MR SCOTT CHRISTOPHER DUNCAN v BERT FARINA CONSTRUCTIONS PTY LTD [2024] SASCA 67

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE THOMAS) CIV- 22-007659 First Appellant: MR SCOTT CHRISTOPHER DUNCAN Counsel: MR A LAZAREVICH - Solicitor: LEVENTIS LAWYERS Second Appellant: MS FIONA JANE ROBERTS Counsel: MR A LAZAREVICH - Solicitor: LEVENTIS LAWYERS Respondent: BERT FARINA CONSTRUCTIONS PTY LTD Counsel: MR B JENNER - Solicitor: FBR LAW Hearing Date/s: 06/11/2023 File No/s: CIV-23-005055 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. DUNCAN v BERT FARINA CONSTRUCTIONS PTY LTD [2024] SASCA 67 Judgment of the Court of Appeal (The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice Blue) 30 May 2024 STATUTES - ACTS OF PARLIAMENT - INTERPRETATION LIMITATION OF ACTIONS - LIMITATION OF PARTICULAR ACTIONS This is an appeal from the primary judge’s determination of a preliminary question of law. The appellants (owners) issued proceedings against the respondent (builder), claiming damages for defective building work in the construction of their house. The owners alleged breaches of statutory warranties under s 32(2) of the Building Work Contractors Act 1995 (SA) (‘BWCA’) and common law negligence. Section 32(5) of the BWCA establishes a five year limitation period for claims made under s 32(2) of the BWCA. Section 73 of the Development Act 1993 (SA) (‘DA’) (and its successor, s 159 of the Planning, Development and Infrastructure Act 2016 (SA) (‘PDIA’)) contain a 10 year limitation period for actions for damages for economic loss or rectification costs resulting from defective building work. At first instance, the owners pleaded that the time limit for commencing proceedings for breach of statutory warranties under s 32(2) of the BWCA is 10 years from the date of completion of the building work by reason of s 73 of the DA. The builder pleaded in its defence that the limitation period applicable under s 32(2) of the BWCA is five years, pursuant to s 32(5) of the BWCA. The primary judge generally accepted the builder’s contention and held that, in proceedings for damages for defective building work relying on breach of a statutory warranty under s 32(2) of the BWCA, a respondent is able to elect to plead the expiry of the five year warranty under s 32(5) BWCA as a defence, and, properly read, s 73 of the DA, and its successor s 159 of the PDIA, do not displace the -- 1 of 34 -- shorter five year limitation period in s 32(5) of the BWCA. The owners appeal the primary judge’s determination. Held, (per the Court), dismissing the appeal: 1. The relevant textual, contextual and purposive considerations support the construction of s 73 of the Development Act 1993 (SA) and s 159 of the Planning, Development and Infrastructure Act 2016 (SA) as imposing a 10 year long stop limitation period in respect of claims for economic loss or rectification costs arising out of defective building work which does not operate so as to displace the five year time limit for claims based on the statutory warranties in respect of domestic building work under s 32 of the Building Work Contractors Act 1995 (SA). Builders Licensing Act Amendment Act 1983 (SA); Builders Licensing Act 1967 (SA); Builders Licensing Act 1986 (SA) pt 5; Building Act 1992 (NT) ss 160-161; Building Act 1993 (Vic) s 134; Building Act 2004 (ACT) s 142(3); Building Act 2016 (Tas) s 327; Building Work Contractors Act 1995 (SA) ss 3, 32(1), 32(2), 32(3), 32(5), 32(6), 37(2), 37(6), 40(1); Competition and Consumer Act 2010 (Cth) sch 2; Defective Houses Act 1976 (SA) s 4; Development Act 1993 (SA) ss 4, 72, 73; Domestic Building Contracts Act 1995 (Vic) ss 8, 9, 20; Environmental Planning and Assessment Act 1979 (NSW) s 6.20(4); Legislation Interpretation Act 2021 (SA) ss 14, 16; Limitation of Actions Act 1936 (SA) ss 35(a), 35(c), 36, 48; Limitation of Actions Act 1958 (Vic) ss 5(1)(a), 33; Limitation of Actions Act 1974 (Qld) ss 10(1)(d), 26(1); Planning, Development and Infrastructure Act 2016 (SA) ss 158, 159, referred to. Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Attorney- General (Cth) v Oates (1999) 198 CLR 162; Aussie Blinds and Canvas Products Pty Ltd v Smith [2015] SADC 154; Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd (2015) 48 VR 558; Brisbane City Council v Amos (2019) 266 CLR 593; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Commonwealth v Mewett (1997) 191 CLR 471; Commonwealth v Verwayen (1990) 170 CLR 394; Disorganized Developments Pty Ltd v South Australia (2023) 97 ALJR 575; Duncan v Bert Farina Constructions Pty Ltd [2023] SADC 37; Goodwin v Phillips (1908) 7 CLR 1; Maybury v Plowman (1913) 16 CLR 468; Price v Spoor (2021) 270 CLR 450; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Re McE [2009] 4 All ER 335; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; Walford Anglican School for Girls Incorporated v Romaldi Constructions Pty Ltd [2020] SADC 146; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515, considered. -- 2 of 34 -- DUNCAN & ANOR v BERT FARINA CONSTRUCTIONS PTY LTD [2024] SASCA 67 Court of Appeal – Civil: Doyle and Bleby JJA and Blue AJA 1 THE COURT: This is an appeal from the primary judge’s determination of a preliminary question of law. The issue raised by the question is whether s 73 of the Development Act 1993 (SA) (the DA) (which was in identical form to its successor, s 159 of the Planning, Development and Infrastructure Act 2016 (SA) (the PDIA)) creates a single limitation period of 10 years for all claims for damages for economic loss or rectification costs arising out of defective building work, or whether a shorter period of five years applies where those claims rely on a breach of a statutory warranty under s 32(2) of the Building Work Contractors Act 1995 (SA) (the BWCA). 2 The answer given by the primary judge1 was that in proceedings for breach of a statutory warranty under s 32(2) of the BWCA, including a claim for compensation for defective building work under that subsection, a respondent may elect to plead the expiry of the non-extendable five year limitation period in s 32(5) of the BWCA by way of defence. Neither the 10 year limitation period in s 73 of the DA, nor its successor in s 159 of the PDIA, displaces that shorter limitation period. 3 For the reasons given below, the primary judge’s answer is correct. Properly understood, s 73 of the DA (and hence also s 159 of the PDIA) operates only as a ‘long stop’ limitation provision. It operates only to prohibit the commencement of a claim for damages for economic loss or rectification costs arising out of defective building work after 10 years has elapsed. It does not give permission for, or authorise, the commencement of such claims at any time up to the expiry of that period. There is no inconsistency between s 73 (or s 159) and the operation of the shorter five year time limit that applies in respect of such claims when based upon the breach of a statutory warranty under s 32(2) of the BWCA. They may operate concurrently in respect of a particular claim. Where both time limits are potentially applicable, a respondent may rely upon the shorter period as barring the applicant’s claim. Relevant legislative provisions 4 It is appropriate to commence by identifying the legislative provisions containing the statutory warranties applicable to contracts for domestic building work in the BWCA and the five year time limit in respect of claims involving those warranties; the 10 year time limit for claims for damages for economic loss or rectification costs resulting from defective building work in s 73 of the DA and s 159 of the PDIA; and the time limits applicable in relation to contractual and tortious claims under the Limitation of Actions Act 1936 (SA). 1 Duncan v Bert Farina Constructions Pty Ltd [2023] SADC 37 (Reasons) at [21]. -- 3 of 34 -- [2024] SASCA 67 The Court 2 Key provisions of the BWCA 5 Part 5 of the BWCA contains various provisions regulating domestic building work. In Division 2 of Part 5, s 32 provides for several statutory warranties to be implied in every domestic building work contract: 32—Statutory warranties (1) This section applies to a contract entered into on or after 22 January 1987¹. (2) The following warranties on the part of the building work contractor are implied in every domestic building work contract: (a) a warranty that the building work will be performed in a proper manner to accepted trade standards and in accordance with the plans and specifications agreed to by the parties; (b) a warranty that all materials to be supplied by the contractor for use in the building work will be good and proper; (c) a warranty that the building work will be performed in accordance with all statutory requirements; (d) if the contract does not stipulate a period within which the building work must be completed—a warranty that the building work will be performed with reasonable diligence; (e) if the building work consists of the construction of a house—a warranty that the house will be reasonably fit for human habitation; (f) if the building owner has expressly made known to the contractor, or an employee or agent of the contractor, the particular purpose for which the building work is required, or the result that the building owner desires the building work to achieve, so as to show that the building owner relies on the contractor's skill and judgment—a warranty that the building work and any materials used in performing the building work will be reasonably fit for that purpose or of such a nature and quality that they might reasonably be expected to achieve that result. (3) A person who has purchased or otherwise acquired a house succeeds to the rights of the person's predecessor in title in respect of statutory warranties. (4) If a person has purchased a house from a building work contractor who performed domestic building work in relation to the house, the purchaser has rights under statutory warranties as if the house had been purchased from a third party for whom the vendor had performed the building work under a contract subject to statutory warranties. (5) Proceedings for breach of a statutory warranty must be commenced within five years after completion of the building work to which the proceedings relate. (6) The period of limitation prescribed by subsection (5) may not be extended. -- 4 of 34 -- [2024] SASCA 67 The Court 3 (7) In proceedings for breach of a statutory warranty, it is a defence for the defendant to prove that the deficiencies of which the plaintiff complains arose from instructions insisted on by the building owner contrary to the advice in writing of the defendant. Note— 1 22 January 1987 was the date of commencement of the corresponding section of the repealed Builders Licensing Act 1986. 6 The following definitions from s 3 of the BWCA inform the application of these statutory warranties: building work contractor means— (a) a person who carries on the business of performing building work for others; or (b) a person who carries on the business of performing building work with a view to the sale or letting (whether by lease, licence or other agreement) of land or buildings improved as a result of the building work; building includes a wall or structure and part of a building or structure; building owner, in relation to a domestic building work contract, means the person for whom domestic building work is or is to be performed under the contract; building work means— (a) the whole or part of the work of constructing, erecting, underpinning, altering, repairing, improving, adding to or demolishing a building; or (b) the whole or part of the work of excavating or filling a site for work referred to in paragraph (a); or domestic building work means— (a) the whole or part of the work of constructing, erecting, underpinning, altering, repairing, improving, adding to or demolishing a house; or (b) the whole or part of the work of excavating or filling a site for work referred to in paragraph (a); or (c) work of a class prescribed by regulation; domestic building work contract means a contract between a building work contractor and another person for the performance by the contractor of domestic building work (including any variation of such a contract), but does not include a subcontract for the performance of domestic building work; statutory warranty means a warranty arising under Division 2 of Part 5. 