VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL DIVISION
BUILDING AND PROPERTY LIST	
vcat reference No. BP343/2022	
CATCHWORDS	
Building: Application by respondent for orders to be made under s75 of the Victorian Civil and Administrative Tribunal Act 1998 striking out parts of the applicant’s claim which relate to plumbing defects; whether the applicant’s claim is hopeless and misconceived; Building Act 1993, s134A; Electronic Transactions (Victoria) Act 2000 Lend Lease Engineering Pty Ltd v Owners Corporation No 1 PS526704 [2022] VSC 105; East St Fall’s Pty Ltd v L.U Simon Builders Pty Ltd [2024] VCAT 416.	

APPLICANT	Owners Corporation 1 Plan No. PS 617851J	
FIRST RESPONDENT	Crema Constructions Pty Ltd (ACN 137 733 290)	
SECOND RESPONDENT	Crema (Vic) Pty Ltd (ACN 005 668 011) (struck out by order dated 6 April 2023)	
WHERE HELD	Video conference	
BEFORE	Member F Marks	
HEARING TYPE	Directions hearing –application: s75 VCAT Act	
DATE OF HEARING	26 April 2024	
Date of further submission	Respondent’s supplementary submissions dated 1 May 2024 
Applicant’s reply submissions dated 10 May 2024	
DATE OF ORDER	19 December 2024	
CITATION	Owners Corporation 1 Plan No. PS 617851J v Crema Constructions Pty Ltd (Building and Property) [2024] VCAT 1216	

Order
1.	The respondent’s interlocutory application made under s75 of the Victorian Civil and Administrative Tribunal Act 1998 is dismissed.
2	Liberty to apply.

F Marks
Member			

APPEARANCES:		
For Applicant	Mr J Forrest of Counsel	
For Respondent	Mr N Phillpott of Counsel	

Reasons
The respondent’s s75 application
1	This proceeding concerns a claim by the applicant (OC) against the respondent (builder) for defective building and plumbing works.
2	The builder has applied for orders to be made under s75 of the Victorian Civil and Administrative Tribunal Act 1998, (‘VCAT Act’), summarily dismissing parts of the OC’s claim that relate to alleged defects in the plumbing work.
3	The builder argues that the OC’s claim for defective plumbing work, is statute barred under s134A of the Building Act 1993 (Vic) (‘Building Act’), because the OC commenced its claim in the Tribunal, more than 10 years after the issue of the plumbing industry compliance certificate.
The applicant’s response
4	The OC opposes the builder’s strike out application. It argues that the application must fail because the builder cannot show that the plumber was a registered plumber at the relevant time. The OC argues that there is not sufficient evidence before the Tribunal to establish that the plumber signed the plumbing certificate and that the certificate complies with s221ZH of the Building Act.
5	Finally, the OC says that when interpreting s134A of the Building Act, it is not merely a matter of counting the days from when the compliance certificate was issued to the date when the OC commenced proceedings against the builder.
The material before the Tribunal
6	The builder relies on the affidavits of Michael Alexander Feiler, sworn on 7 September 2023 and 19 March 2024. The OC has not filed affidavit material in opposition to the builder’s application.
7	The parties rely on written submissions filed prior to the hearing and oral submissions made at the hearing. At the end of the hearing, the builder made an application to file submissions on the impact of the Electronic Transactions (Victoria) Act 2000 (‘ET Act’) which it only raised at the end of the hearing. The parties filed further submissions on the ET Act on being given leave to do so. The Tribunal has taken these submissions into account in making its findings and determination.
My decision 
8	For the reasons that I now give, I dismiss the respondent builder’s application for orders to be made under s75 of the VCAT Act, for the summary dismissal of the OC’s claim for defective plumbing work.
LEGAL FRAMEWORK
The VCAT Act s75
9	The provisions relating to strike out applications under s75 of the VCAT Act are well known and are not in dispute.
10	Section 75 of the VCAT Act relevantly provides:
At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion— 
(a)	is frivolous, vexatious, misconceived or lacking in substance; or 
(b)	is otherwise an abuse of process.
