Australia: It's never too late - getting sued more than 20 years later


The recent judgment of the Supreme Court of New South Wales in Dymocks v Capral [2013] NSWSC 343 held an architect and supplier liable for events that happened in 1989. This case is an important reminder that contracts entered into and warranties given should not be forgotten. The case also raises the issue of how long documents such as retainers and files should be kept by professionals.

A large amount of coated corrugated aluminium sheeting roofing had to be replaced at a complex on the coast due to corrosion. In 1989 the sheeting began to be installed however it was discovered it did not comply with the required specifications. A deed was entered into to resolve the dispute with the non-compliant sheeting accepted in return for a warranty by the supplier that both the currently installed and yet to be installed roof sheeting would be free from perforation due to corrosion for 40 years. The supplier was found liable under this warranty.

The architect was found to have been negligent in designing and specifying a roofing system that was inherently susceptible to corrosion and failure, where it was reasonably foreseeable that if the buildings were constructed in a defective way Dymocks would suffer loss. Interestingly, a duty of care was imposed even though there was no contract. A written retainer was said to have been prepared but since been lost, and no evidence was given as to its contents. Further, the architect could not convince the court of his defences, particularly due to a lack of evidence.

Both the supplier and architect were held to be liable for $764,545.45 each, the cost of replacing all of the roof sheeting.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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