To recover the significant costs associated with the investigation and remediation of combustible cladding, building owners are increasingly looking to attribute liability to the professionals involved in the design specification, building, certification and installation process. These claims were analysed in the recent Victorian decision in Owners Corporation No. 1 of PS613436T v LU Simon Builders Pty Ltd (Building and Property) [2019] VCAT 286.

Queensland’s response to the risks posed by combustible cladding is contained in Part 4A of the Building Regulation 2006 (Qld), which came into force on 31 October 2018. The first phase of a three-part regulatory program ended on 29 March 2019. As part of the second phase, building owners should currently be taking steps to submit a combustible cladding checklist (part 2) and a building industry professional statement prior to the 31 July 2019 deadline. The third phase requires building owners to submit a combustible cladding checklist (part 3), a building fire safety risk assessment and a fire engineer statement prior to 3 May 2021.

Although the Queensland combustible cladding regime does not deal with liability:

(a) the local government has power to give an enforcement notice for dangerous structures or building work

(b) a building owner may owe a duty of care.

What types of claims are available and against whom?

To recover the costs of dealing with the consequences of combustible cladding, building owners may have several claims available to them, including:

  • breach of contract
  • negligence
  • misleading and deceptive conduct.

These claims may be available against:

  • builders
  • architects
  • engineers
  • certifiers
  • suppliers or manufacturers.

However, careful consideration needs to be given to the particular facts and circumstances, as often claims can turn on fine details such as:

  • when the cladding was installed, as this may determine whether a claim can be brought in time
  • how the responsibilities for the building work were organised, including which party was responsible for the selection, approval, or installation of the cladding.

Time periods for commencing claims

Both building owners and building professionals should be aware that there are strict time periods for commencing claims, although the applicable time period depends on the nature of the claim and when the claim arose. Where an owner fails to commence a claim in time, the relevant building professional will have a complete defence.

Although there has only been one case decided so far, there are a number of claims pending before the courts. Accordingly, attributing liability for combustible cladding is likely to be the subject of contested litigation for the foreseeable future.