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Key issues
- Is the work residential (home) building work?
- Is the builder or contractor licensed?
- Was the work done in NSW?
- When was the work done?
- Is there a cooling-off period?
- Was the cooling-off period notified?
- Is there a problem with the quality or completion of the home building work?
- Is there a problem with the cost of the home building work?
- What is the amount of the claim?
- Have you been sued for a debt by the builder or contractor?
- Have you tried resolving the dispute through NSW Fair Trading?
- Has an application been made to the NSW Civil and Administrative Tribunal (NCAT)?
- Is the work covered by Home Building Compensation insurance?
- Is the work covered by the Design and Building Practitioners Act 2020 (NSW)?
What is home building work?
Residential building work is another name for home building work.
It includes any work done by a contractor to a home above $5,000 (except specialist work) including:
- construction
- alteration or additions
- repairs
- renovations
- decoration or
- protective treatments.
Examples include:
- roof plumbing work on a home
- work on swimming pools, spas and garages constructed for use with a home (dwelling)
- installing or working on any fixed equipment that heats or cools water, the air or food or that ventilates air or filters water in a pool or spa. Some examples include installation of hot water tanks, solar panels, pool filters, ovens, and ducted air conditioning systems. It does not include a moveable heater or toaster
- specialist work done in a home, commercial or industrial space, including plumbing work, gas fitting work, electrical wiring work, or certain refrigeration work or air-conditioning work.
Some work on a home is excluded from the definition of residential building work in the Home Building Act 1989 (NSW).
If you are not sure whether the work is residential building work, see Contact us on the NSW Fair Trading website.
What is specialist work?
Specialist work includes:
- advanced liquefied petroleum gasfitting work
- air-conditioning work
- disconnection and reconnection of fixed electrical equipment
- draining work
- electrical wiring work
- gasfitting work
- liquefied petroleum gasfitting work
- plumbing work
- refrigeration work
- water plumbing (fire protection systems)
- water plumbing (fire sprinkler systems)
- water plumbing (urban irrigation)
- water plumbing work
- medical gasfitting work
- medical gas technician work
- mechanical services and medical gas work.
What is not home building work?
The following types of work are generally not home building work:
- any work (other than specialist work) on a home that costs less than $5,000. This type of work may still be covered under consumer protection laws like Australian Consumer Law
- work (other than specialist work) involved in the site preparation or manufacture of moveable homes such as tents, caravans, or vans
- the supervision of home building work by a registered architect
- the supervision of home building work by a person supervising owner-building work without pay or other reward
- demolition work
- any work on floor coverings that does not include any structural changes to the floor
- any work that involves the installation or maintenance of any fixed apparatus for moving persons or things along fixed guides, such as lifts, escalators, inclinators or garage doors
- work done by an unlicensed contractor unless that work is performed as part of a contract that includes other home building work
- internal painting work, unless it is performed as part of a contract that includes other home building work
- excavation work
- cleaning work for existing buildings.
If you are not sure whether your work is home building work, or whether it is excluded from the Home Building Act 1989 (NSW), you should get legal advice from a private lawyer or HBAS.
What is a dwelling?
The home building laws are about work done on dwellings.
A dwelling is a building or part of a building that is designed, built or adapted for use as a home.
Examples include a detached or semi-detached house, transportable house, terrace or town house, duplex, villa-home, home unit or residential flat.
It includes:
- any swimming pool or spa built with a home
- parts of a building containing more than one home, such as the common areas of a strata scheme
- cupboards and vanity units fixed in the home
- detached garages and carports
- detached decks, porches, verandahs and pergolas
- cabanas and non-habitable shelters
- detached workshops, sheds and other outbuildings (but not jetties, slipways, pontoons or boat ramps and any structures attached to these)
- concrete tennis courts, but only if that work is performed as part of a contract that includes other home building work
- driveways, paths and other paving
- retaining walls
- agricultural drainage designed or constructed to divert water away from a dwelling or a retaining wall
- fences and gates
- ornamental ponds and water features, and other structural ornamentation which needs development consent to build, but only if that work is performed as part of a contract that includes other home building work.
The Home Building Act 1989 (NSW) lists structures that are not considered a dwelling under the Act.
What is not a dwelling under the Home Building Act 1989 (NSW)?
The Home Building Act 1989 (NSW) says that the following things are not dwellings:
- a boarding house, guest house, hostel or lodging house
- all residential parts of a hotel or motel
- any residential part of an educational institution
- accommodation (other than self-contained units) specially designed for aged people, persons with a disability or children
- any residential part of a health care building that accommodates staff
- a house or unit designed, constructed or adapted for commercial use as tourist, holiday or overnight accommodation
- any part of a non-residential building that is constructed or adapted for use as a caretaker's residence
- a moveable dwelling (with or without a flexible annexe) that is capable of being registered as a vehicle, such as a caravan or a motor home
- a residential building for a rural land sharing community.