11	In Baker v Culvenor the Supreme Court of Victoria stated that the reasoning of the High Court in Wardley Australia Ltd v Western Australia applies equally to applications under s75 of the VCAT Act, namely:
We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases.
12	In Owners Corporation No. 1 PS537642N v Hickory Group Pty Ltd (Building and Property) the Tribunal set out the relevant principles for s75 applications. Before a proceeding can be summarily dismissed it must be ‘very clear indeed’ that the action is ‘absolutely hopeless’; the action must be ‘so clearly untenable that it cannot possibly succeed’.
The Building Act 1993 
13	Section 1 of the Building Act sets out the stated legislative purposes of the Building Act. One of the purposes of the Act is “to limit the periods within which building actions and plumbing actions may be brought”.
14	Section 134A of the Building Act relevantly provides:
134A 	Limitation on time when plumbing action may be brought
Despite anything to a contrary in the Limitation of Actions Act 1958 or in any other Act or law, if a compliance certificate is issued in respect of plumbing work under Part 12A, an action (including a counterclaim) for damages for loss or damage arising out of or concerning any defects in the work cannot be brought more than 10 years after the date of issue of the certificate.
15	Section 134A of the Building Act does not define a plumbing action. Rather, it refers to an action arising out of or concerning defects in plumbing work.
16	During the hearing the parties referred to s134 of the Building Act which relevantly provides:
134 	Limitation on time when building action may be brought
(1)	Despite anything to the contrary in the Limitation of Actions Act 1958 or in any other Act or law, a building action cannot be brought more than 10 years after the date of issue of the occupancy permit in respect of the building work (whether or not the occupancy permit is subsequently cancelled or varied) or, if an occupancy permit is not issued, the date of issue under Part 4 of the certificate of final inspection of the building work.
17	Section 129 of the Building Act defines “building action” to mean “an action (including a counterclaim) for damages for loss or damage arising out of or concerning defective building work”.
The facts
18	The builder entered into a major domestic building contract with a developer for the construction of a residential apartment block with basement carparks in River Street, South Yarra (“Property”). The builder carried out the construction work between 2010 and 2012.
19	On completion of the plumbing works, the plumber issued a compliance certificate on 31 January 2012, for plumbing works carried out on the Property (‘Compliance Certificate’).
20	The Compliance Certificate relevantly states:
The certifier’s name is Phillip Clough 
The scope of plumbing work undertaken includes: General plumbing work to new apartment block including all gas works to cooktops and hot water plant located on rooftop, All fit off of plumbing fixtures and tapware, All above ground sewer drainage and vents, No in ground sewer works (by others).
Compliance certificate status : Lodged
Date Lodged 31 January 2012. 
I certify that the above plumbing work complies in all respects with the plumbing laws as defined in Part 12A the Building Act 1993. 
Please tick as appropriate: The plumbing work was carried out by me or under my supervision. [tick shown]
…….
21	The building surveyor issued an occupancy permit in respect of the Property, on 16 March 2012. 
22	On 15 March 2022, the OC commenced this proceeding against the builder for alleged defective building works in the common property of the Property. 
23	The OC commenced this proceeding within 10 years of the date when the occupancy permit was issued, and within the limitation period allowed for the commencement of building actions under s134 of the Building Act. However, the OC commenced this proceeding more than 10 years after the plumber issued the plumbing compliance certificate.
THE OC’S AMENDED POINTS OF CLAIM
24	In its points of claim dated 15 March 2022, the OC claims damages for defective building works. Paragraph 8 sets out the s8 warranties of the Domestic Building Contracts Act 1995 (‘DBC Act’) which it claims the builder has breached.
25	The points of claim set out the particulars of the building defects in items 1 to 9 of schedule A. Item 6 lists the alleged plumbing defects:
Leaking hot and cold water pipes to hallway services cupboard leaking on various levels and additional pipework issues. 
26	The costs to repair the leaking hot and cold water pipes are set out in invoices which total $48,159.95. The OC relies on the expert reports of Leon Steel, Clinton Eldridge and Simon Brownhill in support of its claim for defective building and plumbing works.
