Fortius Broadway No 1 Pty Ltd v ACN 103 211 141 Pty Ltd (formerly known as Watpac Construction (NSW) Pty Ltd)

Medium Neutral Citation: Fortius Broadway No 1 Pty Ltd v ACN 103 211 141 Pty Ltd (formerly known as Watpac Construction (NSW) Pty Ltd) [2026] NSWSC 710

Hearing dates: 10 June 2026

Date of orders: 25 June 2026

Decision date: 25 June 2026

Jurisdiction: Equity - Technology and Construction List

Before: Rees J

Decision: Parties to bring in orders to give effect to reasons.

Catchwords: LIMITATION OF ACTIONS — s 6.20, Environmental Planning and Assessment Act 1979 (NSW) — the “long-stop” — an action for loss or damage arising out of or in connection with defective building work cannot be brought more than 10 years after completion of the work — does s 6.20 apply to claims for contribution under Law Reform (Miscellaneous Provisions) Act 1946 (NSW)? — yes — can s 74, Limitation Act 1969 (NSW) extend the “long-stop”? — no.
BUILDING AND CONSTRUCTION — plaintiff commences proceedings against 23 defendants seeking damages for defective building work — plaintiff seeks to amend claim against certifier to add claim for breach of duty under s 37, Design and Building Practitioners Act 2020 (NSW) — application made to Duty Judge the day before the “long-stop” expires — no explanation for delay — plaintiff fails to disclose to the Duty Judge that the basis for the amendment was discovered eight months earlier — certifier deprived of the ability to file cross-claims for contribution in time — “obvious and significant” prejudice if amendment is granted — leave to amend refused.

Legislation Cited: Civil Liability Act 2002 (NSW), Pt 4, s 34
Civil Procedure Act 2005 (NSW), ss 22, 58, 64, 65
Design and Building Practitioners Act 2020 (NSW), ss 36, 37
Environmental Planning and Assessment Act 1979 (NSW), ss 6.19, 6.20, 6.21
Environmental Planning and Assessment Act 1979 (NSW), Pt 4C, ss 109ZJ, 109ZK (repealed)
Environmental Planning and Assessment Amendment Act 1997 (NSW) (repealed)
Environmental Planning and Assessment Amendment Act 2017 (NSW) (repealed)
Judicature Act 1873 (UK), s 24
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), ss 5, 6
Limitation Act 1969 (NSW), ss 7, 14, 26, 74
Uniform Civil Procedure Rules 2005 (NSW), Pt 9

Cases Cited: Bandelle Pty Ltd v Sydney Capitol Hotels Pty Ltd [2020] NSWCA 303
Beca Carter Holdings & Ferner Ltd v Wellington City Council [2024] 1 NZLR 438; [2024] NZSC 117
Bryan v Maloney (1995) 182 CLR 609; [1995] HCA 17
Creevey v Barrois [2005] NSWCA 264
Cromwell Plumbing Drainage and Services Ltd v De Geest Brothers Construction Ltd (1995) 9 PRNZ 218 (HC)
Dinov v Allianz Australia Insurance Ltd (2017) 96 NSWLR 98; [2017] NSWCA 270
Genders v Government Insurance Office (NSW) (1959) 102 CLR 363; [1959] HCA 30
GIO General Ltd v Love [2009] NSWCA 269
Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 599
In the matter of Cummings Engineering Holdings Pty Ltd [2014] NSWSC 250
In the matter of St Hilliers Contracting Pty Ltd [2009] NSWSC 1460
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
McDonnell & East Ltd v McGregor (1936) 56 CLR 50; [1936] HCA 28
McSeveny v Ultimate IP Holdings Pty Ltd [2018] NSWSC 1197
National Mutual Fire Insurance Co Ltd v Commonwealth of Australia [1981] 1 NSWLR 400
Nelson v Wyong Shire Council (1989) 68 LGRA 164
Nickels v Parks (1948) 49 SR (NSW) 124
Pafburn Pty Ltd v The Owners – Strata Plan No 84674 [2024] HCA 49
State Government Insurance Office (Qld) v Crittenden (1966) 117 CLR 412; [1966] HCA 56
Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (a firm) [2015] FCA 1098
Tekno Ceramics Pty Ltd v Milat [2003] NSWCA 254
The Owners – Strata Plan No 67635 v Metlej Developments Pty Ltd [2013] NSWSC 1564
The Owners – Strata Plan No 72357 v Dasco Constructions Pty Ltd (2010) 77 NSWLR 607; [2010] NSWSC 819
The Owners – Strata Plan No 76841 v Ceerose Pty Ltd [2016] NSWSC 1545
The Owners – Strata Plan No 76841 v Ceerose Pty Ltd [2017] NSWCA 140
The Owners – Strata Plan No 84674 v Pafburn Pty Ltd (2023) 113 NSWLR 105; [2023] NSWCA 301
The Owners – Strata Plan No 87231 v 3A Composites GmbH (No 3) [2020] FCA 748
The Trust Co Ltd v Commonwealth of Australia [2026] NSWCA 90
Tuckwood v Mayor of Rotherham [1921] 1 KB 526
Tyrell v Tyrrells Building Consultancy Pty Ltd [2008] NSWSC 416
Ultramares Corporation v Touche (1933) 174 NE 441
Unsworth v Commissioner for Railways (1958) 101 CLR 73; [1958] HCA 41
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55
Weston v Publishing & Broadcasting Ltd [2011] NSWSC 433

Texts Cited: Explanatory Note, Civil Liability Amendment (Personal Responsibility) Bill 2002 (NSW)
Explanatory Note, Environmental Planning and Assessment Amendment Bill 1997 (NSW)
Explanatory Note, Environmental Planning and Assessment Amendment Bill 2017 (NSW)
New South Wales Legislative Assembly, Home Building Amendment Bill 2011, Second Reading Speech, 13 October 2011
P Herzfeld & T Prince, Interpretation (Thomson Reuters, 3rd ed, 2024)
Ritchie’s Uniform Civil Procedure NSW (LexisNexis, looseleaf)

Category: Procedural rulings

Parties: Fortius Broadway No 1 Pty Ltd (Plaintiff)
ACN 103 211 141 Pty Ltd (formerly known as Watpac Construction (NSW) Pty Ltd (1st Defendant)
Robert Bird Group Pty Ltd (4th Defendant)
Peddle Thorp & Walker Pty Ltd (5th Defendant)
City Plan Services Pty Ltd (7th Defendant)
Frasers Broadway Pty Ltd (8th Defendant)
Frasers Central Park Land No 1 Pty Ltd (9th Defendant)
SH Central Park Development East Pty Ltd (10th Defendant)
Leviat Pty Ltd (11th Defendant)
Chapman Hutchinson Pty Ltd (13th Defendant)
Frasers Central Park Equity No 1 Pty Ltd (16th Defendant)

Representation: Counsel:
N Simpson SC / M Thompson (Plaintiff)
H Lenigas (1st Defendant)
M Harker (4th Defendant)
DH Mitchell / A Buchanan (5th Defendant)
D Talintyre (7th Defendant)
J Adamopoulos (8th, 9th, 10th, 16th Defendants)
M Smith (11th Defendant)
A Toogood, Solicitor (13th Defendant)
Solicitors:
Pinsent Masons (Plaintiff)
Maddocks Lawyers (1st Defendant)
Clyde & Co (4th Defendant)
Kennedys Law (5th Defendant)
YPOL Lawyers (7th Defendant)
MinterEllison (8th, 9th, 10th, 16th Defendants)
Gilbert + Tobin (11th Defendant)
Moray & Agnew Lawyers (13th Defendant)

File Number(s): 2023/60406

JUDGMENT

1. HER HONOUR: This is an application by the plaintiff, Fortius Broadway No 1 Pty Ltd, for the leave granted by Meek J on 18 June 2024 to be made permanent. The plaintiff had then approached the Duty Judge to amend its pleading, where a limitation period in respect of the proposed amendment was thought to expire the next day. His Honour granted the plaintiff leave to file the amended Technology and Construction List Statement, with such leave subsisting until 26 July 2024 unless application was made by the plaintiff to extend that leave. The purpose of the limited grant of leave was to permit the defendants an opportunity to consider their position, and for the Technology and Construction List Judge to decide the amendment application in light of any prejudice the defendants may suffer as a consequence of the amendments.

