In the first case in Australia brought against a Member’s company, in relation to aluminium composite panels (ACPs), VCAT apportioned zero costs directly to the builder.
His Honour Judge Woodward, ruled that L.U. Simon Builders Pty Ltd, the Registered Building Practitioner and AIB Fellow, Jim Moschoyiannis “did not fail to exercise reasonable care in the construction of Melbourne’s Lacrosse. “
The case began in 2017, when the building owners launched legal proceedings against L.U. Simon Builders. Two years later, after 22 sitting days involving 91 volumes of documents the judge apportioned 39 per cent liability to the fire engineer, 33 per cent to the building surveyor, 25 per cent to the architect and 3 per cent to the resident who caused the fire.
It was found that L.U. Simon Builders and Mr Moschoyiannis complied with project documentation produced by the consultant team and the requirements of the Building Permit. Paragraph 301 of the VCAT findings notes:
“The evidence in the proceeding generally clearly demonstrates that, with the exception of fire engineers, there was in 2011 a poor understanding among building professionals (at least in Australia) of the fire risks associated with ACPs. And in the overall cohort of building professionals, there is no reason to expect that building firms would have a superior understanding to, for example, that of architects and building surveyors. In fact, the reverse is probably true. Given their level of qualifications and the nature of their responsibilities, it would be fair to expect fire engineers, building surveyors and architects (in that order) to have a better grasp than building practitioners of fire risks and the application of the BCA to those risks.”
The judge also found in favour of the builder with regard to the product selection and approval:
”I have found above that the choice of the Alucobest product over Alucobond PE (as it came to be known) was not a necessary condition for the ignition of the Alucobest panels…. Thus, in simple terms, I am satisfied that LU Simon’s selection of Alucobest ACP’s as “indicative to Alucobond” did not cause the fire or fire spread.”
There is currently an Alucobond Combustible Cladding Class Action, which is a product liability claim, against 3A Composites GmbH and Halifax Vogel Group Pty Ltd (respondents), the manufacturers of Alucobond PE cladding, with possible class actions pending in relation to other manufacturers of PE core cladding products.
Since the time of the fire in 2014, our Members have endured sustained attacks and accusations, by regulators, bureaucrats and organisations, who themselves were ‘asleep at the wheel’, bringing our Members and industry participants into disrepute, impacting their professional and personal reputations.
Government regulators and their advisors all failed to act on information they had that polyethylene-core panels would not pass the building code’s combustibility requirements and ignored expert warnings going as far back as 1990.
Despite industries attempts to provide regulators with practical and reasonable solutions to deal with the thousands of buildings in similar situations to Lacrosse and Neo200, there is still no agreement on what to do with the existing cladding, as well as no clear understanding by the wider construction industry, and the consumer is still none the wiser yet here we are five years after Lacrosse.
The solution to prevent further issues relies on firstly recognising that government, regulators and industry have all played a part in allowing ACPs with a polyethylene-core and other products to be used in an inappropriate manner. We now have to rely on the same group to address the existing buildings with cladding issues.
The AIB, at both state and national levels, is currently proactively working to find a resolution to this critical matter through our ongoing participation with bodies and forums including:
- Building Ministers Forum
- Senate enquiry
- National Cladding Summit
Our primary responsibilities are to our member base and the building industry at large and we shall continue to work closely, update, advise, educate and advocate on behalf of all stakeholders.