McAskell, Brian John & McAskell, Joyce Irene v Timelink Pacific P/L (ACN 063 714 303) & Wharington, Grant Russell Vincent

The appeal involved Brian John McAskell and Joyce Irene McAskell, who brought a claim against Timelink Pacific P/L and Grant Russell Vincent Wharington. The respondents argued that the claim was barred by section 134 of the Building Act 1993 (Vic), which imposes a limitation period on building actions. The primary dispute centred on whether the alleged defective works constituted 'building work' as defined by the Act, and whether the claim was a 'building action'. This was a matter of statutory interpretation and application.

The court had to determine whether the alleged defective works fell under the definition of 'building work' in section 3(1) of the Act. Additionally, it needed to decide if the McAskells' claim was a 'building action' as defined by section 129. These determinations were crucial in assessing the applicability of the limitation period in section 134. The court had to scrutinise the nature of the works and whether they were integral to the construction of a building or merely site preparation activities.

In dismissing the appeal, the court concluded that the alleged defective works were integral to the construction of a building and thus constituted 'building work'. Consequently, the McAskells' claim was deemed a 'building action', which was subject to the limitation period stipulated by section 134. The court found that the statutory definitions and the nature of the works supported the respondents' argument that the claim was time-barred. As a result, the appeal was dismissed.

The final orders of the court confirmed the dismissal of the appeal and upheld the decision that the McAskells' claim was barred by the limitation period under section 134 of the Building Act 1993 (Vic). This outcome underscored the importance of correctly identifying the nature of the works and their classification under the Act to determine the applicability of statutory provisions.