What if the home building work costs less than $5,000?
Under the Home Building Act 1989 (NSW), work that costs less than $5,000 is not home building work, unless that work is specialist work.
You may still have the protections as a consumer under the Australian Consumer Law, such as the consumer guarantees that:
- goods supplied to you will be of an acceptable quality
- services will be provided to you with necessary care and skill.
For more information on consumer law, see the Consumer law topic.
How do I check if my builder or contractor is licensed?
You can check if your builder or contractor is licensed in NSW:
- by contacting NSW Fair Trading, or
- online using the Contractor and Tradesperson search or Verify.licence on the Service NSW website.
The Verify.licence register on the Service NSW website provides details of the current and historical licence record for the builder and tradesperson.
What if my home builder or contractor is not licensed?
All home building work should be done by licensed builders or contractors.
It is an offence for a person to say that they hold the required licenses to do work if they don't.
If a person or business is unlicensed it means that:
- NSW Fair Trading can't investigate, mediate or make rectification orders
- they probably don't have insurance under the Home Building Compensation cover.
This means that you will need to pursue an outcome against the person or business directly, and, if necessary, in the NSW Civil and Administrative Tribunal. If the person dies, disappears or goes bankrupt, or the business becomes insolvent, you can't claim your losses from the Home Building insurer.
If your contractor is not licensed, you can contact NSW Fair Trading or get legal advice from a private lawyer or HBAS.
For more information, see Tradesperson and contractor licence check or the Owner Builder Permits check on the Service NSW Verify.licence website.
Should my home building contract be in writing?
It is generally a good idea to get any agreement in writing.
Under the Home Building Act 1989 (NSW), residential (home) building work that costs more than $5,000 must be in writing. For contracts entered into before 1 March 2015, residential building work that cost more than $1,000 should be in writing.
Contracts for jobs over $20,000 must meet more requirements.
You should get a copy of the contract as soon as it is made. Under the Home Building Act 1989 (NSW), the builder or contractor must give you a signed copy of the contract no later than five business days from when it was made.
Builders must provide a copy of the consumer building guide with the contract.
From 26 June 2021, an owner-occupier construction contract must include a Security of Payment Guide if the building work is over $20,000.
For more information, see Contracts on the NSW Fair Trading website.
Do I have to pay a deposit when I sign a contract?
Under the Home Building Act 1989 (NSW), you can only be asked to pay a maximum deposit of 10% of the contract price unless the work is specialist work that does not involve other home building work.
If the home building work needs to be insured, the builder or contractor can’t ask you to pay a deposit unless they have taken out insurance under the Home Building Compensation cover and given a certificate of insurance to you.
Do I have to pay my builder or contractor progress payments?
If the contract price of the home building is above $20,000 you have to pay progress payments:
- set out in the construction contract, or
- based on the value of the construction work or the goods/services provided.
If you are an owner-occupier in a residential construction contract who is served with a Payment Claim under the Building and Construction Industry Security of Payment Act 1999, you must make a payment within the time stated in the construction contract or within 10 business days after the Payment Claim is served (whichever is earlier). See the FAQ Security of payment below.
What if I want to cancel my home building contract?
If your home building contract is for more than $20,000 (including GST) you may cancel your home building contract without penalty within the cooling-off period of five business days from when you sign and receive a copy of the contract, or within five business days of becoming aware that you were entitled to a copy of the contract.
If the home building contract does not say anything about the cooling-off period, you can cancel the contract within seven days of when you became aware it should have said something about the cooling off period.
In order to cancel within the cooling-off period, the notice of cancellation must be in writing and state that you are rescinding (cancelling) the contract. The notice must be:
- handed to the contractor personally (the person who holds the licence to do the work)
- left at the address shown in the contract as the address of the holder of the contractor licence, or
- served on the holder of the contractor licence in the way the contract says notice or service can be given (you can read your contract to find out if it says anything about this).
If there is no cooling-off period, or the cooling-off period has expired, you may still be able to cancel the contract, but you may be legally responsible to pay the builder or contractor money under the contract or money to cover their losses.
If you wish to cancel the contract and the cooling-off period has finished, you should get legal advice from a private lawyer or HBAS.
What if I cancel my contract within the cooling off period?
If you cancel the contract within the cooling off period, you are entitled to receive a refund of any money paid to the contractor under the contract. However, the contractor may keep an amount to cover the expenses they have already reasonably incurred, for example, drafting the plans, survey fees, development application fees.
What if I cancel the contract after work has already started?
If you cancel the contract after the builder or contractor has done any work, they may be entitled to a reasonable price for the work and materials done under the contract up until you cancel it.