27	The OC has filed further amended points of claim dated 21 April 2023, in which it claims the following damages against the builder:
(a)	$396,066.28 for building defects; and
(b)	$146,426.28 for additional plumbing defects.
28	Paragraph 8 of the further amended points of claim include further particulars of the alleged defective plumbing works. The particulars are set out in amended schedule A at items 6A to 6F.
29	The OC now relies on an expert report of Peter Wenning dated 10 February 2023 (‘Wenning report’) in support of its claim for defective plumbing works. 
30	The additional particulars of the plumbing defects comprise:
(a)	6A: hot water riser;
(b)	6B: level 3 south service cupboard: hot water system/valves;
(c)	6C: level 3 and 2 ceiling: inadequate lagging, issue with heat trace cable;
(d)	6D: fire ratings of penetrations: some pipe penetrations through the concrete slabs between floors have not been properly fire rated; 
(e)	6E: Lower ground level hot water pipe anchor: inspection revealed loose bolts to pipe anchor; and
(f)	6F: lower ground level cold water pipe anchor: electrical earth has been brazed to the pipe riser and does not comply with Australian standard.
31	Wenning costs the rectification works for items 6A to 6C and 6E and 6F at $143,426.28. Further costings are to be provided for item 6D – fire ratings of penetrations - prior to the hearing.
The Builder’s evidence 
32	Michael Alexander Feiler, solicitor for the builder, relies on his affidavits dated 7 September 2023 and 19 March 2024 in support of the builder’s strike out application.
33	In his affidavit dated 7 September 2023, Mr Feiler refers to the expert report of Peter Wenning which deals with alleged defective plumbing works. He exhibits the plumber’s compliance certificate which he says was issued by the plumber, Mr Clough and produces, amongst other things, the occupancy permit.
34	In his affidavit dated 19 March 2024, Mr Feiler deposes that the Victorian Building Authority (‘VBA’) told him by telephone and email that Mr Clough was a registered plumber at the relevant time and that the compliance certificate was lodged electronically. The VBA also told him that the plumber’s conduct in completing the declaration part of the compliance certificate online, constituted electronic signing of the certificate. In summary, Mr Feiler deposed that a physical signature was not required for a valid certificate.
The OC’s evidence
35	The OC has not filed any affidavit material in opposition to the builder’s application. It relies on the material filed by the builder.
The builder’s submissions 
36	The builder submits that it is clear that the OC’s claim for defective plumbing work is misconceived, lacking in substance and must fail for the following reasons:
(a)	The compliance certificate was issued on 31 January 2012;
(b)	The compliance certificate has been issued under Part 12A of the Building Act as required;
(c)	The OC issued proceedings in the Tribunal on 15 March 2022;
(d)	The OC commenced proceedings against the builder in respect of plumbing works after 31 January 2022;
(e)	The 10 year limitation period under s134A of the Building Act for issuing claims for damage arising out of or concerning any defects in the plumbing work, cannot be brought more than 10 years after the date of the issue of the compliance certificate;
(f)	The proceeding, in so far as it relates to plumbing works, has been issued more than 10 years after the Compliance Certificate was issued;
(g)	The OC’s claim in respect of plumbing works, is statute barred under 134A of the Building Act; and
(h)	The compliance certificate has been signed and meets the requirements of the ET Act; 
37	Consequently, the builder argues that the claims for plumbing defects must be dismissed under s75(1)(a) of the VCAT Act.
The OC’s submissions 
38	The OC submits that the builder must show that the OC’s action for defective plumbing works is absolutely hopeless and is so clearly untenable that it cannot possibly succeed. The OC says the builder has not done so.
39	The OC submits that the builder must establish as a matter of fact and law that:
(a)	the compliance certificate was signed and issued pursuant to s221ZH of the Building Act; and
(b)	the preferred construction of s134A of the Building Act in respect of compliance certificates issued by licensed plumbers, means that this is a matter of simply counting days from the date of the compliance certificate for the 10 year limitation period to be calculated.
