s 109ZK of the Environmental Planning and Assessment Act 1979 (NSW) (“the EPA Act”) provides a long stop period of 10 years from the date of the final occupation certificate preventing a “building action” and thereby limiting an architect’s exposure to a claim in tort or contract for its “building work.”
1. “Building action” is defined in s 109ZI of the EPA Act as “an action (including a counter-claim) for loss or damage arising out of or concerning defective building work”.
2. “Building work” is defined in the same section to include the “design” of the building and “inspection and issuing” of “compliance certificates” under s 109C of the EPA Act.
In a decision of the NSW Supreme Court last month the 10 year time bar was tested.
See court report
In short, the Body Corporate [plaintiff] sought to amend its long held claim against the builder [defendant] of an occupied apartment building to include a substantial claim for damages for alleged waterproofing defects. The plaintiff filed its amended pleadings within the long stop limit, however, it served its expert witness reports detailing the allegations after 10 years had passed from the date of the final occupation certificate.
It was held that the defendant contractor would, if the amended pleadings were allowed, be prevented from bringing cross-claims and joining potential co-defendants. Consequently the plaintiff’s amended pleadings were denied.
Therefore it seems, that in NSW, the 10 year limitation of an Architect’s liability, except for negligence causing death, remains a steadfast defence.
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