Background
This dispute concerns defects in “One Central Park,” a high-rise residential and retail development in Sydney featuring distinctive hanging planter boxes on its external façade. In April 2022, a planter box fell from the building, prompting regulatory action and litigation. Fortius Broadway No 1 Pty Ltd, the retail owner, sued 23 defendants in February 2023 for defective building work, naming the builder, developers, certifier, and various professional consultants.
Initially, Fortius relied on three legal theories: common law duty of care, Australian Consumer Law, and the Design and Building Practitioners Act 2020 (NSW) (DBP Act). Critically, the certifier was not named as a defendant under the DBP Act. On 18 October 2023, Fortius discovered a final occupation certificate dated 19 June 2014. Eight months later, on 17 June 2024—two days before the 10-year limitation “long-stop” deadline—Fortius sought an urgent amendment to add a DBP Act claim against the certifier. The Duty Judge granted temporary leave on 18 June 2024, with leave to subsist only until 26 July 2024 pending determination of prejudice. Fortius then sought to make the amendment permanent.
The Court’s Holding
Justice Rees refused to make the amendment permanent, holding that the certifier suffered “obvious and significant” prejudice. The court made two important rulings on limitation law. First, the court confirmed that the 10-year “long-stop” in section 6.20 of the Environmental Planning and Assessment Act 1979 (NSW) applies to claims for contribution under the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), meaning contribution claims are barred after 10 years from completion of building work. Second, the court held that section 74 of the Limitation Act 1969 (NSW)—which normally allows courts to extend limitation periods—cannot extend this “long-stop” because section 6.20 operates “despite any other law.”
The court found decisive procedural injustice. Fortius became aware of the 19 June 2014 certificate on 18 October 2023 but did not seek to amend until 17 June 2024, concealing this eight-month delay from the Duty Judge. This delay deprived the certifier of the ability to file timely cross-claims against other defendants before the long-stop expired. The new DBP Act claim also differed materially from the existing common law and Australian Consumer Law claims, as it required proof that the certifier carried out “construction work” and breached the statutory duty—distinct factual and legal elements not required for the other causes of action.
Key Takeaways
- The 10-year “long-stop” limitation in defective building work claims applies to contribution claims between defendants, not just direct claims by building owners.
- Courts will refuse amendments adding new causes of action when the delay prevents other defendants from filing timely cross-claims, even if the primary plaintiff’s own claims remain viable.
- Full procedural fairness is essential when seeking urgent relief based on limitation issues; concealing the timing of when critical facts were discovered is grounds for refusal.
- Non-apportionable liability under the DBP Act, confirmed by the High Court in Pafburn, means defendants cannot pass liability to other tortfeasors and thus face irretrievable prejudice if they cannot file timely cross-claims.
Why It Matters
This decision has significant implications for building defects litigation in NSW. It clarifies that the statutory long-stop is a true ceiling—even courts cannot extend it—which creates a strict deadline for establishing cross-claim rights between tortfeasors. Defendants cannot rely on the existence of direct claims against them to preserve contribution rights; they must act affirmatively and timely. The decision also reinforces that procedural fairness requires plaintiffs to disclose material facts about the timing of their knowledge when seeking last-minute amendments based on limitation urgency.
For practitioners, this case illustrates the trap of relying on multiple occupation certificates in a developing project: choosing the wrong one can trigger irreversible consequences for other parties’ defensive rights. The judgment signals that courts will scrutinize unexplained delays and will refuse amendments that trap defendants in one-way liability where apportionment is statutorily forbidden. This reflects a policy choice to protect defendants from hidden prejudice in building defects cases, even at the cost of limiting a plaintiff’s claims.