2. For various reasons, two years have since passed. The plaintiff wants to defer the matter until trial but the seventh defendant, City Plan Services Pty Ltd (the certifier) wants it determined now. The remaining 14 active defendants are content for the limitation issues embedded in the amendments to await final hearing. As such, the first issue on this application is whether I should make the certifier wait until trial as well. If the matter should be resolved now, then the issues are:

(a) does s 6.20 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) – coined the “long-stop” – apply to claims for contribution under the Law Reform (Miscellaneous Provisions) Act 1946 (NSW); and (b) can s 74 of the Limitation Act 1969 (NSW) extend the “long-stop”?

3. In light of the answers to these questions, the last issue is whether leave to amend should be made permanent or refused.

These and related proceedings

4. To address the first and last issues, it is necessary to understand the history of these proceedings, both before Meek J granted leave and since. These proceedings – and three related building-defects proceedings – concern a large, high-rise development on Broadway in Chippendale, referred to as “One Central Park”. A distinctive feature of “One Central Park” is the existence of “hanging gardens” on the external façade, made of approximately 2,000 planter boxes attached to the outside of the building. It has residential apartments in two towers, a multi-level shopping centre and restaurants. The development comprises four strata plans. The plaintiff is the owner of the retail lot (the Retail Owner).

5. In 2020, the owners corporations of the three residential strata plans (the Residential Owners) commenced proceedings against ACN 103 211 141 Pty Ltd (formerly known as Watpac Construction (NSW) Pty Ltd) (the builder) and the developers for breach of the statutory warranties in s 18B of the Home Building Act 1989 (NSW). In April 2022, a planter box fell from level 29 of the building. Regulatory action followed. The planter boxes, and the means by which those boxes are attached to the building, became the subject of the Residential Owners’ proceedings.

6. On 20 February 2023, the Retail Owner commenced these proceedings against 23 defendants, being the builder, the developers, the certifier and:

(a) fire safety engineer ARUP Pty Ltd; (b) landscape architect Aspect Oculus Pty Ltd; (c) structural engineer Robert Bird Group Pty Ltd; (d) architect Peddle Thorp & Walker Pty Ltd; (e) façade consultant Surface Design Consulting Pty Ltd; (f) manufacturer and supplier of the planter box support solution, Leviat Pty Ltd; (g) designer and installer of the irrigation system, BOBS Plan Pty Ltd; (h) designer of the bolts, Chapman Hutchinson Pty Ltd; (i) designer of the façade and planter boxes, Berry Design Pty Ltd; and (j) lead architect Ateliers Jean Nouvel.

7. The defendants were said to have breached a common law duty of care and engaged in misleading and deceptive conduct contrary to the Australian Consumer Law. In addition, the defendants – other than the certifier – were said to have breached the statutory duty in s 37(1) of the Design and Building Practitioners Act 2020 (NSW) (DB**P Act). The certifier’s solicitor, Simon Lusk, noted that, while the certifier was a cross-defendant in each of the Residential Owners’ proceedings, none of the cross-claims in those proceedings made a claim against the certifier under the DBP Act either. As against the certifier, the Retail Owner relied on a final occupation certificate issued on 17 January 2014.

8. In September 2023, the developers issued a First Cross-Claim against the builder and a Second Cross-Claim against various contractors. The builder issued a Third Cross-Claim against various contractors, including the certifier, apparently seeking to enforce a contractual indemnity.

9. The Retail Owner circulated proposed amended pleadings. On 5 October 2023, the certifier’s solicitors wrote to the Retail Owner’s solicitors, suggesting that the current pleadings were defective as the pleading requirements for claims under the Civil Liability Act 2002 (NSW) were not met, nor were the alleged representations identified with precision. As those deficiencies would be perpetuated in the proposed amended pleading, it was said to be unlikely that the certifier would consent to the proposed amendments; their client may well move to strike out the existing pleading in any event. On 17 October 2023, the Retail Owner’s solicitors replied that their client was in the process of considering further amendments to its pleadings.

10. On 18 October 2023, the Retail Owner became aware of the existence of a final occupation certificate dated 19 June 2014.

11. It is relevant to note that, on 13 December 2023, the Court of Appeal gave judgment in The Owners – Strata Plan No 84674 v Pafburn Pty Ltd (2023) 113 NSWLR 105; [2023] NSWCA 301, concluding that the proportionate liability defences in Pt 4 of the Civil Liability Act were not available for claims for breach of s 37 of the DBP Act. The respondents appealed to the High Court of Australia.

12. From January to May 2024, the Retail Owner adjourned the proceedings from time to time, pending an application to consolidate these proceedings with two other proceedings commenced in respect of the same defects. On 27 May 2024, the Retail Owner circulated proposed consolidated pleadings, adding a claim against the certifier under the DBP Act. The Retail Owner also sought to rely on the final occupation certificate dated 19 June 2014. Three defects were also added, in respect of the building’s awning, stormwater drainage system and building maintenance unit.

Leave granted by Duty Judge

15. On 17 June 2024, the Retail Owner’s solicitor emailed the parties, indicating that they had recently received correspondence that raised limitation issues in connection with the final occupation certificate dated 19 June 2014 and, as such, intended to approach the Duty Judge to have an application to file their amended pleading heard by noon the following day. The certifier’s solicitor sought urgent instructions from his client. At 5.48 pm, the Retail Owner approached the Duty Judge seeking leave to file a motion to consolidate the proceedings, together with leave to amend the Technology and Construction List Statement. Meek J made orders for short service and made the motion returnable the next day. The associate to Meek J circulated the orders to the parties at 6.43 pm.

16. The motion was supported by an affidavit of the Retail Owner’s solicitor, Sadie Andrew, who set out the history of the development, including details of the various occupation certificates issued as the development progressed. The solicitor said that the proceedings were initially brought “from a limitations perspective”, where there was a concern that the Retail Owner’s claims may be time barred as of February 2023 by the “long-stop”, due to the existence of two interim occupation certificates dated 21 February 2013. Since then, two final occupation certificates have been obtained, one dated 17 January 2014 and – “more recently” – one dated 19 June 2014. The fact that the latter certificate had come to the Retail Owner’s attention eight months’ earlier was not plainly stated: see [10].

17. The solicitor explained that there was a dispute between the parties as to what constituted the relevant occupation certificate and the date on which the “long-stop” limitation period expired. The Retail Owner contended that the “long-stop” limitation period expired on 19 June 2024. This pressing limitation issue was said to give rise to the urgency of the application. So far as prejudice to the defendants was concerned, the proceedings were said to be at a very early stage, with pleadings still incomplete. The solicitor noted that the defendants had been on notice of the consolidated proceedings for a number of weeks and had had the opportunity to investigate potential cross-claims. The defendants were said to have time before the end of the “long-stop” limitation period – that is, the next day – to bring such claims. Finally, it was said that any issue of real prejudice could and should be dealt with by the trial judge.

18. The motion was heard by Meek J at noon on 18 June 2024. His Honour was understandably concerned to “proceed cautiously and to do only the minimum that might be appropriate and necessary to deal with the exigency of the situation”. Various defendants expressed concern about the grant of leave to amend where, on the Retail Owner’s case, the limitation period expired the next day, giving the defendants no time to bring cross-claims. His Honour was “troubl[ed as to] how any prejudice might be accommodated”.

“… What happens between now and any hearing [in] a couple of years? … How is reserving to a trial judge in two years’ time the question of prejudice, when people are expected to effectively carry on for the next two years, litigating on a basis where they might or might not be successful in having cross-claims against parties dealt with or not? Why can’t it be quicker than that? Why can’t I reserve to the Construction List Judge the issue of whether there’s prejudice and have the Construction List Judge deal with it far quicker than that? ...

… I think the only way I would consider it is on that sort of basis because I have to confess I’m not keen on the idea that it would be reserved to a trial judge and being dealt with in two years’ time … because by then everybody’s proceeding on a very, very uncertain basis.”

21. The parties embraced this proposal, which the developers’ counsel noted had the “attraction … of knowing where the parties stand well in advance of the trial”. His Honour indicated that he would only grant leave to amend on the basis that it was entirely reserved to the Technology and Construction List Judge to deal with the matter expeditiously, where the onus would be on the plaintiff to satisfy the Court that the leave should continue, failing which the leave would be revoked. The parties formulated orders accordingly, which Meek J made at 4.15 pm, including:

“2. Subject to these orders, the Plaintiff is granted leave … to file the amended consolidated Technology and Construction List Statement … with such leave subsisting until 26 July 2024, unless an application is made by the Plaintiff to extend that leave for all or part of the amendments and the joinder.

…

5. On any application by the Plaintiff to extend leave in accordance with order 2, if it transpires that the Defendants' … ability to defend or file cross claims will be prejudiced by reason of any part of the amendments, the Court will determine whether leave will be revoked for all or those parts of the amendments … .”

