Duncan v Bert Farina Constructions Pty Ltd - [2023] SADC 37

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DUNCAN & ANOR v BERT FARINA CONSTRUCTIONS
PTY LTD

[2023] SADC 37
Judgment of her Honour Judge Thomas
19 April 2023
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
LIMITATION OF ACTIONS - LIMITATION OF PARTICULAR ACTIONS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - PARTICULAR PLEADINGS - DEFENCE
The Applicants are the current owners of a house where building work was performed by the Respondent builder for a previous owner. The Applicants instituted this proceeding claiming damages for defective building work relying on breaches of statutory warranties under the Building Work Contractors Act 1995 (SA).
Whilst it agreed that the relevant work was “domestic building work” performed under a “domestic building work contract”, both within the meaning of the Building Work Contractors Act 1995 (SA), there is a dispute as to when the relevant building work was completed and whether the Applicants’ claim is statute-barred by reason of s 32(5) of the Building Work Contractors Act 1995 (SA).
In this context, the parties asked the Court to determine the following preliminary question of law identified by the parties as arising on the facts of this proceeding.
Whether the time within which proceedings must be commenced for ‘damages’ for defective building work relying on a breach of statutory warranty under ss 32(2) and (3) of the Building Work Contractors Act 1995 (SA) is:
(a) five (5) years after completion of the building work by reason of s 32(5) of the Building Work Contractors Act 1995 (SA); or
(b) ten (10) years after completion of the building work by reason of s 159(1) of the Planning, Development and Infrastructure Act 2016 (SA) and/or s 73(1) of the Development Act 1993 (SA).
Held:
In proceedings for ‘damages’ for defective building work relying on breach of a statutory warranty under ss 32(2) and (3) of the Building Work Contractors Act 1995 (SA), an individual respondent may elect to plead the expiry of the non-extendable five-year limitation period in s 32(5) as a defence. Properly read, s 73 of the Development Act 1993 (SA) and its successor s 159 of the Planning, Development and Infrastructure Act 2016 (SA) do not displace the shorter five-year period in s 32(5) of the Building Work Contractors Act 1995 (SA).
Building Act 1971 (SA); Building Act 1993 (Vic) s 1, s 3, s 134; Building Work Contractors Act 1995 (SA) s 3, s 32, s 37, s 40, s 42; Builders Licensing Act 1967 (SA); Builders Licensing Act 1986 (SA) s 27, s 34; Builders Licensing Amendment Act 1983 (SA) s 19n, s 19o; Defective Houses Act 1976 (SA) s 4; Development Act 1993 (SA) s 4, s 72, s 73; Domestic Building Contracts Act 1995 (Vic) s 3, s 8, s 9, s 20; Legislation Interpretation Act 2021 (SA) s 14, s 16; Limitation of Actions Act 1936 (SA) s 35, s 45, s 48; Limitation of Actions Act 1958 (Vic) s 5, s 33; Planning, Development and Infrastructure Act 2016 (SA) s 3, s 158, s 159; Statutes Repeal and Amendment (Development) Act 1993 (SA) s 4, referred to.
Brisbane City Council v Amos (2019) 266 CLR 593; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Price v Spoor (2021) 270 CLR 450; Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355; SAS Trustee Corporation v Miles (2018) 265 CLR 137; State of Western Australia v Wardley Australia Limited (1991) 30 FCR 245; SZTAL v Minister for Immigration (2017) 262 CLR 362; The Commonwealth v Verwayen (1990) 170 CLR 394, applied.
Aussie Blinds and Canvas Products Pty Ltd v Smith and Anor [2015] SADC 154; Walford Anglican School for Girls Inc v Romaldi Constructions Pty Ltd & Anor [2020] SADC 146, distinguished.
Attorney-General (NSW) v Brewery Employees Union & Ors (1908) 6 CLR 469; Aistrope v Housing Trust of South Australia [2018] SASC 33; Attorney-General (Cth) v Oates (1999) 198 CLR 162; Aubrey v R (2017) 260 CLR 305; Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd (Nos 1 and 2) [2015] 48 VR 558; Edwards v Virgin Blue International Pty Ltd [2020] SASCFC 98; Forlyle Pty Ltd v Tiver [2007] SASC 464; Goodwin v Phillips (1908) 7 CLR 1; Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515, considered.

DUNCAN & ANOR v BERT FARINA CONSTRUCTIONS PTY LTD
[2023] SADC 37
Civil
Overview
Preliminary Question of Law
The Answer
Factual Background
The Parties’ Contentions
The Applicants’ Contentions
The Respondent’s Contentions
Approach to Statutory Construction
Text: The Relevant Provisions
Sections 32(5) and (6)
Sections 73 and 159
Their Effect as Statute of Limitation Provisions
No Clear Conflict or Inconsistency
Overlapping Fields of Operation
Breach of ‘Statutory Duty’ and ‘Statutory Warranty’
The Introductory Words
Context and Purpose: The Regulation of Building Work in South Australia
The Regulation of Domestic Building Work
Support from the Legislative History
The Regulation of Building Work Generally
Operational Consequences
Extrinsic Materials
Prior Authority
Brirek
Aussie Blinds
Walford
Conflict between General and Specific Provisions
Costs and Form of Judgment
Annexure A

Overview
Preliminary Question of Law

The Court is asked to determine the following preliminary question of law identified by the parties as arising on the facts of this proceeding.[1]
Whether the time within which proceedings [must be commenced] for damages for defective building work relying on a breach of statutory warranty under ss 32(2) and (3) of the Building Work Contractors Act 1995 (SA) is:
(a) five (5) years after completion of the building work by reason of s 32(5) of the Building Work Contractors Act 1995 (SA); or
(b) ten (10) years after completion of the building work by reason of s 159(1) of the Planning, Development and Infrastructure Act 2016 (SA) and/or s 73[(1) of the] Development Act 1993 (SA).
[1] Part 2, Agreed List of Issues (FDN 16).
This question raises an important issue in South Australia as to the applicable limitation period for claims for damages made by building owners (‘house’ owners)[2] against builders[3] for defective building work in proceedings relying on breach of the statutory warranties implied into every domestic building work contract by s 32(2) of the Building Work Contractors Act 1995 (SA) (Building Work Contractors Act).
[2] This shorthand description is used for convenience. The relevant part of the Building Work Contractors Act addressing “domestic building work” is directed at “buildings” that are “houses” meaning “building[s] intended for occupation as a place of residence but does not include a building of a class prescribed by regulation,” all as defined in s 3(1).
[3] For convenience, the generic term “builder” will be used to refer to a “building work contractor”.
The Applicants submitted the Court should find that the applicable limitation period is 10 years (after completion of the building work) because both s 73 of the Development Act 1993 (SA) (Development Act) and its successor provision, s 159 of the Planning, Development and Infrastructure Act 2016 (SA) (PDI Act), in effect replace the five-year limitation period in s 32(5) of the Building Work Contractors Act.
The Respondent submitted the applicable limitation period is five years (after the completion of the building work) because the Development Act and the PDI Act limitation provisions do not apply to breach of statutory warranty claims brought under the Building Work Contractors Act.[4]The former, more general, provisions should not be read literally as affecting the more specific provision, s 32(5) of the Building Work Contractors Act. There is no basis for finding the legislature intended to replace the five-year limitation period.[5]
[4] Written Submissions of the Respondent (FDN 17) [13].
[5] Written Submissions of the Respondent [17].
The parties agreed the question is one of statutory construction, each emphasising different features of the text, context and purpose of the relevant provisions in support of the construction they favoured.
The Answer
The question identified by the parties assumes the relevant provisions prescribe inconsistent limitation periods that cannot apply concurrently where their fields of operation overlap, requiring a constructional choice to be made as to which is intended to be the leading provision. As the Applicants squarely put the issue:[6]
…there is inconsistency between the BWCA provisions and the DA/PDIA provision, because one provides a limitation period of five (5) years and the other provides a limitation period of ten (10) years. Both provisions provide that the limitation period cannot be extended.
[6] Written Submissions of the Applicants (FDN 12) [24].
On reflection, this is an inappropriate starting point having regard to the established and well-understood meaning of the relevant provisions as ordinary statutes of limitation. The relevant provisions are each in a form long settled by judicial decision that is not to be taken literally and merely provides a defence to a cause of action that must be pleaded by a respondent if the expiration of the limitation period is to be given effect by a court.
As the High Court has explained the effect of statutes of limitation on many occasions, and most recently in Price v Spoor,[7] the relevant provisions bar an applicant’s remedy, but not an applicant’s right or right to bring an action. They do not extinguish a cause of action or apply automatically. The relevant limitation provisions give effect to the statutory purpose of ensuring finality in litigation by conferring a ‘right’ on an ‘individual respondent’ in a particular case to ‘elect’ to plead a limitation period as a defence that is ineffective in barring an applicant’s remedy unless and until pleaded.[8]
[7] (2021) 270 CLR 450.
[8] Ibid at [41] per Gageler and Gordon JJ.
As such, statute of limitation provisions are not statutory permission to commence an action within, or simply a prohibition on commencing an action outside, a specified time period.
It follows that absent some compelling indication that the legislature intended to the contrary, where more than one limitation period applies to any cause of action on which an applicant has chosen to rely, a respondent may elect to plead by way of defence the limitation period that is the shortest and most advantageous to it.[9] Accordingly, a longer limitation period does not ordinarily exclude or enlarge a shorter limitation period where both apply.
[9] Brisbane City Council v Amos (2019) 266 CLR 593.
Once the effect of the relevant provisions as statutes of limitation is properly understood, it is plain that the real issue here is whether they should be construed as being incapable of concurrent operation where their fields of operation potentially overlap in proceedings for breach of transmissible statutory warranty under the Building Work Contractors Act. That is, are there judicially cognisable indications that, in enacting s 73 of the Development Act and its successor provision, s 159 of the PDI Act, the legislature intended there would be one uniform limitation period in any building action for damages for economic loss or rectification costs resulting from defective building work, despite the specific provisions in the Building Work Contractors Act regulating domestic building work?
Ultimately, having regard to the text, context and evident purpose of the relevant provisions, I have concluded s 73 of the Development Act and its successor, s 159 of the PDI Act, do not displace the five-year limitation period in s 32(5) of the Building Work Contractors Act.
For the purpose of answering the question, I have accepted there is potential overlap between the fields of operation of the relevant provisions in actions brought by ‘house’ owners against builders claiming compensation for economic loss or rectification costs resulting from defective domestic building work. That said, I am not strongly persuaded that the relevant provisions should be read as addressing the same relief in such actions and therefore as overlapping (or vice versa). In any event, I do not consider any such overlap is determinative. Turning back to the text, the introductory words of s 73(1) of the Development Act and s 159(1) of the PDI Act[10] should not be read literally as indicating the legislature intended there would be universal conflict between these provisions and other Acts or laws where their fields of operation overlap. They merely indicate that the 10‑year limitation period should prevail where conflict is in fact found between any relevant provisions and have no operation where there is no true conflict, as is the case where two statute of limitation provisions apply.
