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Complex construction cases moving from the tribunal to the courts: the impact of Plunkett v Portier

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Shifting complex construction cases to higher courts

Complex construction cases are increasingly being transferred from the Victoria Civil and Administrative Tribunal (VCAT) to the County or Supreme Courts. This trend follows the Tribunal's recent ruling in Plunkett v Portier.

Background

In the case of Owners Corporation PS502581D v Acciona Infrastructure Projects Australia Pty Ltd ([2024] VCAT 509), Deputy President Riegler decided to transfer a major dispute involving defective work in a residential apartment complex, directly to the Supreme Court. This decision highlights a growing likelihood that construction cases will be moved out of VCAT and into higher courts.

The Acciona case involved claims of defective work in a residential complex, settled by a deed in 2009. The Owners Corporation alleged non-compliance by Acciona and sought over $2 million in damages.

The finding

The Tribunal followed the guidance of Woodward J in Plunkett v Portier ([2024] VCAT 205), which outlines the criteria for referring a case to the County or Supreme Court under section 77 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). Key factors include:

  • the amount claimed
  • the estimated duration of the hearing
  • the complexity of the parties and issues involved
  • the likelihood of an appeal

In the Acciona case, the Tribunal identified several applicable factors from Plunkett, including the high claim amount, lengthy hearing time, complex facts and legal issues, and the need for consistent case management by a single judicial officer. Additionally, Acciona planned to raise Federal Law issues, which the Tribunal could not address, as established in Krongold v Thurin ([2023] VSCA 191). Therefore, the Tribunal decided that the Supreme Court was the more suitable venue and ordered the case to be referred there under section 77 of the VCAT Act.

Key takeaways

For parties involved in complex construction disputes, it is crucial to consider the most appropriate forum early on. Important factors include:

  • cost implications
  • benefits of proactive case management
  • expected timeframe to final hearings

This shift underscores the importance of early strategic decision-making in complex construction litigation.

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Authors

Tamara Gugger

Tamara Gugger

Lawyer