22. On 19 June 2024, the Retail Owner filed its amended pleadings at 11.30 am. Mr Lusk received instructions from the certifier’s managing director, Brendan Bennett, who was the principal certifying authority on the development. Mr Bennett gave detailed instructions on the development consents and occupation certificates. He instructed Mr Lusk that the final occupation certificate dated 19 June 2014 related to the basement carpark constructed under a separate development consent to that which related to the retail lot or the alleged defects the subject of the proceedings. Accordingly, as at 19 June 2024, Mr Lusk was instructed that the “long-stop” had already expired on 17 January 2024.

23. Mr Lusk reviewed the amended pleading and noted that the defects primarily related to the external cladding and planter boxes of the retail lot and other external elements. Those defects were unrelated to the basement referred to in the final occupation certificate dated 19 June 2014. Based on his instructions, that certificate was not relevant to the pleading in the context of any “long-stop” limitation. That is, as I understand it, Mr Lusk and his client formed the view – in the time available to them – that it was not necessary to file a cross-claim having regard to the amended pleading.

24. Other defendants proceeded differently. That evening, the developers amended the First Cross-Claim against the builder and the Second Cross-Claim against various contractors. In particular, the certifier was added as a cross-defendant to the Second Cross-Claim. The developers now sought contribution under the Law Reform (Miscellaneous Provisions) Act or equitable contribution. The builder amended the Third Cross-Claim against various contractors, including the certifier. The developers filed the Fourth Cross-Claim and Fifth Cross-Claim against other contractors. The last pleading was filed at 8.30 pm that evening.

Motion for leave to be made permanent

25. On 25 July 2024, the Retail Owner filed this motion, seeking that the leave granted by Meek J on 18 June 2024 be made permanent. The motion was supported by a second affidavit by Ms Andrew, who noted that, “perhaps with the exception” of the DBP Act claim against the certifier, the amendments to the pleading did not give rise to any new causes of action. The solicitor noted that it was undesirable that any limitation questions be decided in interlocutory proceedings, relying on Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55 at 533. The evidence had not reached a point where a final determination could be made as to which occupation certificate was correct. If the 19 June 2014 occupation certificate did not apply, then the Retail Owner accepted that the DBP Act claims were time barred but the Australian Consumer Law claims were not. There was said to be no prejudice in allowing the leave granted by Meek J to be made permanent. Any prejudice which existed should be weighed against the very significant prejudice if the Retail Owner was deprived of its claim.

26. On 26 July 2024, Ball J set the motion down for hearing on 8 August 2024. Mr Lusk made an affidavit in opposition to the leave being made permanent, deposing that the certifier would be irretrievably prejudiced by the addition of a claim under the DBP Act. On 6 August 2024, Ms Andrews made a third affidavit, disclosing when the Retail Owner became aware of the existence of the final occupation certificate dated 19 June 2014.

27. On 8 August 2024, the Retail Owner sought to adjourn the hearing of the motion for a number of reasons, including that the appeal to the High Court from the decision in The Owners – Strata Plan No 84674 v Pafburn Pty Ltd (2023) 113 NSWLR 105; [2023] NSWCA 301 would soon be heard. Ball J accepted that whether there was prejudice may depend on the High Court’s decision and the argument as to whether the “long-stop” applied to contribution claims. His Honour queried:

“I’ve been wondering whether it’s possible to progress the case in a way that permits everyone to preserve their position until possibly late this year when we may be in a better position to know what the relevant legal framework is to judge what should happen because although I can see the force of a submission which says that it would be desirable to see what the High Court does before deciding this question, on the other hand, it is highly undesirable to put the case off indefinitely with nothing happening in circumstances where a lot of parties are affected.” (Emphasis added.)

28. His Honour made orders for the Retail Owner to circulate proposed amended pleadings and to serve all lay and expert evidence in respect of the proposed pleadings. The leave granted by Meek J continued pending resolution of the motion. From time to time, extensions of time were granted for the Retail Owner to put on its lay and expert evidence.

29. In December 2024, Stevenson J ordered that these proceedings be heard together with the Residential Owners’ proceedings and that evidence in one proceeding be evidence in the others. The High Court also gave judgment in Pafburn Pty Ltd v The Owners – Strata Plan No 84674 [2024] HCA 49, dismissing the appeal. As such, defendants to claims under the DBP Act cannot avail themselves of the proportionate liability provisions of the Civil Liability Act.

30. It is also relevant to note that, on 14 February 2025, Peddle Thorp & Walker (the architect) filed a cross-claim seeking contribution against various parties (including the certifier) under s 5 of the Law Reform (Miscellaneous Provisions) Act or, alternatively, equitable contribution. (The Retail Owner submitted on this application that it would have been a simple matter for the certifier to file such a cross-claim on 19 June 2024 if it was so minded.)

31. Further extensions were given to the Retail Owner to put on its lay and expert evidence, now accompanied by directions to serve a Scott Schedule. Between June 2025 and November 2025, the Retail Owner served three lay affidavits, 14 expert reports and a tender bundle, being its evidence in chief. The Retail Owner then circulated a further proposed amended pleading, to which details from the lay and expert evidence had been added. The defendants were directed to indicate whether they maintained any objection to the plaintiff’s motion as it applied to the proposed amended pleadings.

32. On the current iteration of the proposed amended pleading, the “construction work” carried on by the certifier is said to include the “selection, supervision, project management and/or design of the Non-Compliant ACP System and awning system”. Specifically, the certifier prepared and issued BCA reports and occupation certificates and inspected the construction work to confirm that the building complied with the Building Code of Australia. The certifier is thereby said to have supervised, coordinated and/or project managed the building work within the meaning of s 36 of the DBP Act or, alternatively, had substantive control over the carrying out of the building work and/or preparing designs for that work.

33. On 27 February 2026, this motion was listed for hearing on 10 June 2026. A fresh round of submissions were filed by the parties and updating affidavits by the solicitors. Mr Lusk said that, if the pleadings filed in February 2023 had included a claim under the DBP Act, instructions would have been sought in relation to the material facts pleaded with respect to the “construction work” the certifier was alleged to have carried out. Noting the uncertainty as to whether claims under the DBP Act were apportionable given the Court of Appeal’s decision in (2023) 113 NSWLR 105; [2023] NSWCA 301, Mr Lusk said he would have obtained instructions and prepared a cross-claim seeking equitable contribution or under s 5 of the as against the other defendants before the expiration of the 10-year “long-stop” period.

Submissions

34. The certifier submitted that, at the outset, the Retail Owner commenced a DBP Act claim against everyone except the certifier. Presumably, it deliberately framed its case in that way. Why it then sought to belatedly reformulate its case against the certifier had never been explained. The Retail Owner’s motion seeking leave to amend was filed two days before the suggested limitation period expired. Leave was granted on 18 June 2024, and the amended pleading was filed on 19 June 2024. The certifier submitted that its prejudice had been solidified by the High Court’s decision in Pafburn Pty Ltd v The Owners – Strata Plan No 84674 [2024] HCA 49. Where a claim pursuant to s 37 of the DBP Act was not apportionable, the certifier could only apportion any liability to other tortfeasors by filing cross-claims and such cross-claims were now time barred.

35. The certifier submitted that the prevailing view appeared to be that contribution claims pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act constitute a “civil action for loss or damage arising out of or in connection with defective building work” for the purposes of s 6.20 of the EPA Act, such that the “long-stop” applies: The Owners – S**trata P**lan No 67635 v Metlej Developments Pty Ltd [2013] NSWSC 1564 at [20]; The Owners – Strata Plan No 76841 v Ceerose Pty Ltd [2016] NSWSC 1545 at [12], [66]; The Owners – Strata Plan No 87231 v 3A Composites GmbH (No 3) [2020] FCA 748 at [64]-[88]. The certifier submitted that this was the correct view, but even if the contrary view was open, then the certifier should not be required to bear this risk. Section 74 of the Limitation Act was unlikely to assist, as s 6.20 of the EPA Act applied “despite” any other law.

36. Where the Retail Owner maintained claims against numerous other defendants involved in the development, the certifier submitted that it clearly had “viable and realistic” cross-claims against those defendants for contribution, at least to the same extent that the Retail Owner’s claims against those defendants were viable and realistic. If the certifier now had to confront a new claim under the DBP Act without apportioning its liability against other tortfeasors, its prejudice was “obvious and significant”: Tekno Ceramics Pty Ltd v Milat [2003] NSWCA 254 at [41].