What is the role of the Building Commission NSW?
The Building Commission NSW is the new regulator of the building and construction industry in NSW.
The Building Commissioner investigates serious defects in class 2, 3 and 9c buildings:
- Class 2 buildings are multi-storey, apartment buildings or mix-use (shops and apartments).
- Class 3 buildings are residential buildings providing long term or temporary accommodation for a number of unrelated people. For example, a hostel or boarding house.
- Class 9c buildings are residential care buildings. For example, a residential aged care home.
They are responsible for:
- inspections and compliance
- licensing
- complaints
- policy.
For more information, see the Building Commission NSW website.
What types of complaints can be investigated by the Building Commission NSW?
The Building Commissioner investigates serious defects in class 2, 3 and 9c buildings.
This includes complaints about:
- incomplete or defective building work
- building work that does not comply with statutory warranties
- building work that has caused damage to other structures.
The Building Commission NSW can’t help if:
- the statutory warranty period has expired
- the building work was done outside NSW
- the dispute is before a tribunal or court
- you are requesting a legally binding order to be made
- the complaint is about your neighbour (unless it's about building work at a neighbouring property that has damaged your property).
For more information, see the Building Commission NSW website.
What powers does an inspector from the Building Commission NSW have?
Inspectors can enter a residential home under construction or where construction work is being undertaken to inspect build quality. If a building is occupied, an inspector can only enter part of the premises used for residential purposes with permission of the owner or by a search warrant.
The inspector may issue a rectification order to the contractor for:
- defective building work
- work that could result in a defect, or
- other structures or work has been damaged.
Inspectors may also issue a stop work order to a developer where they believe that if building work continued, there could be significant harm or loss to the public or occupiers, including future occupiers of the building.
There are penalties for failure to comply with a rectification or stop work order.
For more information, see Changes to building legislation in NSW on the NSW Fair Trading website.
Where can I find a register of building work orders?
You can find a list of prohibition orders, building work rectification orders, stop work orders and enforceable undertakings on the NSW Fair Trading website.
For more information, see Register of building work orders on the NSW Fair Trading website.
What is a security of payment?
Under the security of payment laws, a party that enters into a contract in NSW to carry out construction work or supply goods or services is entitled to receive progress payments.
This applies to:
- construction contracts
- owner occupier construction contracts entered from 1 March 2021.
An owner occupier contract means a residential building contract under the Home Building Act 1989 (NSW). For example, a contract between a builder and a homeowner.
Previously, there was an exemption from security of payment laws where an owner intended to live in the property.
From 26 June 2021, all residential home building contracts over $20,000 must include the Security of Payment Guide.
For more information, see Security of payment on the NSW Fair Trading website.
What is a progress payment?
A progress payment is:
- a final payment for construction work or the supply of goods/services under the contract, or
- a single, or one-off payment for carrying out construction work or the supply of goods services under the contract, or
- a payment based on an event or date.
The amount of the progress payment will be set out in the construction contract. If the amount is not specified, it is calculated based on the value of the construction work or the goods/services provided.
I am an owner-occupier. Do I need to pay progress payments to my builder?
Yes. You will need to make progress payments to the builder within the timeframe stated in your contract. If you don’t make a progress payment on time, the builder may serve a Payment Claim on you.
I am owner-occupier. What should I do if I receive a Payment Claim?
If you receive a Payment Claim, the claim becomes due and payable:
- on the date stated in the contract, or
- within 10 business days after the Payment Claim is served on you (whichever is earlier).
If you do not pay, the builder can suspend work, claim interest on the unpaid amount and hold a lien over unfixed materials until the payment is made.
You can respond to a Payment Claim by providing a payment schedule to the builder.
A Payment Schedule must:
- be in writing
- specify the amount of payment that you agree to pay
- explain the reasons why if the payment is less than the amount claimed, if this so, and
- be posted, delivered or emailed to the builder within 10 business days from when you received the payment claim.
If you don’t send a Payment Schedule, you will be liable for the full amount of the Payment Claim.
What happens if I don’t respond to a Payment Claim or if there is a dispute about what is owing?
The builder may make an application for adjudication if:
- you don’t make payment of the Payment Claim by the due date, or
- the builder disputes your Payment Schedule.
The builder can give notice of intention to make an adjudication application within 20 business days of the due date of payment of the Payment Claim, and has six years to commence proceedings on a claim for money owed under the contract from the date that the payment should have been made.
What is adjudication?
Adjudication is an informal dispute resolution process that allows a contractor to recover a disputed or unpaid progress payment.
An independent adjudicator is appointed by an Authorised Nominating Authority (ANAs) in NSW.
The nominated adjudicator must notify the claimant and the respondent they have accepted the application within four days otherwise the claimant can make a new application.
