Appeal court backs decision on Lacrosse building

By David Schout

The builder of Docklands’ Lacrosse building is not liable for a 2014 cladding-fuelled fire after the Victorian Court of Appeal upheld a landmark decision on the case.

A strata lawyer said the decision provided “clarity” for liability going forward, and was “good news” for Lacrosse apartment owners.

In 2019 a Victorian Civil and Administrative Tribunal (VCAT) decision on the fire, which was ignited by a ciga- rette and raced up 13 storeys, found that while builder LU Simon had installed the combustible panels, it bore little liability because it had relied on consultant advice.

Instead, fire safety engineers Thomas Nicolas, building surveyors Gardner Group and architects Elenberg Fraser were apportioned varying degrees of liability on the more than $5.7 million in damages.

On March 26, the Court of Appeal upheld the decision that the three parties were liable for the cladding that fuelled the dangerous fire.

They had appealed on 25 grounds, of which the court dismissed 24.

The court granted leave to appeal on one of Gardner Group’s grounds, which could change the damages appor- tioned to the consultants.

While that issue remained to be decided in the appeal, Strata Title Lawyers CEO Tom Bacon told Docklands News that “most of the Lacrosse case is now over”.

“It’s good news for the Lacrosse building and its owners. And, it’s good news for other strata buildings with flam- mable cladding and active or potential claims,” he said.

Unlike the 2017 Grenfell Tower tragedy in London, no one died in the 2014 Lacrosse building fire, although 400 people were forced to evacuate.

Mr Bacon said the decision was an important step for rectification works going forward.

“The Court of Appeal decision provides clarity and some degree of finality on the principles to be applied in determining who exactly in the design, construction and certification of a building will be responsible for the costs of rectification,” he said.

However, he said there remained unresolved cases littered around the city.

“Crucially for owners’ corporations (OCs), there are still hundreds of residential buildings around Melbourne that are awaiting rectification. It now seems there is little risk in holding off on litigation, now that this has been largely resolved by the courts.”

Mr Bacon criticised a recent state government decision to reject a Greens bid to make it easier for OCs to take legal action against corrupt developers. The amendments looked to lower the barrier for OCs seeking legal action on building defects and cladding rectification, from a “special resolution” (75 per cent OC vote) to an “ordinary resolution” (50 per cent).

“The Victorian Government’s recent refusal to remove the requirement to obtain special resolutions before legal proceedings can be commenced, means that for larger buildings it will be almost impossible to pass a special res- olution and therefore seek to obtain some form of justice. This is a form of protectionism by the government to its friends in the construction and development sector. Smaller OCs will likely be able to proceed however, which is good news for them.”

It is not known whether consultants in the Lacrosse case would take their appeal to the High Court.