37. Nor did the DBP Act claim arise from the same facts, where the Retail Owner had earlier relied on the occupation certificate of January 2014 but now sought to rely on the later June 2014 occupation certificate. The new cause of action included material facts as to whether the certifier carried out construction work within the meaning of the DBP Act. A new element of this claim was whether such work constituted a breach of the duty in s 37 of the DBP Act. The claim did not arise out of the same subset of facts and circumstances as the common law claim. Any prejudice to the plaintiff would be much less, in circumstances where it still has its Australian Consumer Law claim against the certifier and has sued 14 other defendants. Where the Retail Owner already had its claim for misleading or deceptive conduct, and in tort, it was not clear what was “the magic” about the DBP Act claim that added to what was already brought.

Should this be decided now?

46. Whether the certifier is actually prejudiced by the addition of the DBP Act claim depends on whether the certifier is time barred from filing a contribution claim. This turns on the proper construction of s 6.20 of the EPA Act, which is not presently the subject of binding authority. If I consider that legal issue now, then it may be productive of an appeal. While the certifier’s counsel assured me that his client would abide by my decision, other parties may not feel the same way. The orderly progress of this case has already been diverted, to some extent, while awaiting the High Court’s decision in Pafburn Pty Ltd v The Owners – Strata Plan No 84674 [2024] HCA 49.

47. Deciding the matter now may affect other defendants. If the certifier is right, then the architect’s cross-claim is out of time. If the architect is right, then the certifier – and potentially other defendants – can file cross-claims seeking contribution. These proceedings may expand or contract accordingly. The developers’ counsel noted that ruling on this issue may have the consequence that the cross-claims filed on 19 June 2024 may also have leave revoked, being a consequential effect that may, as a matter of discretion, indicate that the matter was best left until trial, when all cross-claims were filed and responses are on. I consider this last consideration to be minor in the scheme of things.

48. Against this, all defendants had an opportunity to be heard on this application. It was not suggested that there were any further authorities which any party wished to bring to bear on the legal questions. This motion involves discrete legal issues requiring close attention. Where these proceedings will now be heard together with the Residential Owners proceedings, the trial judge will be dealing with a glut of procedural, evidentiary and legal issues. There is something to be said for focussing on these legal issues now, rather than leaving it to the trial judge to deal with these issues amongst everything else calling for their attention.

49. Apart from delays which may result from a potential appeal, there are no other pressing case management considerations. A trial is probably still some distance away. Deciding the matter now does not affect the Retail Owner either way, in terms of case preparation, as its evidence is on. Where the defendants have yet to file Commercial List Responses or put on their evidence, it seems unlikely that any costs will be thrown away as a result of deciding the matter now. As the developers’ counsel submitted when the matter was before Meek J, deciding the matter now has the “attraction… of knowing where the parties stand well in advance of the trial”.

50. The certifier is in a unique position in these proceedings. Until Meek J granted leave to amend the Technology and Construction List Statement on 18 June 2024, the certifier was defending negligence and Australian Consumer Law claims and relying on proportionate liability defences. But it did not face a claim under the DBP Act, to which there is no such defence. Whether the certifier can defray any liability for the DBP Act claim by contribution claims really matters to how it will conduct this litigation. As the certifier’s counsel submitted, and I accept, the certifier’s insurer will need to place a reserve on this claim and resource the matter depending on its exposure. The ability of the insurer to participate in alternative dispute resolution in a meaningful way depends upon the insurer having an accurate appreciation of that exposure. If the DBP Act claim stands and the certifier is out of time to file cross-claims for contribution, then that is quite a different proposition to defending the previously pleaded claims only.

Earlier and other case law

54. Before turning to the proper construction of the “long-stop”, it is convenient to address the earlier cases referred to by the architect. Those authorities, which were also canvassed in 3A Composites and Beca Carter, assist generally but not specifically. The statutory or policy wording considered in those cases differs from s 6.20 of the EPA Act. And I have the statutory text, extrinsic material (to the extent that it is needed) and three Court of Appeal judgments on the statutory text to guide me.

55. For completeness, in Tuckwood, the plaintiff’s employee was injured by a tram car operated by the defendant. The employer was entitled to be indemnified by the person liable to pay damages, under the Workman’s Compensation Act 1906, 6 Edw 7, c 58*.* But the Public Authorities Protection Act 1893, 56 & 57 Vict, c 61, imposed a six-month limitation period for "any action, prosecution, or other proceeding ... against any person for any act done in pursuance, or execution, or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, duty or authority”: s 1(a). Bankes LJ considered that an action claiming the right to a statutory indemnity did not fall within this description. His Lordship explained at 533:

“It is true that in order to succeed in the action the plaintiff must establish that the workman would have been entitled to recover damages against the corporation for the negligence of their servant in driving the tramcar. That no doubt is an essential part of his cause of action; but I do not think that it is true to say that the action claiming the right to the statutory indemnity is an action in respect of any alleged neglect in the execution of a duty within the meaning of the language used in the section.”

56. See likewise Scrutton LJ at 535-536. Atkin LJ held, at 538:

“… in this case the alleged neglect or default in not driving the tramcar with proper skill gave no cause of action to the plaintiff. He derives his right to make a claim against the defendants, not because of their act or default, but because the Act of 1906 has imposed a liability upon them to indemnify him if he has had to pay compensation to his injured workman by reason of that neglect or default. So that is doubly removed, if I may say so, from the act or default. First, the plaintiff has to rely upon the statutory right to indemnity, and, secondly, he does not acquire that statutory right to indemnity unless the workman has recovered compensation from him.”

57. Tuckwood was followed in Nickels, where the plaintiff tram conductor was injured when the defendant’s motor vehicle collided with the tram. The defendant sought contribution from the Commissioner for Road Transport and Tramway, but s 27 of the Transport (Division of Functions) Act 1932-1947 (NSW) provided a one year limitation period for actions “for anything done or omitted or purporting to have been done or omitted under this Act or under any Act … which confers or imposes any power, authority, duty or function on any such Commissioner."

58. Jordan CJ considered the circumstances in Tuckwood were “completely analogous” and it followed that, while it would be necessary in a proceeding for contribution to establish as an ingredient in the cause of action that the Commissioner, by his servants, was guilty of negligence in the performance of his statutory duties, the action “is not one against him for negligence in the performance of those duties. It is one to recover a contribution provided for by statute because he has injured, not the claimant, but somebody else, in the negligent performance of his statutory duties”: at 129. Davidson J agreed, noting, “The action to enforce a contribution must be regarded as something distinct from the original proceeding for recovery of damages by the person injured”: at 132. Street J concurred: at 133.

59. In Unsworth, a widow sought damages when her husband’s car collided with unlit trucks standing on a railway line at a level crossing at night. The car was driven by the deceased’s employee, Mr Unsworth, who sought contribution from the Commissioner for Railways. Section 121 of the Railways Acts 1914-1951 (Qld) imposed a £2,000 cap on damages, “In any action brought against the Commissioner to recover damages or compensation in respect of personal injury”. The question was whether the claim for contribution was subject to the statutory limit, where damages of £5,615 were awarded. The majority held that the statutory cap did not apply to the claim for contribution. Fullagar J followed Tuckwood and Nickels, concluding at 86:

"But the proceeding was not, in my opinion, an action to recover damages or compensation. The proceedings to which those words refer are, I think, proceedings taken to enforce liability for acts or omissions which are wrongful as against the person taking those proceedings. Proceedings to obtain contribution in pursuance of the new statutory right given by the Law Reform Act are not such proceedings."

60. Taylor J agreed, describing a claim for contribution under the Law Reform Act as “of an entirely different character” being, in effect, a claim for a partial indemnity: at 91.

61. In Genders v Government Insurance Office (NSW) (1959) 102 CLR 363; [1959] HCA 30, the High Court considered third party insurance required by the Motor Vehicles (Third Party Insurance) Act 1942 (NSW) and whether the policy wording covered claims for contribution brought under the Law Reform (Miscellaneous Provisions) Act. It did. Dixon CJ, McTiernan, Taylor and Windeyer JJ concluded at 379-80:

“To argue that in the case of a claim for contribution it is not a liability in respect of such death or bodily injury but in respect of the judgment or other ascertainment of the claimant’s liability is to overlook the fact that the obligation to contribute is the consequence of the liability in respect of the death or bodily injury which the insured who is called upon to contribute incurred and that contribution is only a method of realising that liability or, in other words, of enforcing it to the extent of the due proportion to be borne.”