How do I respond to an adjudication application made by the builder?
You must respond to an adjudication application within:
- five business days after receiving a copy of the adjudication application, or
- two business days after receiving the notice of the adjudicator’s acceptance of the application.
You can respond to an adjudication application by providing reasons why you have not made payments. You can’t include any reasons for withholding payment that were not included in the payment schedule.
Before you respond, you should get legal advice from a private lawyer or HBAS.
For more information, see Responding an adjudication application on the NSW Fair Trading website.
How can I prepare my response to an adjudication?
Your response to an adjudication application must be in writing and addressed to the adjudicator.
You should include:
- reasons for refusing or withholding payment if they were set out in your payment schedule
- statements detailing the work completed
- your response to the issues raised in the application
- photographs of the goods or services.
You will not have an opportunity to appear before the adjudicator in person.
You must serve your response to the adjudicator and the claimant before the deadline otherwise the adjudicator can’t consider your response.
For more information, see Responding to an adjudication application on the NSW Fair Trading website.
If you are not sure how to respond to an adjudication application, you should get urgent legal advice from a private lawyer or HBAS.
How to do I serve a response to adjudication?
You must serve your adjudication response to the adjudicator and the claimant before the deadline.
You can serve your response by:
- delivering it in person
- lodging it during normal office hours at the person’s ordinary place of business
- sending it by post addressed to the person’s ordinary place of business
- by email to an email address specified by the person for the service of documents.
Service is taken to be effected when the document is received by that person.
What can the adjudicator consider when making a determination?
The adjudicator must consider:
- if the dispute relates to the Building and Construction Industry Security of Payment Act 1999
- the contract
- the Payment Claim (including relevant documents)
- the payment schedule (including relevant documents)
- the adjudication application
- the adjudication response
- the results of any inspection carried out by the adjudicator.
What happens after the adjudicator makes a determination?
The adjudicator’s determination must be in writing and include the reasons for the determination and served on the claimant and the respondent.
If an adjudicated amount is determined, the respondent is liable to pay the adjudicated amount.
If an adjudicated amount is not paid:
- the respondent could be liable for interest
- the contractor can give notice of its intention to suspend work and, after two business days, suspend work if the amount is unpaid
- the contractor can apply for an adjudication certificate and register it as a judgment in the Local Court.
Is my builder responsible if there is a problem with their work?
Your builder has a duty to exercise reasonable care to avoid economic loss caused by defects in, or related to, their building work or arising from construction work.
They have this duty regardless of whether they carried out the work under a contract or other arrangement.
If your builder breaches their duty, you may be entitled to damages.
What can I do if there is a problem with my builder's work or I have a dispute with my builder?
If there is a problem with the home building work done by the builder or contractor, you can try and resolve the issue by:
- getting legal advice about your rights under the Home Building Act 1989 (NSW)
- negotiating directly with the builder or contractor
- making a complaint to NSW Fair Trading
- starting a claim in the NSW Civil and Administrative Tribunal (NCAT)
- getting legal advice about other possible court action.
In your home building contract there may be a clause stating how you should deal with problems, often called a dispute resolution clause. This clause may require you:
- to give written notice to the builder about the specific issues that you dispute
- to use a Mediator or Conciliator to try and resolve the dispute before making a complaint to NSW Fair Trading.
You should read your home building contract carefully.
If the work is over $20,000 and you think there may be some defective or incomplete work, you must tell your home building compensation fund insurer in writing to notify them of a possible claim.
For more information, see Resolving building disputes on the NSW Fair Trading website.
There are time limits that may apply to starting a case in NCAT or Court and/or making a claim on the Home Building Compensation insurance.
What should I consider when negotiating with the builder or contractor?
If you are going to negotiate with a builder or contractor, it is usually a good idea to:
- find out about your rights, especially under home building and consumer laws
- record any problems, for example, by taking photographs, keeping a diary, getting reports on the problem
- put your complaint in writing
- be as specific as possible about what it is that you are complaining about and why
- propose solutions to the problem, if possible
- attach any reports about the problems
- be polite and stick to the issues you are really concerned about
- get everything in writing or, if you can't get everything in writing, make detailed notes of any conversations with the builder or contractor
- keep in mind any time limits that apply to starting a case in the NSW Civil and Administrative Tribunal or Courts or making a claim under the Home Building Compensation insurance.
Can NSW Fair Trading help me with my dispute?
NSW Fair Trading can investigate complaints and make orders against home builders or contractors to rectify (fix) defective work.
You must be willing to agree to rectification in order to resolve the problem. If you don’t agree to have the builder or contractor back, you may then apply to the NSW Civil and Administrative Tribunal.
NSW Fair Trading also has power to investigate and issue fines against builders and contractors who do not comply with the Home Building Act 1989 (NSW).