7 The statutory warranties in s 32(2) of the BWCA are only implied in contracts for “domestic” building work. Having regard to the definitions set out above, this means that they only apply to building work involving a house. They are also only implied in contracts with “building work contractors” (that is, -- 5 of 34 -- [2024] SASCA 67 The Court 4 builders), and not others (such as architects, engineers, surveyors, certifiers or developers) who might be involved in aspects of the building project. As to the content of the statutory warranties, while claims based on the warranties in ss 32(2)(a), (b), (c), (e) and (f) may aptly be described as claims relating to defective building work, claims based on the warranty in s 32(2)(d) relate to a lack of reasonable diligence or delay. 8 It may also be observed that the statutory warranties are transmissible to subsequent owners of a house (s 32(3)); that proceedings for breach of a statutory warranty must be brought within five years from completion of the building work (s 32(5)); and that this time limit is not able to be extended (s 32(6)). 9 Division 5 of Part 5 governs the courts’ powers in relation to claims relating to domestic building work. In particular, s 37(2) provides for proceedings relating to a statutory warranty or domestic building work contract to be brought in the Magistrates Court (but transferred to the District Court if the value of the claim exceeds $100,0002). Under s 37(6), if the Court is satisfied that there has been a breach of, or failure to perform or fulfil, a contract or warranty, then it may make “an order requiring the performance of remedial work” (s 37(6)(a)) or “an order requiring the payment of an amount due under the contract or … an amount by way of compensation for the breach” (s 37(6)(b)). Key provisions of the DA and PDIA 10 The DA and its successor, the PDIA, are wider ranging pieces of legislation governing various aspects of planning, development and building work. 11 Relevantly for present purposes, Part 6 of the DA contains a suite of provisions regulating several aspects of building work. Division 7 of that Part is headed “Liability” and contains provisions relating to both the negation of joint and several liability in certain cases (s 72), and the imposition of a 10 year time limit on actions for damages for economic loss or rectification resulting from defective building work (s 73). In particular, s 73 provides: 73—Limitation on time when action may be taken (1) Despite the Limitation of Actions Act 1936, or any other Act or law, no action for damages for economic loss or rectification costs resulting from defective building work (including an action for damages for breach of statutory duty) can be commenced more than 10 years after completion of the building work. (2) This section does not affect an action to recover damages for death or personal injury resulting from defective building work. (3) The period prescribed by subsection (1) cannot be extended. 2 BWCA, s 40(1), referring to proceedings involving a monetary claim exceeding $100,000, or a claim for relief in the nature of an order to carry out work where the value of the work exceeds $100,000. -- 6 of 34 -- [2024] SASCA 67 The Court 5 12 Both “building” and “building work” are defined broadly in s 4 of the DA: building means a building or structure or a portion of a building or structure (including any fixtures or fittings which are subject to the provisions of the Building Code of Australia), whether temporary or permanent, moveable or immovable, and includes a boat or pontoon permanently moored or fixed to land, or a caravan permanently fixed to land; building work means work or activity in the nature of— (a) the construction, demolition or removal of a building (including any incidental excavation or filling of land); or (c) any other prescribed work or activity, but does not include any work or activity that is excluded by regulation from the ambit of this definition. 13 Notably, the 10 year time limit in respect of claims resulting from defective building work is confined to damages for economic loss or rectification costs; it does not apply to claims for death or personal injury. Further, like the shorter time period under s 32(5) of the BWCA, the 10 year time limit under s 73 of the DA commences to run from completion of the building work, and is not able to be extended. However, it applies to claims in respect of defective building work generally and not merely domestic building work. It is also not confined to claims against the builder; it applies to claims against others involved in the defective building works such as architects, engineers, surveyors, certifiers and developers. 14 Part 11 of the successor Act, the PDIA, contains a similar suite of provisions regulating building work. In particular, ss 158 and 159 in Division 7 of Part 11 of the PDIA are in identical terms to ss 72 and 73 in Division 7 of Part 6 of the DA. The PDIA also contains relevantly identical definitions of “building” and “building work”. Other limitation provisions 15 Claims for defective building work are, of course, often brought as common law claims in contract and negligence. Under ss 35(a) and (c) respectively of the Limitation of Actions Act, those claims “shall, save as otherwise provided in this Act, be commenced within six years next after the cause of action accrued and not after.” This is subject to a shorter, three year period, applicable in respect of claims for damages for personal injury.3 16 In the case of contractual claims, the cause of action accrues, and hence time runs, from the date of breach. Typically, this will be when the relevant building work is undertaken. Proof of damage is not an element of the cause of action in contract. This gives rise to a potential difficulty in cases involving latent defects, 3 Limitation of Actions Act 1936 (SA), s 36(1); noting that in the case of a latent injury time only begins to run when the injury first comes to the person’s knowledge. -- 7 of 34 -- [2024] SASCA 67 The Court 6 where the defect giving rise to the occasion for the claim may only be discovered after the limitation period has expired. 17 Negligence, however, is only actionable upon proof of damage. It is accepted that this requires, and hence time does not begin to run until, damage is suffered or becomes reasonably apparent. In the case of latent defects, this may not occur until many years after the work is undertaken. As McHugh J explained in Woolcock Street Investments Pty Ltd v CDG Pty Ltd,4 it follows that those involved in the design or construction of a building may be sued in negligence many years after the work was undertaken, and indeed after the time has expired for suing in contract:5 The now accepted doctrine is that, in the case of defective premises, damage does not occur until the defect manifests itself. No cause of action arises in tort until the plaintiff suffers damage. Consequently, those concerned with the design and construction of a building may be required to defend themselves against an action in tort many years after completing the task that now gives rise to the claims against them. On the other hand, a cause of action in contract arises when the contract is breached. Time runs from the breach, not the sustaining of damage. This creates the paradox that those involved in the design or construction of a building may be sued in tort years after the time has expired for suing on the contract that gave rise to the duty. 18 The time limits applicable to both contractual and tortious claims under the Limitation of Actions Act may be extended under s 48 of that Act. 19 Claims in building disputes may, of course, be brought other than in contract and tort. They may include, for example, claims for misleading and deceptive conduct contrary to s 18(1) of the Australian Consumer Law.6 Claims of this nature are subject to a limitation period of three years; and as damages is the gist of the cause of action, time does not begin to run until loss or damage has been suffered or becomes reasonably ascertainable.7 Background 20 The following background to the issue arising on appeal was agreed by the parties, or is otherwise uncontentious because it reflects admissions in the pleadings. 21 The appellants (the Owners) issued the proceeding against the respondent (the Builder) on 13 July 2022, claiming damages for defective building work in the construction of their house in Morphettville (the Morphettville property). They allege breaches of statutory warranties under s 32(2) of the BWCA and common law negligence. 4 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515. 5 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at [103] (McHugh J) (citations omitted). 6 Competition and Consumer Act 2010 (Cth), Schedule 2. 7 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514. -- 8 of 34 -- [2024] SASCA 67 The Court 7 22 The Builder carried out the building work (the Works) on the Morphettville property under a written contract (the Contract) with the original owner (the South Australian Housing Trust (the SAHT)) dated 13 August 2014. 23 The Works the subject of dispute in these proceedings comprised “domestic building work”, the Contract was a “domestic building work contract”, and the Builder was a “building work contractor”, all within the meaning of the BWCA. It follows that the statutory warranties in s 32(2) of the BWCA were implied in the Contract. The Works also comprised “building work” within the meaning of s 73 of the DA and s 159 of the PDIA. 24 The Owners acquired the Morphettville property from its original owner, the SAHT, on about 29 June 2016. By operation of s 32(3) of the BWCA, the Owners are the successors to the rights of the SAHT in respect of the statutory warranties under s 32(2) of that Act. 25 The parties are not agreed as to the date when the Works were completed. The Builder contends that the Works reached practical completion under the Contract on 10 December 2015, and that the defects liability period therefore ended on 10 March 2016. The bank guarantee provided on behalf of the SAHT was released on 27 June 2016. 26 The Owners plead that they do not know the precise particulars of the Contract or the completion date. In any event, they say further that the time limit for commencing proceedings for breach of the statutory warranties under s 32(2) of the BWCA is 10 years from the date of completion by reason of s 73 of the DA (now s 159 of the PDIA), with the result that the claim in respect of those warranties is within time. 27 The Builder pleads in its defence that the limitation period applicable to the claims under s 32(2) of the BWCA is five years, and that because the Works were completed by 27 June 2016 at the latest, the Owners’ claim had to be commenced by 27 June 2021. As the five year limitation period is not able to be extended under s 32(6) of the BWCA, the claim under that Act is statute-barred. 