Cavey v Owners Corporation: Joinder and the 10-year building action limit
Introduction
A building action against a new party is brought on the date VCAT orders joinder. The date the application is filed does not count. The Supreme Court decided this in Cavey v Owners Corporation PS 719168C [2026] VSC 667 on 13 October 2026, and it matters for anyone relying on the 10-year limit in section 134(1) of the Building Act 1993 (Vic).
Background
An Owners corporation sued a builder, Buildstruct Group Pty Ltd, in VCAT over alleged defects in an 11-apartment development in Caulfield South. The occupancy permit was issued in April 2015, so the 10-year period ran out in April 2025. In June 2024, the owners corporation applied to join Mark Cavey, a director of Buildstruct, alleging he was a builder of the development. The application was heard in July 2025 and decided in December 2025, after the period had expired.
A VCAT senior member followed an earlier VCAT decision, O'Shea, and allowed the joinder, reasoning that tribunal delays should not defeat an applicant who filed in time.
The decision
The Honourable Ian Irving granted leave to appeal, allowed the appeal and dismissed the joinder application. There were three main points.
First, VCAT cannot backdate its orders. Its powers come entirely from statute, and section 118 of the VCAT Act says an order takes effect once it is made or at a later time the order specifies. The Owners Corporation conceded this.
Second, "brought" in section 134(1) means commenced, and a building action against a new party is commenced when VCAT orders joinder. Joinder needs the tribunal's leave, so it is a decision and not a clerical step. Treating the filing date as the relevant date would create uncertainty about when the limit expires, which is the problem s 134 was enacted to remove.
Third, the cases relied on by the Owners Corporation did not help. Barnes and Re Keystone involved claims or motions filed as of right. H Building was a summary dismissal decision where the point was only arguable, and it concerned a contribution claim with a shorter limitation period. Nothing in section 134 suggests it was meant to accommodate VCAT's resourcing problems. The decision applies Lendlease Engineering Pty Ltd v Owners Corporation No 1 PS526704E [2022] VSCA 105, which held that adding a party after a limitation period has expired would defeat the limitation defence.
Because only one outcome was open, the Court made substitute orders dismissing the application instead of remitting it to VCAT.
Conclusion
Applicants who need to join a party in the Building and Property List should treat the end of the 10-year period as the date by which the order must be made, and apply well before it. Mr Cavey's counsel also pointed out that the Owners Corporation could have started a fresh proceeding against him, although the Court did not decide that. Respondents with a limitation defence should check when the joinder order was made, not only when the application was filed.
To learn more about any of the matters discussed here, or if you require legal assistance, please contact Chris Moshidis, Director and Principal Lawyer on +61 3 9521 7956 or chris@urbanlawyers.com.au.