Helkeast Pty Ltd v Ruckschloss

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Helkeast Pty Ltd v Ruckschloss

Citation:

[2017]  ACTSC 65

Hearing Date:

2 March 2017

DecisionDate:

31 March 2017                   

Before:

Walmsley AJ

Decision:

1.    Neither of the Plaintiffs’ claims is a building action pursuant to the Building Act 2004 (ACT).

2.    The question of costs is reserved.

3.    The matter is adjourned to the Registrar’s list     for further directions.  .

Catchwords:

BUILDING, ENGINEERING AND RELATED CONTRACTS – Damages - Limitation of Actions – Negligence – Misleading and Deceptive – Engineering – Building Work – Construction Work

Legislation Cited:

Architects Act 2004 (ACT)

Building Act 1993 (VIC) s 3

Building Act 2004 (ACT) ss 6, 7, 25A, 25B, 25C, 28, 42, 43, 47, 49, 53, 86, 134A, 134B, 140, 142,

Building (General) Regulation 2008 (ACT) reg 33

Construction Occupations (Licensing) Act 2004 (ACT) ss 34, 38

Australian Consumer Law (Act) ss 18, 29

Legislation Act 2001 (ACT)

Cases Cited:

Brirek v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165

Diploma Constructions (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289

Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56

Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28

Texts Cited:

Building Code of Australia

Building Bill 2003 Explanatory Statement (ACT)

Parties:

Helkeast Pty Ltd (First Plaintiff)

Josip Tokich (Second Plaintiff)

Jan Ruckschloss (Defendant)

Representation:

Counsel

Mr P Greenwood SC; Mr J Pappas (First and Second Plaintiff)

Mr S Hausfeld (Defendant)

Solicitors

Aulich Civil Law (First and Second Plaintiff)

Moray & Agnew (Defendant)

File Number:

SCC 384 of 2016

Walmsley AJ:

The Issue

1. The issue on this application is, in summary, whether preparation of engineering plans is “building work”.

Background

1. By their originating claim the plaintiffs claimed damages from the defendant for negligent preparation of engineering design documentation and for negligently issuing a certificate of structural sufficiency for a building called Soho Apartments, at 10 Burke Street, Kingston, ACT.

1. By his defence of 7 October 2016, the defendant pleaded inter alia that the claim against him was out of time because it is a building action, and s 142 of the Building Act2004 (ACT) (‘the Act’) bars such actions if they are commenced more than ten years after the date of the certificate of completion for the building. In this case the certificate of completion was issued on 26 May 2006 and the action begun on 18 August 2016, almost three months out of time.

1. On 11 November 2016, the plaintiffs, who say s 142 does not bar their action, applied for an order that the Court decide the limitation issue as a separate question.

1. On 25 November 2016, the Court ordered by consent that it would decide the limitation question separately from and before any other question arose in the proceedings.

1. Each party filed and served written submissions. Both parties asked that the question be decided on the basis of an agreed statement of facts.

1. However on the…