For more information, see Home building dispute resolution on the NSW Fair Trading website.
Do I have to let the builder or contractor try and fix the work?
Generally, you should give the builder or contractor a reasonable opportunity to try and rectify (fix) any defective building work before you start a case.
The Home Building Act 1989 (NSW) says that when a Court or the NSW Civil and Administrative Tribunal is considering a home building case, the preferred outcome is for builders or contractors to rectify (fix) the defective work.
The Home Building Act 1989 (NSW) also says that because a breach of statutory warranty is a breach of contract, a person who suffers loss because of a breach has a duty to mitigate (lessen) their loss. This usually means that a consumer should act without undue delay to resolve issues about defective building work.
If your case is about a breach of statutory warranty you may be required to notify the builder or contractor of the breach in writing and allow them access to the building to inspect and rectify (fix) the problem.
Can I stop making progress payments under the contract if there is a dispute with my builder?
You should not stop making progress payments as a response to a problem with the work or a dispute with the builder. If you stop making payments, you could be in breach of your obligations under the home building contract.
You should read your home building contract carefully. The contract may have a clause that tells you how you must resolve disputes with the builder, called a dispute resolution clause.
If you want to discuss your options, you should get legal advice from a private lawyer or HBAS.
How do I start a case in the NSW Civil and Administrative Tribunal?
Before you start a case in the NSW Civil and Administrative Tribunal (NCAT), you must first:
- try to resolve the dispute with the builder or contractor, and then
- apply to Fair Trading NSW.
NCAT will not accept an application unless you have a letter from Fair Trading NSW.
Certain time limits apply to starting a case in NCAT.
To start a case in the Consumer and Commercial Division of NCAT you need to file a completed Home Building Application form and pay a fee.
You can apply:
- Using NCAT Online Services, or
- by completing the Home building application form and lodging it at any NCAT Registry.
For more information, see Home building and Fees at NCAT on the NCAT website.
How do I register to NCAT Online Services?
To make an application online using NCAT Online Services, you will need to set up an account and register your details on the NSW Online Registry website.
You will also need the details of the registered name of the business or company and specify the order you are seeking from the Tribunal.
For more information, see NCAT Online Services Help on the NCAT website.
What details do I need to include in the application form?
To fill out the application form you will need:
- your name and contact details
- the other party's name and contact details
- the other party's licence number, Australian Business Number, Australian Company Number or business name
- the orders you want the NSW Civil and Administrative Tribunal (NCAT) to make (a list of the types of orders NCAT can make are usually included on the application form)
- the reasons why you want NCAT to make those orders.
The other party may be sole trader, partnership or company. When filling out your application form it is important to include the correct name of the other party that you have a dispute with.
For more information, see Applications about a business or company on the NCAT website.
If you are not sure who you have the dispute with, you can contact NSW Fair Trading or get legal advice.
If you have a dispute with more than one person or business, you can include more than one other party on the application form.
Should I make a home building application or a consumer application in the NSW Civil and Administrative Tribunal?
If you have a problem with home building work, you should make a Home Building Application in the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal.
If you make a home building application, you can still use consumer laws to argue your case.
Do I have to go to NSW Fair Trading before making an application to the NSW Civil and Administrative Tribunal?
Before you can start a case in the NSW Civil and Administrative Tribunal (NCAT) you must apply to NSW Fair Trading.
NCAT will not accept an application unless you have a letter from NSW Fair Trading.
NSW Fair Trading has the power to:
- investigate claims
- arrange mediation
- make rectification orders for licensed builders or contractors to fix work.
You can make a complaint:
- online
- in writing
- by phone on 13 32 20.
For more information, see Make a complaint on the NSW Fair Trading website.
If you think you may soon be out of time to start a case it is usually a good idea to make your claim to NCAT directly. You can withdraw a claim once you have started, but there may be costs involved.
If you think you may be out of time to start a case, you should get urgent legal advice.
If the builder or contractor is unlicensed, NSW Fair Trading will not make Rectification Orders and you will be referred to NCAT to resolve the problem.
I have been told that there is a federal jurisdiction problem in my application. What is a federal jurisdiction problem?
The federal jurisdiction problem is when the NSW Civil and Administrative Tribunal (NCAT) does not have the power to make a decision in your matter. For example, this may be when an NCAT application:
- involves residents of different states
- involves the Commonwealth or Commonwealth laws.
If one party is a permanent resident in NSW and the other party is a resident of a different state, NCAT will not be able to determine the matter.
There is no federal jurisdiction problem if one of the parties is:
- a resident of a territory
- a non-permanent resident of a different state
- living overseas
- a corporation
- a government agency.
If there is a federal jurisdiction problem, NCAT will give you a letter explaining that you can apply to the Local Court.