[10] That is, “Despite the Limitation of Actions Act 1936, or any other Act or law …”.
The Building Work Contractors Act is not expressly referenced in the introductory words, unlike the Limitation of Actions Act 1936 (SA) (Limitations of Actions Act). While the Building Work Contractors Act is clearly “any other Act”, this alone is not a compelling indication that the legislature intended to replace the non-extendable five-year limitation period in s 32(5) of the Building Work Contractors Act with a longer 10-year period.
In the absence of any clear or compelling textual indications, the answer to the question turns on the evaluation of the relative coherence of the competing constructional choices as to the legal meaning of the relevant provisions and their identified objects and policy intents. In this regard, the construction favoured by the Applicants sits most uncomfortably with the legislative scheme comprised in Part 5 of the Building Work Contractors Act, where s 32(5) is found. Replacing a five-year limitation period with a 10-year period would materially disrupt the careful balance the legislature has provided between the interests of builders and ‘house’ owners in affording ‘house’ owners consumer protection in the form of transmissible statutory warranties. In giving effect to the statutory purpose of finality in litigation relying on breach of statutory warranty, the legislature has taken the view that a five-year period from completion of the building work is a reasonable time for enforcing any such breach and allowing builders (and their insurers) certainty as to their litigation liability after completion of the relevant building work.
The policy intent of s 32(5) of the Building Work Contractors Act is reinforced by its legislative history. A five-year limitation period favouring builders has been a key feature of the statutory scheme otherwise extending the liability of builders in favour of ‘house’ owners by the implication of transmissible statutory warranties since 1976. It would be incongruous for the legislature in enacting s 73 of the Development Act in 1993 (and its successor s 159 of the PDI Act in 2016) to have intended to materially disrupt the careful balancing of builders’ and ‘house’ owners’ rights and liabilities by replacing such a fundamental limitation on builders’ liability for breach of statutory warranty without saying so in the clearest of terms and absent any compelling textual or contextual indications to support such a significant implication. That the legislature did not expressly say so and that there are no other unequivocal indications of such an intent is an important consideration in this case.
The operational consequences of the alternative constructions of the relevant provisions tell in favour of their concurrent operation where they potentially overlap. On the Applicants’ construction, a 10-year limitation period would apply to breaches resulting from defective building work in an action for breach of statutory warranty under the Building Work Contractors Act, but a five-year period would apply to other breaches such as breaches resulting from delay. Different limitation periods would apply in an action for breach of statutory warranty under the Building Work Contractors Act depending on the relief sought. It should be assumed that the legislature would not have intended such inconsistency and incoherence in regulating builders’ liability for defective domestic building work.
Finally, the authorities relied on by the Applicants do not concern the Building Work Contractors Act. A close examination shows they are not sufficiently analogous to be of relevant assistance in resolving the preliminary question of law before this Court.
This means it was open to the Respondent in this case to plead the shorter five-year limitation period under s 32(5) of the Building Work Contractors Act, as it did. This does not make the longer limitation period in s 73 of the Development Act or s 159 of the PDI Act redundant if it were later to apply on expiry of the 10‑year limitation period.
Properly construed in this way, the relevant limitation provisions operate harmoniously and coherently to give effect to the clear legislative purpose of ensuring finality in litigation over defective building work generally and, specifically, by providing a stricter limit in proceedings for breach of the transmissible statutory warranties implied into every domestic building work contract. Importantly, the careful balancing of the competing interests of ‘house’ owners and domestic building contractors provided in the Building Work Contractors Act is not undermined. Nor is the policy intent of s 73 of the Development and s 159 of the PDI Act in ensuring finality in general building actions and greater certainty in ascertaining such finality compromised by the concurrent operation of the stricter limitation period in s 32(5) of the Building Work Contractors Act in proceedings for breach of a statutory warranty.
Accordingly, the answer to the preliminary question of law is as follows.
In proceedings for ‘damages’ for defective building work relying on breach of a statutory warranty under ss 32(2) and (3) of the Building Work Contractors Act 1995 (SA), an individual respondent may elect to plead the expiry of the non-extendable five-year limitation period in s 32(5) as a defence. Properly read, s 73 of the Development Act 1993 (SA) and its successor s 159 of the Planning, Development and Infrastructure Act 2016 (SA) do not displace the shorter five-year period in s 32(5) of the Building Work Contractors Act 1995 (SA).
Factual Background
The following background facts were agreed by the parties[11] or are otherwise uncontentious because of formal admissions made in the Respondent’s defence.
[11] Part 1, Agreed Background Facts (FDN 16).
The Applicants instituted this proceeding against the Respondent on 13 July 2022,[12] claiming damages for defective building work relying on breaches of statutory warranties under the Building Work Contractors Act and negligence.[13] The question concerns one element of the Applicants’ claim.[14]
[12] Claim and Statement of Claim (FDN 1).
[13] The loss and damage allegedly suffered by the Applicants as pleaded is the cost to rectify defective building work and, in the alternative, diminution in the value of the property: Statement of Claim [8].
[14] Written Submissions of the Applicants (FDN 12) [7].
The Respondent is the builder who performed building works (the Works) under a written contract (the Contract) dated 13 August 2014 made with The South Australian Housing Trust (SAHT).
The Works the subject of dispute in this proceeding are “domestic building work”,[15] the Contract is a “domestic building work contract”[16] and the builder is a “building work contractor”,[17] all within the meaning of the Building Work Contractors Act. The meanings and application of these definitions are not controversial. Nor is it controversial that the Works are also “building work” within the meaning of s 73 of the Development Act and s 159 of the PDI Act.[18]
[15] See [96] below for the full definition.
[16] See [100] below.
[17] See [94] below.
[18] As defined by s 4(1) of the Development Act and s 3(1) of the PDI Act.

The Applicants are the current owners of the house where the relevant building work was done. They acquired the house (and the land where it is) from SAHT on about 29 June 2016.[19] By operation of s 32(3) of the Building Work Contractors Act, the Applicants are the successors to the rights of SAHT, their predecessor in title in respect of the statutory warranties arising under that Act.
[19] Written Submissions of the Applicants [5].
The parties do not agree on the date when completion of the Works occurred. The Respondent builder asserts that under the Contract, the Works reached practical completion on 10 December 2015 and the defects liability period ended on 10 March 2016. Renewal SA on behalf of SAHT agreed to release the bank guarantee for the project (including the Works on the Property) on 27 June 2016.
The Applicants plead that they do not know the precise particulars of the Contract or the completion date.[20] In any event, they say further that the time limit for commencing proceedings for breach of statutory warranty under the Building Work Contractors Act is 10 years from the date of completion by reason of s 73 of the Development Act (now s 159 of the PDI Act).[21]
[20] Statement of Claim [3.1].
[21] Statement of Claim [9.1].
The Respondent pleads in its defence that the applicable limitation period is five years, and the Works were completed at the latest by 27 June 2016, such that the Applicants’ claim had to have been commenced by no later than 27 June 2021 and is statute-barred.[22]
[22] Defence [7], [9.3].
The date of completion of the Works from which the five-year limitation period under the Building Work Contractors Act runs is a matter to be determined at trial.
The Parties’ Contentions
The Applicants’ Contentions
In their written submissions,[23] the Applicants advanced six mutually reinforcing reasons as to why their claim for damages in the proceedings relying on breach of the statutory warranties under the Building Work Contractors Act is only governed by the 10-year limitation period in the Development Act and the PDI Act. At the heart of the Applicants’ contentions was their starting point that there is a clear conflict between the relevant provisions that must be resolved in favour of the obviously leading provisions: s 73 of the Development Act and its successor, s 159 of the PDI Act.[24]
[23] Written Submissions of the Applicants [24].
[24] Written Submissions of the Applicants [24]-[26].
The first reason advanced was that a claim for compensation for breach of a statutory warranty under the Building Work Contractors Act is a claim for damages for economic loss or rectification costs within the meaning of s 73 of the Development Act and s 159 of the PDI Act, and therefore governed by the 10-year limitation period. Where a claim results from defective domestic building work and reading ‘damages’ as meaning ‘compensation’, this proposition is uncontroversial and should be accepted as identifying the potential overlap between the fields of operation of the relevant provisions.
Secondly and thirdly, as emphasised by the Applicants, ss 73 and 159 are expressed to apply “Despite the Limitation of Actions Act 1936, or any other Act or law,” and the Building Work Contractors Act is clearly “another Act”. These propositions are also uncontroversial in so far as they are literally correct. However, this begs the critical question as to what the legislature intended these words to mean when properly construed, having regard to their text, context and statutory purpose. Any suggestion that these introductory words must be read as creating or meaning there is in fact universal conflict should be rejected, as is discussed below.[25]
[25] See [85] and following below.
Fourthly, the intention of the legislature in enacting s 73 of the Development Act (and its successor, s 159 of the PDI Act) was to provide one uniform limitation period for damages claims for economic loss and rectification costs in building actions resulting from defective building work, including claims for breach of statutory warranty arising under the Building Work Contractors Act. This proposition was core to the Applicants’ contentions as to the proper statutory construction of the relevant provisions. Plainly, identification of statutory purpose is key to the present controversy.
Fifthly, the construction urged by the Applicants is consistent with the decisions of the Victorian Supreme Court of Appeal in Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd (Nos 1 and 2 (Brirek)[26] and the previous decisions of this Court in Walford Anglican School for Girls Inc v Romaldi Constructions Pty Ltd & Anor (Walford)[27] and Aussie Blinds and Canvas Products Pty Ltd v Smith and Anor (Aussie Blinds).[28]Whilst the Applicants properly conceded these decisions are not strictly binding on this Court,[29] a close examination shows they concerned different questions and statutory contexts and do not relevantly assist here.
[26] [2015] 48 VR 558.
[27] [2020] SADC 146.
[28] [2015] SADC 154.
[29] T16.24-.27; T39.27-.30; T41.10.
Finally, the Applicants submitted that the alternative construction pressed by the Respondent is not open in South Australia, unlike in New South Wales, where legislation makes it clear by express words that an equivalent provision does not extend to statutory warranties in domestic building contracts. It is uncontroversial that the legislation in New South Wales is different in so far as it expressly provides that it does not operate to extend any limitation period under the relevant Acts.[30] It does not follow that the position in South Australia therefore must be different so that s 73 of the Development Act and s 159 of the PDI Act should be construed as providing a single limitation period of 10 years that displaces s 32(5) of the Building Work Contractors Act.
[30] Section 6.20(4) of the Environmental Planning and Assessment Act 1979 (NSW). Written Submissions of the Applicants [31].
