(i) the material…complies with the fire hazard properties prescribed in…Clause 2 of Specification C1.10…; and … (iii) it does not otherwise constitute an undue risk of fire spread via the façade of the building. Woodward J rejected the expert evidence suggesting the ACP could be considered a “finish” noting the reference in C1.10 to “a paint, varnish, lacquer or similar finish…”. It is a principle of interpretation, that the meaning of a word, derived from its use in context in a document, is to be given the same meaning, when used elsewhere in the document. Given this principle, it is not surprising Woodward J observed that: “It is far from clear to me how a product with the structure, composition and dimensions of an ACP that is affixed using studwork and provides both weatherproofing and acoustic benefits, can be described as a “finish”.” The builder’s liability Judge Woodward found the builder, although in breach of its contract with the owners, had not been negligent when it relied on the Professionals as to using ACP and was entitled to reimbursement from them. Under s59 of Wrongs Act 1959 (Vic), the Professionals would have been able to defend this claim on the basis that the use of ACP was widespread among their peers, provided the widespread practice was not unreasonable. Significantly, the Judge found that it was one of the rare cases where a widespread practice was irrational and therefore unreasonable. Conclusion Judge Woodward found that the use of ACP cladding on Lacrosse was not a DTS solution under the BCA. On that basis, the builder was in breach of its obligations to the individual owners of Lacrosse and was primarily liable for 100% of the compensation required. However, His Honour said the builder was entitled to rely on the Professionals and therefore should be reimbursed by them. Ultimately, liability for the fire was distributed to each of them in the following proportions: • Fire Engineer – 39% • Building Certifier – 33% • Architect – 25% The remaining 3% was attributed to the cigarette smoker in Apartment 805. Where to from here The decision has enormous ramifications for the property and construction industry in Australia. In effect, the central layer of any form of ACP used as DTS external cladding on a type A building must be non-combustible. In relation to existing type A buildings clad with ACP, the case raises serious issues as to the safety of their occupiers, their market value, owners’ obligations to disclose the existence of ACP cladding when renting and selling, and the liability of bodies corporate and owners, to tenants. Contractors and advisers who have completed buildings of this type within the last 10 years should notify their insurers and seek information as to exposure. Contractors and their advisers should seek advice as to the terms of their contracts to better understand their exposure to liability. References [1] Owners Corporation No.1 of PS613436T v LU Simon Builders Pty Ltd (Building and Property) [2019] VCAT 286 [2] Now known as the National Construction Code or NCC