Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970

The appeal concerned a dispute over building defects in a residential property. The Owners-Strata Plan No 64970 (the Owners Corporation) brought proceedings against the builder, Austruc Constructions Ltd, and the architects, Cyril Smith & Associates Pty Ltd (CSA), the appellant. The primary issue before the court was whether the six-year limitation period had expired before proceedings were commenced against CSA. A secondary issue concerned CSA's liability to contribute to the builder's judgment, specifically in relation to a claim for damage to the contents of units.

The court was required to determine when the cause of action against CSA accrued for the purposes of the Limitation Act 1969 (NSW). This involved considering when the Owners Corporation knew, or ought to have known, of the physical manifestation of the defects and the link between those defects and the underlying cause. Furthermore, the court had to consider the application of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) regarding contribution between tortfeasors, specifically whether CSA was liable to contribute to the builder when CSA had been found not liable to the Owners Corporation for a particular head of damage.

The court applied the principle that the time of accrual of a cause of action in tort for building defects is when the link between the physical manifestation of the defect and the underlying cause is known or ought to be known. This knowledge relates to the actual physical defect in the structure, not necessarily the legal responsibility for that defect. Regarding contribution, the court considered that a tortfeasor could only seek contribution from another tortfeasor who was also liable. If CSA was not liable to the Owners Corporation for the "contents claim," then it could not be required to contribute to the builder for that same claim.

The court made orders directing the appellant, CSA, to file and serve a detailed statement identifying the specific orders it sought to have set aside and the orders it sought in lieu thereof, along with supporting submissions. CSA was also directed to provide a statement if it sought costs orders against the builder. The Owners Corporation and the builder were given time to respond to CSA's proposed orders and any cost claims. Finally, the respondents were to indicate if they sought a certificate under the Suitors' Fund Act 1951 (NSW).