The Critical Path – Melbourne Construction & Infrastructure newsletter October 2021

26 October 2021

Welcome to The Critical Path, HWL Ebsworth Lawyers’ Melbourne Construction and Infrastructure newsletter featuring the latest developments in construction law, to help you stay on the critical path!

As always, we hope you enjoy this issue of The Critical Path and that it finds some use in your endeavours.

Clarifying limitation periods and the ability of owners corporations to join individual lot owners

This article was written by Alan Chiang, Partner, Con Koutsantony, Senior Associate and Soha Refaat, Solicitor. 

Where multiple occupancy permits are issued for a single project, there may be uncertainty as to determining the relevant statutory limitation period applicable to bringing a building action, prescribed by section 134 of the Building Act 1993 (Vic) (Act).

Additionally, an owners corporation may need to consider whether it can join individual lot owners to a proceeding after the statutory limitation period relevant to that individual lot owner’s claims have expired.

The Victorian Supreme Court in Lendlease Engineering Pty Ltd v Owners Corporation No.1 & Ors1 provided clarity on these issues and held that:

  • the final occupancy permit certifying all the whole of the works is the relevant permit for the purposes calculating the limitation period under the Act; and
  • where an owners corporation commences proceedings within time and subsequently seek to join lot owners who would otherwise be time barred, those lot owners will be time barred unless there is demonstrative evidence to establish that the owners corporation commenced the proceeding on their behalf.

HWL Ebsworth Lawyers has expertise in advising on construction disputes and statutory limitation periods. Please contact Alan Chiang of our Construction and Infrastructure team with any enquiries.

Click here to view the article.

More time on the clock for cladding claims – the Victorian Government proposes extensions to limitation periods 

This article was written by Paul Graham, Partner, Tara Nelson, Associate and Soha Refaat, Solicitor.

Previously the Building Act 1993 (Vic) (Act) allowed a claimant to bring a cladding building action more than 10 years but less than 12 years after the date of issue of the occupancy permit in respect of building work or, if an occupancy permit is not issued, the date of issue of the certificate of final inspection of the building work.

On 7 October 2021, the Legislative Council of Victoria passed the Building Amendment (Registration and Other Matters) Bill 2021 (the Bill), which will, amongst other things, give Victorians 15 years to take legal action against builders responsible for installing combustible cladding on apartment buildings.

Before the Bill comes into operation on a day yet to be proclaimed, here is what you need to know and what steps you can take to protect yourself against such legal action.

HWL Ebsworth Lawyers has expertise in combustible cladding disputes. Please contact Paul Graham, Tara Nelson or Soha Refaat of our Construction and Infrastructure team to discuss any aspect of the above.

Click here to view the article.

Early contractor involvement head contracting – reducing risk and time and cost uncertainty 

This article was written by Marko Misko, Partner, Kevin Lock, Special Counsel and Konrad Anderson, Associate.

Over the past two years, the Construction and Infrastructure Team at HWL Ebsworth Lawyers has been developing and helping to deploy on a number of construction projects for government clients, a new form of integrated head contracting, which is early contractor involvement head contracting (ECIHC). This has been well received and spurred on by the realisation by many of our clients that integrating a construction contractor during the design development process allows key risks, including as to buildability, staging and programming, to be identified early in the design development process, and that this promotes a high level of time and cost certainty before the works are constructed. Construction contractors and designers have reaped significant benefits as well, as the early involvement of the construction contractor allows for collaborative input into the design and the de-risking of the construction contractor’s scope.

Our team has had significant involvement in creating the ECIHC model and drafting a number of iterations of tender and contract documents to implement the delivery model for a variety of clients. Please contact Marko Misko of our Construction and Infrastructure team with any enquiries.

Click here to view the article.

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