For more information, see Federal jurisdiction on the NCAT website.
The NSW Civil and Administrative Tribunal could not hear my matter because of a federal jurisdiction problem. How do I apply to the Local Court?
To apply to the Local Court you will need to file:
- a Summons form
- a supporting affidavit
- a copy of the NSW Civil and Administrative Tribunal (NCAT) application
- a copy of the NCAT letter.
You won't have to pay a filing fee, unless you have made a lot of changes to your original application.
For more information, see Federal jurisdiction on the NCAT website.
If you want help with applying to the Local Court, you should get legal advice from a private lawyer or HBAS.
What can I do if I missed my NSW Civil and Administrative Tribunal hearing date and my matter was dismissed?
If you applied to the NSW Civil and Administrative Tribunal (NCAT) and your matter was dismissed because you didn't go to the hearing, you may be able to make a reinstatement application if you have a reasonable excuse, for example, you were in hospital or you didn't receive the notice telling you when you had to attend.
You will need to complete an Application to reinstate proceedings.
You must attach any documents that support your explanation such as:
- medical certificates
- travel documents
- emails or other communications.
The application needs to be lodged with NCAT within seven days from the date the decision to dismiss the proceedings. This time frame may only be extended in special circumstances.
You will need to pay a further application fee.
For a copy of the form, see Home building on the NCAT website.
What if I am unhappy with the order made by the NSW Civil and Administrative Tribunal?
If you are unhappy with the decision or order made by NSW Civil and Administrative Tribunal (NCAT) you may be able to:
- apply to have the order set aside or varied if you were absent, for example, if you missed the tribunal date because you were in hospital, or if you didn't receive the notice telling you when you had to attend. You have seven days from the date of the decision to make this type of application, although the tribunal may grant an extension on this time limit in certain circumstances. You also need to pay a fee to make this type of application
- appeal to the NCAT Appeal Panel. You may need to seek leave (permission) to do this. An appeal may be an option if you have suffered a substantial miscarriage of justice because the decision was not fair or equitable, or the decision was against the weight of evidence, or new evidence has arisen which couldn't reasonably be put to the tribunal at the time of the hearing. You have 28 days from the date you were notified of the decision or you were given reasons for the decision, orally or verbally (whichever is later), to apply for an internal appeal.
If you are unhappy with the decision of the Appeal Panel, you may seek leave (permission) to appeal to the Supreme Court of NSW on a point of law. You have 28 days to appeal.
Before filing an internal appeal to NCAT or appealing to the Supreme Court of New South Wales, you should get legal advice from a private lawyer or HBAS.
How do I apply for an adjournment?
If you want to change the date of the hearing, you should inform the other party in writing and ask them if they agree. You will need to complete the Adjournment request form or send a request in writing explaining your reasons for an adjournment. You should include supporting documents with your request.
It is up to NCAT to accept or refuse the adjournment.
For more information, see Adjournments on the NCAT website.
What if there is a problem with my swimming pool?
Swimming pools are a type of home building work covered in the Home Building Act 1989 (NSW).
For more information, see the FAQ What if there is a problem with my builder's work or I have a dispute with my builder?
What if there is a problem with my gutters?
The Home Building Act 1989 (NSW) covers work on gutters, unless the cost of the work is less than $5,000.
For more information, see the FAQ What if there is a problem with my builder's work or I have a dispute with my builder?
What warranties apply to home building work?
A warranty is a legally binding promise. Warranties can be made by the builder or contractors themselves or are set out in legislation. Warranties that are set out in legislation are also known as statutory warranties.
The Home Building Act 1989 (NSW) says that certain warranties apply to all home building work, for example:
- a warranty that the work will be done with due care and skill
- a warranty that the work will be done in line with the plans and specifications in the contract
- a warranty that the materials will be new unless the contract says otherwise.
For more information, see Contracts on the NSW Fair Trading website.
In addition, if you are a consumer of goods and services, you may have the benefit of consumer guarantees under the Australian Consumer Law, for example:
- a guarantee that goods supplied to you will be of an acceptable quality
- a guarantee that services will be provided to you with due care and skill.
If you think that a builder or contractor has breached a statutory warranty you generally have to try and mitigate (minimise) your losses. This includes:
- notifying the builder or contractor in writing of the breach within six months after you discover it
- allow the builder or contractor reasonable access to the building so they can inspect and fix the breach, and
- any other reasonable step that is likely to reduce any loss suffered by you.
What if I am out of time to make a claim in the NSW Civil and Administrative Tribunal?
If you are out of time to make a claim in the NSW Civil and Administrative Tribunal you may still be able to make a Court claim or start a case for negligence or breach of contract in the Court.
Time limits apply to making claims of negligence or breach of contract against a builder. You should get legal advice about your situation.
What is owner-builder work?