28 It was in this context that the parties agreed the following issue for determination by the primary judge: Whether the time within which proceedings [must be commenced] for defective building work relying on a breach of statutory warranty under ss 32(2) and 32(3) of the BWCA is: (a) five (5) years after completion of the building work by reason of s 32(5) of the BWCA; or (b) ten (10) years after completion of the building work by reason of s 159(1) of the PDIA and/or s 73 of the DA. -- 9 of 34 -- [2024] SASCA 67 The Court 8 29 Part 11 of the PDIA commenced its operation on 1 July 2019.8 However, because s 73 of the DA was not repealed until 19 March 2021,9 both provisions were in force at the expiry of the five year limitation period commencing on the earlier dates relied upon by the Builder (being the dates of practical completion (10 December 2015) and the end of the defects liability period (10 March 2016)).10 However, only s 159 of the PDIA was in force at the expiry of the five year limitation period commencing on the latest date relied upon by the Builder (being the release of the guarantee on 27 June 2016). 30 Determining which of s 73 of the DA and/or s 159 of the PDIA apply to the Owners’ claim in these proceedings is not straightforward and will depend not only upon a determination of the date of completion for the purposes of those sections, but also whether s 159 of the PDIA may have retrospective effect. The parties are not agreed as to which of these provisions will ultimately apply, but have approached the issue arising on the preliminary question on the basis that it is not necessary for that to be determined at this stage in the proceeding as the outcome will be the same regardless of which of these sections apply. 31 The preliminary question agreed by the parties focuses upon the (non- extendable) time limit applicable to the Owners’ claim under the statutory warranties in ss 32(2) and (3) of the BWCA. However, it is apparent that an issue may also arise in the proceeding as to whether the Owners’ claim in negligence is statute-barred. The Builder’s position is that the shorter (but extendable) six year period under s 35(c) of the Limitation of Actions Act applicable to actions in tort applies to that claim, with the 10 year period under s 73 of the DA (and s 159 of the PDIA) operating as a ‘long stop’ limit of 10 years upon any extension of that time limit under s 48 of the Limitation of Actions Act. The Owners, on the other hand, contend that this claim may be brought at any time within the 10 year period under s 73 of the DA, or s 159 of the PDIA, albeit that they plead an entitlement to an extension of time under s 48 of the Limitation of Actions Act in the event that the shorter period under that Act is the applicable time limit. 32 In her reasons, the primary judge commenced by summarising the parties’ respective contentions. As she explained, in arguing for a single 10 year limitation period, the Owners advanced several contentions, including: • that a claim for compensation for breach of a statutory warranty under s 32 of the BWCA is a claim for damages for economic loss or rectification costs resulting from defective building work within the meaning of s 73 of the DA (and s 159 of the PDIA); 8 Planning, Development and Infrastructure Act (Commencement) Proclamation 2019’ in South Australia, The South Australian Government Gazette, No 30, 27 June 2019, 2320. 9 Planning, Development and Infrastructure Act (Commencement) Proclamation 2021’ in South Australia, The South Australian Government Gazette, No 14, 4 March 2021, 822. 10 These dates are taken from the agreed facts, but confusingly the dates used in the respondent’s defence are 20 November 2015 and 20 February 2016. Nothing turns on this difference. -- 10 of 34 -- [2024] SASCA 67 The Court 9 • that ss 73 and 159 are expressed to apply “[d]espite” the Limitation of Actions Act or “any other Act or law” (which would include the time limit in s 32(5) of the BWCA); • that the mischief to be addressed by ss 73 and 159 was the uncertainty about the various time limits applicable to claims in relation to defective building work, with the corresponding purpose of the sections being to provide uniformity in this respect; • that the construction urged by the Owners is supported by the decision of the Victorian Court of Appeal in Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd11 in relation to a similar provision in the Victorian legislation, and two decisions of the South Australian District Court; and • that a survey of, and comparison with, similar interstate provisions also supports the Owners’ construction. 33 On the other hand, in arguing for the continued operation of the shorter five year time limit in relation to claims under s 32 of the BWCA, the primary judge noted that the Builder contended: • that there was no reason in the text, context or statutory purpose of the relevant provisions to conclude that the legislature intended that s 73 of the DA (or s 159 of the PDIA) would modify, replace or affect the operation of the five year time limit in s 32(5) of the BWCA; • that there was no necessary or direct conflict between the relevant provisions of the BWCA and the DA (or PDIA); • that the provisions should be construed as pursuing harmonious goals, with coherence achieved by reading the more general provisions in ss 73 and 159 as not applying to the more specific context of statutory warranties under s 32 of the BWCA; • that a consideration of the relevant legislative history demonstrated both long-standing legislative support in South Australia for a balance between protecting “house” owners with transmissible statutory warranties and confining that protection to a (non-extendable) period of five years, and the absence of any clear indication that either of ss 73 and 159 was intended to alter that history or balance; and • that the decision in Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd is distinguishable by reason of the different legislation in Victoria, and the two District Court decisions are of little assistance as they simply applied that decision. 11 Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd (2015) 48 VR 558. -- 11 of 34 -- [2024] SASCA 67 The Court 10 34 The primary judge addressed each of these arguments in her careful and thorough reasons. Having commenced with a summary of the orthodox approach to statutory construction, her Honour addressed each of the textual, contextual and purposive considerations relied upon by the parties. In addressing the textual considerations, the primary judge considered the general approach of the courts to limitation provisions, the absence of any clear conflict or inconsistency between the relevant provisions of the DA/PDIA and the BWCA, the overlap in their fields of operation, and the significance of the introductory words of ss 73 and 159 (“despite … any other Act”). In next addressing matters of broader context and purpose, the primary judge summarised the regulation in South Australia of domestic building work under the BWCA, and building work more generally under the DA/PDIA, and relevant aspects of the legislative history in relation to these matters. Her Honour concluded by addressing the authorities relied upon by the Owners. 35 The primary judge generally accepted the Builder’s contentions in relation to each of these issues. Rather than summarise the entirety of her Honour’s reasoning it will be sufficient to note aspects of her reasoning as matters arise in the reasons that follow. The appeal 36 The Owners rely upon 10 grounds of appeal. They involve a wide-ranging challenge to several aspects of her Honour’s analysis of the textual, contextual and purposive considerations relevant to her acceptance of the Builder’s construction of ss 73 and 159. While we have had regard to each of the grounds of appeal, it is not necessary to set them out in full. They are all addressed in the reasons given below for upholding her Honour’s construction of ss 73 and 159. Approach to statutory construction 37 Resolution of the preliminary question ultimately involves a question of statutory construction and, in particular, the proper construction of s 73 of the DA and s 159 of the PDIA. 38 The primary judge accurately summarised the principles governing statutory construction,12 and what follows largely reflects her Honour’s collection of those principles. 39 The fundamental task of the Court in construing legislation is, of course, to give the words used in the relevant provisions the meaning that the legislature is taken to have intended.13 12 Reasons at [43]-[52]. 13 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78] (McHugh, Gummow, Kirby and Hayne JJ). -- 12 of 34 -- [2024] SASCA 67 The Court 11 40 The contemporary approach to this task is conveniently summarised in the following passage from the reasons of Kiefel CJ, Gordon and Nettle JJ in SZTAL v Minister for Immigration and Border Protection:14 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose15. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense16. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. 41 Similarly, in CIC Insurance Ltd v Bankstown Football Club Ltd,17 Brennan CJ, Dawson, Toohey and Gummow JJ emphasised that context in its widest sense and statutory purpose are to be considered from the outset, and not only when an ambiguity might be thought to arise on the text. This may include consideration of matters such as the existing state of the law, and the mischief which the legislation was intended to remedy. 42 In the case of South Australian statutes, s 14 of the Legislation Interpretation Act 2021 (SA) expressly provides that the interpretation that best achieves the purpose or object of the Act (even if not expressly stated in the Act) is to be preferred to any other interpretation. 43 Any inconvenience or improbability in the result of a construction may indicate a meaning other than the literal meaning of the relevant provision.18 Whether a particular construction assists or interferes with the coherent operation of the relevant legislation scheme may also be a relevant consideration. 44 At the same time, contextual and purposive indications may not be used to rewrite the legislation; the meaning derived must be consistent with the language in fact used in the relevant legislation.19 Further, the purpose must be one which may be discerned from the legislation itself, read in the context of any relevant extrinsic material. Legislation must not be construed on the basis of some a priori 14 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ). 15 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47]. 16 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. 17 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). 18 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). 19 Disorganized Developments Pty Ltd v South Australia (2023) 97 ALJR 575 at [15] (Kiefel CJ, Gageler, Gleeson and Jagot JJ). -- 13 of 34 -- [2024] SASCA 67 The Court 12 assumption as to the statutory purpose, or as to the desirable reach or operation of the relevant provision.20 45 In SZTAL v Minister for Immigration and Border Protection, Gageler J described the task as one involving “constructional choice” between the competing meanings that may be available:21 The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from “a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural”, in which case the choice “turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies”.22 46 In the present case, there is a constructional choice to be made between the Builder’s construction of s 73 of the DA and s 159 of the PDIA (which has them operating concurrently with s 32(5) of the BWCA, and as mere long stop limitation provisions where they apply), and the Owners’ construction (which has them operating to the exclusion of the shorter limitation periods such as the one appearing in s 32(5) of the BWCA). In considering the Owners’ challenges on appeal to the primary judge’s preference for the Builder’s construction, it is convenient to commence by addressing the various textual considerations, before then turning to the broader contextual and purposive considerations relied upon by the parties. Textual considerations 47 It is appropriate to commence with the text of s 73 of the DA, which has been set out earlier in these reasons, and is in identical form to s 159 of the PDIA. This is not, however, to overlook the relevance of broader contextual and purposive considerations throughout the construction process. These reasons should not be understood as reflecting an entirely sequential process of reasoning. 