Guides

Before you sign, and before you fight

Three written guides to the parts of a building dispute that are easiest to get wrong. Each one is written from the official sources and shows you where to check them yourself.

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.

Each guide takes one part of the system, sets out what the law actually requires, and points you at the official page that holds the current detail. They are general information about New South Wales law, not advice about your contract or your site.

If you would rather start from your own position, the pages for home owners, builders and subcontractors and owners corporations group the same material by who you are. How we work sets out what a consultation involves.

If a document has just arrived

Read this one first. A payment claim starts short statutory periods running, and they run whether or not anyone has decided what to do about them.

Payment claims: what makes one valid

For anyone who has just served, or just received, a document about money on a construction project. It answers what the Security of Payment Act requires a payment claim to say, why an ordinary invoice may not be one, what a payment schedule has to contain, and what happens to a respondent who says nothing.

If the work has already been done

What the law promises about residential building work, how long those promises last, and who besides the original owner can rely on them.

Defects: statutory warranties and who can rely on them

For owners living with cracking, leaks, waterproofing failures or work that was never finished. It answers what section 18B of the Home Building Act promises, why a defect claim runs for six years or two depending on the defect for contracts signed on or after 1 February 2012, what makes a defect major, and how the warranties can reach a later owner.

If you have not signed yet

The cheapest half hour on the whole project. Most of what gets argued about later is decided by the document and the attachments.

What to check before you sign a building contract

For anyone holding a contract and being asked to sign it. It answers what the Home Building Act requires the contract to be, which four checks to make on the contractor before paying anything, why the attachments matter more than the printed clauses, and which five terms produce most of the disputes.

What these guides are

Each guide describes how one part of the system generally works. It is not advice about your matter and it cannot be, because almost every building question turns on facts a web page does not know: what your contract says, when the work was completed, what was written down at the time and what has already been served.

You will not find a fee, an hourly rate, a success rate or a prediction about your case in any of them. You will also not find most of the numbers. Where a figure moves — a contract threshold, a deposit cap, a number of days in the Security of Payment process — the guide describes the mechanism and sends you to the official page that carries the current figure. An out-of-date number on a legal website is worse than no number at all, because it looks reliable.

Every guide lists the official sources it was written from. Where a source and a guide disagree, the source is right, and we would like to be told so the guide can be corrected.

The four sources behind all of this

Almost everything in these guides comes from four places. If you want to check something, or you think a guide has gone out of date, go to the one that is authoritative for it.

NSW legislation, for the law itself: the Home Building Act 1989, the Building and Construction Industry Security of Payment Act 1999 and the Design and Building Practitioners Act 2020.
The NSW Government's building pages, for the practical requirements and the current figures: contracts for residential building work and the Security of Payment pages.
Building Commission NSW and NSW Fair Trading, for complaints, inspections, rectification orders and checking a contractor's licence.
NCAT, for how a home building dispute is actually run: its home building pages set out what it can decide and what has to happen before an application is accepted.

The thing that decides most matters

It is rarely the merits. It is the dates.

For contracts signed on or after 1 February 2012, a statutory warranty claim has to be started within six years for a major defect and two years for any other defect, measured from completion, with a further six months where loss becomes apparent in the last six months of a period — see NSW Government guidance. A payment schedule is due within a period counted from the day the payment claim was served. An adjudication application has its own period. Each of those can end a claim before anyone looks at whether the work was any good.

So if you read one thing on this site, read this: find the relevant date, write it down, and take advice while there is still time to use it. Gathering evidence can continue afterwards. Where a period has run, whether anything can still be done about it depends on the facts, and that is a harder question than acting in time.

Before you read on

The guides are easier to use with your own papers beside you. In building matters it is almost always the dates that decide what you can still do.

The contract, with the plans and the exclusions list
The date the work was completed, or the date it was meant to be
Any payment claim or payment schedule, and the date it was served
Your defects list, with the date each item was first noticed
Any complaint already made to Building Commission NSW
The next date in the matter, if something is already on foot