The Victorian Supreme Court has found the Victorian Civil and Administrative Tribunal does not have the power to backdate Orders on a nunc pro tunc basis. Further, an action is commenced against a joined party on the date the Tribunal makes the relevant Order joining that party.
In issue
- whether the Victorian Civil and Administrative Tribunal (VCAT) has authority to make Orders 'nunc pro tunc'
- when proceedings are taken to be 'brought' for the purposes of the limitation period set out in section 134 of the Building Act 1993 (Vic), and
- when a party is taken to have been joined to a VCAT proceeding.
The background
The proceedings arose out of a building dispute regarding construction of apartments at 426 Hawthorn Road, Caulfield South (premises). The Owners Corporation PS 719168C (OC) issued proceedings in VCAT on 20 December 2019 against the building company alleging there were a number of defects in the building works. The building company then joined a variety of subcontractors.
On 2 May 2024, VCAT granted the OC leave to file an application to join Mr Cavey (Cavey), a director of the building company, as a respondent to the VCAT proceedings.
On 26 June 2024, the OC filed the required joinder application with VCAT. Initially the joinder application was scheduled for hearing on 3 September 2024. However, an application to transfer the proceedings to the County Court was made by one of the other parties. As a result of this subsequent application, the hearing of the respondent’s joinder application was cancelled.
The transfer application was ultimately unsuccessful, and the joinder application was eventually re-scheduled.
VCAT hearing and determination
At the hearing of the joinder application on 2 July 2025, it was agreed between the parties:
- the occupancy permit for the premises was issued on 17 April 2015
- the limitation period set out in section 134 of the Building Act 1993 (Vic) (Building Act) was applicable to the claim proposed against Cavey, and
- the respondent had filed its joinder application on 26 June 2024.
Section 134 of the Building Act provides that '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…'
Cavey opposed the joinder application on the basis any joinder would be out of time, as 10 years had passed since the occupancy permit was issued. It was Cavey’s position the joinder would only occur once VCAT made the relevant Orders and, given it had already been more than 10 years, the time within which to bring a building action against him had expired on 16 April 2025.
The OC disagreed with Cavey’s position, and instead considered the building action to be 'brought' when the joinder application was filed, being 26 June 2024.
After hearing the joinder application, VCAT reserved its decision. Then on 17 December 2025, VCAT made an Order that Cavey be joined to the proceedings nunc pro tunc with effect from 26 June 2024.
Reasons for VCAT’s decision were given as follows:
- the VCAT procedure for the joinder of a party is different to that of the Courts
- VCAT’s Building and Property List had developed its own joinder process, by which a third party was provided the opportunity to oppose the joinder and provide reasons
- VCAT had no power to extend or override the limitation period in section 134 of the Building Act
- the principles set out regarding joinder in O’Shea v Bendigo Urban Investments Pty Ltd [2024] VCAT 665, should be adopted. In that case, the date the application was made was treated as the date of joinder, and
- the Senior Member considered this to be fair, having noted the practical difficulties parties would face if the date of joinder was the date the Order was made given 'VCAT’s current lack of resources'.
The decision on appeal
Cavey appealed VCAT’s determination on two grounds:
- the joinder application was statute barred and, therefore, ought to have been dismissed, and
- VCAT did not have the power to override the limitation period in section 134 of the Building Act.
On appeal it was also necessary to determine whether VCAT had the power to Order retrospective operation of Orders on a nunc pro tunc basis. The Court ultimately concluded that VCAT did not have such power.
At the hearing of the appeal it was conceded by the OC that VCAT did not have the power to make Orders on a nunc pro tunc basis. In its judgment, the Court found a Court’s ability to ante-date Orders was derived from its inherent jurisdiction. However, VCAT’s jurisdiction was solely derived from statute, and no such power had been conferred on it. The Court also noted section 118 of the Victorian Civil and Administrative Act 1998 (Vic) (VCAT Act) in which the legislation states 'An order of the Tribunal comes into effect immediately after it is made, or at such later time as is specified in it'.
Further, VCAT’s action in backdating the Order was inconsistent with the Court of Appeal’s decision in Lendlease Engineering Pty Ltd v Owners Corporation No 1 PS526704E [2022] VSCA 105, in which it was held the ability to join a party to proceedings under section 60 of the VCAT Act did not enable VCAT to join parties to 'defeat a limitation defence'. In permitting VCAT to join a party on this basis would also be contrary to the provisions of section 134 of the Building Act, which state the limitation period applies 'despite anything to the contrary in the Limitation of Actions Act or in any other Act or law'.
This is supported by the English Court of Appeal decision in Re Keystone Knitting Mills’ Trade Mark [1929] 1 Ch 92, in which the Court held that either the court or tribunal has the jurisdiction to make an Order, or it does not. The jurisdiction 'cannot be conferred by ante-dating an order'.
The Court then went on to consider the central issue of whether a building action was 'brought' when the joinder application was filed or when Orders were made joining the party to the proceedings.
One of the central purposes of the Building Act is set out in section 1, being 'to limit the periods within which building actions and plumbing actions may be brought'.
The Court found the word brought meant commenced. This was consistent with the wording of section 118 of the VCAT Act, as well as VCAT’s Practice Note which requires an Order of the Tribunal if a party is to be joined to proceedings.
Therefore, the Court held that the building action against Cavey was not brought within the 10 year limitation period and the application to join Cavey should be dismissed.
Impact for future claims
This decision confirms it is not sufficient simply to file an application to join a party to a VCAT building action prior to the expiration of the limitation period in section 134 of the Building Act. Parties must now allow sufficient time for VCAT to also hear and determine the joinder application before the limitation period expires.
