Joinder Applications in VCAT Building Disputes

When is it too late to join another party to a VCAT building dispute? A recent Supreme Court of Victoria decision confirms that the date the joinder application was filed may not be the date that matters.

On 13 October 2026, the Supreme Court handed down its decision in Cavey v Owners Corporation PS 719168C [2026] VSC 667 (Cavey), concerning the 10-year limitation period for building actions under section 134 of the Building Act 1993 (Vic) (Building Act).

The decision has important practical consequences for parties seeking to join additional parties to building proceedings in VCAT.

Importantly, the Court held that, for the purposes of section 134, a building action against a proposed joined party is not “brought” when the application for joinder is filed. Instead, it is brought when VCAT makes the order joining that party to the proceeding.

The dispute

The VCAT proceeding in Cavey concerns alleged defects in the construction of apartments at Caulfield South for which an occupancy permit was issued on 17 April 2015. Pursuant to section 134(1) of the Building Act, the owners of the apartments had until 16 April 2025 to commence proceedings in respect of a “building action”. It was common ground in this proceeding that the 10-year limitation period also applied to any joinders.

In December 2019, within the limitation period, the Owners Corporation commenced proceedings against the builder, Buildstruct Group Pty Ltd.

In June 2024, the Owners Corporation filed an application seeking to join one of the builder’s directors, Mr Cavey, as a respondent to the proceeding, alleging that he was also a builder of the development. Although the joinder application had been filed comfortably before the statutory limitation period expired, the application was not ultimately heard until 2 July 2025.

VCAT delivered its decision on the application on 17 December 2025, ordering that Mr Cavey be joined retrospectively (nunc pro tunc) with effect from 26 June 2024, being the date on which the joinder application had been filed. This decision was appealed by Mr Cavey to the Supreme Court.

Section 134 of the Building Act

Section 134(1) of the Building Act provides, in effect, that a building action cannot be brought more than 10 years after the date of issue of the occupancy permit in respect of the relevant building work. If no occupancy permit is issued, the 10-year period runs from the date of issue of the certificate of final inspection.

Section 134(2) permits certain “cladding building actions” to be brought outside the ordinary 10-year period, but less than 15 years after the relevant occupancy permit or certificate of final inspection, where the statutory conditions in that subsection are satisfied.

Section 134(2A) provides a further exception to the 10-year limitation period for building actions where a court extends the period in accordance with s 77 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).

The decision

The critical question on appeal in Cavey was rather simple: what is the relevant date for determining whether a joinder application is statute-barred? This required determining when a building action is “brought” against the proposed joined party.

The Supreme Court held that “brought” means “commenced”. In the context of a joinder application, the proceeding against the proposed respondent is commenced when VCAT makes the order joining that person, not when the application seeking that order is filed.

The Court also held that VCAT could not overcome the limitation issue by backdating its order joining Mr Cavey to the proceeding. Unlike a court exercising inherent jurisdiction, VCAT’s jurisdiction is statutory. Section 118 of the VCAT Act provides that a Tribunal order comes into effect immediately after it is made, or at a later time specified in the order. There was therefore no power for VCAT to make the joinder order operate retrospectively.  That conclusion was also consistent with the Court of Appeal’s decision in Lendlease Engineering Pty Ltd v Owners Corporation No 1 PS526704E [2022] VSCA 105, in which the Court of Appeal noted that VCAT’s power of joinder under section 60 of the VCAT Act cannot be used to defeat a limitation defence.

The appeal was accordingly allowed and the Supreme Court made orders that the joinder application dismissed.

What does the decision mean in practice?

The practical consequences of Cavey are significant.

Cavey confirms the strict operation of the 10-year limitation period contained in section 134. Delays associated with the determination of a joinder application do not alter the point at which the building action is brought, and VCAT cannot retrospectively date its joinder order to avoid the consequences of the limitation period.

It is no longer sufficient to rely on a joinder application being filed before the expiry of the relevant limitation period under section 134. An order joining the proposed party must be made by VCAT before the limitation period expires. 

This distinction is particularly important given that the timing between the filing and determination of a joinder application may not be entirely within the applicant’s control, including any resourcing issues faced by the Tribunal. As noted by the Supreme Court on appeal:

“There is nothing in the text, context or purpose of s 134 to suggest that it was intended to remedy the resourcing issues faced by VCAT.”

The decision of the Supreme Court in Cavey therefore changes the risk assessment required when commencing or defending building proceedings approaching the 10-year deadline. Parties should identify potential additional parties as early as possible and should not assume that filing an application for joinder within the limitation period will preserve their rights under section 134.

Where the limitation period is approaching, practitioners might also need to consider whether commencing separate proceedings against the proposed party is necessary rather than relying solely upon an application to join that party to existing VCAT proceedings. Doing so may be a practical response to the Court’s construction of when an action is “brought”.

For owners, builders, developers and other persons involved in building disputes, the decision reinforces the importance of obtaining early advice about all potential parties to a claim, particularly where the relevant building work is approaching the 10-year limitation period (04.

How we can help

Best Hooper’s Dispute Resolution Team regularly acts in complex building disputes, including VCAT proceedings involving limitation periods and joinder applications.

If you require advice regarding a building dispute or the operation of section 134 of the Building Act, please do not hesitate to contact our office.