As with many legal questions, the answer is: it depends.
It is not uncommon for a builder to return to a property months, or even years, after completing the original building work to rectify defects. For owners and owners corporations, this can create an understandable assumption that the builder’s return to site, particularly where substantial rectification works are undertaken, gives them a fresh period within which to bring a claim.
That assumption can be dangerous.
Rectification or “patch-up” work carried out by a builder does not, of itself, restart the limitation period for a building action in Victoria. Depending on the nature of the subsequent works and the permits and certificates issued in respect of them, a different, and potentially shorter, limitation period may apply.
The starting point: section 134 of the Building Act
Section 134 of the Building Act 1993 (Vic) (Building Act) provides that a building action cannot be brought more than 10 years after the date of issue of the occupancy permit in respect of the relevant building work or, where no occupancy permit is issued, the date of issue of the certificate of final inspection.
A “building action” is broadly defined by section 129 of the Building Act as an action for damages for loss or damage arising out of or concerning defective building work.
The operation of section 134 was considered by the Victorian Court of Appeal in Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165.
Importantly, the Court rejected the proposition that section 134 merely operates as a 10-year “long-stop” sitting above the ordinary limitation periods applying to contractual and tortious claims. Rather, section 134 applies to building actions generally, including claims in contract and tort, and, where it applies, the limitation period operates notwithstanding the different limitation periods otherwise provided by the Limitation of Actions Act 1958 (Vic) (Limitation Act).
In practical terms, where an occupancy permit or certificate of final inspection has been issued in respect of the relevant building work, the date of that document is critical when assessing the limitation period.
But what happens where there is no such document?
What happens when no permits were ever issued?
That issue arose in Gledhill v Scotia Property Maintenance Pty Ltd [2019] VCAT 422 (Gledhill).
The proceeding concerned allegedly defective balcony repair works carried out in approximately June 2007. The owner commenced proceedings in VCAT in May 2018, more than 10 years after those works had been completed.
No building permit had been obtained for the balcony works and no occupancy permit or certificate of final inspection had been issued.
The builder argued that section 134 should nevertheless be interpreted so that the 10 year period ran from completion of the building work. The owner took the opposite position and argued that, because no occupancy permit or certificate of final inspection had been issued, the 10 year period had never begun to run.
VCAT rejected both approaches.
The Tribunal held that section 134 did not operate in circumstances where there was no building permit and therefore no occupancy permit or certificate of final inspection to provide the statutory trigger for the 10-year period.
Instead, because section 134 had no application, VCAT held that section 5 of the Limitation Act applied.
That distinction is significant. Rather than simply asking whether 10 years have passed since the relevant building works were completed, it becomes necessary to identify the applicable cause of action and determine when that cause of action accrued for the purposes of the general limitation regime.
Importantly, VCAT did not ultimately determine whether the owner’s claim in Gledhill was statute-barred under section 5. The builder had not pleaded that alternative defence, so the question was not determined.
The position after Gledhill
The approach in Gledhill has subsequently received support.
In Mason v Fraser [2021] VSC 461, the Supreme Court of Victoria considered building works undertaken in a number of stages. The Court accepted that section 134 applied to stages of the building work for which a certificate of final inspection had been issued. Where no certificate had been issued, however, the applicable limitation period was that provided by section 5 of the Limitation Act.
This reinforces an important point: the limitation analysis may depend upon the particular building work in question and the statutory documents issued in respect of that work.
That can become particularly important where there have been several stages of original construction, subsequent repairs and later rectification works.
So, does rectification work restart the clock?
Not necessarily.
The fact that a builder returns to a property and undertakes further work does not, by itself, mean that the original limitation period starts again.
The proper analysis will depend on matters including:
- the nature and scope of the original building work and the subsequent rectification work;
- whether the subsequent work constitutes separate building work;
- whether a building permit was obtained for that work;
- whether an occupancy permit or certificate of final inspection was issued in respect of it;
- the particular defects and building work the proposed claim concerns; and
- where the Limitation Act applies, when the relevant cause of action accrued.
For owners and owners corporations, this means that a builder’s willingness to return to site should not create a false sense of security about limitation periods.
There can be a natural tendency to allow a builder time to investigate defects, propose solutions and undertake repeated rectification attempts. However, while those discussions and works continue, the applicable limitation period may also continue to run.
What should owners and owners corporations do?
Where significant defects are identified, owners and owners corporations should establish the limitation position early rather than waiting until rectification attempts have failed.
That includes locating and reviewing the original building permit, occupancy permit and/or certificate of final inspection, together with the contractual and approval documents relating to any subsequent rectification works.
Particular care should be taken where a builder has returned to undertake substantial rectification work but no new building permit, occupancy permit or certificate of final inspection has been issued.
Ultimately, rectification works may fix the physical defect. They do not necessarily reset the limitation clock.
Early advice about the applicable limitation period can therefore be just as important as determining how the defect itself should be rectified.
This article was first published on 30 September 2026 and was written by Julia Moroz, Director & Principal and James Cooper, Law Graduate in our Melbourne office.
© Bugden Allen Group Legal Pty Ltd. This is general information only and not legal advice. You should not rely on this information without seeking legal advice tailored to your specific circumstances.
