Defects

Building defects

Cracking, leaks, waterproofing that has failed, work that was never finished. A defect claim is about three things: what is wrong, who is responsible for it, and whether you are still in time.

General information, not legal advice. This page sets out how the law generally applies. It does not take account of your circumstances, and you should get advice about your own situation before acting on it. The official sources this page is written from are listed on it; where they differ from anything here, they are the authority.

Who this page is for

What is wrong, who is responsible, and are you in time

Most people arrive at a defect problem in the same order. Something looks wrong. The builder is told and says it is normal, or says it will be dealt with, or stops answering. Months pass. By the time anyone uses the word defect in writing, a good deal of the useful time has already gone.

That order is the problem, because the law works the other way round. The first question in a defect matter is usually not whether the work is bad. It is when the work was completed, because the period for starting proceedings on a statutory warranty runs from completion: for contracts signed on or after 1 February 2012, six years for a major defect and two years for anything else. A serious defect discovered in year three is inside the six year period if it is major and outside the two year period if it is not, and NSW Government guidance describes a further six months where loss becomes apparent in the last six months of a period.

The second question is who is responsible. That can be the builder under the contract, a trade contractor, a designer, a certifier, a developer, or more than one of them. Under the Design and Building Practitioners Act 2020 a person who carries out construction work owes a duty to exercise reasonable care to avoid economic loss caused by defects, and that duty is owed to owners who never had a contract with them at all.

The third question is proof. What has to be established is what the defect is, what caused it, what the work should have been, and what it will cost to put right. Photographs, plans and correspondence are evidence — NCAT’s own list of evidence includes photographs and film — and where those questions are technical an expert report may be needed as well. At NCAT, expert evidence is governed by Procedural Direction 3, and the directions in a matter decide what is required. Most of the work in a defect matter is getting that evidence into a form that can be relied on.

How we help

What the work actually is

Fixing the dates before anything else

When the work was completed, when each defect first appeared, and what has been said about it since. That tells us which warranty period applies to each item and whether any of them is close to running out. Where a period is close, the advice is to act on it now and gather evidence afterwards.

Sorting the list into major and other

A defects list is rarely all one thing. We work through it item by item, because a major defect and a cosmetic one are on different clocks and often against different people. That sorting is what turns a long complaint into a claim that can be run.

Getting the expert evidence right

We advise on when to commission a report, what it has to address to be useful, and who is qualified to give it. A report that describes the symptoms without identifying the cause and the cost of rectification leaves unanswered the questions a tribunal or court has to decide, however thorough it looks.

Choosing the route, including the free ones

Building Commission NSW runs a complaint service and can send an inspector, who may issue a rectification order. For home building disputes, a referral to that service is ordinarily required before NCAT will accept an application. We advise on that step, and on when a matter belongs in NCAT or the courts instead.

Questions

Questions people ask first

How do I know whether my problem is a major defect?

It turns on whether a major element of the building is affected — broadly, the parts that hold it up or keep the weather out — and whether the result makes the building, or part of it, unusable for its purpose. Water getting through a wall and cracking in a load-bearing element are the sorts of things that raise the question; a poorly hung door is not. It is answered with expert evidence about your building, not from a list on a website.

The builder keeps promising to come back. Should I keep waiting?

Give them a fair opportunity to fix it, in writing and with a date, but do not let that opportunity swallow the warranty period. The period runs from completion whatever the builder is promising. Put every request and every promise in writing so there is a record of what was asked and when.

I bought the house from someone else. Can I still complain?

Usually yes. The statutory warranties under the Home Building Act are not confined to the original owner, and a subsequent owner can generally enforce them for the remainder of the warranty period. The separate duty of care under the Design and Building Practitioners Act is also owed to subsequent owners. What you need are the completion date and the original contract if you can obtain it.

Do I need an expert report before I do anything?

Not before you raise the defect in writing, and not before you find out whether a warranty period is about to end. A report generally is needed before a claim is decided, because the tribunal or court needs independent evidence about the work. We advise on when to commission one so that you are not paying for a report that has to be done again.

The builder has gone into liquidation. Is that the end of it?

Not necessarily. Home building compensation cover exists for exactly that situation and responds as a last resort where a builder has become insolvent, has died, has disappeared or has had their licence suspended. There may also be claims against others involved in the work. The insurance scheme is regulated by the State Insurance Regulatory Authority and has its own requirements, so raise it early.

The strata committee says the defects are on common property. What changes?

Who can bring the claim changes, and sometimes the scheme that applies. Common property defects are ordinarily pursued by the owners corporation, and for newer apartment buildings the strata building bond scheme may also be running on its own timetable. See owners corporations.

What to bring

A defect matter is decided on documents and dates. Bring what you have, even if it is incomplete.

The building contract, and the plans and specifications.
The date the work was completed, and the occupation certificate if there is one.
Your list of defects, with the date each one was first noticed.
Photographs, with the dates they were taken.
Every message to and from the builder about the defects, in order.
Any expert or inspection report already obtained, and any report from a certifier.
The certificate of home building compensation cover, if you were given one.