How long does a builder have to warranty their workmanship?

Hardiman’s Case Confirmed – Domestic Builder liable for 10 years

This question could not be properly answered and was a subject of a great debate before 6 August 2014, when the Victorian Court of Appeal handed down a long-awaited decision of Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165 (“Brirek”)

Prior to Brirek there was an argument that, despite the limitation period prescribed by section 134 of the Building Act 1993 (Vic), i.e.10 years of the date of the occupancy certificate issue, it would only apply for actions in tort (negligence) and not for actions in contract.  It was argued that for action in contract, section 5 of the Limitation of Actions Act 1958 (Vic) applied, namely a limit of 6 years.

The Brirek decision has stopped this argument by reaching the following conclusion:

  1. Building action has a limitation period prescribed in section 134 of the Building Act;
  2. Section 134 states very clearly that no building action can be brought upon the expiration of 10 years after the issue of an occupancy permit;
  3. This limitation is imposed despite anything stated in any other Act (including the Limitation of Actions Act);
  4. Separating building actions into those in contract and those in tort imposes unwarranted limitations;
  5. The time limit for bringing the action in contract and in tort is 10 years from the date of the issue of the occupancy permit.

This decision has confirmed the reasoning in the matter of Hardiman v Gory [2008] VCAT 267  that was conducted by Hassall’s Litigation Services on behalf of Mrs Hardiman.

Please do not hesitate to contact our office to discuss what this decision means to you if you are thinking of initiating a proceeding or defending a proceeding in a building action.


This article provides information that is general in nature and is not a substitute for legal advice.