The Respondent’s Contentions
The Respondent’s contentions can be distilled as follows.
Ultimately, when proper regard is had to the text, context and statutory purpose of the relevant provisions, there is no basis for concluding that the legislature intended s 73 of the Development Act (and its successor s 159 of the PDI Act) to modify, replace or affect s 32(5) of the Building Work Contractors Act.
This is because it should be assumed that the legislature intended the relevant provision to give effect to harmonious goals. Where there is conflict between the literal wording of provisions, that conflict should be resolved by a construction that permits their coherent operation by simply reading the more general provisions in ss 73 and 159 as not applying to the more specific provision concerning breach of a statutory warranty under the Building Work Contractors Act.[31] This is the approach explained in Goodwin v Phillips[32] to the effect that the specific provision should be read as a proviso to the general provision, such that the more general provision is deemed not to apply.
[31] T75.4-.7.
[32] (1908) 7 CLR 1 at 14 per O’Connor J.
Further, the legislative history shows a clear policy intent against the construction favoured by the Applicants that the five-year limitation period is replaced by a 10‑year period. For over 45 years in South Australia, for domestic building work contracts the legislature has provided ‘house’ owners with the additional protection of transmissible statutory warranties that may be enforced. For 35 of those years, the time for commencing proceedings has been limited to five years after completion of the building work. It therefore should not be presumed that the legislature intended the general provisions of s 73 of the Development Act and s 159 of the PDI Act to impliedly replace the more specific provision in s 32(5) of the Building Work Contractors Act, given its policy intent and historical antecedents.
The operational consequences do not support such a policy intent, or the construction contended by the Applicants.
Finally, the decisions in other cases in this Court and interstate are of limited assistance and not determinative.
Approach to Statutory Construction
The general principles for determining the meaning of a statutory provision are well settled and were only contentious as to the outcome of their application in this case. They may be relevantly stated as follows.
The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended.[33]
[33] Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at [78] per McHugh, Gummow, Kirby and Hayne JJ.
The contemporary approach to statutory interpretation in Australia was explained by the High Court of Australia in SZTAL v Minister for Immigration[34] as follows.
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. [35]
[34] (2017) 262 CLR 362 at 368 [14] per Kiefel CJ, Nettle and Gordon JJ.
[35] Footnotes omitted.
This approach insists that context in its widest sense and statutory purpose are to be considered in the first instance and at the same time as the text, not just when ambiguity might be thought to arise on the text, and may favour a very different construction when “the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation.”[36] Further, a reasonably open alternate construction that more closely conforms to the legislative intent may be preferred by a court where inconvenience or improbability results from the literal meaning.[37]
[36] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ referring to Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 368 per McHugh JA.
[37] Ibid, citing Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-321.
The application of these general principles to the text of a statutory provision may present what has often been referred to as a ‘constructional choice’ where the legal meaning does not correspond with the literal or grammatical meaning. As Gageler J observed in SZTAL,[38] this choice is:
…sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from “a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural”, in which case the choice “turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.”
Integral to making such a choice is discernment of statutory purpose…
[38] Ibid at [38] citing Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 at [66].
The task of statutory interpretation was described by Edelman J in SAS Trustee Corporation v Miles[39] in the following way.
…[it] involves the legal application of the meaning of statutory words, as interpreted, to the facts of a case. In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd, this Court said that the task of statutory construction must begin and end with the text of the statute. That statement does not mean that the text of a statute must be interpreted only according to the range of semantic meanings of the individual words. It means only that the interpretation of a statute, like any other legal instrument, is an interpretation of its words. Those words are interpreted in their context and in light of their purpose although legal rules can sometimes exclude or restrict the use of some context. In ascertaining the reasonably intended meaning of Parliament context is, literally, those matters to be considered (simultaneously) together with the text. Context can give words an interpretation that is the opposite of their ordinary meaning and grammatical sense. Context can also permit a construction of words that excludes their application to matters that would have fallen within the application of their literal meaning. However, as with contractual interpretation, where “the clearer the natural meaning the more difficult it is to justify departing from it”, so too in statutory interpretation “questions of degree arise” and it will be more difficult to displace an interpretation that “has a powerful advantage in ordinary meaning and grammatical sense”.
[Citations omitted]
[39] (2018) 265 CLR 137 at [64].
In Edwards v Virgin Blue International Pty Ltd,[40] the Full Court of the Supreme Court of South Australia, in referring to the approach described in SAS Trustee, reiterated that the choice between meanings may ultimately turn on an evaluation of the relevant coherence of each within the relevant statutory scheme and its identified objects or policies.
[40] [2020] SASCFC 98 at [45].
The High Court in Project Blue Sky Inc[41] emphasised the importance of maintaining the unity of a statutory scheme when reconciling supposed conflict between legislative provisions.[42]
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require a court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[Citations omitted]
[41] Op cit.
[42] Ibid at [70] per McHugh, Gummow, Kirby and Hayne JJ.
The task of statutory construction may be assisted by a wide range of specific common law principles, some of which have been expressed in legislation. Most important is “the unqualified statutory instruction”[43] in s 14 of the Legislation Interpretation Act 2021 (SA) that the interpretation best achieving the purpose or object of the Act or the instrument is to be preferred to any other interpretation, whether that purpose or object is expressly stated or not.[44]
[43] SZTAL op cit at [39] per Gageler J, referring to the equivalent provision in the Acts Interpretation Act 1901 (Cth), s 15AA.
[44] Its repealed predecessor, s 22 of the Acts Interpretation Act1915 (SA), is expressed in the language of giving preference to the construction that promotes the purpose or object of the Act, where a provision is open to one or more constructions.
However, in considering the common law principles relied on by the parties in aid of construction of the relevant provisions, it must be recognised these are not inflexible rules, their application in particular circumstances may be nuanced and there may be tension between principles so that they must be viewed as tools of analysis in the task of statutory construction. As such they are ‘servants’ and not ‘masters’.[45] In short, the proper meaning of the relevant provisions is not simply answered by maxims and requires close attention to the text, context and statutory purpose in the first instance.
Text: The Relevant Provisions
[45] DC Pearce Statutory Interpretation in Australia (Butterworths, 9^th ed, 2019) at [2.1], citing Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union (2018) 363 ALR 343 at [79].
Sections 32(5) and (6)
Sections 32(5) and (6) of the Building Work Contractors Act provide:
(5) Proceedings for breach of a statutory warranty must be commenced within five years after completion of the building work to which the proceedings relate.
(6) The period of limitation prescribed by subsection (5) may not be extended.
Sections 73 and 159
Section 73 of the Development Act provides:
73 - Limitation on time when action may be taken
(1)     Despite the Limitation of Actions Act 1936, or any other Act or law, no               action for damages for economic loss or rectification costs resulting from         defective building work (including an action for damages for breach of              statutory duty) can be commenced more than 10 years after completion of              the building work.
(2)     This section does not affect an action to recover damages for death or                 personal injury resulting from defective building work.
(3)     The period prescribed by subsection (1) cannot be extended.
Section 159 of the PDI Act is in identical terms to s 73 of the Development Act and commenced on 1 July 2019.[46]Since s 73 was not repealed until 19 March 2021,[47] both provisions were in force at the expiry of two of the five-year limitation dates relied on by the Respondent.[48] Only s 159 of the PDI Act was in force at the expiry of the latest five-year limitation period relied on by the Respondent.[49]
[46] Planning, Development and Infrastructure Act (Commencement) Proclamation 2019¸ The South Australian Government Gazette, No. 30 - 27 June 2019, page 2320.
[47] Planning, Development and Infrastructure Act (Commencement) Proclamation 2021¸ The South Australian Government Gazette, No. 14 - 4 March 2021, page 822.
[48] That is, 20 November 2020, being five years after the date of practical completion, or 20 February 2021, being five years after the end of the defects liability period. Defence [3.5.1], [3.5.2].
[49] That is, 27 June 2021, five years after the date of the final completion certificate: Defence [3.5.3], [7.3].
Whether one or other or both are ultimately relevant in this case is a question of some complexity, depending on the effect of the relevant provisions when properly construed, the extent to which s 159 of the PDI Act may have retrospective effect, and when the disputed date of completion of the relevant building work in fact was.
Whilst in submissions the Applicants contended s 159 of the PDI Act is the relevant section,[50] both parties submitted nothing turns on which one is relevant given they are in identical terms.[51] The latter submission should be generally accepted as the basis for resolving the preliminary question of law before the Court.
[50] In their Statement of Claim, the Applicants relied on s 73 of the Development Act: [9.1].
[51] Although the Applicants contend that s 159 of the PDI Act is the relevant provision: Written Submission of the Applicants (FDN 12) [13], [14]; Written Submissions of the Respondent (FDN 17) [10]. See also T74.14-.17.
Although not determinative, consistent with the nature and effect of the relevant provisions as statutes of limitation, the relevant date for determining which of s 73 and/or s 159 relevantly applies should be ascertained by reference to when a respondent’s right to elect to plead any applicable limitation defence first accrues and lapses. In this case, where the limitation period is fixed by reference to the date of completion of the building work, that will depend on the actual date of completion determined at trial and the time for the pleading of defences.
Their Effect as Statute of Limitation Provisions

In submissions, both parties generally referred to the relevant provisions as ‘statute of limitation’ provisions. In oral argument, the Applicants’ counsel described these provisions as being drafted and in the same nature as provisions under the Limitation of Actions Act:[52]
…So they provide for a timeframe within which proceedings can be instituted and the end date for which they can be instituted.
[52] T14.27-.32.
This is literally correct in that each provision prescribes a limitation on the period in which an action must be brought or commenced. However, this is a gloss on the long-established[53] and well-understood effect of a statute of limitation provision. As most recently explained by Kiefel CJ and Edelman J of the High Court in Price v Spoor, by reference to the Court’s earlier statements of the relevant principles, the effect of a statute of limitation provision in the traditional form is not a bar going to:
…the jurisdiction of the court to entertain the claim but rather to the remedy available, and therefore to the defences which may be pleaded. The cause of action is not extinguished by the statute and unless a defence relying on the statute is pleaded, the statutory bar does not arise for the consideration of the court. [54]
[53] A failure to plead a limitation defence has been fatal to a respondent’s ability to invoke a Statute of Limitations since at least the early 17^th century. See Price v Spoor op cit at [85] per Steward J citing Thursby v Warren (1628) Cor Car 159 [79 ER 738].
[54] Op cit at [9].
Specific reference was made by their Honours to the reasons of Mason CJ in The Commonwealth v Verwayen[55] in the context of s 5(6) of the Limitation of Actions Act 1958 (Vic),[56] where his Honour said that although the terms of that provision are capable of being read as going to the jurisdiction of the court, statute of limitation provisions have long been held not to have that effect. Instead they bar the remedy or the enforcement of an independently existing right of action, but not the right, creating a defence that must be pleaded if it is to be effective.[57]
[55] (1990) 170 CLR 394 at 405.
