NSW Court of Appeal clarifies 10-year limitation for building works that are defective in NSW

Ben Johnson, ||

On 25 November 2020, the New South Wales Court of Appeal delivered judgment in Bandelle Pty Ltd v Sydney Capitol Hotels Pty Ltd [2020] NSWCA 303 where the Court of Appeal clarified the limitation periods relating to building works in NSW. The Court examined the operation of s 6.20 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).


Before looking at the Bandelle decision, s 6.20 of the EPA Act provides a ‘long-stop’ limitation period of 10 years for any loss arising from defective building works, irrespective of when defects become apparent. Essentially, s 6.20 prevents any person from bringing civil proceedings for loss or damage arising from defective work if the works were completed more than 10 years prior. 

The intent of this provision is stop parties bringing actions for allegedly defective works well after those works were completed. 


On 2 January 2017, the Respondent, Sydney Capitol Hotels occupied level 5 of a building located on George St, Sydney (Building), and had occupied this space since 1997. A fire broke out on the ground floor of the Building, which activated the fire sprinkler system on level 5, which caused both material damage and consequential loss to the Respondent.

The fire was alleged to have been caused by defective work completed by the Applicant on the exhaust duct system in the Building. The exhaust duct travelled through the building, which resulted in the flow on effects from the fire on the ground level. These works were completed in 1997. 

Decision at first instance

In November 2019, the Respondent successfully obtained judgment in the Supreme Court of New South Wales seeking to strike out a portion of the defence of the appellant (Supreme Court Proceedings). Bandelle contended in the Supreme Court Proceedings that the claim brought by Sydney Capitol Hotels was statute barred by the operation of s 6.20 of the EPA Act.

Justice Hammerschlag considered that the nature of the claim brought by Sydney Capitol Hotels did not fall within the scope of s 6.20 of the EPA Act and thus Bandelle’s defence had no real basis.  The Supreme Court found in favour of Sydney Capitol Hotels, and thus the portion of Bandelle’s defence relating to the EPA Act was struck out.  

Court of Appeal Proceedings

The decision in the Supreme Court Proceedings was overturned on appeal. The Court of Appeal, following a detailed historical review of the EPA Act  determined s 6.20 of the EPA Act applied to any claim for loss arising for defective building work. 

Furthermore, the Court of Appeal provided confirmation that s 6.20 of the EPA provides a ‘long-stop’ limitation which applies for the time that the works were completed, notwithstanding the time at which the defects materialise. 

Key Lessons

The decision confirms the limitation periods that apply to building works particularly given that s 6.20 of the EPA Act is often relied upon by plaintiff’s where they are outside the ordinary statutory warranties provided by the Home Building Act 1989 (NSW). Furthermore, it is important to remember that this limitation will also apply to any claim that may arise out of the Design and Building Practitioners Act 2020 (NSW). 

If you have any questions about this article or any of the issues raised in it, including your obligations under the recently announced Design and Building Practitioners Act 2020 (NSW) or the Home Building Act 1989 (NSW) please do not hesitate to contact a lawyer in Coleman Greig’s Building & Construction team, who would be more than happy to assist you today.


Send an enquiry

Any personal information you provide is collected pursuant to our Privacy Policy.


More posts

Proposed changes to building and construction law in NSW

The Building Bill 2022 (the Bill) is the key avenue through which the NSW Government has proposed to reshape the culture of the building and construction industry by eliminating poor performance and improving the quality of building statewide.

Can you dismiss an employee who fails to return to the office?

Slowly but surely, most employers are requiring employees to return to the office for at least a portion of their working week. Some employers continue to struggle with employees resistant to returning to the office or those who have an expectation that they can continue to work from home whenever it suits them.

New powers to combat phoenixing in construction

The rise of phoenixing in the building and construction industry in Australia in recent years has proved a significant challenge to regulators. Mismanagement of time or cashflow can quickly propel businesses into insolvency.

The NSW Building Commission’s extraordinary powers

In late 2023, the NSW Government passed the Building Legislation Amendment Bill 2023 (Amendment Bill). The Amendment Bill established the NSW Building Commission and granted it extraordinary powers to enter construction sites, inspect work and take away information and materials.

© 2024 Coleman Greig Lawyers   |  Liability limited by a scheme approved under Professional Standards Legislation. ABN 73 125 176 230