Building professionals caught in the cross fire

The Victorian Civil and Administrative Tribunal has recently handed down the long-awaited decision on the Lacrosse apartment tower litigation. The litigation was instituted by the owners corporation and individual unit holders against the builder, LU Simon. The decision has important implications for builders and building professionals in particular, in relation to combustible cladding.

Facts

On Monday 24 December 2014 at the Lacrosse apartment tower (Lacrosse), at 673-675 La Trobe Street, Docklands, Victoria, a fire started in apartment 805 on level 8 of the east side of the tower. The fire started following a discarded cigarette butt placed into a plastic food container which ultimately caught fire, spreading to the external wall cladding of the building.

The smoke detector in the hallway just outside the front door of apartment 805 activated and generated an automatic alarm to the metropolitan fire brigade. When the first crew arrived the fire was travelling rapidly up the external wall cladding, spreading onto the balcony on each level. The fire climbed to the roof of the tower above level 21. The rapid spread of the fire was facilitated by the aluminium composite panels (ACPs) used on the southern wall of the tower. The ACPs had a 100% polyethylene core.

This case concerned the attribution of responsibility to (and among) the eight respondents for the damage caused by the fire. The primary focus of the case was on the selection, approval and installation of the aluminium composite wall cladding that carried the fire. The damage to the Lacrosse tower was extensive; consequently the applicants claimed current and anticipated future losses exceeding $12 million.

There were 211 applicants, comprising the owners corporation and individual unit owners, and eight respondents, namely:

  • the builder;
  • the building surveyor;
  • the architects;
  • the fire engineer;
  • the occupier of apartment 805;
  • the tenant of apartment 805; and
  • the superintendent under the building contract.

Contracts between construction respondents

The contracts entered into by each of the builder, the building surveyor, the architect and the fire engineer were pivotal in ascribing liability for this proceeding. The builder had a Design and Construct (D&C) contract with the developer of Lacrosse which was executed on 14 May 2010. The building surveyor offered their services for the Lacrosse project with a formal consultant agreement signed in January or February 2010. The architect was involved from the earliest stages of the Lacrosse project. Its engagement was formalised by a client and architect agreement dated 12 June 2007. The fire engineer entered into a consultancy agreement with the superintendent, in or around 9 July 2010. The appointment of the superintendent coincided with the D&C contract dated 14 May 2010.

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