[56] And principles of waiver and estoppel that are presently not relevant.
[57] Price v Spoor op cit at [10].
The fundamental difference between the two was further explained by Brennan J in Verwayen[58] as follows:
… a defence under s. 5(6) of the Limitation Act does not create a condition precedent to jurisdiction. It is merely a right conferred on a defendant to defeat a claim brought outside the time limited by the Limitation Act. In Australian Iron & Steel Ltd. V Hoogland, Windeyer J. said:
“It seems that, under the common law system of pleading, when a limitation is annexed by a particular statute to a right it creates, the plaintiff should allege in his declaration that the action was brought within time. On the other hand it is for the defendant to plead the Statute of Limitations as a defence to an action on a common law cause of action as if he does not it is assumed that he intends to waive it: see Chapple v. Durston. However, when issue is joined on a plea of the Statute, the burden of proving the action is within time is on the plaintiff: see cases referred to by Dixon J., as he then was, in Cohen v Cohen. And, even when a time limit is imposed by the statute that creates a new cause of action or right, it may be so expressed that it is regarded as having a purely procedural character, as a condition of the remedy rather than an element in the right; and in such cases it can, it seems, be waived, either expressly or in some case by estoppel: Wright v John Bagnall & Sons Ltd; Lubovsky v Snelling.”
[Citations omitted]
[58] Op cit at 425-426. Similar observations were made by other members of the High Court. See also Toohey J at 473-5, Gaudron J at 486-7 and McHugh J at 497-499.
Generally, it should be assumed that when legislation adopts words that have an established and well understood meaning, Parliament intended these words to have that special meaning.[59] There is nothing textually or contextually present to indicate that this general assumption should not apply here. Accordingly, the relevant provisions are to be read in the conventional way as statute of limitation provisions that bar the remedy and not the right to bring a cause of action to which they apply.
[59] Brisbane City Council v Amos op cit at [23] per Kiefel CJ and Edelman J; Attorney-General (NSW) v BreweryEmployees Union & Ors (1908) 6 CLR 469 at 531; and Aubrey v R (2017) 260 CLR 305 at 323 [34].
This is plain in the case of s 73 of the Development Act and s 159 of the PDI Act, which are expressed in the conventional form as a prohibition against commencing[60] an action to enforce independently existing rights of action after a prescribed time limit:
It has, for example, long been settled by judicial decision that legislative provisions that an action “shall not be brought” is not to be taken literally, and that the provision merely provides a defence to the action that must be pleaded by a defendant if the expiration of the limitation period is to be given effect.[61]
[60] It should be accepted that “bringing” an action is synonymous with “commencing” one.
[61] Price v Spoor op cit at [116] per Gageler and Gordon JJ; Brisbane City Council v Amos ibid at [49] per Keane J.
Understood as statute of limitation provisions, this prohibition is ordinarily not facultative. It is also not statutory permission to undertake proceedings within the prescribed time limit, nor does it confer any rights on an applicant it did not already have before expiry of the prescribed time limit or extinguish those underlying rights. [62]
[62] Brisbane City Council ibid at [20] per Kiefel CJ and Edelman J citing Barnes v Glenton [1899] 1 QB 885 at 891 per Collins LJ.
Section 32(5) of the Building Work Contractors Act is to the same effect. Whilst it is closely ‘annexed’ to a new statutory right created for the benefit of ‘house’ owners in respect of the statutory warranties implied into every domestic building work contract, it is also drafted in the conventional form and should be understood to have the established and well-understood meaning of an ordinary statute of limitation provision. This meaning is reinforced by the identification in s 32(6) of the limitation as a “period of limitation”. There are no clear textual or contextual indications that the five-year time period is prescribed as an incident or condition that is the essence of the new cause of action or right created by the Building Work Contractors Act as opposed to the remedy provided in s 37 of the Act.[63]
[63] Unlike s 4(3) of the Defective Houses Act 1976 (SA) discussed below at [113].
It follows that the relevant provisions are to be understood as being introduced solely for the benefit of a respondent in the actions to which the Acts in which they are found apply. As such, where they apply, they are rights conferred on an individual respondent in a particular case to elect to plead the expiry of a limitation period before any such defence is effective. [64] It also follows that it is not necessary for an applicant to plead compliance with the prescribed time limit as an element of any cause of action in any proceedings brought, whether within or out of time.
[64] Verwayen, op cit at 426 per Brennan J. Price v Spoor op cit at [41] per Gageler and Gordon JJ.
No Clear Conflict or Inconsistency
When regard is had to the established and well-understood meaning of statute of limitation provisions, the Applicants’ submission that there is clear conflict and inconsistency between the relevant provisions because one specifies a five-year period and the other a 10-year period should be rejected.[65]
[65] Written Submissions of the Applicant [24].
There is no logical reason why the relevant provisions cannot operate concurrently[66] because their effect depends on a respondent’s right of election to plead the expiry of the limitation period. Just as an applicant is free to choose the most advantageous cause of action open to it, a respondent is correspondingly free to choose to invoke by way of defence the shortest and most advantageous limitation period where more than one is available. To conclude otherwise would “sit uncomfortably with the traditional understanding” of a limitation period operating as a defence “only if invoked at the option of the defendant.” [67]
[66] Brisbane City Council v Amos op cit at [41] per Gageler J, at [46] per Keane J and at [55] per Nettle J.
[67] Ibid at [40] per Gageler J.
Once this is appreciated, it is plain that the real issue here is whether, having regard to the text, context and statutory purpose of the relevant provisions, the legislature in enacting s 73 of the Development Act and s 159 of the PDI Act nevertheless intended that there would only be one uniform limitation period in any building action, thereby displacing the different non-extendable time period in s 32(5) of the Building Work Contractors Act.
For the reasons discussed below, the answer turns on the evaluation of the relative coherence of the competing constructional choices as to the legal meaning of the relevant provisions within their statutory schemes and identified objects and policy intents, rather than their literal meaning.
Overlapping Fields of Operation
Before turning to the textual indications the Applicants relied on as important and favouring their construction of the relevant provisions, it is necessary to address the question of their potentially overlapping fields of operation. This overlap is the basis of the Applicants’ ultimate submission that s 73 of the Development Act and s 159 of the PDI Act govern the field to the exclusion of s 32(5) of the Building Work Contractors Act in building actions where the remedy sought is ‘damages’ for economic loss or rectification costs for defective building work, whether at common law or under statute.
It was uncontentious and should be accepted that, read literally, the relevant provisions all address actions concerning the performance of defective domestic building work. This follows because there is substantial commonality in the definitions of “building work” the subject of the relevant provisions.
The Applicants further submitted that an action for “damages” for economic loss or rectification costs should be read as including an action for “an order requiring the payment of an amount by way of compensation” as provided for in s 37(6)(b) of the Building Work Contractors Act, bearing in mind the contractual principles for the assessment of damages have been applied in proceedings for breach of statutory warranty under that Act as a matter of course.[68]
[68] Written Submissions of the Applicants [20].
The Applicants’ submission that economic loss or rectification costs resulting from defective building work are losses within the scope of all the relevant provisions is also uncontentious and should be accepted. An applicant’s loss is routinely measured by reference to the monetary cost of rectifying the defective building work or by comparing the value of what was built with the value of what should have been built. This observation is unexceptional, given the ordinary consequences of defective building work.
Sections 73 and 159 both expressly address an action “for damages” and confine their field of operation to “economic loss or rectification costs resulting from defective building work” without specifying any limitation as to the underlying cause of action. However, an action for “damages” is generally understood as meaning an award in money for a breach of contract or a tort[69] and, here, is expressly provided as including damages for breach of statutory duty. The object of an award of damages is compensatory, that is, to give the party who is injured or has suffered loss compensation for the injury or loss suffered. Since an action for damages for breach of statutory duty is not strictly the same as a breach of “statutory warranty,” as discussed below,[70] and different language may be read as confining the scope of ss 73 and 159, a more problematic question arises: do these provisions apply to and include an action for “an order requiring the payment of an amount by way of compensation” as provided for in s 37(6)(b) of the Building Work Contractors Act?
[69] Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 527 per Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ.
[70] See [82] and following below.
One reason the language used in s 37(6)(b) of the Building Work Contractors Act for a monetary remedy is different is because it is only one of the orders the court is empowered to make where it is satisfied there has been a breach of statutory warranty and its text necessarily conforms to the structure and language of s 37 (the powers of the court in relation to domestic building work). The task of the court in making such orders is to identify the loss and damage suffered by reason of the breach[71] and then make "an order requiring the payment of an amount by way of compensation”. In doing so, the court may fix whatever amount it thinks just compensation and is not confined, either by reference to the nature of the loss suffered or the method of valuing such loss in monetary terms, in doing so. This is implicit from the scheme provided in s 37 as to the powers of the court in domestic building work proceedings, noting the express words to this effect in s 37(9)(b) where a person has failed to perform remedial work ordered by the court.
[71] See the preamble to s 37(6).
It is generally appropriate to fix the amount ordered to be paid in accordance with contractual principles because the statutory warranties are expressly implied into every domestic building work contract by s 32(2) of the Building Work Contractors Act. However, it does not follow that where defective domestic building work constitutes a breach of statutory warranty, the nature of the warranty, breach or loss is contractual. It is not, of course, because the warranty and the right to bring proceedings for breach of statutory warranty seeking an order for payment of an amount by way of compensation is conferred by statute.
These textual and contextual indications suggest that in enacting s 73 of the Development Act and s 159 of the PDI Act, the legislature did not intend to interfere with the remedial scheme provided in Part 5 of the Building Work Contractors Act to regulate domestic building work, consistent with the conclusions reached below as to statutory purpose.[72]
[72] See [94] below.
However, a different conclusion follows when regard is had to the substantive effect of an award of “damages” and “an order requiring the payment of an amount by way of compensation” as redress for the same underlying economic loss or rectification costs as a result of defective domestic building work. They have the same effect, and both are forms of monetary compensation ordered by the court. Read in this way, an action for “damages” may be construed as including an action seeking “an order requiring the payment of an amount by way of compensation” for breach of statutory warranty under the Building Work Contractors Act.
This issue is finely balanced. I am not strongly persuaded that the relevant provisions should be read as addressing the same relief in the relevant actions and the textual and contextual indications to the contrary should be disregarded as indicating separate fields of operation or vice versa. However, for the purposes of answering the preliminary question of law here, it should be accepted the relevant provisions may be read as addressing the same relief and therefore as having potentially overlapping fields of operation in actions brought by ‘house’ owners against builders claiming compensation for economic loss or rectification costs resulting from defective domestic building work.