40	The OC submits that: 
(a)	there is insufficient evidence to support the fact that Mr Clough was a licensed plumber at the relevant time;
(b)	the Compliance Certificate was not signed by Mr Clough;
(c)	the Compliance Certificate is not valid because it does not comply with s221ZH of the Building Act because it is not signed;
(d)	the Compliance Certificate does not meet the requirements of the ET Act which deals with electronic signatures;
(e)	the construction of s 134A of the Building Act is disputed, the interaction of s134 and s134A is contested, there is no case assessing the legal standing of how s134A sits with s134 and the builder has failed to establish its preferred construction of s134A.
41	The OC says that these matters are matters for a final hearing and that all of the relevant evidence is not before the Tribunal. 
SECTION 134A OF THE BUILDING ACT 
42	The builder argues that the position could not be clearer. The certificate of compliance is dated 31 January 2012, the 10 year limitation period under s134A expired on 31 January 2022 and the OC issued proceedings on 15 March 2022, outside the limitation period allowed under s134A. That, it says, is the end of the matter.
43	The builder argues that s134A of the Building Act operates despite any other law to the contrary, and does not refer to a claim being brought against a builder or a plumber. Rather, it argues, s134A refers to plumbing work being carried out under part 12A of the Building Act. The builder submits that the compliance certificate dated 31 January 2012, is the relevant certificate referred to in s134A, on which the builder relies.
44	The builder submits that the evidence of Mr Feiler including his correspondence with the VBA, supports the builder’s claim that the plumber was registered at the relevant time and that he issued a certificate in accordance with s134A. The builder submits that the certificate was lodged online/electronically in accordance with current practice and that to argue that an electronic signature required some other form of signing, would create uncertainty as to when the certificate was validly issued.
45	The builder submits that certainty under s134A is obtained when there is evidence to show that the declaration is complete, and the certificate lodged and accepted by the VBA. The builder submits that it is entitled to rely on the compliance certificate which it says was validly issued under part 12A of the Building Act.
46	The builder submits that the work which falls under s134A of the Building Act, is plumbing work listed in a plumbing compliance certificate. It reiterates that s134A does not mention an action having to be against a plumber.
47	The builder relies on the Court of Appeal’s decision in Lend Lease Engineering Pty Ltd v Owners Corporation No 1 PS526704E. (‘Lendlease’) which it says mirrors the OC’s claim in Lendlease. Lendlease dealt with the issue of whether claims brought as part of a building action under s134, were statute barred. 
48	In particular, the court in Lendlease, in addressing how to interpret the meaning of words and phrases in a statute with respect to its context, referred to the decision in Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd (‘Brirek’) which stated: 
The task of the court is to identify the solution that recommended itself to Parliament. To that end, it must strive to understand the meaning of the words and phrases in the provision to hand. The task is to construe the statutory provision, not the second reading speech. The court must be astute not to bend the words of the statute to accommodate some other solution to the problem that it may think the more desirable, or which some other jurisdiction has adopted.
49	The builder submits that in this case, the OC is running the same argument as another OC ran in Lendlease, and that this argument was not accepted by the court.
50	The builder relies on the submissions made by Lendlease in the Lendlease case, which were accepted by the court of appeal. Lendlease submitted that:
The legislative purpose of section 134 was clearly to limit building actions from being brought within 10 years after the issue of the occupancy permit in respect of the building work to which the occupancy permit relates. In the case of multiple occupancy permits, time must commence to run from the date of issue of the permit that relates to the building work, the subject of complaint in the building action.
51	The builder submits that similarly, when looking at the meaning of s134A, you look at the clear ordinary words of the section. The builder argues that s134A does not refer to an action against a plumber or a builder but to plumbing work set out in the compliance certificate issued by the plumber, whether or not building work covers it.
52	The OC disagrees. The OC submits that this is not the clearest of cases and that orders should not be made striking out the plumbing claim on the evidence before the Tribunal. The OC submits that the definition of building action in s129 of the Building Act is inclusionary and may include plumbing works, a contention which the builder does not dispute. 
