued that the 10-year limitation period had expired on 16 April 2025, and that the action could not be brought against him at all. The OC argued that the action was “brought” when the joinder application was filed, which would place it within the statutory window.

VCAT initially agreed with the OC. It determined that the joinder process in its Building and Property List was distinct from court procedures and developed its own rules to give third parties a chance to oppose a joinder. The tribunal noted that it lacked statutory power to override the limitation period and found it fair to treat the filing date as the date of joinder, citing practical difficulties caused by “VCAT’s current lack of resources.” VCAT joined Cavey nunc pro tunc to the proceedings with effect from 26 June 2024.

VCAT’s authority to override limitation periods

The Supreme Court also examined whether VCAT possessed the power to extend or override the limitation period in section 134 of the Building Act. The Court noted that VCAT’s jurisdiction is derived solely from statute. No specific power to extend this period had been conferred upon the Tribunal. Citing section 118 of the Victorian Civil and Administrative Act 1998 (Vic), the Court observed that legislation dictates an order comes into effect immediately after it is made, or at a specified later time.

Furthermore, the Court determined that VCAT’s attempt to backdate the order was inconsistent with the Court of Appeal’s decision in Lendlease Engineering Pty Ltd v Owners Corporation No 1 PS526704E. In that case, it was held that a section 60 joinder under the VCAT Act did not enable the Tribunal to join parties to defeat a limitation defence. Allowing retrospective joinder would also contravene the provisions of section 134 of the Building Act, which states the limitation period applies despite any contrary provisions in other acts.

Read Also: India clarifies AI liability rules

This is supported by the English Court of Appeal decision in Re Keystone Knitting Mills’ Trade Mark [1929] 1 Ch 92, in which the Court held that either the court or tribunal has the jurisdiction to make an Order, or it does not. The jurisdiction ‘cannot be conferred by ante-dating an order’.

Interpretation of the word ‘brought’

One of the central purposes of the Building Act is set out in section 1, being ‘to limit the periods within which building actions and plumbing actions may be brought’. The Court found the word brought meant commenced. This interpretation was consistent with the wording of section 118 of the VCAT Act and VCAT’s own Practice Note, which requires an Order for a party to be joined.

This decision confirms it is not sufficient simply to file an application to join a party to a VCAT building action prior to the expiration of the limitation period in section 134 of the Building Act. Parties must now allow sufficient time for VCAT to also hear and determine the joinder application before the limitation period expires.