Breach of ‘Statutory Duty’ and ‘Statutory Warranty’
The Applicants submitted that a claim for breach of statutory warranty arising under the Building Work Contractors Act is contemplated by the express inclusion of a “breach of statutory duty” in s 73 of the Development Act and s 159 of the PDI Act. The Respondent contended these provisions should not be characterised in this way because the choice of the word ‘warranty’ in the Building Work Contractors Act is very specific choice of language, and if it was intended that statutory ‘duties’ were to be imposed on builders by s 32(2) of the Building Work Contractors Act, then Parliament would have expressly said so.[73]
[73] T73.37-T74.13.
The Respondent’s submissions should be preferred on this point. The precise and distinct language used in the Building Work Contractors Act to confer rights on ‘house’ owners as against builders is not readily translated into language of statutory obligation or duty where Parliament has used the mechanism of implying statutory warranties into every domestic building work contract and confined the enforcement of those warranties to the applications provided in s 37(2) and the remedies in s 37(6) of the Act.
Accordingly, the reference to a “breach of statutory duty” in s 73 of the Development Act and s 159 of the PDI Act should not be taken as an unequivocal indication that the legislature intended that “damages” include “an order requiring the payment of an amount by way of compensation” such that these provisions would replace the non-extendable limitation period in ss 32(5) and (6) of the Building Work Contractors Act.
The Introductory Words
The Applicants submitted that the introductory words “Despite the Limitation of Actions Act 1936, or any other Act or law…” clearly indicate that the legislature intended that s 73 of the Development Act and s 159 of the PDI Act override any other limitation law within their scope of operation, thereby replacing the inconsistent five-year limitation period in s 32(5) of the Building Work Contractors Act with a 10-year period.
This submission should not be accepted. In my view, the introductory words should be given a more nuanced construction than that favoured by the Applicants.
As a starting point, it should be accepted that it is open to read these introductory words as paramount in the sense that they indicate the legislature’s intention that the provisions they introduce are to displace any obstacle to their operation and exclusively govern where there is inconsistency between their operation and the Limitation of Actions Act or any other Act or law. However, that is not to say that these words can and should only be read in the literal way favoured by the Applicants. Specifically, the introductory words should not be read as indicating the legislature assumed there is in fact universal conflict between these provisions and any other statute of limitation law, including specifically ss 32(5) and (6) of the Building Work Contractors Act. As statute of limitation provisions, the text of the relevant provisions does not shed any light on the question as to whether there is in fact conflict between them and should not be understood as creating conflict where there is none.
The language of the introductory words requires closer attention. The word “despite” has been held to be a synonym for “notwithstanding” based on its dictionary meaning.[74] In the Macquarie Dictionary,[75] the word “notwithstanding” has been given the meaning “without being withstood or prevented by; in spite of.” With this meaning in mind, it is apparent that the word “despite” can be read in a more nuanced way as indicating that ss 73 and 159 are simply to apply without derogation or interference from anything in the Limitation of Actions Act or any other Act or law, rather than indicating the automatic and complete displacement of any other limitation law that would otherwise apply to building actions within their scope.
[74] Attorney-General (Cth) v Oates (1999) 198 CLR 162 at [33] per Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ.
[75] Macquarie Dictionary, March 2023, ‘notwithstanding’, preposition Definition No. 1.

The efficacy of this constructional choice is illustrated by considering the different way in which ss 73 and 159 express the limitation on the time when an action can be instituted as compared to the conventional limitation periods in contract and tort specified in the Limitation of Actions Act that might also apply to actions resulting from defective domestic building work. Under the latter Act, the limitation periods for actions in contract and tort are expressed as running from the date on which the cause of action accrued,[76] dates that may be different and are notoriously difficult to determine in some cases. In ss 73 and 159, the limitation period is expressed as running from the date of completion of the building work, considered to be a more readily ascertainable date as a matter of fact and providing better certainty to builders (and their insurers) as to when their litigation risk ends. It follows that the introductory words may be understood as requiring that the different limitation period prescribed in ss 73 and 159 applies “despite” and without any derogation from the different basis of calculation specified in s 35 of the Limitation of Actions Act, but not exclusively so because both limitation periods may operate concurrently.
[76] Section 35(a) and (c).
The same reasoning applies in the case of s 32(5) of the Building Work Contractors Act where the only difference between the basis of calculation of the limitation period is the specification of a five-year period by comparison to a 10‑year period in s 73 of the Development Act and s 159 of the PDI Act.
The Applicants submitted that the introductory words would be redundant and have no work to do if the Applicants’ favoured construction was not found. This submission should also be rejected.
The utility of the introductory words to ss 73(1) and 159(1) is plain and they have work to do where there is in fact conflict between the operation of these provisions and other limitation laws. For example, in the case of the Limitation of Actions Act, clear conflict arises in the context of extensions of time as provided in s 48 (general power to extend period of limitation) and s 45 (persons under a disability) of the Limitation of Actions Act. This is not because an extension of time by operation of these provisions results in a different and thereby inconsistent limitation period, as the Applicants contended. It is because both provisions are expressed to apply to limitation periods in other Acts or laws[77] that necessarily include both s 73 of the Development Act and s 159 of the PDI Act, which limitation periods are not extendable by operation of s 73(3) and s 159(3) respectively.
[77] Section 45(1) does so by reference to “Where the time for bringing an action or proceeding is limited by this Act, or any other Act or law…” and s 48, “…where an Act, regulation, rule or by-law prescribes or limits the time for – instituting an action; or…”
Notably, no such conflict arises in the case of the limitation period in s 32(5) of the Building Work Contractors Act because it is expressly provided in s 32(6) that it may not be extended.
Context and Purpose: The Regulation of Building Work in South Australia
The Regulation of Domestic Building Work
In South Australia, “domestic building work” is a special class of building work, a concept created by the Building Work Contractors Act and highly regulated by comparison to other building contracts for the evident purpose of the protection of ‘house’ owners as against builders.
The Building Work Contractors Act is directed at the licensing[78] and disciplining[79] of “building work contractors”[80] (that is, builders) generally, and in Part 5 contains the provisions regulating “domestic building work.” This concept was first introduced in predecessor legislation in 1983, as discussed below.
[78] Part 2, 3A and 3B.
[79] Part 4.
[80] Defined in s 3(1) as “(a) a person who carries on the business of performing building work for others; or (b) a person who carries on the business of performing building work with a view to the sale or letting (whether by lease, licence or other agreement) of land or buildings improved as a result of the building work.”
The definition of “domestic building work” is consistent with the more general definition of “building work” found in the Development Act and the PDI Act, except it is confined for the purposes of the Building Work Contractors Act to a “building” that is a “house”. The difference is not otherwise relevant to the determination of the question. In the Building Work Contractors Act:
domestic building work means -
(a)    the whole or part of the work of constructing, erecting, underpinning, altering, repairing, improving, adding to or demolishing a house;[81] or
(b)    the whole or part of the work of excavating or filling a site for work referred to in paragraph (a); or
(c)    work of a class prescribed by regulation.[82]
[81] Emphasis supplied.
[82] Section 3(1).
Whereas in the Development Act and the PDI Act:
building work means work or activity in the nature of –
(a) the construction, demolition or removal or a building (including any incidental excavation or filling of land); or
(b) any other prescribed work or activity;
Part 5 of the Building Work Contractors Act confers important statutory protections on “building owners”[83] where a “building” is a “house” as against “building work contractors” (referred to as ‘builders’ here for convenience). Divisions 1 and 2 provide the requirements for “domestic building work contracts,”[84] ensuring minimum standards in the allocation of contractual risk between builders and vulnerable ‘house’ owners. Divisions 3, 4 and 6 provide other protections that are not presently relevant.[85]
[83] Defined in s 3(1) as meaning “in relation to a domestic building work contract”, “the person for whom domestic building work is or is to be performed under the contract”.
[84] Defined in s 3(1) as meaning “a contract between a building work contractor and another person for the performance by the contractor of domestic building work (including any variation of such a contract) but does not include a subcontract for the performance of domestic building work”.
[85] E.g. building indemnity insurance (Division 3), rights to terminate domestic building work contracts (Division 4) and relief from harsh and unconscionable terms (Division 6).
Accordingly, one of the main objects of Part 5 of the Building Work Contractors Act is to ensure minimum standards in the carrying out of domestic building work in a way that is fair to both ‘house’ owners and builders by the balance struck between their respective interests.
Division 2, titled “Statutory warranties”, is where ss 32(5) and (6) are found.[86] This division provides in ss 32(1) and (2) for statutory warranties to be implied into every “domestic building work contract” entered into on or after 22 January 1987.[87] The benefit of these implied statutory warranties is expressly extended in s 32(3) to persons who succeed to the rights of their predecessor in title by purchasing or otherwise acquiring a “house.”[88] Section 32(4) provides a purchaser from a vendor who is a building work contractor with the benefit of the statutory warranties as if the vendor were a third party.
[86] The full text of Division 2, s 32 is set out in Annexure A to these reasons.
[87] This was the date of commencement of the corresponding section of the predecessor legislation, the Builders Licensing Act 1986.
[88] Section 32(3). In s 3(1), “house” is defined to mean “a building intended for occupation as a place of residence but does not include a building of a class prescribed by regulation”.
By comparison to the position at common law, these are significant extensions of the liability of builders in favour of ‘house’ owners and their successors and a key feature of the consumer protection afforded to ‘house’ owners and their successors for work performed under domestic building work contracts.
This statutory extension of liability as against builders is expressly limited by s 32(5) barring the remedy of a ‘house’ owner in an action for breach of a statutory warranty where proceedings are not commenced within the prescribed period of five years after completion of the building work. Section 32(6) provides this limitation period may not be extended. The latter provision is an important expression of the legislature’s intention that the statutory extension of builder’s liability provided in ss 32(2) and (3) is strictly confined to the prescribed period at the election of any individual respondent builder.
Observations to the same effect were made about the policy intent of s 32 of the Building Work Contractors Act by the Full Court of the Supreme Court in Forlyle Pty Ltd v Tiver[89] in considering a different question as to whether a compromise of legal proceedings agreed by separately advised parties falls within the ambit of s 42 of the Act (providing that any purported exclusion or limitation of a warranty implied by the Act is void). More recently, in Aistrope v South Australian Housing Trust,[90] Kelly J expressed agreement with those observations in a different context again,[91] stating:[92]
The clear policy behind the enactment of both s 27(6) of the Builders Licensing Act and its successor, s 32(5) of the Building Work Contractors Act 1995 (SA) is to allow builders certainty regarding their liability after completion of building work.
[89] [2007] SASC 464 at [15]-[19] per Debelle J (Sulan and Vanstone JJ agreeing).
[90] [2018] SASC 33.