62. In Crittenden, the High Court considered third party insurance required by the Motor Vehicles Insurance Act**s 1936–1961 (Qld). The question was whether the policy covered claims by an injured person’s dependents. The policy indemnified the owner of a motor vehicle against “all sums for which he or his estate shall become legally liable by way of damages in respect of such motor vehicle for accidental bodily injury … to any person … where such injury is caused by, through or in connection with such motor vehicle”. The Court held that the policy covered the claim: at 414 (McTiernan ACJ), 420 (Taylor J), 422 (Menzies J and Windeyer J). Taylor J considered Genders to be of considerable assistance, acknowledging that damages payable by contribution was within the meaning of the policy, being a liability to pay damages “for” or “in respect of” bodily injury: at 418. Menzies and Windeyer JJ agreed.

63. In National Mutual, the Court of Appeal considered s 6(1) of the Law Reform (Miscellaneous Provisions) Act, which created a charge on insurance monies, in particular, whether this extended to an insured’s liability to pay contribution. Glass JA (Moffitt P agreeing) noted “a strong tidal movement” in the case law, treating an indemnity against liability for damages as including liability to pay contribution to another tortfeasor: at 407.

64. I can also, with very great respect, put to one side The Owners – Strata Plan No 67635 v Metlej Developments Pty Ltd, where Sackar J declined to construe the statutory predecessor of s 6.20, being s 109ZK of the EPA Act, but noted that the statutory language was of broad effect and the actions caught within the section were “defined by reference to the character of the dispute, not (at least expressly) by reference to the identity of the party or parties involved in the claim”: at [31]. So too The Owners – Strata Plan No 76841 v Ceerose Pty Ltd, where Stevenson J rejected a submission that a defendant could bring claims for contribution against a certifier after the “long-stop”, noting, “An action against the certifier would be a “building action” as “building work’” is defined to include the issuing of compliance certificates”: at [82]. His Honour does not appear to have had the benefit of competing submissions on the subject. Decisions are not authority for what was not argued: The Trust Co Ltd v Commonwealth of Australia [2026] NSWCA 90 at [126] (Leeming JA)

65. I can also, with very great respect, put to one side Wigney J’s observations in 3A Composites*.* After reviewing the authorities relied on by the parties on this application, Wigney J concluded that it was “at least arguable” that an action for contribution by the manufacturer against third party professionals was an action for harm or injury, and therefore “loss or damage” for the purposes of s 6.20, because the action “would be for a remedy in relation to the harm or injury that [the manufacturer] would suffer if it is held liable to pay the loss or damage suffered by a group member in circumstances where the third party, if sued, would have been liable for the same damage”: at [75]. But his Honour did not decide the point.

393 Limitation defences

(1) The Limitation Act 2010 applies to civil proceedings against any person if those proceedings arise from—

(a) building work associated with the design, construction, alteration, demolition, or removal of any building … or

(b) the performance of a function under this Act or a previous enactment relating to the construction, alteration, demolition, or removal of the building ….

(2) However, no relief may be granted in respect of civil proceedings relating to building work if those proceedings are brought against a person after 10 years or more from the date of the act or omission on which the proceedings are based.

(3) For the purposes of subsection (2), the date of the act or omission is—

(a) in the case of civil proceedings that are brought against a territorial authority, a building consent authority, a regional authority, or the chief executive in relation to the issue of a building consent or a code compliance certificate under Part 2 or a determination under Part 3, the date of issue of the consent, certificate, or determination, as the case may be; and

(b) in the case of civil proceedings that are brought against a person in relation to the issue of an energy work certificate, the date of the issue of the certificate.

67. While the Court accepted that the statutory language of the “long-stop” was sufficiently broad to encompass contribution claims, the question was whether specific language was required to override such claims: at [34], [37]. The Court reviewed many of the authorities relied on by the parties on this application.

68. The majority (Ellen France, Williams and Kòs JJ) noted the “long-established and bespoke” nature of a contribution claim, which underpinned the approach taken in the authorities: at [34], [75]. The majority concluded that, if it was intended that the “long-stop” was to override contribution claims, it was necessary for the legislation to make that clear: at [78]. The statutory predecessor to s 393(2), in the Building Act 1991 (NZ), had been construed in Cromwell Plumbing Drainage and Services Ltd v D**e Geest Brothers Construction Ltd (1995) 9 PRNZ 218 (HC) as not prevailing over the limitation period relating to contribution claims in the Limitation Act 1950 (NZ): at [39]. That was the state of the law immediately prior to the enactment of the Building Act; it was significant that s 393(2) re-enacted the earlier provision without material change: at [39]-[42]. To proceed otherwise would also undo legislative reforms made to the New Zealand equivalent of the Law Reform (Miscellaneous Provisions) Act in 1950: at [78].

69. The majority considered that this approach would not be inconsistent with the statutory purpose; it was possible to thereby give effect to the purpose of the regimes under both the Building Act and Limitation Act 1950: at [83]. The contribution regime was designed to remedy an injustice, but was not open-ended and was subject to specific limitation periods: at [83]. The purpose of the “long-stop” was to achieve finality and certainty, while ensuring the accountability of those responsible for ensuring that building work complied with the building code: at [84]. Reading the provisions together, the majority concluded that s 393(2) did not require the Law Reform Act 1936 (NZ) to be dis-applied when the dispute related to a building, and the respective legislative purposes were consistent with that conclusion: at [85].

70. The minority (Glazebrook and O’Regan JJ) disagreed, acknowledging that the issue was “finely balanced”: at [91]. Their Honours concluded that the fact that the Building Act and its predecessor were enacted as part of overall reforms of the legal regime applying to the building industry made it more likely that the parliamentary intention was to give priority to the need for finality in building-related claims: at [92]. Where the wording of s 393(2) of the Building Act was broad enough to encompass contribution claims, it was unclear why one would read into the wording an unstated phrase “other than a claim by a tortfeasor for contribution”: at [98]. Nor could this meaning of the phrase “civil proceedings” be deployed elsewhere in the legislation without significantly limiting its operation: at [97].

Proposed cross-claim and Limitation Act

73. Turning to the contribution claim which the certifier may wish to bring if the Retail Owner succeeds on its motion, s 5 of the Law Reform (Miscellaneous Provisions) Act provides:

5 Proceedings against and contribution between joint and several tort-feasors

(1) Where damage is suffered by any person as a result of a tort … —

…

(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise ….

(2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage …

74. The limitation periods which apply to contribution claims are prescribed by s 26 of the Limitation Act, which provides:

26 Contribution between tort-feasors

(1) An action on a cause of action for contribution under subsection (1) of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 is not maintainable if brought after the first to expire of—

(a) a limitation period of two years running from the date on which the cause of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims, and

(b) a limitation period of four years running from the date of the expiration of the limitation period for the principal cause of action.

(2) For the purposes of paragraph (a) of subsection (1), the date on which a cause of action for contribution first accrues is—

(a) if the plaintiff in the action for contribution or a person through whom the plaintiff claims is liable in respect of the damage for which contribution is claimed by judgment in a civil action or by arbitral award—the date on which the judgment is given or the award is made …

(3) In paragraph (b) of subsection (1), the expression the limitation period for the principal cause of action means the limitation period fixed by or under this Act or by or under any other enactment … for the cause of action for the liability in respect of which contribution is sought.

…

75. Further, s 74(1) of the Limitation Act provides:

74 Set off etc

(1) Where, in an action (in this section called the principal action), a claim is made by way of set off, counterclaim or cross action, the claim, for the purposes of this Act—

(a) is a separate action, and

(b) is, as against a person against whom the claim is made, brought on the only or earlier of such of the following dates as are applicable—

(i) the date on which the person becomes a party to the principal action, and

(ii) the date on which that person became a party to the claim.

(Emphasis added.)

76. A cross-claim brought by one defendant against another defendant falls within s 74, such that the cross-claim will not be out of time where no time bar had accrued when the cross-defendant became a party to the proceedings: Nelson v Wyong Shire Council (1989) 68 LGRA 164 at 168-9 (Giles J); followed in Weston v Publishing & Broadcasting Ltd [2011] NSWSC 433 at [249] (Ward J, as the President then was); In the matter of Cummings Engineering Holdings Pty Ltd [2014] NSWSC 250 at [59] (Brereton J, as his Honour then was); cited with apparent approval in Creevey v Barrois at [47] (Basten JA, Handley and McColl JJA agreeing).