Owner-builder work is any work connected to the construction of, or alterations, repairs or additions to a home that costs more than $10,000 or would require development consent from a Local Council.
If you are not sure whether the work you want to do is owner-builder work, see Contact us on the NSW Fair Trading website or get legal advice.
What do I need to do before I start work as an owner-builder?
You need an owner-builder permit to do owner-builder work. You can apply:
- online, or
- in person at a Service NSW centre.
When you apply, you must also attach a number of documents. You should make sure you get all the required approvals and insurance to do the work.
For more information, see Becoming an owner-builder on the NSW Fair Trading website.
What are my responsibilities as an owner-builder?
There are many responsibilities you have as an owner-builder including:
- supervising all tradespeople
- ordering materials and managing the building site
- obtaining all necessary council and authority approvals
- ensuring that the financial, taxation and insurance requirements of the building work are met
- being responsible for workplace health and safety on the building site
- obtaining all necessary insurances, including insurance for Home Building Compensation Fund cover for work over $20,000 that you don't perform yourself
- ensuring any contractor engaged is licensed and insured to do the work contracted for
- guaranteeing that the work and materials will be fit for the purpose and that the work results in a dwelling fit for occupation
- lodging an enquiry with Before You Dig before commencing work and obtaining plans showing the location of underground assets.
These responsibilities are very serious and in certain circumstances you can be fined if you don't follow the law. For example, you can be fined under the Home Building Act 1989 (NSW) if you use an unlicensed contractor or if you lend your owner-builder permit to another person.
If you later sell your house and defects are discovered by the purchaser, they may take you to the NSW Civil and Administrative Tribunal to enforce the statutory warranties which you are liable for.
Before you carry out any type of excavation work on your land, you must lodge an enquiry with Before You Dig to find out the location of any underground cables or pipes. Lodging an enquiry with Dial Before You Dig is free.
If you deliberately or negligently damage an underground cable or pipe during your excavation work, the asset owner may seek compensation for the damage you have caused.
It is important to be aware of your responsibilities before making the decision to become an owner-builder. If you are not sure about what obligations you have as an owner-builder, you should get legal advice.
For more information, see Becoming an owner-builder on the NSW Fair Trading website.
Should my home building work be insured?
For work over $20,000, builders and contractors must have Home Building Compensation (HBC) insurance.
Builders and contractors must disclose the cost of the HBC cover in their contract with you.
You can check if there is a valid cover through the HBC Check on the State Insurance Regulatory Authority (SIRA) website. The HBC Check includes information since 1 July 2010.
Insurance for Home Building Compensation Fund is important if:
- there is a problem with the home building work or the work is not finished
- the builder or contractor cannot or will not fix the problem or complete the work because they have disappeared, died or gone bankrupt or insolvent.
If the home building work is insured, you may be able to claim:
- costs of fixing the problem, or
- costs of completing the work.
The Home Building Compensation Insurer should be formally notified of the loss, even though the insurer will only act if the builder or contractor is not available to rectify the works or pay for the rectification.
If you want to make a claim, you should get legal advice from a private lawyer or HBAS about your situation.
Under limited circumstances there are exemptions from holding home building insurance. If you think your home building work should be insured and it is not, you should get legal advice urgently from a private lawyer or contact SIRA.
For more information, see How you’re protected on the State Insurance Regulatory Authority website.
What if the contractor disappears, dies or has gone bankrupt or insolvent?
If you have a problem with the home building work and the builder has disappeared, died or gone bankrupt or insolvent, you may be able make a claim on insurance under the Home Building Compensation cover to cover the costs to fix the problem or complete the work.
If a builder or contractor has had their license suspended under the Home Building Act 1989 (NSW), then they are considered to be bankrupt or insolvent for the purposes of making a claim under Home Building Compensation cover.
Not all home building work is covered by Home Building Compensation Insurance.
For more information, see How you’re protected on the State Insurance Regulatory Authority website.
How do I make a claim on Home Building Compensation cover?
If you think there is a problem with the home building work and there is Home Building Compensation (HBC) insurance, you should notify the insurer in writing as soon as you become aware of the problem.
If you can’t resolve the problem with the builder or with the assistance of NSW Fair Trading, you must make a claim through the NSW Civil and Administrative Tribunal first. You can only make a claim on the HBC insurance if the builder or contractor has:
- died
- disappeared
- gone bankrupt (if the builder is a sole trader) or insolvent (if the builder is a company), or
- their licence suspended for failing to comply with a Court or tribunal order to compensate a home owner.
How you make a claim and what forms you use depends on the insurer.
The home building insurance scheme has changed many times through the years. You should get legal advice about what scheme applies in your circumstances.
For more information, see Home building compensation cover on the State Insurance Regulatory Authority (SIRA) website.