[91] That is, the plaintiffs alleged that the statutory warranties in predecessor legislation, s 27(6) of the Builders Licensing Act 1986 (SA) were incorporated into a contract of sale with a previous ‘house’ owner.
[92] Aistrope op cit at [103]-[104].
Interestingly, Kelly J then observed that a non-extendable time limit with respect to statutory warranties in ss 32(5) and (6) was consistent with s 73 of the Development Act without identifying the possibility of any conflict between these provisions.[93]
[93] Ibid at [105].
Further adjustments of the common law rights and liabilities of ‘house’ owners and builders are provided in s 37 of the Building Work Contractors Act, which is found in Division 5 of Part 5, titled “Powers of court in relation to domestic building work”. In s 37(2), for disputes arising out of a domestic building contract,[94] rights of action and the jurisdiction of the courts to determine such disputes are confined to those arising out of a domestic building work contract or the performance of building work to which a statutory warranty relates. Notably, an application under s 37(2) may not be made unless the dispute arising under the domestic building work contract involves some question of whether the building work has been performed in accordance with the contract.
[94] Or subcontracts. For convenience, only contracts are referenced.
Consistent with the obvious statutory purpose of providing as quick, efficient and cheap a method of resolving domestic building work contract disputes as practicable, jurisdiction is conferred in the first place on the Magistrates Court and, where the proceeding involves a monetary claim exceeding $100,000, it must be referred to this Court on the application of a party.[95] Where the Court is satisfied that there has been a breach of, or failure to perform or fulfil, a domestic building work contract or “warranty”, the relief the Court may order is confined to an order requiring performance of the remedial work[96] and/or an order requiring the payment of an amount due under the contract or, as is relevant here, “an order requiring the payment of an amount by way of compensation for the breach”.[97]
[95] Section 40.
[96] Section 37(6)(a). Sections 37(7) and (8) provide further requirements that are not relevant here.
[97] Section 37(6)(b).
Read as a whole, the provisions in Part 5 of the Building Work Contractors Act effect a careful balance between the competing rights and liabilities of ‘house’ owners and builders in respect of the statutory warranties implied into every domestic building work contract as “an instrument of consumer protection”.[98]The non-extendable limitation of liability in ss 32(5) and (6) only applies to the limited rights of actions and remedies for breach of statutory warranty provided in s 37. As such, this non-extendable limitation period is a key feature. It is one of a number of important mechanisms by which the legislature has expressly confined the benefit of the transmissible statutory warranties conferred on ‘house’ owners that extend builders’ liability for defective domestic building work beyond common law rights.
[98] Forlyle op cit at [15]-[17].
The non-extendable limitation period manifests a clear policy intent of finality in litigation, based on the legislature’s view that a five-year period from completion of the building work is a reasonable time for enforcing any breach of statutory warranty and allows builders (and their insurers) certainty as to their litigation risk after completion of building work thereby enabling ‘house’ owners access to insurance funds where a breach of statutory warranty is found.
In my view, the statutory purpose behind Part 5 of the Building Work Contractors Act would be materially disrupted if s 73 of the Development Act and s 159 of the PDI Act were construed as displacing the five-year period with a 10‑year period. It would be incongruous for the legislature to have intended such a fundamental change of policy without clearly expressing such an intent, bearing in mind the legislature’s selection of the shorter five-year period running from completion of the building work as compared to the conventional six-year period running from breach of the contract.
Support from the Legislative History
The legislative history of the Building Work Contractors Act reinforces the conclusion that the displacement of the non-extendable five-year limitation period in ss 32(5) and (6) of the Building Work Contractors Act by s 73 of the Development Act and s 159 of the PDI Act would be inconsistent with the statutory purpose of Part 5 of the Act where it is found.
The Building Work Contractors Act was assented to on 7 December 1995 and commenced on 1 June 1996. No relevant amendments have been made to Part 5 of the Act since its enactment.
Working backwards historically, the Building Work Contractors Act repealed the Builders Licensing Act 1986 (SA),[99] an Act that also provided for the licensing and control of builders generally and regulated in Part 5, “domestic building work.”[100] In doing so, Part 5 introduced for the first time the concept of a “domestic building work contract.” Part 5 is in nearly identical terms to Part 5 of the Building Work Contractors Act, providing for the implication of six transmissible[101] statutory warranties into every domestic building contract, as defined by the Act.[102]
[99] Assented to on 20 March 1986.
[100] Section 4(1) is in substantially the same form as the corresponding definition in s 3(1) of the Building Work Contractors Act.
[101] Section 27(3).
[102] Section 27(2) is in all materials respect the same as s 32(2) of the Building Work Contractors Act: Aistrope op cit at [103] per Kelly J.
This 1986 Act repealed the Builders Licensing Act 1967 (SA),[103] the first legislation in this State to provide for the licensing of builders. The second reading of the Builders Licensing Bill 1986 explains the statutory purpose of the 1967 legislation it repealed and replaced as follows:[104]
…[it was] introduced with the principal aims of improving the quality and standards of building work and providing protection to home builders and the building industry from exploitation by unqualified persons.
[103] Section 3(1).
[104] Hansard South Australia, Parliamentary Debates, House of Assembly, 4 March 1986, page 810, GJ Crafter, Minister of Education.
The principal mechanism for achieving this policy intent was the introduction of a system for licensing and controlling builders.
In 1983, the Builders Licensing Act Amendment Act 1983 (SA) amended the Builders Licensing Act 1967 (SA) and repealed the Defective Houses Act 1976 (SA), introducing provisions to safeguard the interests of vulnerable ‘house’ owners as against builders for domestic building work. In addition to requiring builders carrying out domestic building work to be insured so that ‘house’ owners would have recourse to insurance funds for builders’ liability, a new division was introduced providing for the implication of four statutory warranties into every building contract in favour of ‘house’ owners, among other things.[105] It is this 1983 Act that introduced the concept of “domestic building work”[106] as a defined term expressed in substantially similar form to the current definition in the Building Work Contractors Act.
[105] Division II – s 19o (statutory warranties) and ss 19p to 19r (building indemnity insurance).
[106] Section 19n of the Builders Licensing Act Amendment Act 1983 (SA).
The benefit of the statutory warranties as against a builder was expressly conferred on a person who purchased or otherwise acquired a house, again in almost identical terms (as follows) to the corresponding provision in the Building Work Contractors Act, s 32(3):
A person who purchases or otherwise acquires a house succeeds to the rights of his predecessor in title in respect of statutory warranties.[107]
[107] Section 19o(2) of the Builders Licensing Act Amendment Act 1983 (SA). Subsection (3) addressed succession where the vendor was the builder.
A non-extendable limit was similarly imposed on the time for commencing an action for breach of statutory warranty in almost identical form to the corresponding provisions in the successor legislation, the Building Work Contractors Act, ss 32(5) and (6), fixed by reference to the completion of the relevant building work.[108]
(4)An action for breach of a statutory warranty must be commenced within five years after completion of the building work to which the action relates.
(5) The period of limitation prescribed by subsection (3) shall not be extended.
[108] Section 19o(4) and (5) of the Builders Licensing Act Amendment Act 1983 (SA).
The Defective Houses Act 1976 (SA) regulated the construction and sale of new houses. The 1976 Act introduced three basic implied statutory warranties in contracts for the construction and sale of new houses. It further extended builders’ liability for defective building work in new houses by providing a statutory subrogation of rights under the implied statutory warranties in favour of successor ‘house’ owners as follows: [109]
Any person who purchasers or otherwise acquires a house within five years after the date on which it was first occupied as a place of residence shall be subrogated to the rights of the original occupier in respect of statutory warranties.
[109] Section 4(3) of the Defective Houses Act 1976 (SA). Emphasis supplied.
This provision imposed a time limit as a condition and as the essence of the new statutory right it created, distinguishing it from “a statute of limitation, properly so called, which prevents the enforcement of rights of action independently existing”.[110]
[110] State of Western Australia v Wardley Australia Limited (1991) 30 FCR 245 at 259 citing Crown v McNeil (1922) 31 CLR 76 at 96, 100-101.
The second reading speech of the Defective Houses Act 1976 (SA) shows that the legislature in enacting the predecessor to s 32 of the Building Work Contractors Act intended to replace the warranties implied at common law with statutory warranties (that could not be excluded by agreement or waiver)[111] as “an instrument of consumer protection”.[112] The clear policy intent was to protect ‘house’ owners and subsequent purchasers for a period of five years from the date of first occupation. By providing a five-year period from the date of first occupation for a subsequent purchaser to enforce a breach of statutory warranty as against a builder, the legislature manifested an intention that this was a reasonable time to allow for ‘house’ owners to enforce a breach of statutory warranty as well as providing certainty to builders (and their insurers) as regards their liability for domestic building work.
[111] See s 42 of the Building Work Contractors Act and predecessors s 4(8) of the Defective Houses Act 1976 (SA) and s 34 if the Builders Licensing Act 1986 (SA).
[112] Forlyle op cit at [16] per Debelle J.
The Regulation of Building Work Generally

Part 6 of the Development Act regulated building work generally in certain respects. The Development Act was assented to on 27 May 1993 and commenced on 15 January 1994.[113]
[113] The South Australian Government Gazette, Volume 2, No. 105 - 27 October 1993, page 1888.
The Statutes Repeal and Amendment (Development) Act 1993 (SA) enacting the Development Act, also repealed the Building Act 1971 (SA).[114] The repealed Act did not address liability for defective building work.
[114] Section 4.
Part 11 of the PDI Act replaces Part 6 of the Development Act in substantially similar form.
Section 73 of the Development Act is found in Division 7 of Part 6. Division 7 briefly addresses liability for defective building work in two ways. The other divisions in Part 6 address a raft of subjects, none of which is presently relevant.
Section 159 of the PDI Act is found in Division 7 of Part 11 of the PDI Act. Division 7 is in identical form in both Acts and addresses liability for defective building work in the same way as s 73.
Section 72 and its successor, s 158 in the PDI Act, are the only other provisions in Part 7 of the Development Act and the corresponding part of the PDI Act. These provisions concern the negation of joint and several liability in cases of defective building work. Both ss 72 and 73 (and their successor provisions ss 158 and 159) are directed at limiting liability in building cases for defective building work generally.
The non-extendable limitation of the time when an action may be taken in cases of defective building work in ss 73 and 159 is expressly directed at actions for damages for economic loss or rectification costs, regardless of the underlying cause of action. Notably, it is imposed independently of any existing cause of action to which these provisions apply, in the same way as limitation periods provided by the Limitations of Actions Act. Actions for damages for death or personal injury are expressly excluded,[115] as impliedly are actions for damages for physical damage (that is, non-economic loss) resulting from defective building work. The class of respondents whose interests are affected is not expressly confined and is significantly broader than building contractors, given the numerous other parties involved in building work.[116]
[115] Section 73(2).