77. As such, putting the “long-stop” to one side for the moment, the certifier could now bring a cross-claim against a co-defendant so long as that defendant was sued by the Retail Owner in time. But as the chapeau to s 74(1) makes plain, that provision only stops time running “for the purposes of this Act", that is, the Limitation Act. As s 7(a) of the Limitation Act also provides:

7 Other limitations

Nothing in this Act—

(a) applies to an action … for which a limitation period is fixed by or under an enactment other than this Act …

78. For the purposes of s 14(1)(d) of the Limitation Act – which provides a limitation period for an action to recover money recoverable by virtue of an “enactment” – s 14(3) provides:

*…*enactment includes not only an enactment of New South Wales but also an enactment of the Imperial Parliament, an enactment of another State of the Commonwealth, an enactment of the Commonwealth, an enactment of a Territory of the Commonwealth and an enactment of any other country.

79. Thus, an attempt to make use of s 74 of the Limitation Act to stop time running under the Trade Practices Act 1974 (Cth) failed in Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 599, where Einstein J noted that the difficulty of using s 74 “appears to become insuperable in view of s 7(a) of the Limitation Act": at [26]. In McSeveny v Ultimate IP Holdings Pty Ltd [2018] NSWSC 1197, Davis J came to the same conclusion in respect of an Australian Consumer Law claim: at [95]. It remains to be seen whether s 74 can be used to stop time running under the “long-stop”.

“Counterclaim”

80. I pause to note that “counterclaim” is used in both s 74(1) of the Limitation Act and the “long-stop” provisions, but is not defined in either statute. However, the term is well understood. The counterclaim is the creation of the Judicature Act 1873 (UK), which gave the Court power to give a defendant in the plaintiff’s action such relief, both in respect of legal and equitable rights, as was properly claimed by his pleading and could have been given in a separate action: s 24(3). Section 22 of the Civil Procedure Act 2005 (NSW) is the modern equivalent of this provision, supported by the procedures in Pt 9 of the Uniform Civil Procedure Rules 2005 (NSW). As the learned authors of Ritchie’s Uniform Civil Procedure NSW (LexisNexis, looseleaf) note, “In the courts to which the UCPR apply, … counter-claim[s] … must now be brought as a cross-claim”: at [9.1.20].

81. The difference between a set-off, counterclaim and cross-action – and the implications of those differences for limitation periods – was considered by Dixon J in McDonnell & East Ltd v McGregor (1936) 56 CLR 50 at 57-62; [1936] HCA 28. But in Nelson v Wyong Shire Council, Giles J considered the meaning of these terms as used in the Limitation Act, including in light of more recent court procedures. His Honour noted that a defendant may bring a “counter-claim” against the plaintiff “in the nature of a cross-action, brought in the same proceedings as a matter of procedure intended to avoid circuity of action” or “in situations going beyond a claim by the defendant back against the plaintiff”: at 167-8. Further, at 168:

“And there is within s 74 of the Act a clear indication that a claim to which it refers may be a claim against a third party: par (b)(ii) envisages that the person against whom the claim is made was not previously a party to the proceedings. The report of the Law Reform Commission on Limitation of Actions, LRC 3, from which the Act flowed, makes it clear that this was intended.”

82. That is, a “counterclaim” in s 74 of the Limitation Act includes cross-claims by the defendant against the plaintiff and cross-claims by the defendant against third parties. There is no reason to think that the drafters of s 6.20 of the EPA Act meant anything else when incorporating that term into the provision.

The “long-stop”

83. The Court of Appeal has said that, in order to construe s 6.20, it is necessary to construe its predecessor: Bandelle at [9], [11] (Leeming JA), [75] (White JA), [110], [114], (Emmett AJA). The statutory predecessor was s 109ZK, which was introduced by Environmental Planning and Assessment Amendment Act 1997 (NSW) as part of a new Pt 4C, “Liability and insurance”. The provision added “a maximum limitation period of 10 years, for actions relating to building work”: Explanatory Note, Environmental Planning and Assessment Amendment Bill 1997 (NSW) at p 2. The Explanatory Note elaborated at p 11:

“The imposition of a limitation period of 10 years for any person’s liability for damage arising from defective building work … is designed to address the law concerning latent defects in which the current limitation period begins to run only when the defect becomes apparent. The approach taken in the proposed provisions is to limit the period within which proceedings can be commenced to the period of 10 years running from the date on which the relevant occupation certificate … is issued … The new rule will not extend any period of limitation under the Limitation Act 1969, so that the period during which proceedings may be brought may, under that Act, be shorter than the 10 years proposed.”

84. The “law concerning latent defects” referred to in the Explanatory Note was a reference to the High Court’s decision in Bryan v Maloney (1995) 182 CLR 609; [1995] HCA 17. There, professional builder Mr Bryan constructed a house in 1979. Mrs Maloney was the third owner of the house, having purchased it in 1986. Six months later, cracks began to appear in the walls of the house; the house had been built with inadequate footings. Mason CJ, Deane and Gaudron JJ held that there was a relationship of proximity such that the builder owed a duty of care to a subsequent owner to avoid pure economic loss when the inadequacy of the footings became manifest: at 625-628. The particular features of the relationship between the builder and subsequent owners of the house were said to allay concerns that recognising such a duty would give rise to liability “in an indeterminate amount for an indeterminate time to an indeterminate class”: at 626, referring to the words of Cardozo CJ in Ultramares Corporation v Touche (1933) 174 NE 441 at 444.

85. A key indicator of parliament’s intention as to the scope of the “long-stop” – specifically, whether it was intended to encompass claims for contribution – may be gleaned from Pt 4C as originally enacted. The context within which the “long-stop” should be construed is Pt 4C as introduced: Dinov at [75]. Pt 4C provided:

Division 1 Preliminary

109ZI Definitions

In this Part:

building action means an action (including a counter-claim) for loss or damage arising out of or concerning defective building work.

building work includes the design, inspection and issuing of a Part 4A certificate or complying development certificate in respect of building work.

…

Division 2 Liability

109ZJ Apportionment of liability

(1) After determining an award of damages in a building action …, a court must give judgment against each contributing party for such proportion of the total amount of damages as the court considers to be just and equitable, having regard to the extent of that party’s responsibility for the loss or damage in respect of which the award is made.

(2) Despite any Act or law to the contrary, the liability for damages of a contributing party is limited to the amount for which judgment is given against that party by the court.

(3) A contributing party cannot be required:

(a) to contribute to the damages apportioned to any other person in the same building action or subdivision action, or

(b) to indemnify any such other person in respect of those damages.

(4) In this section contributing party, in relation a building action …, means a defendant to the action found by the court to be jointly or severally liable for the damages awarded, or to be awarded, in the action.

109ZK Limitation on time when building action … may be brought

(1) Despite any Act or law to the contrary:

(a) a building action may not be brought in relation to any building work more than 10 years after the date on which the relevant final occupation certificate is issued, and

…

(2) This section does not operate to extend any period of limitation under the Limitation Act 1969.

86. Division 2 of Pt 4C was completed by s 109ZL, which provided that nothing in the Division affected any right to recover damages for death or personal injury. Part 4C was, in turn, completed by Div 3, which concerned insurance for accredited certifiers and other building practitioners prescribed by the regulations.

87. These provisions, when viewed in their entirety, are a compelling indication that the “long–stop" was intended to encompass claims for contribution. The “long–stop" immediately followed a provision in terms relevantly the same as the Law Reform (Miscellaneous Provisions) Act, providing for a defendant’s liability to be reduced by claims for contribution against other defendants. As Campbell JA (Basten JA and Sackar J agreeing) explained in Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [194]:

“The evident purpose of s 109ZJ was to alter the situation that had existed under the previous law if numerous defendants had all caused defective building work, and judgment for the total damage sustained was given against each of them. In that situation, even if they had cross-claims for contribution amongst each other, if one of the defendants who had contributed to the damage was unable to pay its proportionate share of the damages it would be the remaining defendants who would be required ultimately to bear that contributor's portion of the damages. Further, the plaintiff would be free to choose to execute against whichever of the defendant was most able to pay, and leave that defendant to enforce its rights of contribution as best it could. Section 109ZJ enabled a successful plaintiff to receive a judgment against a contributing party only for the proportionate amount of the total damages for which that contributing party was held to be responsible. It transferred to the plaintiff both the risk of insolvency of one of the contributing parties, and the task of enforcing against each contributing party.”

