BCA compliance lessons - The Star v Buildcorp

Fire safety is a fundamental part of building design in Australia. The Building Code of Australia (BCA) sets minimum standards to ensure buildings are safe if a fire occurs.

The New South Wales Supreme Court decision in The Star Entertainment Sydney Properties Pty Ltd v Buildcorp Group Pty Ltd highlights how legal responsibility is determined when fire safety requirements, particularly those involving modern materials and engineering solutions, are not properly met.

What was the dispute about?

The case arose from three refurbishment projects at The Star Casino in Sydney between 2014 and 2016. The owner, The Star, engaged Buildcorp to carry out the works, which included installing aluminium composite panels (ACP) on the building’s exterior.

After the projects were completed, concerns emerged about the fire safety of the cladding. The ACP product used (Alpolic-FR) contained polyethylene, making it combustible. The Star ultimately removed the cladding following government intervention and sought around $4 million in damages from Buildcorp.

Buildcorp, in turn, sought to pass liability to other parties, including the project architect and the ACP installer.

A central issue was whether the cladding complied with the BCA. The Code generally requires external walls to be non-combustible under its prescriptive “Deemed-to-Satisfy” (DTS) provisions. While there are exceptions and alternative compliance pathways, expert evidence in the case confirmed that ACP products like Alpolic-FR are combustible and do not meet DTS requirements.

Compliance pathways under the BCA

The BCA allows two main pathways for compliance.

1. The first is the DTS pathway, which involves following prescriptive rules such as using non-combustible materials.

2. The second is through Performance Solutions (also called alternative solutions). These rely on expert assessments, often by fire engineers, to demonstrate that a building achieves an equivalent or better level of safety, even if it departs from the prescriptive rules.

In practice, large or complex projects often rely on Performance Solutions. However, these depend on assumptions about how fire systems, materials, and occupants will behave in real-life scenarios.

In this case, although the ACP product had a CodeMark certificate at the time, the Court accepted that certification alone does not automatically establish compliance with the BCA.

The Court’s findings on BCA compliance and contractual responsibility

The Supreme Court closely examined both the technical compliance issues and the contractual arrangements between the parties.

The outcome differed across the three projects:

• For the first and second projects, The Star’s claims largely failed. The Court found that Buildcorp was not responsible for design compliance because it was engaged under “construct-only” contracts. In those arrangements, design responsibility remained with the architect. Even though Buildcorp contributed to design discussions, this did not transfer legal responsibility for design compliance.

• For the third project, The Star succeeded in part, recovering approximately $286,000. However, Buildcorp was entitled to be indemnified by the ACP installer, and part of the loss was covered by insurance.

The Court also rejected The Star’s claims under the Australian Consumer Law, finding that it was not a “consumer” in this context.

A key takeaway from the judgment is the Court’s emphasis on contractual allocation of responsibility. The builder’s obligation to ensure compliance with the BCA was limited to the scope of work it had agreed to perform. Where design responsibility sat with another party, the builder was not liable for design-related non-compliance.

Why this case matters

This decision clarifies several important issues for the construction industry.

1. First, it reinforces that compliance with the BCA depends on both technical requirements and contractual roles. Determining liability is not just about whether a building is compliant, but also about who was responsible for achieving that compliance.

2. Second, it highlights the risks associated with combustible cladding and performance-based design approaches. Certification (such as CodeMark) and expert input are important, but they do not replace the need for careful, project-specific compliance assessment.

3. Finally, the case demonstrates that courts focus on practical outcomes. It is not enough for a design to appear compliant on paper—the building must actually meet the required safety standards in practice.

Key takeaways

1. Design responsibility matters

   In construct-only contracts, builders are generally not responsible for design compliance. That responsibility remains with architects or designers, even if the builder contributes to design development.

2. Performance Solutions require care

   Alternative compliance pathways can be effective, but they rely on assumptions and coordination. If not properly implemented, they create significant legal risk.

3. Certification is not conclusive

   Products with certification, such as CodeMark, may still fail to meet BCA requirements depending on how and where they are used.

4. Liability is context-specific

   BCA compliance and legal responsibility are assessed on a case-by-case basis, taking into account the contracts, the roles of each party, and the applicable standards at the time of construction.

Conclusion

The decision in The Star v Buildcorp is a reminder that combustible cladding risk sits at the intersection of BCA compliance and contract scope. For developers, the key issue is ensuring the project team’s roles clearly allocate who is responsible for design compliance and documenting how any Performance Solution is developed, approved and implemented. For builders, the case reinforces the importance of aligning procurement, substitutions and site delivery with the contractual scope, and keeping a clear record of who is responsible for design decisions that affect fire safety outcomes.

If you are planning a refurbishment or façade package (or responding to a cladding concern), consider a targeted review of your contract scope, design responsibilities and BCA compliance pathway (DTS vs Performance Solution) before works progress. Contact us to discuss a practical contract and compliance risk review tailored to your project.

Author: Antoni Risteski

Supporting partner: Sharon Levy

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.