[116] Such as architects, engineers, surveyors, certifiers, developers, etc.
It is uncontroversial that the broad statutory purpose of s 73 of the Development Act (and its successor s 159 of the PDI Act) is to promote finality in building litigation by addressing the notorious difficulties in building actions arising from latent defects, particularly where the breach occurs during the design stage of the works. Because limitation periods in a claim in contract run from breach and in tort run from the time the damage manifests itself, this creates the “paradox” that those involved in design and construction of a building may be sued in tort years after the time has expired in contract in circumstances of latent defects.[117] Furthermore, the six-year period in simple contract and tort is extendable under the Limitation of Actions Act. Limitation periods in contract can be hard on and adverse to the interests of owners whereas limitation periods in tort can be hard on and adverse to the interests of builders and other building professionals.
[117] Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at [103] per McHugh J.
The solution chosen by the legislature to address these difficulties in South Australia has two features. First, greater certainty is promoted by fixing the point from which time runs from completion of the relevant building work. Secondly, the interests of building owners and respondents in building actions are balanced by the specification of 10 years from this point as the fair and reasonable period within which to bring such an action, giving certainty to potential respondents (and their insurers) as to the limit of their liability for defective building work.
In specifying the limitation period in ss 73 and 159, it is apparent the legislature considered the usually applicable limitation periods arising under the Limitation of Actions Act, including in simple contract and tort. This is indicated by the express reference to the latter Act in their introductory words and, impliedly, by fixing the extendable six-year period as a 10-year period from completion of the building work.
It is a very different policy intent to displace the non-extendable five-year limitation period provided in ss 32(5) and (6) of the Building Work Contractors Act. Such an intention does not represent a solution to the difficulties caused by the different limitation periods in contract and tort where damage occurs as a result of latent defects in building work, particularly where the breach occurs at the design stage of the works.
As stated earlier, the real question arising here is whether the legislature, by enacting these provisions addressing liability for defective building work generally, intended to disrupt the careful balancing of the competing interests of ‘house’ owners and builders in respect of domestic building contracts specifically addressed in Part 5 of the Building Work Contractors Act by displacing the five-year period from completion of the building work in proceedings for breach of statutory warranty.
Contrary to the Applicants’ submissions, there are no self-evident textual or contextual indications that the legislature intended to cut across the policy intent of Part 5 of the Building Work Contractors Act. In my view, properly read, all indications are to the contrary and coherence and consistency of statutory purpose are best achieved here by the concurrent operation of the relevant provisions as ordinary statute of limitation provisions. Without repeating my earlier conclusions, it is important to emphasise the following matters.
First, for the reasons discussed above,[118] the submission that the introductory words of ss 73 and 159 manifest the legislature’s intention to cover the field where they apply should be rejected. These provisions are only dominant where there is conflict and do not create conflict by merely providing a respondent with choices between pleading available limitation defences.
[118] See paragraphs [85]-[93] above.
Secondly, although the relevant provisions address “building work”, their fields of operation are clearly differentiated by the pivotal concept of “domestic building work”. It is this field of building work to which Part 5 of the Building Work Contractors Act and its predecessor legislation are specifically directed as an instrument of consumer protection. The Applicants’ submission that ss 73 and 159 should be regarded as the more specific provisions because they are directed at damages for economic loss and rectification costs resulting from defective building work should be rejected.
Thirdly, it should be assumed that the legislature, in adopting the language of a statute of limitation for the relevant provisions, intended these provisions to be understood as barring the remedy and not the right of any applicant to bring an action. Such intention is a powerful indication that the legislature intended that these provisions would operate concurrently without conflict or compromise of the underlying statutory purposes. It should be understood that they would do so by giving effect to the legislature’s policy intent of ensuring finality in litigation and certainty as to liability for defective building work by conferring a right on an individual respondent builder in a particular case to elect to plead a limitation period that runs from completion of the building work and leaving it to the individual respondent to make such election.[119]
[119] Price v Spoor op cit at [41] per Gageler and Gordon JJ.
Operational Consequences
If the relevant provisions were construed as providing a single uniform limitation period where they overlap, the operational consequences would be incongruous. It should be assumed that the legislature would not have intended such inconsistency and incoherence in regulating builders’ liability for defective domestic building work.
On the Applicants’ construction of the relevant provisions, a 10-year limitation period would apply to breaches resulting from defective building work in an action for breach of statutory warranty under the Building Work Contractors Act, but a five-year period would apply to breaches resulting from delay or other non-compliances that do not involve defective building work.
Different limitation periods would apply in an action for breach of statutory warranty under the Building Work Contractors Act depending on the relief sought. That is, the five-year limitation period would apply to an order requiring the performance of remedial work, but a 10-year limitation period would apply to an order for compensation for breach.
Extrinsic Materials
The use of extrinsic materials in interpreting legislation is expressly authorised by s 16 of the Legislation Interpretation Act 2021 (SA).
In this case, except for the references made above in considering the legislative history of the Building Work Contractors Act, as the parties submitted the relevant materials were of little direct assistance in resolving the preliminary question of law.[120]
[120] Written Submissions in Reply of the Applicants (FDN 19) [3]; Written Submissions of the Respondent [30].
Prior Authority
The Applicants relied on the following decisions as relevant and strongly persuasive, although not binding on this Court:[121] Brirek,[122] and two previous decisions of this Court, Walford[123] and Aussie Blinds.[124]
[121] Written Submissions of the Applicants [3.5] and [29]-[35].
[122] Op cit.
[123] Op cit.
[124] Op cit.
The Respondent submitted these authorities are of limited assistance because they consider different legislation, both interstate and in South Australia, and should be distinguished.[125]
[125] Written Submissions of the Respondent [32]-[33].
The Applicants’ concession that prior authority was not binding on this Court is appropriate. As a matter of general principle, this Court is not bound by another court’s determination of the meaning of similar provisions. Such decisions may be of assistance in ascertaining the meaning of a statutory provision but cannot be conclusive. That said, it should be accepted that previous decisions concerning the same or similar provisions may be strongly persuasive and where they concern the very same legislation, should be followed for consistency unless plainly wrong.
The Applicants further submitted that any debate about whether the 10-year period in s 73 of the Development Act and s 159 of the PDI Act sat alongside, but did not extend, independently existing limitation periods or created a single new uniform limitation period has been resolved by prior authority in favour of the latter construction.[126]
[126] Written Submissions of the Applicants [27]-[35].
It should be accepted that is the case as regards the Victorian provision, s 134 of the Building Act 1993 (Vic) (the Victorian Building Act). However, the Victorian legislation is materially different from the South Australian legislation and the reasoning in Brirek is not of relevant assistance in determining the preliminary question for the reasons discussed below.
The South Australian authorities did not concern proceedings for breach of a statutory warranty under the Building Work Contractors Act and their reasoning is not sufficiently analogous to be of relevant assistance in determining the interaction of ss 32(5) and (6) of the Building Work Contractors Act with s 73 of the Development Act or its successor provision, s 159 of the PDI Act. In relying on the reasoning in Brirek, neither decision gave any detailed consideration to important differences between the Victorian and South Australian legislation that are relevant here and, in my view, neither compel the conclusion that the legislature intended that s 73 of the Development Act and s 159 of the PDI Act would displace the non-extendable five-year limitation period in ss 32 (5) and (6) of the Building Work Contractors Act.
Brirek
The Victorian Court of Appeal decision in Brirek involved a different statutory context than that in South Australia and the interaction between the limitation provision for simple contracts and one specifically applying to building actions, regardless of the underlying cause of action. The dispute over their application concerned a claim by a building owner for damages brought against building surveyors over construction of an office building.
A limitation defence was invoked by the respondent surveyors under s 5(1)(a) of the Limitations of Actions Act 1958 (Vic) (Victorian Limitation of Actions Act) in respect of claims made under an alleged (second) contract made in 2004. The trial judge concluded the owner’s claim in respect of the 2004 contract was statute-barred, rejecting the owner’s contention that s 134 of the Victorian Building Act altered the six-year limitation period by replacing it with a 10-year period.
The Court of Appeal found that the trial judge should have held that the 10‑year limit in s 134 of the Victorian Building Act applied because it is the only time limit for bringing building actions generally and should not be read as confined to claims in tort (as the trial judge had wrongly held).
Section 134 provides:
Limitation on time when building action may be brought
Despite any thing to the contrary in the Limitation of Actions Act 1958 or in any other Act or law, 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 (whether or not the occupancy permit is subsequently cancelled or varied) or, if an occupancy permit is not issued, the date of issue under Part 4 of the certificate of final inspection of the building work.
In construing s 134, the Court of Appeal found there were no constraints on its plain words that would otherwise confine its application to cases in contract or tort, nor any references to patent or latent faults, nor any suggestion its operation is only addressed to physical loss and damage that support the artificial construction found by the trial judge.
In reaching a conclusion about the construction of s 134, the Court of Appeal favoured a literal reading of the introductory words, stating:[127]
The words ‘[d]espite any thing to the contrary in the Limitation of Actions Act 1958 or in any other Act or law’ have work to do in s 134. The Limitation of Actions Act and other Acts provide for different periods of limitation. The period provided for in s 134 operates despite those different periods.
[127] Ibid at [115].
The Applicants relied on this passage as authoritative and determinative of the preliminary question here, emphasising the identical introductory words of s 134 as being clear in their effect like their South Australian equivalent in s 73 of the Development Act and its successor provision s 159 of the PDI Act. The Applicants identified other similarities between the South Australian and Victorian legislation as reinforcing the relevance and persuasiveness of the reasoning in Brirek as determinative of the preliminary question of law here.
Turning first to the Applicants’ contention about the importance of the introductory words, these words should not be read in isolation of their statutory context in either jurisdiction. Plainly, their meaning depends on the text, context and purpose of these provisions by reference to the Development, PDI and Building Work Contractors Acts, not the meaning ascertained by reference to very different legislation in another jurisdiction. It does not follow that this Court in answering the preliminary question must read the relevant provisions literally, assuming conflict where there is none, just because that was the meaning found in different legislation interstate.
As to statutory purpose, it is uncontentious that throughout Australia legislation has been enacted in varying terms to address the difficulties arising from the operation of different limitation periods in contract and tort in claims concerning latent building defects. However, it is important to be astute to these differences and not construe the relevant provisions by reference to some unfounded assumption about their desired operation in this jurisdiction or the solution adopted by the legislature in another jurisdiction. The task of this Court is to construe the relevant provisions and give their words the meaning that the South Australian legislature is taken to have intended, having proper regard to their text, context and purpose.
Contrary to the Applicants’ submissions, it should not be accepted that s 134 of the Victorian Building Act is for present purposes the Victorian equivalent of s 73 of the Development Act and its successor provision, s 159 of the PDI Act. Whilst the South Australian and Victorian legislation regulating building work share some common features, these similarities do not shed light on the meaning intended by the legislature.