53	The OC submits that a claim made under s134A of the Building Act must be a claim made by an owner or by a builder against a plumber. The OC argues that s134A does not apply to a claim made by an owner against a builder for plumbing work and that a claim against a builder must be brought under s134 of the Building Act. Put simply, the OC argues that s134 applies to building actions and s134A does not.
54	The OC submits that the principles set out in the Lendlease case are not relevant here, because Lendlease concerned the interpretation of s134 dealing with building actions, and not s134A of the Building Act. 
55	Further, the OC submits there is no case law on the interaction of s134 and s134A and that it is not appropriate for any determination to be made on the operation of those sections at an interlocutory hearing. The OC submits that there is no legal basis for submitting that the s134A limitation should apply to building actions. 
56	The OC submits that you cannot separate the claim and evidence for defective building works and plumbing works in the expert reports, including the report of Wenning. The OC submits that all of these matters are matters for trial.
57	By way of reply, the builder argues that there is no definition of plumbing action in s134A. Rather, s134A talks about an “action”. The builder argues that if it is the “work” caught by s134A, then it is the work as described in the plumber’s compliance certificate. It does not matter who did the work.
58	The builder submits that s134A does not identify either the person who can bring an action or the person against whom an action can be brought. The builder submits it is not for the Tribunal to decide if this is a building action. It submits that following the principles set out in Lendlease, in this case the interpretation of s134A is clear and calls for the claim for defective plumbing work to be struck out.
59	The Tribunal notes that since hearing the builder’s strike out application and the filing of further submissions, the Tribunal published the interlocutory decision of Senior Member Vassie in East St Fall’s Pty Ltd v L.U Simon Builders Pty Ltd. 
60	That decision concerned a claim for defective building and plumbing works. An application was made to strike out parts of the claim that were said to be time barred. 
61	Senior Member Vassie found that the claims for defective roof plumbing work were time barred because of the operation of s134A of the Building Act because the proceeding commenced more than 10 years after the date the compliance certificate issued for roof plumbing works.
The Compliance Certificate
62	A necessary part of the builder’s argument is that Mr Clough was the plumber at the relevant time who signed the compliance certificate which is valid and complies with s 221ZH of the Building Act. The OC has issued the proceeding for plumbing works beyond the 10 year period allowed by s134A of the Building Act.
63	The OC disagrees. It says that s134A of the Building Act is not of any force or effect, because the plumber did not sign the Compliance Certificate. 
64	The OC argues that s3 of the Building Act defines “compliance certificate” to mean a certificate referred to in s221ZH of the Building Act. Section 221ZH of the Building Act requires a compliance certificate to be signed. As the compliance certificate has not been signed, it does not comply with s221ZH of the Building Act. It says it follows that as the Compliance Certificate is not a compliance certificate referred to in s134A of the Building Act, s134A is not enlivened.
65	The OC’s argument is based on Part 12A of the Building Act which deals with plumbing work and compliance certificates in respect of plumbing work. The OC spent a great deal of time taking the Tribunal to numerous sections of Part 12A of the Building Act which refer to signed compliance certificates.
66	The OC argues that the builder has the onus of producing the signed compliance certificate which the plumber was required to lodge. The OC argues that it is not sufficient for the builder to produce a proforma Compliance Certificate filed electronically and which was not physically signed. It argues that the builder must be put to its proof and provide documentary material and sworn evidence from the relevant plumber.
Electronic Transactions (Victoria) Act 2000 
67	At the end of the hearing, the builder informed the Tribunal that it had not addressed the Tribunal on the ET Act and its relevance to electronic signatures, and that it wished to do so.
68	The builder argues that the Compliance Certificate, which the plumber had filed electronically, amounted to a signed compliance certificate under the ET Act.
69	The builder submits that the purposes of the ET Act set out in s1, are twofold:
(a)	to recognise that transactions effected electronically are not by that reason alone invalid; 
(b)	to provide for the meeting of certain legal requirements as to writing and signatures by electronic communication.
