Filing amended pleadings after the limitation date

By Stuart Robertson, partner and Victoria Bortsova, solicitor

It is often the case that the original claims made in Court are amended as a case develops. The High Court decision in ‘Body Corporate 355492 v Queenstown Lakes District Council [2022] NZHC 687’ provides useful guidance into how the courts apply the limitation provision under the Building Act 2004 (Act). If you are late, your amended claim could be struck out.

Section 393(2) of the Act provides that no relief may be granted in a civil proceeding which relates to building work if the proceeding is brought after 10 years or more from the date of the act or omission on which the proceedings are based. The plaintiffs (the Body Corporate and individual apartment owners) were suing various parties as to defects in their building. On 22 February 2019 the plaintiffs filed a sixth amended statement of claim introducing claims relating to structural and watertightness of the bathroom pods.

Queenstown Lakes District Council (QLDC) filed a strikeout application alleging that this amendment could not be accepted as it was filed more than 10 years after QLDC was last involved in the project. The court had to determine whether this amended pleading was essentially a new cause of action, making it time barred under the Act for being outside the 10-year limitation period, or merely enlarging on an existing claim with the addition or substitution of new facts, so not time barred.

The decision

The court considered Parliament’s intention behind the limitation provisions under the Act.  It found that the word “proceeding” under the section means “the proceeding as it exists at the time the longstop is said to apply.” To determine whether the pleading is “fresh” or “new”, the court held that one must look at whether the pleading contains something that is “essentially different”.

On the facts here, the court found that the bathroom pods claim was an addition of new facts that were fundamentally different from the previous (within time) claim filed by the party.  This made the bathroom pods claim a new cause of action that was outside the allowable limitation period of 10 years. 

QLDC’s strikeout application succeeded and the plaintiffs were barred from suing for the defective bathroom pods.

Key takeaways

  • Check when the 10-year limitation period starts and ends (it can be different for different parties)
  • Carefully review the pleadings to ensure that all essential issues and facts are included when the pleading is first filed, and definitely before the 10 years expires.

Disclaimer: This article is not a substitute for specific professional advice on any matter. No warrant or guarantee whatsoever is given as to the accuracy of any information contained in the article, nor is any liability accepted for any actions taken based on this information.