Whether a claim issued against a structural engineer was statute barred on the basis that it did not amount to a "building action" for the purposes of the Building Act 2004 (ACT).

In Issue

  • Whether the plaintiffs’ claim fell within the definition of ‘building action’ for the purposes of section 142 of the Building Act 2004 (ACT), and was therefore statute barred

Background

Helkeast Pty Ltd (the plaintiff) issued proceedings against Ruckschloss (the defendant) seeking damages for negligent preparation of engineering design documentation and for negligently issuing a certificate of structural sufficiency for a building located at 10 Burke Street, Kingston ACT.

The defendant pleaded that the claim was statute barred because it was a “building action” for the purposes of section 142 of the Building Act 2004 (ACT) (the Act), which bars actions if they are commenced more than 10 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 proceedings commenced on 18 August 2016, almost 3 months out of time.

The court agreed to determine the limitation point as a separate question.

The decision

The issue for determination was whether preparation of engineering plans was “building work” within the meaning of the Act.

After examination of a number of the Act’s provisions, the court concluded that the Act has no concern for the part played by engineers in designing plans. A number of sections supported the view that the Act’s concern was with the physical or hands on aspects of the construction of a building, at a time after approval for it had been granted. The defendant’s work which was the subject of the claim was therefore not “building work.”

The setting in which the Act was passed also suggested no inclination on the part of the legislators to regulate the work of engineers. The Bill set up a system of licensing for what it called “construction occupations”. They included builder, building surveyor, drainer, electrician, gas fitter, plumber and plumbing plan certifier. Neither engineers nor architects were included in the definition. What was intended to be covered by the Act was the hands on, or physical, construction work.

As there was no uniformity in the way the States and the Territories sought to regulate engineers in the context of building work, comparisons with the legislation of other jurisdictions were not helpful in construing the Act. Having regard for the purpose and language of the Act, and having considered it as a whole, the court was persuaded that the work of the defendant in preparing the design plans and the certificate was not “building work”.

The Act regulates and controls the construction of buildings in the ACT by imposing statutory requirements and standards and rules and supervision but, at the earliest, from the point when building plans are approved, and not before. The plaintiff’s claim was therefore not statute barred.

Implications for you

The case demonstrates that, at least in the ACT, a defendant structural engineer will not be able to rely on the long stop limitation period to potentially avoid liability in relation to building actions. The decision may well have been different in other states where the legislation has been extended to engineers and therefore practitioners need to be cognisant of that in circumstances where a limitation period defence is raised.

Helkeast Pty Ltd v Ruckschloss [2017] ACTSC 65