Naqebullah v State of Victoria

Naqebullah brought an action against the State of Victoria, alleging breaches of statutory warranties by a builder in relation to non-compliant cladding on residential premises. The case was heard in the County Court of Victoria, with the proceedings referred from the Victorian Civil and Administrative Tribunal (VCAT). The dispute centred on the extent of the State's liability under the Building Act 1993 and the circumstances in which the State could be held accountable for the builder's actions.

The court had to determine several legal issues, including whether section 137F(3) of the Building Act 1993, which subrogates the State to the rights of building owners, has retrospective effect. The court also had to decide if an officer of the entity is liable under section 137F(3) if they were unaware of the non-compliant nature of the cladding. Additionally, the court assessed the validity of the judge's findings regarding the building permit and the State's liability for rectification costs. The court further examined the procedural issue of whether the judge correctly awarded costs in relation to the State's intervention before the parties were joined in the proceedings.

The court held that section 137F(3) of the Building Act 1993 does apply retrospectively, meaning the State could be subrogated to the rights of the building owners regardless of when the breach occurred. The court found that an officer's liability under section 137F(3) does not depend on their knowledge of the non-compliant cladding. However, the court did find an error in the judge's application of section 137F in relation to costs, as the State had brought the proceeding in its own name. Consequently, the judge's error in awarding costs was rectified, and the appeal was allowed with the applicant to pay the State's costs from the time of joinder only.

The final orders included the allowance of the appeal in part, with the applicant to pay the State's costs from the time of joinder only, and the dismissal of the appeal in all other respects. The court's decision affirmed the retrospective application of the statutory provisions and clarified the scope of an officer's liability, while correcting the procedural error regarding costs.