Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 [2011] NSWCA 181

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 [2011] NSWCA 181 Hearing dates: 7 June 2011 Decision date: 06 July 2011 Before: Bathurst CJ at 1; Basten JA at 1; Young JA at 1. Decision: (1) Direct that the appellant, within 14 days of delivery of these reasons file and serve a statement identifying with precision: (a) the orders made on 31 May 2010 which it seeks to have set aside, and (b) the orders which it seeks in lieu thereof, together with any additional orders, and such statement to be accompanied by brief submissions in support of the proposed orders. (2) Direct that the appellant, if it seeks any order for costs against the builder, within the same period, file and serve on the builder a statement indicating the proposed order(s) and the reasons therefor. (3) Direct that the Owners Corporation, to the extent that it resists the orders proposed by the appellant, within 14 days of receiving the statement and submissions of the appellant, file and serve its response. (4) Direct that the builder, to the extent that it resists the orders as to costs sought by the appellant, within 14 days of receiving the statement and submissions of the appellant, file and serve its response. (5) Direct that the respondents, within the time limited for responding to the appellant's proposed orders, indicate whether, not being ineligible pursuant to s 6(7), they seek a certificate under the Suitors' Fund Act 1951 (NSW). [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: LIMITATION OF ACTIONS - claim in tort - time of accrual of cause of action - when link between the physical manifestation and the underlying defect is known or ought to be known - what relevant knowledge is as to actual physical defect in the structure, not legal responsibility for the cause of the defect.