South Australian homeowners face ‘hard’ new deadline to sue against shoddy builders, Court of Appeal rules

South Australian homeowners have a new hard deadline to sue against claims of defective building work on their new house, the state’s highest court has ruled.

South Australian homeowners have a new hard deadline to sue against claims of defective building work on their new house, the state’s highest court has ruled.

In a landmark judgment, the Court of Appeal found a domestic building deadline is five years for any legal action against alleged “statutory warranty” breaches.

Legal experts say the decision cleared confusion on the time frames a homeowner can launch any litigation over poor construction but exposed “inconsistencies” with other states’ laws.

The ruling, on complex legal principles, found pilot Scott Duncan, 43, and his artist partner Fiona Roberts, 37, were out of time to sue over disputed construction failures of their three bedroom Morphettville house.

The couple, who bought their first home in Adelaide’s south-west, from Renewal SA for $487,000 in June 2016, argued they had 10 years to sue Bert Farina Constructions Pty Ltd.

Scott Dundan and his partner Fiona Roberts in their Morphettville home, which resembles a building site. Picture Brett Hartwig

Court documents show the couple launched legal action in July 2022 for damages over alleged “defective building work”, breaches of statutory warranties and negligence against the firm.

But lawyers for the Regency Park-based company, which denied wrongdoing, successfully argued that, under different building laws, the couple had five years to sue from mid-2016.

While Supreme Court Justice Sam Doyle, Justice Chris Bleby and the late Justice Malcolm Blue, accepted the builder’s arguments, no opinion on their work was given.

The judges, who outlined an agreed statement of facts, said the parties disputed construction time frames and what laws were applicable.

Damage to the new Morphettville home of Scott Duncan and Fiona Roberts. Picture: supplied

The company, which the state government’s Housing Trust agency hired, argued its obligations centred on the Building Work Contractors Act and its various clauses for “domestic” contracts.

This law states construction must be performed in a correct “manner” to accepted trade standards and legal obligations, is built to plan, uses “good and proper” materials, is completed with “reasonable diligence” as well as creating a home “reasonably fit for human habitation”.

While the building legislation states legal proceedings must start within five years, the couple argued the Planning, Development and Infrastructure Act gave a 10-year deadline to sue with a limited set of circumstances.

In an April 2023 judgment, District Court judge Karen Thomas dismissed their argument that planning legislation “displaced” the shorter building law deadline.

In their published appeal judgment, the three Supreme Court justices found no legal “inconsistency” and ruled regulations struck “a careful balance … between the interests of house owners and builders”.

“Where both time limits are potentially applicable a (builder) may rely upon the shorter period as barring the applicant’s claim,” they found.

Lynch Meyer partner, lawyer Charles Moran. Picture: Lynch Meyer

Lynch Meyer partner, Charles Moran, who was not involved in the case, said the court had confirmed a “hard” deadline for statutory warranty claims.

“While there are potential claims that can be brought beyond the five years such as negligence – they may or may not be as strong,” he said.