70	The builder refers to s9 of the ET Act which deals with signatures and electronic signing which provides:
Section 9:
Signatures
(1)	If, by or under a law of this jurisdiction, the signature of a person is required, that requirement is taken to have been met in relation to an electronic communication if—
(a)	a method is used to identify the person and to indicate the person's intention in respect of the information communicated; and
(b)	the method used was either—
(i)	as reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement; or
(ii)	proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence; and
(c)	the person to whom the signature is required to be given consents to that requirement being met by way of the use of the method mentioned in paragraph (a), having regard to the fact that it is not a sufficient reason to refuse to give consent merely because a person proposes to use a method mentioned in that paragraph.
(2)	This section does not affect the operation of any other law of this jurisdiction that makes provision for or in relation to requiring—
(a)	 an electronic communication to contain an electronic signature (however described); or
(b)	an electronic communication to contain a unique identification in an electronic form; or
(c)	a particular method to be used in relation to an electronic communication to identify the originator of the communication and to indicate the originator's intention in respect of the information communicated.
(3)	The reference in subsection (1) to a law that requires a signature includes a reference to a law that provides consequences for the absence of a signature.
71	In particular, the builder also relies on subsection 1A of s9 which provides:
(1A)    for the avoidance of doubt, a requirement for a signature of a person may be met by electronic signature under s9(1).
Example
Confirming  a person’s agreement by electronically selecting an option indicating agreement or affirmation 
72	The builder submits that if, as argued by the OC, a compliance certificate must be signed to be valid under s221ZH of the Building Act, that requirement is met by the operation of s9(1)(A) of the ET Act. It says s9(1A) results in the electronic signature complying with s9(1) of the ET Act. 
73	The builder argues that the question for the Tribunal is whether or not the compliance certificate issued by the plumber, Phillip Clough, contains an electronic signature which complies with s9(1), and in particular, subsection 9(1A) of the ET Act.
74	The OC disagrees. The OC submits that the builder cannot rely on subsection 9(1A) because that sub-section was not in force at the relevant time when the plumber issued the Compliance Certificate. The OC has produced the provisions of the ET Act in force at the relevant time. 
75	Having reviewed the legislation in evidence, I accept the OC’s submission that subsection 9(1A) was not in force at the relevant time and cannot be taken into account. 
FINDINGS
76	I accept that, at first glance, the OC’s claim against the builder for defective plumbing works appears to be time barred under s134A of the Building Act. On the evidence before me the OC has commenced its proceeding on 15 March 2022, more than 10 years after the compliance certificate was issued on 31 January 2012, in respect of plumbing work. 
77	However, after reviewing the paucity of the builder’s evidence set out in the affidavits of Mr Feiler and having heard lengthy submissions from the parties at the hearing and reviewing all of the submissions filed, I am not satisfied that this is a case where strike out orders should be made.
78	The builder may succeed in its defence at a final hearing. However, the builder should be put to its proof and should be required to provide evidence which is not before the Tribunal at this interlocutory hearing.
79	I accept that there are questions of fact which will need to be determined at a final hearing. I accept that the plumber has not provided an affidavit clarifying the issues raised, nor produced the certificate which he purportedly signed at the relevant time. I accept that the issue of the signature being given via electronic means is contested and that s9(1A) of the ET Act may not provide an answer, as it was not in force at the relevant time. 
80	I also accept that there are questions of fact and law to be heard and determined arising from the Lendlease case and the recent East St Falls Pty Ltd v L.U Simon Builders Pty Ltd (Building and Property) [2024] VCAT 416 decision of the Tribunal. The application, interpretation and interaction of s134 and s134A of the Building Act, are hotly contested.
81	I am not satisfied on the evidence before me, that the OC’s claim for defective plumbing works is hopeless. I am not satisfied that this is a case where the Tribunal should make orders summarily dismissing the OC’s claim for defective plumbing work at this interlocutory hearing. I consider that these are matters for determination at a final hearing when all of the evidence is before the Tribunal. 
ORDERS 
82	I will make orders dismissing the respondent’s application.

F Marks
Member