More fundamentally, there are significant differences between the South Australian and Victorian legislative schemes regulating building work such that the reasoning in Brirek is not of any relevant assistance in answering the preliminary question. Despite its similar language, s 134 must be considered in its proper statutory context, bearing in mind the many relevant differences between the Victorian and South Australian legislation and additional indications as to its proper construction where it applies generally to a building action that are not present here or relevant to answering the preliminary question.
As to context, unlike ss 73 and 159, s 134 does not exist as a single provision addressing the time within which the actions to which it applies may be brought. It is in a key part of the Victorian Building Act, an Act comprehensively regulating building work and building standards in Victoria, including domestic building work. The expression “building work” is broadly defined to mean “work for or in connection with the construction, demolition or removal of a building.”[128]
[128] Section 3(1).
The Victorian Building Act regulates the rights and liabilities of building owners and a wide range of other building practitioners involved in the building industry, not just builders, by a variety of mechanisms including the provision of building standards, the issuing of building permits, the licensing of builders and administrators, and so on.
One main purpose of the Building Act is expressed as limiting the periods within in which building (and plumbing) actions may be brought.[129] Part 9 addresses liability for building work generally and Division 2, titled “Limitation of actions” is where s 134 is found, as well as the definitions of a “building action” and “building work,” as used in Division 2. The expression “building action” is broadly defined as meaning an action for damages for loss or damage arising out of or concerning defective building work, confining the operation of s 134 in two ways: where damages are the relief and the loss or damage arises from defective building work. These expressions build on other definitions, including that of “building work” and “domestic building work” in the general definitions section of the Act.
[129] Section 1(h).
The expression “domestic building work” as used in the Victorian Building Act is defined as having the same meaning as it has in the Domestic Building Contracts Act 1995 (Vic).[130] This latter Act regulates contracts for the carrying out of domestic building work in Victoria, provides for the resolution of domestic building disputes by the Victorian Civil and Administrative Tribunal and requires builders carrying out domestic building work to be insured.[131] Sections 8 and 20 provide warranties on the part of the builder to be implied into every domestic building contract that, by operation of s 9, run with the building. The third of the implied statutory warranties provides that domestic building work will be carried out in accordance with all laws including the Building Act,[132] indicating the Victorian legislature’s intention that both Acts operate in harmony alongside one another.
[130] Section 3 (1).
[131] Part 1 – Preliminary, setting out the main purposes of the Act.
[132] Section 8(c).

The only time limit prescribed by the Domestic Building Contracts Act 1995 (Vic) is found in s 131, addressing criminal proceedings, and is not presently relevant. There is, however, an endnote explaining the operation of s 9, (the provision providing that the statutory warranties run with the building) as follows:
S. 9: Section 134 of the Building Act 1993 imposes a 10 year limit on the bringing of building actions. It will apply to actions brought under section 9. The 10 years begins to run from the date the occupancy permit is issued. If no occupancy permit is issued, the 10 years runs from the date the certificate of final inspection is issued.
This explanatory detail makes plain the Victorian legislature’s intention that the limitation period prescribed in s 134 of the Victorian Building Act applies to building actions concerning breaches of the statutory warranties implied into every domestic building work contract by the Domestic Building Contracts Act 1995 (Vic).
These are important differences between the Victorian and South Australian legislation regulating building work generally and domestic building work specifically, distinguishing the position in Victoria considered by the Court of Appeal in Brirek from that of South Australia.
There are further significant features of the Victorian legislative scheme that are not present here.
The first is that there is no South Australian equivalent of s 33 of the Victorian Limitation of Actions Act that prevents s 5 of that Act operating with respect to building actions,[133] the Act that is expressly referenced in the introductory words to s 134 of the Victorian Building Act.
[133] Section 33 relevantly provides: “The periods of limitation prescribed by this Act shall not apply to any action or arbitration for which a period of limitation is prescribed by any other enactment including…”. Brirek op cit at [97]-[98] and [115]-[126].
Secondly, relevant amending legislation indicates that whilst the Victorian legislature turned its mind to the question of ‘long-stop’ liability exceptions, it did not insert any ‘long-stop’ specificity in the Victorian Building Act for building actions despite altering other liability provisions concerning personal injury actions.[134]
[134] Ibid at [119]-126]. Wrongs and Limitation of Actions Act (Insurance Reform) Act 2003 (Vic).
Finally, in the Victorian Court of Appeal’s view, the lack of constraints confining the field of operation of s 134 in specifying a limitation period for building actions generally was one important textual and contextual indication of a legislative intention to displace the contrary, more general, limitation provision in the Victorian Limitation of Actions Act. The same reasoning does not readily translate to a comparison between the relevant provisions here, having regard to the specific statutory purpose of the Building Work Contractors Act in regulating domestic building work in this jurisdiction.
Aussie Blinds
The Applicants referred to the decision of this Court in Aussie Blinds,[135] relying on Barrett DCJ’s findings that s 73 of the Development Act is “materially the same”[136] as s 134 of the Victorian Building Act and the reasoning of the Victorian Court of Appeal in Brirek was applicable in that case.[137]
[135] Op cit.
[136] Ibid at [30].
[137] Written Submissions of the Applicant [29.2].
Aussie Blinds involved an application made under s 38(6) of the Magistrates Court Act 1991 (SA) for a review by a District Court Judge of a Magistrate’s decision in a minor civil action that an owner’s claim against a builder for the negligent installation of sail cloth at a residence was governed by s 73 of the Development Act and not statute-barred by the operation of the Limitation of Actions Act. No consideration was given to the different question of the proper construction of s 73 of the Development Act having regard to ss 32(5) and (6) of the Building Work Contractors Act. Since the decision concerned a different question, it should be distinguished.
In any event, while it is literally correct that in isolation “the two sections are materially the same, at least for the purposes of [that] case,”[138] for the reasons discussed above, I do not share the view that the reasoning in Brirek is determinative of the proper construction of s 73 of the Development Act. Unsurprisingly, given the context of a minor civil review and self-represented parties, in determining the respondents had not commenced the proceeding out of time, no apparent consideration was given by the Court to the material differences between the legislative schemes in which the relevant limitation provisions were found or the implications of their effect as ordinary statutes of limitation.
[138] Aussie Blinds op cit at [30].
Walford
In Walford, O’Sullivan DCJ construed s 73 of the Development Act as providing a single, extended limitation period of 10 years for actions within its scope.[139]
[139] Ibid at [170]-[174].
The issue of the proper construction of s 73 of the Development Act arose in the context of the Court’s determination of two preliminary questions of law, neither of which concerned the interaction of s 73 of the Development Act and ss 32(5) and (6) of the Building Work Contractors Act. The proceedings concerned causes of action in contract and tort brought by Walford against the designer of building works to student accommodation and music facilities, not domestic building work. The designer pleaded in its defence that Walford’s claims against it were statute-barred by operation of s 73 of the Development Act.
The second preliminary question asked was whether, as a matter of law, the Court could extend the time period imposed by s 73(1) of the Development Act pursuant to s 48 of the Limitation of Actions Act. The answer was “No” on the basis that s 73(1) of the Development Act excluded s 35 of the Limitation of Actions Act by imposing a different non-extendable limitation period and setting it to run from a different point.
Again, and plainly so, the question answered by the Court in Walford did not concern the interaction between s 73 of the Development Act and ss 32(5) and (6) of the Building Work Contractors Act. This decision should be distinguished on this basis, like Aussie Blinds to which it refers.
Whilst I share His Honour’s conclusion as to the answer to the second question, I do not share all his reasoning as it would apply here and, specifically, his view that the policy and mischief of s 73 of the Development Act is the same as that underlying s 134 of the Victorian Building Act and the reasoning in Brirek of relevant assistance in determining the proper construction of s 73 of the Development Act.
Conflict between General and Specific Provisions
For completeness, it should be stated that if I had reached a different view about the potential overlap of the relevant provisions and could not otherwise reconcile their concurrent operation, I would have construed the more specific provisions, ss 32(5) and (6) of the Building Work Contractors Act, as a proviso to the more general provisions in s 73 of the Development Act and s 159 of the PDI Act, such that the latter provisions do not apply to ss 32(5) and (6).[140] That is because Part 5 of the Building Work Contractors Act enacts a specific scheme for the purpose of regulating domestic building work that would be undermined if s 73 of the Development Act and s 159 of the PDI Act were construed as displacing the five-year limitation period in s 32(5).
[140] Goodwin v Phillips op cit.
Costs and Form of Judgment
Subject to hearing the parties on any matter relevant to the question of costs, I would order that the Applicants pay the Respondent’s costs of and incidental to determination of the preliminary question of law on a standard basis in any event, certified fit for counsel.
I will hear the parties as to the form of judgment to be entered.

Annexure A
Extract from Building Work Contractors Act, Part 5, Division 2 – Statutory warranties
32—Statutory warranties
(1)     This section applies to a contract entered into on or after 22 January 1987.
(2)     The following warranties on the part of the building work contractor are              implied in every domestic building work contract:
(a)     a warranty that the building work will be performed in a proper   manner to accepted trade standards and in accordance with the plans   and specifications agreed to by the parties;
(b)     a warranty that all materials to be supplied by the contractor for use                   in the building work will be good and proper;
(c)     a warranty that the building work will be performed in accordance   with all statutory requirements;
(d)     if the contract does not stipulate a period within which the building                    work must be completed—a warranty that the building work will be                 performed with reasonable diligence;
(e)     if the building work consists of the construction of a house—a   warranty that the house will be reasonably fit for human habitation;
(f)    if the building owner has expressly made known to the contractor,   or an employee or agent of the contractor, the particular purpose for                which the building work is required, or the result that the building                  owner desires the building work to achieve, so as to show that the   building owner relies on the contractor's skill and judgment—a   warranty that the building work and any materials used in   performing the building work will be reasonably fit for that purpose                or of such a nature and quality that they might reasonably be       expected to achieve that result.
(3)     A person who has purchased or otherwise acquired a house succeeds to the rights of the person's predecessor in title in respect of statutory warranties.
(4)     If a person has purchased a house from a building work contractor who performed domestic building work in relation to the house, the purchaser has rights under statutory warranties as if the house had been purchased from a third party for whom the vendor had performed the building work under a contract subject to statutory warranties.
(5)     Proceedings for breach of a statutory warranty must be commenced within five years after completion of the building work to which the proceedings relate.
(6)     The period of limitation prescribed by subsection (5) may not be extended.
(7)     In proceedings for breach of a statutory warranty, it is a defence for the defendant to prove that the deficiencies of which the plaintiff complains arose from instructions insisted on by the building owner contrary to the advice in writing of the defendant.