Case Note: Cavey v Owners Corporation PS 719168C [2026] VSC 667
Background
In the present case, the owners corporation had commenced proceedings against Buildstruct Group Pty Ltd in December 2019. They obtained leave from VCAT on the 2 May 2024 to file an application to join Mr Mark Ashley Cavey (Mr Cavey), a Buildstruct director as an additional respondent to the proceedings. The joinder application, however, was only heard on 2 July 2025 after the expiry of the applicable limitation period on the 16th of April 2025.
As such, this joinder application raised issues about the timing of claims under section 134(1) of the Building Act 1993 (Vic). Here, the applicable 10-year limitation period expired before VCAT made its joinder order, although the owners corporation had filed its application before the deadline.
Timeline of Events
The timeline of relevant events is as follows:
- The occupancy permit was issued on 17 April 2015.
- The owners corporation filed its joinder application on 26 June 2024.
- The applicable limitation deadline was 16 April 2025.
- VCAT heard the joinder application on 2 July 2025.
- VCAT made the order joining Mr Cavey on 17 December 2025.
Hence, VCAT sought to make the joinder effective retrospectively from 26 June 2024, when the application was filed. As a result, Mr Cavey appealed to the Supreme Court of Victoria, arguing that the claim against him was out of time and that VCAT could not backdate its order.
The Court’s Decision
The Supreme Court granted leave to appeal and allowed Mr Cavey’s appeal.
The central question raised was whether the owners corporation had brought its building action against Mr Cavey when it filed the joinder application or when VCAT made the order adding him to the proceeding.
Earlier VCAT decisions, such as O’Shea v Bendigo Urban Investments Pty Ltd [2024] VCAT 665 had treated the joinder date as the date the application was filed. However, in this case the Court held that, in this context, the action was brought when VCAT made the joinder order. Filing an application to add a person did not itself make that person a party to the claim.
This judgment brings a massive shift to the treatment of the application date and reduces its legal significance in determining the joinder date. It also raises several questions regarding the practical reality of court hearings being delayed and the consequence of not obtaining a court order in time.
The Court’s Reasoning
Section 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) gives VCAT the power to order that a person be joined to a proceeding. The court acknowledged that exercising that power requires a decision by the Tribunal. The application alone was therefore insufficient to preserve the claim against Mr Cavey.
The Court applied Lendlease Engineering Pty Ltd v Owners Corporation No 1 PS526704E [2022] VSCA 105, which established that VCAT’s joinder powers could not be used to defeat an accrued limitation defence.
The Court also found that VCAT lacked the power to backdate the joinder order. Under section 118 of the VCAT Act, an order takes effect immediately after it is made or at a specified later time. The provision did not authorise VCAT to give the order an earlier effective date.
Although Tribunal delays created practical difficulties, the Court rejected any argument regarding issues created by VCAT’s lack of resources and found that the statutory limitation provision was not intended to address VCAT’s resourcing issues. Those difficulties did not change the applicable deadline.
By the time VCAT joined Mr Cavey on 17 December 2025, the limitation period had expired. The claim against him was therefore statute-barred.
Key Legal Takeaways
This decision highlights several important considerations for owners corporations, property owners and parties involved in building disputes:
- Filing a joinder application before the applicable deadline does not, by itself, preserve a building action against the proposed respondent.
- For the joinder considered in this case, the relevant date was when VCAT made the order adding the party.
- Commencing proceedings against one respondent does not automatically protect a later claim against another.
- VCAT cannot backdate a joinder order to overcome the limitation defence considered in this decision.
- Potential respondents should be identified early, allowing time to investigate the basis of any claim and complete the necessary procedural steps.
- Where a deadline is approaching, parties should obtain urgent advice about available options rather than assume a pending application protects their position.
The ordinary 10-year period under section 134(1) generally runs from the issue of the occupancy permit or, where no occupancy permit is issued, the certificate of final inspection. Specific statutory exceptions require separate consideration; the decision should not be read as establishing that every building claim has an identical deadline.
These issues sit within the broader field of building and construction law, including building defects, owners corporation disputes and claims involving building practitioners.
Outcome
The Court set aside the relevant parts of VCAT’s order and substituted an order dismissing the owners corporation’s application to join Mr Cavey.
The appeal focused on the timing of the claim made against Mr Cavey. The court did not make any determination regarding whether he was responsible for the alleged defects or resolve the owners corporation’s entire building dispute.
The decision demonstrates the consequences of a limitation period expiring while a joinder application remains pending. For parties pursuing building claims, early advice about potential respondents and procedural requirements can be critical to preserving their options.
For further context on the avenues available in Victorian building matters, Warlows Legal also examines forum selection in Victorian construction disputes, including the roles of VCAT and other building dispute forums.
This case study provides general information only and does not constitute legal advice. The outcome of every matter depends on its particular facts and circumstances.