48 In general terms, s 73 creates a non-extendable 10 year time limit in respect of certain types of actions for damages for defective building work. However, when considering the potential application of this section in the context of the present case, and in particular its impact upon the operation of the shorter five year limitation period in s 32(5) of the BWCA, several aspects of the text of s 73(1) warrant close attention. These include that it: • applies to actions for “damages for economic loss or rectification costs resulting from defective building work (including an action for damages for breach of statutory duty)”; 20 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [26] (French CJ and Hayne J). 21 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [38] (Gageler J). 22 Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 at 557 [66]. -- 14 of 34 -- [2024] SASCA 67 The Court 13 • is expressed in terms that “no action … can be commenced” after the 10 year period; and • is expressed to apply “[d]espite” the Limitation of Actions Act or any other Act or law. 49 As to the first of these textual considerations, the Owners’ claim under s 32 of the BWCA is an action of the type contemplated by s 73 of the DA. The claim alleges breaches of the s 32(2) statutory warranties based upon defective building work. The Works, as well as being “domestic building work” for the purposes of the BWCA, are also “building work” for the purposes of the DA. The claim seeks monetary relief. While the monetary relief available for the breach of a s 32(2) statutory warranty is described as “compensation” (s 37(6)(b)), this is encompassed within an action for “damages” for the purposes of s 73 of the DA. Further, the compensation sought is compensation for “economic loss or rectification costs”. 50 It follows from the matters set out in the preceding paragraph that s 73 of the DA is capable of applying to claims, such as the one brought by the Owners in the underlying proceedings, for compensation for breach of a statutory warranty under s 32(2) of the BWCA. However, determining the practical significance of this conclusion requires consideration of the second and third textual considerations identified above. 51 As to the second of these textual considerations, the use of the expression “no action … can be commenced” after the relevant period is an orthodox mode of expressing a time limit. In considering time limit provisions expressed in these terms, several authorities have emphasised that they are not to be understood literally as barring a plaintiff’s right to commence or bring (let alone the court’s jurisdiction to entertain) an action or claim of the relevant type. Rather, they are to be understood as conferring a right on the part of the defendant to rely upon the expiration of the time limit as providing a defence by barring the plaintiff’s right to the remedy sought. 52 This understanding of time limit provisions has been confirmed in several High Court decisions, including Commonwealth v Mewett,23 Commonwealth v Verwayen24 and Brisbane City Council v Amos.25 It was recently reiterated by various members of the High Court in Price v Spoor,26 as conveniently summarised in the following passage from the reasons of Gageler and Gordon JJ:27 23 Commonwealth v Mewett (1997) 191 CLR 471 at 534–535 (Gummow and Kirby JJ). 24 Commonwealth v Verwayen (1990) 170 CLR 394 at 405 (Mason CJ), 425-426 (Brennan J), 473-475 (Toohey J), 486-487 (Gaudron J), 497-499 (McHugh J). 25 Brisbane City Council v Amos (2019) 266 CLR 593 at [7] (Kiefel CJ and Edelman J), [40] (Gageler J), [49] (Keane J). 26 Price v Spoor (2021) 270 CLR 450. 27 Price v Spoor (2021) 270 CLR 450 at [40] (Gageler and Gordon JJ) (citations omitted); see also at [9]- [10] (Kiefel CJ and Edelman J), [116] (Steward J). -- 15 of 34 -- [2024] SASCA 67 The Court 14 Section 13, in its terms, provides that ‘[a]n action shall not be brought by a person to recover land after the expiration of 12 years from the date on which the right of action accrued to the person … .’ It is in a form which, as has long been settled by judicial decision, is not to be taken literally but merely provides a defence to an action that must be pleaded by a defendant if the expiration of the limitation period is to be given effect. It is a provision by which the remedy is barred, but not the right of the plaintiff to bring the cause of action. 53 A further observation to be made is that whilst a time limit expressed in terms that “no action … can be commenced” may operate to defeat an action commenced after expiry of the relevant period (by reason of the defendant pleading the time limit as a defence, and thus barring the remedy), it does not, in its terms, confer any permission, authority, right or entitlement on a plaintiff to commence an action at any time up to the expiry of that period. That this is so is inherent in the words used, which are negative or restrictive in nature, rather than positive or permissive in nature.28 54 It is a corollary of this, acknowledged in Brisbane City Council v Amos,29 that two differing time limits may apply in respect of the same action, with the result that the defendant may rely upon the shorter of those time limits. As Gageler J observed,30 while a plaintiff is free to choose to rely on the cause of action which is most advantageous to the plaintiff (for example, because it has a longer limitation period), in the event that more than one limitation period is applicable to the cause of action upon which the plaintiff chooses to rely, the defendant is correspondingly free to invoke by way of defence the limitation period which is shortest and therefore most advantageous to the defendant. 55 In Brisbane City Council v Amos, the plaintiff council commenced proceedings to recover overdue and unpaid rates levied on rateable land owned by the defendant. The council was statutorily empowered to levy rates, with the overdue rates being supported by a charge on the relevant land. Under s 10(1)(d) of the Limitation of Actions Act 1974 (Qld), an action “shall not be brought after the expiration of 6 years from the date on which the cause of action arose … to recover a sum recoverable by virtue of any enactment.” Under s 26(1) of the same Act, an action “shall not be brought to recover a principal sum of money secured by a mortgage or other charge on property … after the expiration of 12 years from the date on which the right to receive the money accrued.” The land owner pleaded the shorter six year limitation period under s 10(1)(d) in its defence, whereas the council maintained that the longer 12 year limitation period under s 26(1) applied. 56 The High Court held that s 26(1) did not exclude the operation of the shorter period in s 10(1)(d). Both the 12 year limitation period in s 26(1), and the six year limitation period in s 10(1)(d), applied concurrently to the council’s action and it 28 Cf the form of limitation provision considered in Attorney-General (Cth) v Oates (1999) 198 CLR 162 (“Despite anything in any other law, proceedings for an offence against this Law may be instituted within a period of 5 years …”). 29 Brisbane City Council v Amos (2019) 266 CLR 593. 30 Brisbane City Council v Amos (2019) 266 CLR 593 at [40]-[41] (Gageler J). -- 16 of 34 -- [2024] SASCA 67 The Court 15 was open to the land owner defendant to plead and rely upon the shorter limitation period. 57 Their Honours accepted that ss 10(1)(d) and 26(1) had overlapping fields of operation, including in respect of the council’s action against the land owner.31 The land owner could thus rely upon the shorter limitation period in defence of the claim unless there was some reason or basis for construing the longer limitation period in s 26(1), where it applies, as excluding the operation of the shorter limitation period in s 10(1)(d).32 Their Honours were unable to discern any basis in the text, context or purpose of these provisions for giving s 26(1) this effect. To the contrary, the text and other considerations (including the legislative history and previous legal treatment of these provisions) supported their concurrent operation, with a defendant entitled to rely upon the shorter limitation period.33 58 Put another way, in the case of different limitation periods with overlapping fields of operation, the longer limitation period does not necessarily – or of itself – operate to displace the shorter limitation period or otherwise extend the time within which a relevant action may be brought. The longer limitation period may continue to operate as something in the nature of a long stop provision, but with a defendant in an action to which the shorter limitation period applies able to rely upon the shorter limitation period in defence of that action. 59 The issue thus becomes whether there is anything in the text, context or purpose of the provision with the longer limitation period that excludes the operation of the shorter limitation period where they overlap. Translated into the context of the present case, the issue becomes whether there is anything in the text, context or purpose of s 73 of the DA that supports the exclusion of the operation of the shorter five year limitation period in s 32(5) of the BWCA where they overlap in their operation. 60 The Owners rely in this respect upon the third of the textual considerations identified above, namely the introductory words to s 73 (“[d]espite the Limitation of Actions Act 1936, or any other Act or law”). 61 The Owners argue that these words indicate a legislative intention that s 73 override any other limitation provision or law within the scope of its operation, thereby displacing the limitation provision in s 32(5) of the BWCA. 62 This argument involves an unduly blunt or simplistic approach to the work to be done by these introductory words. It is to be accepted that the use of the word “despite” indicates an intention that the limitation period in s 73 may operate to override another provision or law in relation to time limits. This reflects the 31 Brisbane City Council v Amos (2019) 266 CLR 593 at [3]-[4] (Kiefel CJ and Edelman J), [46] (Gageler J). 32 Brisbane City Council v Amos (2019) 266 CLR 593 at [7] (Kiefel CJ and Edelman J), [38] (Gageler J). 33 Brisbane City Council v Amos (2019) 266 CLR 593 at [37] (Kiefel CJ and Edelman J), [39]-[43], [46] (Gageler J), [48]-[49], [52] (Keane J), [54]-[56] (Nettle J). -- 17 of 34 -- [2024] SASCA 67 The Court 16 dictionary meaning of the preposition “despite”; namely, “without being affected or prevented by”, or “regardless of”. It is also consistent with its use as a synonym for the word “notwithstanding”.34 However, the use of the word “despite” does not indicate an intention that the limitation period in s 73 will necessarily operate to displace any alternative limitation period whenever they overlap in their operation. It merely indicates an intention that s 73 override another provision or law which would operate inconsistently with s 73. 63 As explained above, by reference to the High Court’s reasoning in Brisbane City Council v Amos, there is no inherent or necessary inconsistency between two limitation provisions with an overlap in their fields of operation. Both may operate concurrently as restrictions upon the right sought to be exercised by a plaintiff, with the defendant entitled to rely upon the shorter (or more restrictive) of the two provisions as barring the plaintiff’s claim. 