10-Year Long-Stop on Building Defect Claims: NSW Supreme Court Decision

Commercial, Construction

Introduction

On 25 June 2026, Rees J of the Supreme Court of New South Wales delivered judgment 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 Case’’). This recent Supreme Court decision considers the operation of the 10-year long-stop under s 6.20 of the Environmental Planning and Assessment Act 1979 (NSW) (the ‘EPA Act’), particularly in the context of contribution claims.

The Court considered the following issues in light of the claim for building defects:

  1. whether the 10-year long-stop provision applies to contribution claims under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (‘LRMP Act’);
  2. whether s 74 of the Limitation Act 1969 (NSW) (‘Limitation Act’) can extend the long-stop.

What is the 10-Year Long-Stop Limitation Period?

Section 6.20(1) of the EPA Act provides that a civil action for loss or damage arising out of or in connection with defective building work or defective subdivision work cannot be brought more than 10 years after the date of completion of the work.

Section 6.20(2) of the EPA Act provides that building work is taken to be completed on:

  • the date on which an occupation certificate is issued that authorises the occupation and use of the building or part of the building for which the work was carried out (or if an occupation certificate is not required, the date on which a compliance certificate is issued for the completed building work), or
  • if no such certificate has been issued—the date on which the final inspection required by a certifier in relation to the completed building work was carried out, or
  • if no such certificate has been issued and no such inspection has been carried out—the date on which the building or part of the building for which the work was carried out is first occupied or used.

Participants in the building industry should be aware of this 10-year long-stop when assessing whether it may affect civil actions involving relevant participants.

Case Background

The proceedings arise from a dispute concerning alleged building defects in a large, high-rise development, “One Central Park”, in Chippendale, New South Wales. In 2022, a planter box fell from level 29 of the building.[1] In 2023, the retail lot owner (‘the Plaintiff’) commenced proceedings against multiple parties (builder, certifier, designers, developers and more), seeking damages for the alleged building defects.[2]

As the matter progressed, in 2024, the Plaintiff sought leave to amend its pleadings to add a claim under s 37 of the Design and Building Practitioners Act 2020 (NSW) (the ‘DBP Act’) against the certifier. The proposed amendment was made very close to the expiry of the 10-year long-stop under s 6.20 of the EPA Act.[3]

The certifier opposed the amendment to the pleadings, arguing that its late introduction would cause significant prejudice. The certifier contended that the timing would deprive it of the opportunity to pursue viable contribution cross-claims against other alleged contributors to the defects.

The Court’s Decision

The Court held that the 10-year long-stop in s 6.20 of the EPA Act applies to contribution claims under s 5 of the LRMP Act for loss arising from defective building work, including claims against certifiers and other participants alleged to be responsible for the defects.

The Court also held that s 74 of the Limitation Act cannot extend the long-stop in s 6.20 of the EPA Act.

Further, the Court refused the Plaintiff’s application for leave to amend its pleadings to add the s 37 claim under the DBP Act against the certifier. The Court took into account that the proposed amendment came very close to expiry of the long-stop, the delay was unexplained, and the certifier would lose viable contribution cross-claims if leave were granted.

Significance of the Decision

The decision indicates that s 6.20 of the EPA Act operates as a 10-year long-stop for civil actions for loss or damage arising out of or in connection with defective building work or defective subdivision work. In Fortius, the Court held that the long-stop applied to the relevant contribution claims and could not be extended by s 74 of the Limitation Act.

Fortius highlights the importance of timely action in construction defect claims and serves as a cautionary example for plaintiffs to ensure that all potential claims are identified and pleaded well before the expiry of the limitation period.

The decision also illustrates the importance of assessing potential contribution claims before the long-stop expires, particularly where a late amendment may affect viable cross-claims.

Conclusion

The decision in Fortius provides guidance on the application of the 10-year long-stop under s 6.20 of the EPA Act to contribution claims and on the limits of s 74 of the Limitation Act. It is a reminder to participants in the construction industry to identify and pursue relevant claims promptly. Keystone Lawyers are experts in building and construction law who are committed to guiding industry participants, ensuring compliance with statutory requirements and protecting their interests in an evolving legal landscape.

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