You can check your Home Building Compensation cover by using the HBC Check on the SIRA website.
If you want to make an insurance claim, time limits apply and you should get legal advice from a private lawyer or HBAS about your situation.
What if there is a problem with my home building compensation fund insurer?
If your home building fund compensation insurer will not cover some or all of your claim, or you have some other dispute with the insurer about your Home Building Compensation Fund claim, you can:
- try and resolve it directly with the insurer
- contact the State Insurance Regulatory Authority (SIRA) to check your cover and consider making a claim, or
- apply to the NSW Civil and Administrative Tribunal (NCAT). For more information, see Home building on the NCAT website.
For more information about resolving disputes with insurers, contact SIRA or get legal advice from a private lawyer or HBAS.
Where can I get help with a problem with Home Building Compensation?
You can contact the State Insurance Regulatory Authority (SIRA) if you have a problem with your home building compensation fund insurer.
For more information, see How you’re protected on the SIRA website.
Disputes about home building compensation fund insurers are usually dealt with by the NSW Civil and Administrative Tribunal (NCAT).
For more information, see Home building on the NCAT website.
The Australian Financial Complaints Authority (AFCA) generally can't deal with disputes with home building compensation fund insurers.
You can get advice about Home Building Compensation from the Western Sydney Community Legal Centre Home Building Advocacy Service (HoBAS).
The Insurance Law Service does not provide advice on Home Building Compensation insurance.
What if my home builder or contractor has taken me to court over the dispute?
Under the Home Building Act 1989 (NSW), the NSW Civil and Administrative Tribunal (NCAT) is primarily responsible for cases to do with home building work where the amount in dispute is less than $500,000. This includes when a home builder or contractor is seeking payment from their customers.
If a home builder or contractor has threatened to take you to Court or started a case against you, you should get advice from a private lawyer or HBAS. You can apply to have the case transferred to NCAT if the amount of the claim is less than $500,000.
The Western Sydney Community Legal Centre Home Building Advocacy Service (HoBAS) can help you transfer the proceedings to NCAT.
Who is responsible for paying to fix defects in a residential apartment building?
Who is responsible for paying to fix defects in a residential apartment building will depend on whether:
- the builders work was defective or incomplete
- the building materials were defective
- a claim under the statutory warranties was made in time
- the defects were identified in a defect report
- a certificate of occupation was issued when the defects were present
- the defects are covered by insurance
- the defects arose as a result of poor maintenance.
If you are concerned about defects in a residential apartment building that you are living in, or looking to buy an apartment in, you should get legal advice.
For more information, see Defect Rectification on the City Futures Research Centre website.
Who can complain to NSW Fair Trading about defects in a residential apartment building?
A complaint about defects in a residential apartment building can be made by:
- a building practitioner
- the owner’s corporation or their representative, such as a strata managing agent
- a lot owner.
A building practitioner can make a complaint about a building defect during or after construction.
After a building has been constructed and occupied, the owner’s corporation can make a complaint about building defects. Where a defect affects a common area, it may be best for the owner’s corporation to make a complaint, as it is more likely to have the information NSW Fair Trading needs to deal with the complaint.
An individual lot owner can make a complaint where:
- the defect only affects their lot, or
- the owner’s corporation has failed to deal with the defect.
For more information, see Building defect complaints on the NSW Fair Trading website.
What are a builder’s duties when building a residential apartment building?
From 10 June 2020, a person who carries out construction work owes a statutory duty of care to each owner of the land on which the construction work is being carried out, to avoid economic loss caused by defects or construction work. This includes:
- builders
- architect
- engineer
- project manager
- individual subcontractors
- suppliers
- private certifiers.
This duty is owed to owner’s corporations and individual lot owners.
What is construction work?
Construction work is:
- residential building work
- preparation of regulated designs
- the manufacture or supply of a building product used in building work
- supervising, coordinating, project managing or otherwise having substantial control over the carrying out of construction work.
If the builder breached their duty, can I claim damages?
From 10 June 2020, where a builder has breached their statutory duty of care, the owner’s corporation or an individual lot owner may be able to claim economic loss for the cost of:
- rectifying defects, including any damage caused by the defects
- alternative accommodation, where necessary.
A claim must be made within six years from when the owner’s corporation or lot owner becomes aware that they have suffered a loss because of a defect.
Where an owner’s corporation or lot owner suffered loss caused by defects between 11 June 2010 and 10 June 2020, they will also be protected by the statutory duty of care and will be able to claim damages.
The amount of damages that is being claimed will determine which court hears the matter.
NCAT does not have jurisdiction to deal with matters under the Design and Building Practitioners Act 2020 (NSW).
Before you apply to claim damages, you should get legal advice from a private lawyer or HBAS.
Last updated: March 2024