64 Understood in this way, the use of the word “despite” in s 73 does not, by itself, mean that the section operates to displace the shorter limitation period in s 32(5). 65 The Owners contend that the primary judge’s similar explanation of the meaning of the word “despite” reflects an inappropriately nuanced meaning of “despite”, rather than its ordinary meaning. Although the primary judge did describe her approach as involving a “nuanced” construction,35 this should not be taken as indicating a departure from the ordinary meaning of the word. In reasoning that there must be some inconsistency or conflict between s 73 and the other limitation provision or law before s 73 overrides that other provision or law, and rejecting the submission that s 73 automatically displaces any other limitation provision or law with an overlapping operation, her Honour was not departing from the ordinary meaning of the word “despite”. She was supporting a careful approach to the meaning of “despite”; but supporting a meaning which nevertheless reflects the ordinary meaning of that word, and indeed perhaps better reflects it than the more simplistic approach contended for by the Owners. 66 The above should not be taken as indicating that the suggested meaning for the word “despite” does not involve a constructional choice, or that the word cannot bear the meaning contended for by the Owners. For that reason it remains relevant to consider the range of contextual and purposive considerations addressed in the balance of these reasons. However, as will be explained, these considerations support rather than undermine the suggested meaning of the introductory words of s 73. 67 Finally, before leaving the meaning of the word “despite”, we add, as the primary judge observed,36 that to adopt the meaning of the word suggested is not 34 Attorney-General (Cth) v Oates (1999) 198 CLR 162 at [33] (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ). 35 Reasons at [86], [88]. 36 Reasons at [91]-[93]. -- 18 of 34 -- [2024] SASCA 67 The Court 17 to render it, or the introductory words of s 73 more generally, redundant. They will have work to do where there is an inconsistency or conflict between s 73 and some other limitation provision or law. 68 An example is in the operation of the power to extend the time for the commencement of an action under s 48 of the Limitation of Actions Act. While the terms of that power permit an extension of the six year limitation period for contractual and tortious actions for damages for defective building work, to permit an extension beyond 10 years from the date of completion of the building work would, if s 73 is construed as a long stop limitation period, be inconsistent with the non-extendable 10 year period provided for by s 73. The same applies to s 45 of the Limitation of Actions Act. 69 By way of further example, it will be recalled that the six year limitation period in respect of tortious claims under s 35(c) of the Limitation of Actions Act commences from the date the cause of action accrues. In the case of a claim based upon a latent defect in building work, this may result in a limitation period which does not expire until more than 10 years from completion of the building work. Again, if s 73 is construed as a long stop limitation period, the potential for the period contemplated by s 35(c) to extend beyond the 10 years provided for in s 73 would be inconsistent with s 73. 70 No equivalent inconsistency with the intended operation of s 73 can arise in relation to claims subject to the five year time limit under s 32(5) of the BWCA, because the five year period commences to run from the date of completion and is not able to be extended. Nevertheless, the examples mentioned demonstrate the work to be done by the 10 year limitation period under s 73 when construed as a long stop limitation period operating concurrently with other limitation periods. 71 We acknowledge that the potential inconsistencies we have mentioned might be met with a response, by reference to the reasoning in Brisbane City Council v Amos embraced above, that they are not in fact inconsistencies; that in the circumstances posited, the 10 year limitation period under s 73 of the DA would apply because the defendant could choose to rely upon it as the shorter of the alternative limitation periods. Whilst there is some force in this response in the case of a latent defect resulting in the limitation period prescribed by s 35(c) of the Limitation of Actions Act, it does not have the same force in respect of the power of the court under s 48 to extend the time for the institution of an action. In the latter case, it is not apparent (or at least not readily apparent) that the approach in Brisbane City Council v Amos would enable a defendant to avoid the consequences of such an extension. In any event, for the reasons developed elsewhere in these reasons, we consider that the operation of s 73 as a long stop provision is the proper, or preferable, construction of s 73. Even if the examples we have raised do not, strictly speaking, involve inconsistences, the introductory words have work to do in confirming the primacy of s 73 in its operation as a long stop limitation provision. -- 19 of 34 -- [2024] SASCA 67 The Court 18 Broader contextual and purposive considerations 72 In addition to the more textually-based considerations addressed in the preceding section of these reasons, it is also appropriate to have regard to the broader contextual and purposive considerations relied upon by the parties in construing s 73 of the DA (and s 159 of the PDIA). The regulation of domestic building work 73 The BWCA recognises and regulates a particular class of building work in South Australia, defined as “domestic building work” and being essentially building work carried out on a “house”. As the primary judge explained in some detail,37 this class of building work has, for a long time, been more highly regulated by comparison with other building work. 74 The provisions of the BWCA governing domestic building work are primarily located in Part 5 of that Act. In particular, Divisions 1 to 6 of Part 5 operate in various ways to ensure minimum standards in the allocation of contractual risk between builders and house owners. The evident purpose of these provisions is the protection of house owners as against builders. At the same time, they also represent a careful balance struck between the interests of house owners and builders. 75 The provisions of Division 1, inter alia, impose various requirements in relation to the formalities and content of domestic building contracts, including the determination and specification of the price and payment terms. Division 2 contains the statutory warranties the subject of the underlying proceeding. Divisions 3 (insurance), 4 (termination) and 6 (harsh and unconscionable terms) provide other protections that are not presently relevant. Division 5 governs the powers of the court in relation to disputes concerning domestic building work. 76 Returning to Division 2, we have already outlined its key provisions. In summary, under s 32, house owners are provided with certain transmissible statutory warranties as to the quality and timeliness of the building work. The warranties are able to be enforced against the builder through orders for remedial work or monetary relief. They are subject to a non-extendable time limit of five years from the completion of the building work. 77 By comparison with the position at common law, the statutory warranties represent significant extensions of the liability of builders in favour of house owners, and a key aspect of the protections they are afforded under Part 5. At the same time, the non-extendable five year time limit upon claims based upon these statutory warranties represents an aspect of the balance struck between house owners’ and builders’ interests, both in relation to the statutory warranties in s 32(2) and the provisions of Part 5 more generally. 37 Reasons at [94]-[109]. -- 20 of 34 -- [2024] SASCA 67 The Court 19 78 As the primary judge observed,38 the replacement of the non-extendable five year time limit under s 32(5) of the BWCA with a 10 year time limit under s 73 of the DA would involve a material disruption of the balance struck between the interests of house owners and builders under the BWCA. It would be somewhat incongruous for the legislature to have intended such a fundamental change in policy without clearly expressing such an intent. 79 Further, this incongruity is underscored by the fact that the balance struck in Division 2 of Part 5 of the BWCA reflects a legislative policy that has a long history in South Australia.39 80 The BWCA itself was assented to on 7 December 1995, and commenced operation on 1 June 1996. No relevant amendments have been made to Part 5 of the Act since its enactment. 81 However, the BWCA was preceded by, and repealed, the Builders Licensing Act 1986 (SA). This 1986 legislation provided for the licensing and control of builders generally, but also regulated building work defined as “domestic building work”. In particular, Part 5 of that earlier legislation contained provisions in nearly identical terms to Part 5 of the BWCA, including provisions implying six transmissible statutory warranties into every domestic building contract. 82 This 1986 legislation was in turn preceded by, and repealed, the Builders Licensing Act 1967 (SA). It was this 1967 legislation which had introduced a system for licensing and controlling builders. And in 1983, it was amended to introduce various provisions intended to protect the interests of house owners against builders for domestic building work.40 It was these amendments which introduced the concept of “domestic building work”, with a definition in substantially the same form as the current definition in the BWCA. These amendments also introduced four transmissible statutory warranties to be implied in favour of house owners, and imposed a non-extendable time limit in respect of those statutory warranties of five years from the date of completion of the relevant work. 83 These 1983 amendments included the repeal of the Defective Houses Act 1976 (SA), which had regulated the construction and sale of new houses. This 1976 legislation had introduced three basic implied statutory warranties in contracts for the construction and sale of new houses, with rights of subrogation in favour of successor owners.41 These rights of subrogation were subject to a time limit in the sense that they only applied to a person who purchased or acquired a house within five years of it first being occupied.42 However, the 1976 legislation 38 Reasons at [109]. 39 Reasons at [110]-[120]. 40 Builders Licensing Act Amendment Act 1983 (SA). 41 Defective Houses Act 1976 (SA), s 4. 42 Defective Houses Act 1976 (SA), s 4(3). -- 21 of 34 -- [2024] SASCA 67 The Court 20 had not otherwise placed any time limit upon claims based upon the implied warranties. 84 In summary, the notion of transmissible statutory warranties by builders in favour of house owners, but confined to domestic building work and a period of five years, has formed part of the legislative landscape in South Australia since 1976. It follows that the balance struck in the present provisions of the BWCA has a long legislative history that has survived several amendments to the relevant legislation. As mentioned, this observation serves to underscore the incongruity inherent in construing s 73 of the DA as materially disrupting that balance without any clear indication of a legislative intention to do so. The regulation of building work more generally 85 The provisions of Division 7 of Part 6 of the DA, and subsequently Division 7 of Part 11 of the PDIA, have been set out earlier. 