88. Textually, when Div 2 is read as a whole, it almost goes without saying that a “building action” includes claims for contribution by one defendant against a co-defendant or a cross-defendant who was involved in relation to the building work. After s 109ZJ prescribes how the Court must give judgment against each “contributing party” after determining damages in a “building action”, the very next section is the “long-stop”, prescribing when a “building action” may be brought. Section 109ZJ is infused with the concept and terminology of contribution claims. If a “building action” does not include cross-claims by a defendant seeking contribution, then s 109ZJ would have a limited operation indeed. The provisions in Pt 4C were presumably intended to operate harmoniously.

89. The harmonious inter-relation between s 109ZJ and the “long-stop” was emphasised in Dinov, where an insurer had issued a policy to a builder under the Home Building Act. The directors of the corporate builder indemnified the insurer against any liability under the policy. The insurer paid a claim and sued the directors to enforce the indemnity. The directors sought to rely on the “long-stop” but failed. The question was whether the insurer’s action to enforce the indemnity was a “building action” brought in relation to “building work” within the meaning of s 109ZK(1). This turned on whether the directors’ liability under the indemnity was “for loss or damage arising out of or concerning defective building work.

90. McDougall J gave the leading judgment, with which Beazley P and Meagher JA agreed. Importantly, in respect of the definition of “building action”, Meagher JA added at [12]:

“The reference to loss or damage is to harm or injury, as distinct from damages which are compensation claimed for harm or injury: see the discussion in Hunt & Hunt v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10 at [24] (French CJ, Hayne and Kiefel JJ). An action will be “for” harm or injury if it claims a remedy, usually compensation, in relation to or because of it. Harm or injury may be compensable when it is sustained to some interest of the claimant. …”

91. McDougall J noted that the context within which the definition of “building action” should be construed was Pt 4C as introduced, which then included s 109ZJ: at [75]. Further, at [76]:

“Looking at the language of Pt 4C when it was introduced, its evident purpose was to combat the mischiefs perceived to arise from the then state of the law, including specifically:

(1) that a plaintiff in a “building action” could select a defendant or defendants with the deepest pockets, and seek to recover the whole of its damages from them, notwithstanding that their responsibility for those defects might have been very limited; and

(2) the problems identified that were perceived to have arisen from the decision in Bryan [v Maloney].”

92. McDougall J noted that s 109ZJ was concerned with apportionment of liability for “damages in a building action”: at [79]. Further, at [80]-[82]:

“80 In short, the focus of s 109ZJ is on allocation of proportionate responsibility for damages in a building action among those who contributed to their being suffered, once those damages have been assessed.

81 It follows that, at least for the purposes of s 109ZJ:

(1) the subject-matter of a “building action” is an action for damages (in the legal sense) arising out of or concerning defective building work; and

(2) the persons who are entitled to the protection of the section are those who have some legal responsibility to compensate the plaintiff for those damages.

82 Thus, the obvious beneficiaries of the scheme of proportionate liability established by s 109ZJ are those engaged in some way in, so as to have legal liability for defects in, “building work” (and, of course, their insurers).”

93. His Honour noted the apportionment of liability provided by s 109ZJ was coupled with another protection for those engaged in building work, being the absolute time bar in s 109ZK: at [83]. Further, at [86], [88]:

“86 When one considers Pt 4C as it was introduced into the EPA Act, the obvious intention of ss 109ZJ and 109ZK was to protect, through the mechanisms of proportionate liability and ultimate time bar, those who were engaged, one way or another, in the performance of building work. In each case, the protection related to liability in damages for the defective performance of such work. The achievement of that statutory purpose does not necessarily require the protection of people who were doing neither, at the suit of someone else who was doing neither, in an action for damages.

…

88 The recurrent theme in Pt 4C is that it is concerned with participants in the building industry. Sections 109ZJ and 109ZK make it clear that those intended to be protected by their provisions are participants in the building industry. The definition of “building action” must be construed to extend to claims against such persons of that nature. The process of construction must seek to give the linking words “arising out of or concerning” sufficient legal effect to ensure that the purposes of, in this case, s 109ZK are met. At the same time, those words should not be given a meaning so wide that the operation of the section goes beyond that which, objectively, the legislature intended it to have.

94. McDougall J concluded that, where neither the insurer or the directors performed building work, to suggest that the insurer’s enforcement of the indemnity was an action “for loss or damage arising out of or concerning defective building work” extended “the protections of Pt 4C to people who did not perform building work… and who, as between them and the ultimate beneficiary of that work, have no contractual, statutory or other legal responsibility for it or for its sufficiency. That effect cannot be said to be a necessary, and thus unavoidable, consequence of giving the words the width of application that is required to achieve the statutory purpose”: at [93] (Emphasis added).

95. So far then, the statutory predecessor indicates that the “long-stop” was intended to encompass claims for contribution, as such a construction enables s 109ZJ and s 109ZK to operate harmoniously. As McDougall J noted, both provisions work together to protect those engaged in building work: Dinov at [86]. But the current provisions do not have an equivalent provision to s 109ZJ. Does this indicate that the legislative intent underlying the current provision, s 6.20, is any different? To consider this possibility, I have looked at what happened to s 109ZJ and why. Parties seeking to apportion liability under s 109ZJ appear to have done so by cross-claim: for example, Lym International Pty Ltd v Marcolongo; Tyrell v Tyrrells Building Consultancy Pty Ltd [2008] NSWSC 416 at [13] (Austin J); In the matter of St Hilliers Contracting Pty Ltd [2009] NSWSC 1460 at [3] (Austin J).

96. Section 109ZJ was repealed when Pt 4 of the Civil Liability Act commenced. The Explanatory Note to the Civil Liability Amendment (Personal Responsibility) Bill 2002 (NSW) simply notes that the provision was “superseded” by the provisions proposed to be inserted in the Civil Liability Act with respect to proportionate liability: p 8. As Campbell JA explained in Lym International Pty Ltd v Marcolongo, s 109ZJ “allowed for apportionment of liability amongst defendants or other parties to an action. It did not make the more radical inroad on the common law concerning solidary liability that was made by the proportionate liability provisions of Part 4 of the Civil Liability Act 2002”, which permitted apportionment among concurrent wrongdoers, whether or not they were defendants or other parties to the action: at [20]. Thus, it would appear that s 109ZJ was repealed when a more extensive apportionment regime was enacted.

97. Section 34(3A) of the Civil Liability Act was then inserted with effect from 25 October 2011, such that Pt 4 of that Act “does not apply to a claim in an action for damages arising from a breach of statutory warranty under Part 2C of the Home Building Act 1989 and brought by a person having the benefit of the statutory warranty”, that is, no proportionate liability regime now applies to claims for breaches of statutory warranty: at [33]. As I understand it, this amendment was made in response to this Court’s decision in (2010) 77 NSWLR 607; [2010] NSWSC 819, where Einstein J held that the proportionate liability regime under the applied to those defending claims under the statutory warranties scheme Pt 2C of the : at [23]. The amendment clarified that the proportionate liability provisions of the do not apply to claims arising from a breach of statutory warranties: New South Wales Legislative Assembly, Home Building Amendment Bill 2011, Second Reading Speech, 13 October 2011 at p 6.

In this Division—

building work includes the design or inspection of building work and the issue of a complying development certificate or a certificate under this Part in respect of building work.

civil action includes a counter-claim.

…

100. Section 6.20 provides:

(1) A civil action for loss or damage arising out of or in connection with defective building work … cannot be brought more than 10 years after the date of completion of the work.

....

(4) This section has effect despite any other Act or law, but does not operate to extend any period of limitation under the Limitation Act 1969 or the Home Building Act 1989.

(Emphasis added.)

101. These provisions were considered by the Court of Appeal in Bandelle, where the analysis in Dinov was applied notwithstanding minor differences in the text. Bandelle concerned the transitional provisions. While Emmett AJA dissented in the result, all members of the Court agreed on the constructional approach to s 6.20. Leeming JA noted that the provisions were “very similar” and had a clear purpose, as outlined in Dinov: at [3]-[8]. Their Honours agreed that it could be inferred that s 6.20 was intended to have the same operation and effect as s 109ZK, where the apparent intention of Parliament as reflected in the Explanatory Note to the 2017 amending Act was to re-enact s 109ZK: at [76], [85] (White JA), [110] (Emmett AJA). Emmett JA further considered at [115]:

“There is no reason to differentiate, in terms of their meaning, between the phrases “arising out of or in connection with” and “arising out of or concerning” when used in the respective sections. The issue that arises is whether a limitation should be read into the natural and ordinary meaning of those phrases. Each of the phrases deals with a connection between two separate matters. The degree of connection, and the nature and breadth of the relationship, between the matters intended to be connected, will depend upon the statutory context and purpose.” (Footnotes omitted.)

