Where application for joinder was filed before expiry of limitation period
Quick Take
1For the purposes of s 134(1) of the Building Act 1993 (Vic), a building action is 'brought' against a party on the date VCAT makes an order joining that party to the proceeding, not on the date the joinder application is filed; accordingly, where the joinder order is made after the 10-year limitation period has expired, the claim is statute-barred even if the application was filed within time.
2VCAT has no power under s 118 of the VCAT Act to ante-date its orders nunc pro tunc; the plain words of s 118(1), which provide that an order comes into effect immediately or at a later specified time, are inconsistent with retrospective operation, and such a power cannot be used to defeat an accrued limitation defence.
3The filing of a joinder application in VCAT is a procedural step requiring a discretionary determination, distinguishable from the lodgement of originating process as of right; authorities such as Barnes v St Hellens MBC and Re Keystone Knitting Mills' Trade Mark, which concern commencement of proceedings as of right, do not apply to discretionary joinder under s 60 of the VCAT Act.