86 While the provisions of the BWCA are confined in their operation to “domestic building work”, the 10 year time limit under s 73 of the DA, and s 159 of the PDIA, applies to claims in relation to defective building work more generally, including commercial building work. It applies to all claims for damages for economic loss or rectification costs arising from defective building work,43 regardless of the underlying cause of action; that is, regardless of whether the claim is brought for breach of contract, a tort (such as negligence or nuisance) or a breach of statutory duty. And, unlike claims under s 32 of the BWCA, the class of potential defendants in respect of whom it applies is not confined to builders; it extends to claims against others involved in building work such as architects, engineers, surveyors, certifiers and developers. 87 As the primary judge observed,44 it is uncontroversial that the broad statutory purpose of s 73 of the DA, and its successor s 159 of the PDIA, is to promote finality in building disputes and litigation by addressing the notorious difficulties in building actions arising from uncertainty about the operation of time limits, and in particular the potentially open-ended liability that might arise from latent defects (particularly when they arise from design work early in the life of the relevant project), and the extendable nature of the six year time limits for contractual and tortious claims under the Limitation of Actions Act. 88 The key feature of the legislative response to this mischief in the pre-existing legal landscape was to provide greater certainty in the operation of relevant time limits through the imposition of an overarching time limit which commences to run from the completion of the building work, and ends 10 years from that point in time. The non-extendable 10 year period was plainly intended to represent a fair and reasonable balance between providing potential defendants (and their 43 With claims for damages for death or personal injury excluded under s 73(2) of the DA. 44 Reasons at [128]. -- 22 of 34 -- [2024] SASCA 67 The Court 21 insurers) with the certainty of a clear end point for their exposure, and ensuring that potential plaintiffs have an adequate opportunity to commence claims. 89 This objective would be achieved by treating s 73 of the DA as introducing a long stop limitation period; that is, a limitation period which represents an end point for the commencement of all claims for damages of the relevant type. It does not require that s 73 be construed as operating to replace all other (shorter) time limitation provisions in respect of the claims to which it applies. 90 Construing s 73 as displacing shorter time limitation provisions, through the imposition of a single time period of universal application in claims for damages of the relevant type, might be said to create even greater certainty than construing it as a long stop provision. It might be said to do so by replacing multiple potentially applicable time limits with a single time limit applicable for all defective building claims caught by s 73. 91 However, construing s 73 in this way would go beyond addressing the mischief and purpose described above. It would permit s 73 to operate to extend the time within which claims under s 32 of the BWCA may be brought from five years to 10 years. It would permit s 73 to operate to extend the time within which common law contractual or tortious claims might be brought, even when the six year time limit under the Limitation of Actions Act has clearly expired and there is no basis for any extension of that time limit under s 48 of that Act. There does not appear to be any firm basis for thinking that the mischief to be addressed, and hence the purpose or intention of introducing s 73, extended beyond the uncertainty associated with the potentially open-ended nature of the operation of the existing time limitation provisions; or for thinking that the purpose or intention of s 73 was to introduce a single universally applicable limitation provision for affected claims, and in effect to extend the time within which potential plaintiffs might bring their claims. 92 Construing s 73 as involving the introduction of a universally applicable time limit of 10 years for claims of the relevant type would also not only materially disrupt the careful and long-standing balance struck in the context of domestic building work in the BWCA, but it would also do so in a way which might be described as lacking coherence (as described below). On the other hand, construing s 73 of the DA as introducing a long stop provision would permit that section to achieve its apparent purpose without interfering with the balance struck by s 32 of the BWCA, and in that sense permit the concurrent and harmonious operation of both provisions. Incoherence 93 Construing s 73 of the DA and s 159 of the PDIA as replacing the five year time limit in s 32(5) of the BWCA would not only materially disrupt the balance struck by s 32, but also introduce an element of incoherence in the way in which that section operates. -- 23 of 34 -- [2024] SASCA 67 The Court 22 94 By way of explanation, even if s 73 of the DA were to be construed as replacing the five year time limit in s 32(5), it could only do so in respect of claims within the former’s field of operation. It could only do so in relation to claims for damages for economic loss or rectification costs arising from defective building work. It could not do so, for example, in relation to claims arising from a breach of the statutory warranty to perform the building work with reasonable diligence (s 32(2)(d) of the BWCA). Nor could it do so in relation to claims seeking an order for remedial work (s 37(6)(a)), rather than monetary relief in the form of compensation for the breach (s 37(6)(b)). 95 A consequence of the Owners’ construction of s 73 would thus be to replace the five year time limit under s 32(5) of the BWCA with a 10 year time limit in relation to some claims under s 32, but not others. The Owners seek to justify these differing time limits for claims under s 32 on the basis that there is good reason to think that Parliament might have intended shorter time frames would be appropriate for claims arising from delay in completing building work, and claims for remedial work. Whilst it was suggested that such claims might tend to be more appropriate when brought closer in time to the building work being carried out, there does not seem to be any basis for attributing this quite specific intention to Parliament, or for otherwise distinguishing between the different types of claims that might be brought under s 32 of the BWCA in this way. 96 In circumstances where there is no clear basis for distinguishing between the different types of claims that might be brought under s 32 in this way, it may be said that the Owners’ construction of s 73 of the DA, and s 159 of the PDIA, would bring a degree of incoherence to the operation of s 32 of the BWCA. Generalia specialibus non derogant 97 The Builder seeks to draw support for its construction of ss 73 and 159 from an application of the maxim generalia specialibus non derogant. 98 The maxim was described in the following terms by O’Connor J in Goodwin v Phillips:45 Where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply. 99 The rationale for the maxim was explained by Barton ACJ in Maybury v Plowman:46 The judgment under appeal turns upon the application of the principle involved in the maxim “generalia specialibus non derogant” to cases in which the legislature, after having dealt specially with a particular matter, has afterwards passed an enactment in general terms wide enough to repeal, or supersede, or qualify the original provision. … I wish to quote a 45 Goodwin v Phillips (1908) 7 CLR 1 at 14 (O’Connor J). 46 Maybury v Plowman (1913) 16 CLR 468 at 473-474 (Barton ACJ) (citations omitted). -- 24 of 34 -- [2024] SASCA 67 The Court 23 passage from the judgment of Wood V.C. in Fitzgerald v. Champneys, quoted by Stirling J. in the case cited as follows: - “The reason in all these cases is clear. In passing the special Act, the legislature had their attention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstance of that special case; and, having so done, they are not to be considered by a general enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and regulated.” 100 A helpful articulation of the maxim also appears in Halsbury’s Laws:47 It is difficult to imply a repeal where the earlier enactment is particular, and the later general. In such a case the maxim generalia specialibus non derogant (general things do not derogate from special things) applies. If Parliament has considered all the circumstances of, and made special provision for, a particular case, the presumption is that a subsequent enactment of a purely general character would not have been intended to interfere with that provision; and therefore, if such an enactment, although inconsistent in substance, is capable of reasonable and sensible application without extending to the case in question, it is prima facie to be construed as not so extending. The special provision stands as an exceptional proviso upon the general. If, however, it appears from a consideration of the general enactment in the light of admissible circumstances that Parliament’s true intention was to establish thereby a rule of universal application, then the special provision must give way to the general. 101 In approving this articulation of the maxim in the House of Lords decision in Re McE,48 Lord Carswell explained that, like other linguistic canons, it operates not as a technical rule, but rather as an application of common sense, logic and other textual considerations used in discerning legislative intention.49 102 In the context of the present case, the primary judge did not explicitly rely upon this maxim. Her Honour rejected a submission by the Owners to the effect that ss 73 and 159 could be regarded as the more specific provisions because they are directed at damages for economic loss and rectification costs resulting from defective building work.50 Later in her reasons, her Honour accepted that s 32(5) of the BWCA should be construed as the more specific provisions, with s 73 of the DA and s 159 of the PDIA the more general provisions, adding that “Part 5 of the [BWCA] enacts a specific scheme for the purpose of regulating domestic building work that could be undermined if s 73 of the [DA] and s 159 of the [PDIA] were construed as displacing the five-year limitation period in s 32(5)”.51 However, her Honour did not consider it necessary to construe s 32(5) as a proviso to ss 73 and 159 because she had been able to reconcile them by construing them as operating concurrently.52 103 We agree with her Honour that there is no need in the present case to describe s 32(5) as operating as a proviso to ss 73 and 159, at least not in any strict sense. 47 Halsbury’s Laws of England (4th edition, 1995) vol 44(1), [1300] (citations omitted). 48 Re McE [2009] 4 All ER 335. 49 Re McE [2009] 4 All ER 335 at [98] (Lord Carswell). 50 Reasons at [135]. 51 Reasons at [178]. 52 Reasons at [178]. -- 25 of 34 -- [2024] SASCA 67 The Court 24 We would only qualify her Honour’s observations by adding that this does not exhaust the relevance of the considerations that underpin the maxim, and in particular the primacy generally afforded to more specific provisions over more general provisions. That is particularly so where, as here, the specific provisions reflect a careful and long-standing balancing of interests, and the general provision was enacted later in time without any clear indication of a legislative intention to disturb that balance. 