102. In conclusion, the text in the “long-stop” provision is broadly worded and sufficiently so as to encompass contribution claims. But the statutory language should not be given a meaning so wide that the operation of the section goes beyond that which, objectively, the legislature intended it to have: Dinov at [88]. The mischief sought to be addressed by s 6.20 is plain, laid out in the Explanatory Note to the predecessor legislation, summarised by the Court of Appeal in Dinov and re-stated by the Court of Appeal in Bandelle in respect of the current provision. The purpose of the “long-stop” is to protect participants in the building industry from indeterminant exposure to claims posed by latent defects. The absolute time bar protects those engaged in “building work” from liability in damages for the defective performance of such work once 10-years has passed since it was completed.

103. It will be recalled that “loss or damage” in s 6.20 is a reference to harm or injury, as distinct from compensation claimed for that harm or injury: Dinov at [12]. “Loss or damage” includes physical damage and pure economic loss: Bandelle at [38] (Leeming JA), [71]-[74] (White JA), [123]-[127] (Emmett AJA). An action will be “for” harm or injury if it claims a remedy in relation to it, or because of it; harm or injury may be compensable when it is sustained to some interest of the claimant: Dinov at [12], followed in Bandelle at [123].

104. A civil action includes a “counter-claim”: s 6.19, EPA Act. As mentioned, this term is not defined but also appears in s 74(1) of the Limitation Act and its meaning is well understood: see [80]-[82]. For reasons already given, I consider that “counter-claim”, for the purpose of s 6.20, includes cross-claims by the defendant against co-defendants or third parties. One might think that a ubiquitous counterclaim is a cross-claim seeking contribution under the Law Reform (Miscellaneous Provisions) Act.

105. That the claim or counterclaim is “arising out of or in connection with” defective building work indicates a relationship between these two matters, the nature and breadth of which depends upon the statutory context and purpose: Bandelle at [115] (Emmett AJA). As McDougall J put it in Dinov at [92]:

“…It is the very width or imprecision of that concept of connection that requires its precise legal effect, for the purposes of the definition of “building action”, to be identified by reference to context: specifically, the pre-existing state of the law, the perceived mischief, and the legislative object insofar as it appears from the words of the statute.”

106. A classic cross-claim is that by a contractor against its sub-contractor on the basis that, if the building work is defective and caused loss or damage to the plaintiff, then, as that building work was performed by the sub-contractor, they should contribute to the resulting award of damages. Another classic cross-claim is where a contractor, in performing building work, relied on consultants engaged by others, such as architects or engineers, to design the work then performed by the contractor. The cross-claim goes that, if the building work is defective, then this was because the contractor relied on the architect or engineer’s designs such that the consultants should contribute to the resulting award of damages. But the common theme is that, one way or another, the defendant/cross-claimant and the cross-defendants all played their part in bringing about the defective building work of which the plaintiff complains.

107. Are such cross-claims “for loss or damage arising out of or in connection with defective building work”? Yes. It is the same “loss or damage” sued upon by the plaintiff, for which the defendant now seeks contribution from a joint tortfeasor. The Law Reform (Miscellaneous Provisions) Act requires that this be the case: a claim for contribution is “in respect of the same damage” as suffered by the plaintiff as a result of the tort: s 5(1)(c).

108. Another way of characterising the “loss or damage” pursued on the cross-claim is the pure economic loss suffered by the defendant/cross-claimant as a consequence of being exposed to the plaintiff’s suit by the joint tortfeasor’s defective building work. That work was either performed for the defendant, or was work on which the defendant relied when undertaking the building work themselves. That pure economic loss can be regarded as “arising out of or in connection with defective building work” as it is harm or injury sustained to the defendant’s interests as a result of the joint tortfeasor’s defective building work.

109. Either way, given the context and the mischief to which s 6.20 is directed, the relationship between the “loss or damage” sued upon by the plaintiff and sought to be recovered from joint tortfeasors in relation to the same defective building work is maintained. Whether sued by a plaintiff directly, or indirectly by a cross-claimant, participants in the building industry can proceed on the basis that all claims will be filed within 10 years of completion of the building work. The object of the provision is achieved by imposing the “long-stop” on contribution claims made against fellow participants in the building industry in respect of the same defective building work. Such a construction is so obvious that it almost goes without saying if one looks at the predecessor legislation on which s 6.20 is based.

110. Nor is there any imperative to construe s 6.20 in any limited way so as to avoid conflict with the Limitations Act. Section 6.20(4) states that the section “has effect despite any other Act or law”. This Court does not have to resolve any inconsistencies by, for example, subordinating a general provision to a more specific one dealing with the same subject matter, as was explored in . The legislature has expressly stated the hierarchy of applicable laws. As the learned authors of P Herzfeld & T Prince, (Thomson Reuters, 3rd ed, 2024) explain, “The use of … “despite [provision X]” to qualify a provision shows that it is the leading provision”: at [5.210] and the authorities there cited.

Should leave be granted?

113. It remains to consider the last issue. The Court has power to amend pleadings "at any stage of proceedings" having regard to the dictates of justice and for the purpose of determining the real questions raised by the proceedings, correcting defects or errors, and avoiding multiplicity of proceedings: ss 58, 64(2), Civil Procedure Act. In Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (a firm) [2015] FCA 1098, Gleeson J provided a summary of the principles at [127]:

“… Relevant matters the court is to consider include:

(1) The nature and importance of the amendment to the party applying for it: Aon [Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27] at [102];

(2) The extent of the delay and the costs associated with the amendment: Aon at [102];

(3) The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102];

(4) The explanation for any delay in applying for that leave: Aon at [108]; and

(5) The parties’ choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck”) at [44];

(6) The detriment to other litigants in the Court: Aon at [93], [95] and [114] and Luck at [44]; and

(7) Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30].”

114. There is no explanation for the Retail Owner’s delay in seeking to amend its pleading against the certifier. I am troubled that the Retail Owner did not disclose to the Duty Judge that it had been aware of the occupation certificate of June 2014 for eight months, before bringing the application to amend. If that fact had been disclosed, one might think that the defendants’ opposition to the proposed amendments would have been more strident and Meek J’s approach to the application less amenable. Leave to amend may have been refused at the time. I note that this non-disclosure was rectified by the time the matter came before Ball J.

115. The prejudice occasioned by the deprivation from a defendant of a means to deflect liability to a third party, by reason of the plaintiff’s delay in including a particular claim in its pleading against the defendant, is “obvious and significant” prejudice: Tekno Ceramics at [41] (Foster AJA, Meagher and Handley JJA agreeing). But the potential cross-claims must be “viable and realistic”, rather than “fanciful and theoretical”, for the loss to amount to prejudice: GIO General Ltd v Love [2009] NSWCA 269 at [40] (Handley AJA, Basten and Young JJA agreeing).

116. As I understood it, the certifier proposed to file cross-claims seeking contribution from existing co-defendants. Where those defendants are sued by the Retail Owner, and no-one suggested that the claims against those defendants should be struck out as devoid of merit, the certifier’s potential cross-claims were “viable and realistic”. The Retail Owner’s delay in amending its claim has – for practical purposes – deprived the certifier of the ability to file cross-claims for contribution in time. The prejudice thereby suffered is “obvious and significant”.

117. Nor is it particularly fair for a party who has taken some eight months to bring an application to amend to criticise a party for failing to file a cross-claim within 24 hours of that amendment. As the certifier’s counsel put it, “my client was given the princely timeframe of a dozen or so working hours between when the orders were finally made on 18 June, and I was there, your Honour. Those orders weren’t made by his Honour Justice Meek until later in the afternoon…” Apparently, the certifier was supposed to prepare the cross-claim overnight. Those who did file cross-claims on 19 June 2024 were, by and large, amending existing cross-claims. The certifier was being asked to file a cross-claim on the “off chance”, where its position was clouded by whether there was going to be a fight about the relevant occupation certificate.

118. As the certifier’s counsel also submitted, and I accept, giving the certifier one day to file a cross-claim ignores the practical realities of doing so, particularly where an insurer is involved. The solicitor will need to give advice to the insurer, obtain instructions, potentially get counsel’s advice on the form of any cross-claim, prepare the document, have it approved by the client and then filed. I was told that insurers take a “dim view” of being exposed to the risk of costs of commencing proceedings without having an opportunity to say whether they want those proceedings commenced or not. To hold such a view would be unsurprising.

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Amendments

25 June 2026

[48] - typographical amendment.

26 June 2026

[4], [98] - typographical amendments.

09 July 2026

[117]: Typographical error in first sentence.