Duncan v Bert Farina Constructions Pty Ltd

The appellants, referred to as the Owners, commenced proceedings against the respondent, the Builder, on 13 July 2022, seeking damages for defective building work. The dispute concerned a house constructed by the Builder under a contract with the South Australian Housing Trust, with the Owners subsequently acquiring the property. The Owners alleged breaches of statutory warranties under section 32(2) of the Building Work Contracts Act (BWCA) and common law negligence. The Builder contended that the claims were statute-barred due to the expiry of applicable limitation periods. The matter came before the Full Court of the Supreme Court of South Australia, comprising Doyle, Bleby, and Blue JJ.

The central legal issue before the court was the interplay between the limitation period for claims concerning defective building work under the Development Act (DA) and the Planning, Development and Infrastructure Act (PDIA), and the limitation period for breaches of statutory warranties under the BWCA. Specifically, the court had to determine whether section 73 of the DA and section 159 of the PDIA, which provide a 10-year limitation period for certain building actions, operated to displace the shorter five-year limitation period prescribed by section 32(5) of the BWCA for domestic building work. The Owners argued that the longer 10-year period applied, rendering their claim within time, while the Builder contended that the five-year period under the BWCA was the applicable limit, meaning the claim was out of time.

The court reasoned that while sections 73 of the DA and 159 of the PDIA create a 10-year "long stop" limitation period for actions for damages for economic loss or rectification costs resulting from defective building work, they do not operate to displace the specific five-year limitation period for claims based on statutory warranties for domestic building work under section 32 of the BWCA. The court examined the textual considerations of section 73, noting its application to actions for damages for economic loss or rectification costs and its provision that "no action... can be commenced" after the 10-year period, despite other Acts. However, the court concluded that these provisions were intended to operate concurrently with, and as a long stop to, other applicable limitation periods, rather than to exclude shorter, more specific periods like that found in section 32(5) of the BWCA.

The court's conclusion was that the Builders' construction of sections 73 of the DA and 159 of the PDIA, as operating as a 10-year long stop but not displacing the five-year limit under the BWCA, was correct. Consequently, the Owners' claim for breach of statutory warranties under section 32 of the BWCA was found to be statute-barred. The court did not need to determine whether these sections might displace the six-year limitation period for tortious and contractual claims under the Limitation of Actions Act.