104 Whilst the Owners point to the introductory words of ss 73 and 159 as indicating a clear legislative intention to disturb that balance, we have already explained why that is not so. The relative specifity of s 32(5), and generality of ss 73 and 159, support a construction of the latter provisions which permits both s 32(5) and ss 73 and 159 to operate concurrently, with the shorter time limit in s 32(5) able to be relied upon where both apply. Extrinsic materials 105 We have made some general observations as to the apparent mischief and purpose underpinning the introduction of s 73 of the DA (and its re-enactment through s 159 of the PDIA). 106 As the primary judge observed, the use of extrinsic material is expressly authorised by s 16 of the Legislation Interpretation Act in certain circumstances. However, as the primary judge also observed, the parties accepted that no assistance could be gained from the relevant materials in resolving the question of construction to be resolved in these proceedings. 107 While the second reading speech preceding the introduction of the DA made reference to the legislation being “the culmination of a process of study, review, and consultation over a period of almost three years”,53 the only reference to s 73 was in terms that it “restricts the time within which an action for damages for economic loss or rectification costs arising from defective building work to the period of 10 years”.54 It was accepted that there was nothing in the second reading speech or other extrinsic materials that added to what could be gleaned from the matters already addressed in relation to the existing legal landscape as to the regulation of building work and time limitation provisions, the legislative history of s 32 of the BWCA, and the coherent and harmonious operation of the relevant provisions. 108 For completeness, we mention that there was, in the early 1990s, a push to adopt a nationally consistent approach to the regulation of building work, including through the introduction of a 10 year limitation period. Whilst this effort was generally unsuccessful, each of the States and Territories other than Queensland 53 South Australia, Parliamentary Debates, House of Assembly, 10 March 1993, 2433 (GJ Crafter). 54 Ibid, 2441; the second reading speech also made reference to the planning review, being the ‘2020 Vision’ Report dated June 1992, which also made reference (p 30) to the then proposed legislation limiting liability by putting a time limit on it. -- 26 of 34 -- [2024] SASCA 67 The Court 25 and Western Australia have since introduced 10 year limitation periods for building work. 109 However, there is no uniformity in the legislative provisions through which this time limit has been introduced. Indeed, they are each expressed quite differently. Whilst some of these provisions (for example, in New South Wales55 and the Australian Capital Territory56) make it plain they are intended merely as long stop provisions, others are less clear and at least leave open a construction which would have them operating to the exclusion of shorter limitation periods where they overlap in their operation.57 Indeed, as will be seen, the Victorian provision was construed in this way by the Court of Appeal in Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd.58 110 In the circumstances, no assistance in resolving the present matter can be obtained from a consideration of the push for national consistency or the patchwork of 10 year limitation periods for building disputes that exist across the various States and Territories. Authority 111 The Owners seek to draw support for their construction of s 73 of the DA and s 159 of the PDIA from the decision of the Victorian Court of Appeal in Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd (Brirek). However, as the primary judge explained, this authority is distinguishable and ultimately of little assistance in the present matter.59 112 In that case, the owner of an office building sued a building surveyor involved in the construction of the building. The proceeding included claims arising under a 2004 contract that had been introduced through an amendment to the owner’s statement of claim. The trial judge concluded that the limitation period for these claims was six years, as provided in s 5(1)(a) of the Limitation of Actions Act 1958 (Vic). His Honour rejected the owner’s contention that s 134 of the Building Act 1993 (Vic), which provided for a 10 year limitation period for building actions, altered the limitation period. Section 134 of the Building Act was in the following terms: 134—Limitation on time when building action may be brought Despite anything to the contrary in the Limitation of Actions Act 1958 or in any other Act or law, a building action cannot be brought more than 10 years after the date of issue of the occupancy permit in respect of the building work … 113 The trial judge concluded that s 134 operated as a long stop provision applicable to negligence claims involving latent defects, and did not operate to 55 Environmental Planning and Assessment Act 1979 (NSW), s 6.20(4). 56 Building Act 2004 (ACT), s 142(3). 57 Building Act 1993 (Vic), s 134; Building Act 1992 (NT), ss 160-161; Building Act 2016 (Tas), s 327. 58 Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd (2015) 48 VR 550. 59 Reasons at [148]-[169]. -- 27 of 34 -- [2024] SASCA 67 The Court 26 extend the six year limitation period applicable to contractual claims under the Limitation of Actions Act. Treating the contractual claims as having been commenced on the date of the relevant amendment, they were out of time.60 114 In its joint reasons, the Court of Appeal (Redlich, Whelan and Santamaria JJA) allowed the owner’s appeal on two grounds. The first was that the 10 year limitation period under s 134 of the Building Act operated to the exclusion of the shorter six year limitation period under s 5 of the Limitation of Actions Act, and that the trial judge erred in concluding otherwise.61 The second was that the trial judge erred in failing to apply the doctrine of ‘relation back’ with the result that the contractual claims were not out of time even if the shorter six year limitation period was applicable.62 115 In its reasoning on the first issue, the Court commenced by referring to the second reading speech of the Minister for Planning for the Building Bill 1995 (Vic) which contained s 134.63 The Minister had made reference to confusion in building claims over when the existing six year limitation period started and ended, including by reason of the difficulty in ascertaining when damage occurred. The Minister explained that this had given rise to liability with an effective limitation period of “infinity plus six” years, and hence “absurdly open-ended” liability. The Bill was described as providing a clear start date (the issue of an occupancy permit) and end date (10 years from the issue of that permit) for calculating time. It was said that this would remove the existing ambiguity, and also provide property owners with additional protection beyond “the very short number of years” that then existed for bringing claims. It was also said that the “10-year cap” reflected international trends and laws that had been promulgated in the Northern Territory, South Australia and New Zealand over the past 18 months. 116 The Court said that the background to the introduction of s 134 was “well known and not controversial”, referring to difficulties associated with determining when time began to run for negligence claims (given that latent defects may not be discovered for some time), and with the ability to obtain insurance for long-tail claims.64 Their Honours noted that legislation had been enacted in various jurisdictions to provide some relief from the problem, but that the terms of the legislation differed between jurisdictions.65 Whilst acknowledging the relevance of understanding the problem or mischief to be addressed when construing legislation, their Honours emphasised that the task was “to identify the solution that recommended itself to Parliament”; and “to construe the statutory provision, not the second reading speech”. Accordingly, “[t]he court must be astute not to bend the words of the statute to accommodate some other solution to the problem 60 Brirek at [7], [92], [94]. 61 Brirek at [136]. 62 Brirek at [203]. 63 Brirek at [93]. 64 Brirek at [103]-[105]. 65 Brirek at [106]. -- 28 of 34 -- [2024] SASCA 67 The Court 27 that it may think the more desirable, or which some other jurisdiction has adopted”.66 117 The Court criticised the trial judge’s focus upon s 134 providing a long stop time limit for negligence claims, holding that the section applied to both negligence and contractual claims; that there was nothing in the text of the section to confine its operation to negligence claims.67 Their Honours later added that this construction of s 134 was consistent with the reference in the second reading speech to additional protection beyond the short periods that then existed for bringing claims, which it considered must have been, or included, a reference to contractual claims.68 118 Referring to the opening words of s 134 (“Despite anything to the contrary in the Limitation of Actions Act 1958 or in any other Act or law”), the Court said that this meant that where another Act provided for a different period of limitation, then the period provided for in s 134 operated despite that different period.69 In this way, the time limit in s 134 operated to the exclusion of the time limit in s 5 of the Limitation of Actions Act. 119 The Court added that support for this conclusion was found in s 33 of the Limitation of Actions Act: 33—Saving The periods of limitation prescribed by this Act shall not apply to any action or arbitration for which a period of limitation is prescribed by any other enactment including, without affecting the generality of the foregoing, and except as provided in Part IIA, the provisions of section twenty-nine of the Administration and Probate Act 1958 and section twenty of the Wrongs Act 1958. After observing that this section had not been relied upon at trial,70 the Court held that it prevented s 5 of the Limitation of Actions Act operating with respect to building actions. It did so because s 134 of the Building Act was “a period of limitation … prescribed by any other enactment” within the meaning of s 33.71 120 The Court also mentioned another broader contextual matter supporting its construction of s 134, being certain amendments to the Building Act, made contemporaneously with amendments to the Limitation of Actions Act, which expressly dealt with long stop limitation provisions but did not introduce any long stop provision for building actions.72 66 Brirek at [108] (citations omitted). 67 Brirek at [112]-[114]. 68 Brirek at [118]. 69 Brirek at [115]. 70 Brirek at [97]. 71 Brirek at [116]. 72 Brirek at [119]-[126]. -- 29 of 34 -- [2024] SASCA 67 The Court 28 121 After then addressing several authorities, which did not directly assist, their Honours stated their conclusion in the following terms:73 The words of s 134 of the Building Act should not be read down so that they are confined in their operation to claims in tort in such a way that it is only those claims that have the benefit of, and are subject to, the 10-year limitation period stipulated. The construction given to s 134 by the trial judge imposes unwarranted limitations on the scope and applicability of the section. In our opinion, actions founded in contract, independent of any tort claim, fall within the scope of s 134 and may be brought within 10 years from the date of issue of the occupancy permit. Accordingly, the trial judge was wrong to hold that the claims made in reliance upon the 2004 contract were statute-barred. 122 Not surprisingly, given the similarity between the introductory words of s 134 of the Building Act in Brirek and ss 73 and 159 in the present case, the Owners relied heavily upon the reasoning of the Court of Appeal in Brirek. 