10 year long stop on build­ing defect claims rein­forced for con­tri­bu­tion claims

The recent deci­sion in For­tius Broad­way No 1 Pty Ltd V ACN 103 211 141 Pty Ltd (for­mer­ly known as Wat­pac Con­struc­tion (NSW) Pty Ltd) [2026] NSWSC 710 (For­tius) hand­ed down on 25 June 2026 rein­forces the 10-year ​“long-stop” peri­od on claims for defec­tive build­ing work[1], includ­ing con­tri­bu­tion claims, with the Court fail­ing to allow a late amend­ment to plead­ings on the last day of the 10 year peri­od to bring in an addi­tion­al claim against the cer­ti­fi­er under s37 of the Design and Build­ing Prac­ti­tion­ers Act 2020 (DBP). 

The Court con­sid­ered, inter alia, the fol­low­ing ques­tions in respect of the claim for build­ing defects:

1. Does sec­tion 74 of the Lim­i­ta­tion Act 1969 (NSW) oper­ate to extend the 10-year statu­to­ry lim­i­ta­tion imposed under sec­tion 6.20? [2] 

   No.

2. Do the long-stop pro­vi­sions apply to con­tri­bu­tion claims under the Law Reform (Mis­cel­la­neous Pro­vi­sions Act 1946 (NSW)? 

   Yes.

Case out­comes

If prej­u­dice is suf­fered by a par­ty in not being afford­ed enough time to bring a cross-claim on con­tribut­ing par­ties, such as a defen­dant in a claim which is not sub­ject to pro­por­tion­ate lia­bil­i­ty[3], leave may not be grant­ed for late amend­ments to plead­ings on the eve of expiry of a 10-year lim­i­ta­tion period. 

It is yet to be seen whether this would also apply to a new claim brought on the last day of the 10-year lim­i­ta­tion peri­od. Deter­min­ing prej­u­dice is a key fac­tor. How­ev­er, it is a reminder to lit­i­gants where con­tri­bu­tion claims are avail­able in con­struc­tion mat­ters, to take ear­ly steps to pro­tect their rights.

Back­ground of the For­tius case

In 2022, after pro­ceed­ings had already been com­menced by three sep­a­rate own­ers cor­po­ra­tions against the orig­i­nal builder and devel­op­er of the One Cen­tral Park devel­op­ment for build­ing defects, a planter box fell from Lev­el 29 of the build­ing’s exte­ri­or (no injury occurred). 

This issue was then includ­ed in the res­i­den­tial own­ers cor­po­ra­tions’ pro­ceed­ings along with being an issue in pro­ceed­ings com­menced by the retail own­er against a total of 23 defen­dants (builder, devel­op­ers, cer­ti­fiers and more). 

The retail own­er claimed the defen­dants breached their com­mon law duty of care, engaged in mis­lead­ing and decep­tive con­duct and in addi­tion, against mul­ti­ple defen­dants (apart from the cer­ti­fi­er), were said to have breached s37 of the DBP Act [7].

In 2023, the retail own­er found an Occu­pa­tion Cer­tifi­cate (OC) dat­ed 19 June 2014. Pri­or to this, inter­im OC were issued. This OC was what the retail own­er based its argu­ment that it was with­in 10 years to bring the claim.

Dur­ing 2024, there were var­i­ous adjourn­ments through­out Jan­u­ary to May 2024 after Paf­burn[4] was decided. 

The retail own­er cir­cu­lat­ed amend­ed plead­ings, rely­ing on the 19 June 2014 OC, hand­ed in just days pri­or to the end of this 10-year peri­od and despite being aware of this OC for a peri­od of 8 months pri­or. These amend­ed plead­ing’s had addi­tion­al defect claims, includ­ing an addi­tion­al claim against the cer­ti­fi­er under the DBP.[5]

Var­i­ous defen­dants argued the addi­tion­al alleged defects were barred by the prej­u­dice they would incur from the 10-year ​“long-stop” estab­lished in sec­tion 6.20, argu­ing there was ​‘insuf­fi­cient time before the expiry of the long stop to inves­ti­gate, con­sid­er and com­mence cross­claims against third parties’. 

The retail own­er’s solic­i­tor stat­ed the pro­ceed­ings were being brought ​“from a lim­i­ta­tions per­spec­tive”. Due to the con­cern of inter­im OC’s dat­ed Feb­ru­ary 2013 and 14 Jan­u­ary 2014, either of which, would time bar the retail own­ers claim. 

On the final day of the 10-year peri­od, 18 June 2014, the retail own­er filed their amend­ed pleadings. 

The court found the long-stop peri­od expired on 17 Jan­u­ary 2024. 

The cer­ti­fi­er sub­mit­ted that the cor­rect view is that s6.20 EPA Act would apply, and that s74 of the Lim­i­ta­tion Act 1969 No 31 was unlike­ly to assist and that they would be prej­u­diced if the June 2014 date was val­i­dat­ed by the Court. 

The retail own­er sub­mit­ted that s6.20 is not applic­a­ble, rely­ing on its sub­mis­sion that this is a con­tri­bu­tion claim, not a ​‘civ­il action for loss or dam­age’ required by the leg­is­la­tion. It was fur­ther sub­mit­ted that the cer­ti­fi­er would have the ben­e­fit of s74 of the Lim­i­ta­tion Act  for any cross-claims filed against exist­ing defen­dants.[6] 

The retail own­er sub­mit­ted that if they were cor­rect about the June OC date, that are not barred from the amend­ments they brought. Claim­ing a defen­dant could not claim to have suf­fered any prejudice. 

Con­clu­sion 

Rees J found there was no expla­na­tion for the retail own­er’s delay in seek­ing their amend­ed plead­ings. It was also trou­bled by the lack of dis­clo­sure about the inher­ent knowl­edge of the June 2014 OC, 8 months pri­or to bring­ing their appli­ca­tion of amend­ment [114]. 

The retail own­er’s choice to delay amend­ing their claim did amount to a prej­u­dice suf­fered by the cer­ti­fi­er and was ​‘obvi­ous and sig­nif­i­cant’ [113 (5)]. It was not fair for a par­ty to bring their claim 24 hours before the time bar, to then crit­i­cise the defend­ing par­ty for fail­ure to bring a cross­claim [116]. 

When bring­ing a claim under the DBP, you should not wait until the last day of the 10-year ​“long-stop” to bring such claim if con­tri­bu­tion claims are available. 

[1] Sec­tion 6.20 of the Envi­ron­men­tal Plan­ning and Assess­ment Act 1979 No 203 (EPA) is the for­mer s109ZK pro­vi­sion which impos­es a 10 year long stop peri­od on bring­ing a civ­il action for defec­tive build­ing work .

[2] Sec­tion 74 of the Lim­i­ta­tion Act 1969 No 31.

[3] Par­tic­u­lar­ly in light of the High Court deci­sion The Own­ers – Stra­ta Plan No 84674 v Paf­burn Pty Ltd [2023] NSW­CA 301 where it was deter­mined that pro­por­tion­ate lia­bil­i­ty did not apply in respect of DBP Act claims.

[4] See foot­note 3.

[5] Sec­tion 37 of the Design and Build­ing Prac­ti­tion­ers Act 2020 No 7 (DBP).

[6] Sec­tion 74 of the Lim­i­ta­tion Act 1969 No 31.