Bandelle Pty Ltd v Sydney Capitol Hotels Pty Ltd

Bandelle Pty Ltd appealed to the Court of Appeal of New South Wales against an order of the primary judge which had dismissed its proceedings against Sydney Capitol Hotels Pty Ltd. The dispute concerned a claim for damages arising from alleged defective building work.

The central legal issues before the Court of Appeal were whether a limitation period, originally enacted as section 109ZK of the *Environmental Planning and Assessment Act 1979* (NSW) and subsequently renumbered as section 6.20, applied to building work completed before the original section’s commencement. The court also had to consider the effect of various transitional and savings regulations, and amended regulations, on the operation of this limitation period, particularly in light of the repeal of one regulation and the subsequent re-enactment of others that preserved repealed sections and qualified the renumbered section. The court was asked to determine if these legislative and regulatory changes created a period during which the limitation period did not apply, and whether the legislation displaced the operation of the *Interpretation Act 1987* (NSW).

The Court of Appeal reasoned that the original section 109ZK was intended to apply prospectively only. However, through a complex interplay of amending legislation and transitional regulations, the court found that the limitation period, as renumbered and reworded in section 6.20, did afford a defence to the defendant's claim. The court observed on the undesirability of regulations affecting the operation of a statute in such a manner.

The appeal was allowed. The orders of the primary judge were set aside, and in lieu thereof, the question of whether section 6.20 afforded a defence to the claim was answered in the affirmative. The proceedings were dismissed with costs, and Sydney Capitol Hotels Pty Ltd was ordered to pay Bandelle Pty Ltd’s costs of the appeal.