123 In considering the significance of the Court’s reasoning in Brirek to the present case, the first point to note is that because the Court decided that, applying the doctrine of ‘relation back’, the contractual claims were not out of time even if the shorter six year limitation period under s 5 of the Limitation of Actions Act was applicable, the Court’s conclusion that s 134 of the Building Act operated to exclude the operation of the time limit under s 5 was not strictly necessary for the resolution of the appeal. 124 More significantly, even though there are some similarities between the wording of the Victorian provision and the South Australian provisions under consideration in the present case, the differences between the issues arising in Brirek and the present case, and in the broader statutory contexts relevant to their resolution, mean that the reasoning of the Court in Brirek is distinguishable on several grounds. 125 First, there is no equivalent of s 33 of the Victorian Limitation of Actions Act in the South Australian Limitation of Actions Act. This is critical given the reliance that the Court in Brirek placed upon s 33. Given the existence of s 33 in the Victorian Limitation of Actions Act, the Court’s conclusion that s 134 of the Building Act operated to exclude the operation of the time limit under the Limitation of Actions Act was inevitable. 126 Secondly, the matter directly in issue in the present case concerns whether the relatively generally expressed and stand alone provisions in ss 73 and 159 operate to displace the time limitation provision under s 32(5) of the BWCA, being a specific provision which forms a key part of the balance struck under s 32 in relation to domestic building work disputes. The reasoning in Brirek, on the other hand, concerned whether a time limitation provision (s 134) which existed as part of an Act (the Building Act) regulating building work in a fairly detailed and 73 Brirek at [135]-[136]. -- 30 of 34 -- [2024] SASCA 67 The Court 29 comprehensive manner operated to displace the general time limitation provision applicable to tortious and contractual claims under the Limitation of Actions Act. 127 It may also be observed in passing that, whilst there is Victorian legislation providing transmissible warranties in relation to domestic building work,74 it does not contain any time limit in relation to claims based upon those warranties. As reflected in a note to the legislation, the 10 year limitation period under s 134 of the Building Act therefore applies to those claims. As such, the issue which arises in the present case (being a contest between the differing time limits applicable to warranty claims and defective building claims more generally) does not arise under the Victorian legislation. 128 Thirdly, the second reading speech which accompanied the introduction of s 134 of the Building Act made specific reference to extending the time for plaintiffs to bring building actions. While the Court cautioned against over- emphasising this contextual consideration at the expense of the language used by the Parliament, their Honours ultimately attached some significance to this articulation of the mischief and corresponding purpose. Whilst it might be said that s 73 of the DA was South Australia’s response to the same general mischief, there is no reference in any extrinsic material accompanying ss 73 or 159 to an extension of the time within which plaintiffs might bring claims, as opposed to merely providing defendants (and their insurers) with the certainty of an ultimate time limit of 10 years from completion of the building work. 129 Fourthly, the Court in Brirek emphasised that s 134 was intended to operate in relation not only to tortious claims but also to contractual claims. Implicitly, the Court was concerned to ensure that s 134 had work to do in relation to those claims. It gave it work to do in contractual claims by construing it as excluding the general limitation provision for those claims under s 5 of the Limitation of Actions Act. However, in South Australia, the contractual limitation period under s 35(a) of the Limitation of Actions Act is subject to a general right to extend the six year time limit under s 48 of that Act. As such, there is work for ss 73 and 159 to do as a long stop limit upon extensions for contractual limitation periods, even without construing those sections as displacing any shorter limitation periods. 130 In summary, there are critical differences between the issues, and the statutory contexts in which they arose, in Brirek and the present case. As the Court in Brirek emphasised, whilst the Victorian and South Australian provisions in question were both enacted as responses to the same general mischief, and are expressed in similar terms, their construction should not be approached with an assumption that both Parliaments intended to adopt precisely the same solutions to that mischief. Rather, the focus must be on the particular words used, but having regard to the quite different statutory contexts in which those words were used. 74 Domestic Building Contracts Act 1995 (Vic), ss 8, 9 and 20. -- 31 of 34 -- [2024] SASCA 67 The Court 30 Understood in this way, the reasoning of the Court in Brirek is distinguishable and of limited assistance in the present case. 131 In addition, there are aspects of the reasoning in Brirek which, in our view, limit its persuasiveness. In particular, their Honours do not appear to have had regard to the various textual considerations addressed earlier in these reasons. In particular, the Court approached the matter on the basis that there was a necessary inconsistency between limitation provisions which overlapped in their operation. Their Honours in effect assumed that different time limits were necessarily inconsistent. However, in so concluding, their Honours did not address the significance of the negative or proscriptive terms in which the time limit in s 134 was expressed, the potential for limitation provisions to operate concurrently in the sense described in Brisbane City Council v Amos, and the implications of this for the meaning of, and work to be done by, the introductory words to s 134. The Court’s decision has been the subject of academic criticism for the failure to address such matters.75 132 All things considered, whilst we have had had close regard to the reasoning of the Victorian Court of Appeal in Brirek, we are not persuaded that the reasoning in that case is of much assistance in the context of the present case. 133 The same may be said of the two District Court authorities relied upon by the Owners: the decision of Judge Barrett in Aussie Blinds and Canvas Products Pty Ltd v Smith (Aussie Blinds)76 and the decision of Judge O’Sullivan in Walford Anglican School for Girls Incorporated v Romaldi Constructions Pty Ltd (Walford).77 Having addressed at length our reasons for distinguishing the reasoning in Brirek, it is not necessary to say much about these cases. 134 In Aussie Blinds, Judge Barrett merely applied the reasoning of the Victorian Court of Appeal in Brirek in holding that s 73 of the DA applied to the exclusion of the six year time limit under s 35 of the Limitation of Actions Act on the basis that s 73 of the DA was materially the same as s 134 of the Building Act.78 His Honour did not address any of the grounds on which we have suggested that the reasoning in Brirek is distinguishable. 135 In Walford, Judge O’Sullivan construed s 73 of the DA as introducing a single 10 year limitation period for building actions to which it applied, thereby displacing the limitation period under s 35 of the Limitation of Actions Act that would otherwise have been applicable. In holding that this construction of s 73 flowed from the introductory words of s 73,79 his Honour relied upon the decision of the Victorian Court of Appeal in Brirek. However, his Honour also did so 75 See, for example, David Levin, ‘The Period of Limitation in Victorian Building Actions’ (2015) 31 BCL 268, referring at footnote 7 to various earlier articles and texts to similar effect, and generally in support of the construction of s 134 as a long stop limitation provision. 76 Aussie Blinds and Canvas Products Pty Ltd v Smith [2015] SADC 154. 77 Walford Anglican School for Girls Incorporated v Romaldi Constructions Pty Ltd [2020] SADC 146. 78 Aussie Blinds at [30]-[31]. 79 Walford at [162]-[164], [170]-[174]. -- 32 of 34 -- [2024] SASCA 67 The Court 31 without any consideration of either the distinctions between the statutory contexts in which the issue arises in the two different jurisdictions, or the textual considerations we have set out earlier in these reasons. Whilst his Honour suggested that the mischief and purpose underpinning the legislation supported his construction, it is unclear how his Honour discerned this mischief or purpose. The only extrinsic material his Honour referred to was the excerpts from the second reading speech set out earlier in these reasons,80 which the parties accept do not assist in construing s 73. While his Honour made some reference to the difficulties arising in relation to time limits in building actions, his Honour did not identify any contextual or purposive support for construing s 73 as a single extended limitation period, as opposed to a limitation period that operated concurrently with, but as a long stop to, other applicable limitation periods. Conclusion 136 In summary, the combined force of the various textual, contextual and purposive considerations addressed above supports the construction of s 73 of the DA and s 159 of the PDIA contended for by the Builder and accepted by the primary judge. They support the conclusion that they operate as a 10 year long stop limitation period in respect of claims for economic loss or rectification costs arising out of defective building work, but do not operate so as to displace the five year time limit for claims based upon the statutory warranties in respect of domestic building work under s 32 of the BWCA. 137 It is not necessary for the disposition of this appeal to determine whether ss 73 and 159 might nevertheless operate to displace the six year time limit for tortious and contractual claims under ss 35(a) and (c) of the Limitation of Actions Act. 138 In theory at least, they might do so despite the conclusion we have reached in relation to the five year time limit under s 32 of the BWCA. They might do so bearing in mind the general nature of s 35 of the Limitation of Actions Act (relative to the detailed and specific nature of s 32 of the BWCA), and the specific reference to the Limitation of Actions Act in the opening words of ss 73 and 159. 139 On the other hand, most of the considerations to which we have had regard in construing ss 73 and 159 would apply equally to the overlap between their operation and the operation of s 35 of the Limitation of Actions Act. It also seems unlikely that Parliament would have intended that ss 73 and 159 operate so as to displace some overlapping limitation provisions but not others without making that clear. 140 For these reasons, having reached the view that ss 73 and 159 do not operate to displace the five year limitation provision under s 32(5) of the BWCA, the better view is that they also do not operate to displace the six year limitation provision under s 35 of the Limitation of Actions Act. Their operation in relation to general 80 Including the planning review report referred to therein. -- 33 of 34 -- [2024] SASCA 67 The Court 32 tortious and contractual claims is confined to their operation as a long stop limitation period of 10 years from the date of completion of the building work where those claims would not otherwise be barred by s 35 of the Limitation of Actions Act (for example, by reason of the latent nature of the defect relied upon, or the availability of an extension of time under s 48 of that Act). Orders 141 We dismiss the Owners’ appeal. -- 34 of 34 --