I'm rebuilding or repairing my home after a disaster. Where do I start if I have a problem with my builder?
Last Updated 8 February 2024
Last Updated 8 February 2024
This resource is for people in New South Wales (NSW):
Whose home was damaged or destroyed by a disaster; and
Who have a problem with their builder or the work their builder has performed.
This resource explains some steps you can take if you have a problem with your builder. It also explains what options are available to you if you cannot resolve a problem with your builder through discussion.
The first step you should take to resolve a problem with your builder is to speak to them directly about the problem and try to resolve it together. It is important that you raise the problem with the builder as soon as possible after it arises, as it may be that the problem is a misunderstanding that can be resolved quickly.
If the problem relates to the quality of the building work being performed, you can refer to the NSW Guide to Standards and Tolerances in your discussion. This guide has been developed by NSW Fair Trading to assist homeowners in understanding the standard of work that is acceptable. You can access the guide on their website: https://www.fairtrading.nsw.gov.au/housing-and-property/building-and-renovating/after-you-build-or-renovate/guide-to-standards-and-tolerances.
If you can reach an agreement by talking to the builder, it is important that any agreement is confirmed in writing, including any agreed timelines. When confirming the agreement in writing, you should make sure that any correspondence is dated and that you keep a copy of it. Generally, an agreement confirmed in writing by registered post or over email provides appropriate proof as to what was agreed.
If you are not able to resolve the problem with your builder directly, you can lodge a complaint to NSW Fair Trading.
NSW Fair Trading offers a free home building dispute resolution service which attempts to find a solution to a dispute between a homeowner and builder that is suitable to both parties through mediation.
A homeowner may lodge a complaint and initiate dispute resolution through NSW Fair Trading without the consent of the builder or contractor.
There are time limits in place which limit how long you have to make a complaint with NSW Fair Trading or lodge a claim with NCAT. If you are uncertain as to which time limit applies to your dispute, you can read the section “Where to get help” below for more information.
For claims related to a breach of a statutory warranty:
For major defects a homeowner has 6 years from the completion of the work
For all other defects a homeowner has 2 years from the completion of the work
If you discover a statutory breach within the last 6 months of the warranty period (stated above), then you have another 6 months to lodge the building claim with NCAT.
For claims related to the supply of building goods or services a homeowner has 3 years from the date of the last supply or from the date the contract was entered.
A major defect is defined in the Home Building Act 1989 (NSW) as a defect in a major element of the building due to defective design, workmanship or materials (or use of certain building products), or a failure to comply with the National Construction Code structural performance requirements. Certain defects may be prescribed by regulations as major defects.
Additionally, a defect will be a major defect if it is likely to cause:
the inability to inhabit or use the building (or part of the building) for its intended purpose;
the destruction of the building or any part of the building; or
a threat of collapse of the building or any part of the building.
Typically, non-major defects are defects that are easily repairable and that do not impact the building’s structural integrity.
It can be challenging to work out whether a defect is major or non-major and you might need help from an expert. You can read the section “Where to get help” below for more information.
You can lodge your complaint either online, in person or by post.
To lodge a complaint online, a request form must be filled out on the NSW Fair Trading website. You can access the online request form on their website: https://hbc.fairtrading.nsw.gov.au/forms/20490.
To lodge a complaint either in person or by post, a request form must be downloaded and filled out. You can access the form on their website: https://www.fairtrading.nsw.gov.au/__data/assets/pdf_file/0018/1218105/home-building-complaints-form-bcnsw.pdf.
Once you have filled out the form, you can lodge it in person at a service centre or post it to NSW Fair Trading at PO Box 972, Parramatta NSW 2124.
Generally, after a complaint is received, a Customer Service Officer of NSW Fair Trading will contact you and the builder to work out the key issues in dispute and to help you and the builder reach an agreement. This is typically done over the phone.
If, however, the initial phone discussion is unsuccessful in resolving the dispute, what happens next depends on the nature of the problem.
If the dispute relates to a major defect in the residential building works, it will be referred to a NSW Fair Trading Building Inspector.
If the dispute relates to a non-major defect, the dispute will be referred to and handled by officers within the NSW Fair Trading Issue Resolution and Advisory Services team.
If the dispute remains unresolved after these referrals are made, the matter can be escalated to the NSW Civil and Administrative Tribunal (NCAT).
Certain types of disputes are referred by the Customer Service Officer to NCAT straight away, without any further intervention by NSW Fair Trading. Some examples of when this might happen, include disputes involving:
appeals that relate to insurance;
the recovery of a debt owed to the builder or contractor;
claims where the time for lodging a claim at NCAT is due to expire within 3 months;
unlicenced contractors;
companies that have been de-registered; and
companies or individuals who have gone into administration, liquidation or bankruptcy.
If your dispute with your builder remains unresolved after going through the NSW Fair Trading processes, you may apply to NCAT for the determination of your claim.
By applying to NCAT, you are asking them to hear your dispute and subsequently decide on the outcome by issuing orders, which are instructions for one or both parties to do certain things.
In order to lodge a claim at NCAT in relation to your building dispute, the claim must:
be a building claim. A building claim is defined as a claim for:
the payment of a specified sum of money;
the supply of specified services;
relief from payment of a specified sum of money;
the delivery, return or replacement of specified goods or goods of a specified description; or
a combination of two or more of the above.
have previously been investigated by NSW Fair Trading (except in the cases that can be directly referred to NCAT).
not exceed a value of $500,000.
be lodged within the applicable time limits.
After your claim is heard, NCAT has the power to make one or more of the following orders:
one party must pay money to the other party;
a specified amount of money is not due or owed by a party;
a party is to do any specified work or perform any specified service; and/or
a party is to refrain from doing or performing a specified act.
NCAT is allowed to make any of the above orders, regardless of whether they are the orders requested by either party. The orders made by NCAT are legally binding and NSW Fair Trading will be notified of any orders made against a builder or contract.
If NCAT makes an order in your favour, which requires the builder to do or refrain from doing something, and the builder does not comply, then there are options available to you.
If the builder does not comply with the order within the period specified by NCAT, you are granted the right to renew the proceedings. This means that the matter is further heard and determined by NCAT. NCAT may make any further appropriate order.
If the builder does not comply with the order made by NCAT within the specified time period, you only have 12 months from the end of that period to lodge your application to renew the proceedings.
If you are unhappy with the outcome at NCAT or, if the builder continues not to comply with NCAT’s orders, you should seek legal advice. Read the section “Where to get help” for more information about where to get help.
NSW Fair Trading aims to achieve fairness for homeowners by providing information on the types of contractor licencing, providing contract templates, and by offering dispute resolution services for disputes between a homeowner and contract. See their website for more information on how they can help: https://www.fairtrading.nsw.gov.au/.
LawAccess is a free government service that provides legal information and referrals, including to Legal Aid NSW, for people with a legal problem in NSW. See their website for more information on how they can help: https://www.lawaccess.nsw.gov.au/.
Justice Connect assists eligible individuals, small businesses, community organisations and farms and other primary producers who have been impacted by natural disasters.
You can apply online for free legal help: Apply for help – Justice Connect. This is the quickest and most efficient way to check if you’re eligible and start the process of being matched with a lawyer. Once we receive your application, a member of our team will be in touch to guide you through the next steps.
This resource is for people in New South Wales. If you are not in NSW, you still might be eligible for free legal help from our lawyers.
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This resource was last updated on 8 February 2024. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation. Please view our disclaimer for more information.