How long are the statutory warranties on building work in NSW?

Under the Home Building Act 1989 (NSW), 6 years for a major defect and 2 years for any other defect, from completion of the work. They aren't the only right an owner has, and they aren't the final limit for every claim.

Can I sue a builder for defects if I didn't have a contract with them?

Possibly. Section 37 of the Design and Building Practitioners Act 2020 (NSW) requires anyone who does construction work to take reasonable care to avoid financial loss caused by defects. It's owed to each owner and later owner of the property, whether or not there was a contract with them.

Does the duty of care only apply to apartment buildings?

No. In Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd (in liq) [2022] NSWSC 642 the NSW Supreme Court held it isn't limited to class 2 apartment buildings and applies to buildings generally, including houses.

Can an individual builder or supervisor be personally liable for defects?

The section 37 duty is owed by anyone who does construction work, which includes supervising, coordinating, project managing or otherwise having substantive control over the building work. The courts have said being able to control the work can be enough. That can include individuals in those roles, not just the company, and the duty can't be passed to someone else.

What is the longest time limit for a defective building work claim in NSW?

10 years from completion, under section 6.20 of the Environmental Planning and Assessment Act 1979 (NSW). It's a final limit; it doesn't extend any shorter period under the Home Building Act or the Limitation Act.

Defective building work in NSW: your rights and time limits

You may have three separate rights

They overlap, run on different time limits, and you don’t have to choose between them. Which apply depends on your situation.

The statutory warranties

Built into every contract for residential building work by the Home Building Act 1989 (NSW), whether written in or not: the work will be done with care and skill, follow the plans and specifications, use good and suitable materials, comply with the law, and the home will be fit to live in.

6 years for major defects, 2 years for others, from completion. They pass to later owners too.

The legal duty of care — the one people miss

Under the Design and Building Practitioners Act 2020, anyone who does construction work must take reasonable care to avoid financial loss caused by defects. It’s owed to every owner of the property, including later owners — and whether or not you had a contract with them.

If they breach it, you can claim damages. It can’t be passed to someone else.

Home warranty insurance, if it exists

If the work was over $20,000 and the builder has died, disappeared or gone broke, the HBCF policy is the last resort. It isn’t a general repair service — a builder who’s still trading is dealt with under the warranties and the duty of care. HBCF explained →

Why the duty of care matters so much

The warranties come from the builder’s contract. If the company has been wound up, they may be worth very little.

The duty of care doesn’t depend on a contract. And “construction work” includes supervising, coordinating, project managing or otherwise having substantive control over the building work, and the courts have said being able to control it can be enough. So the duty can reach the people involved, not just the company that signed. A company can be closed down; a person can’t.

It isn’t limited to apartment buildings. Many assumed it was. In Goodwin Street Developments v DSD Builders [2022] NSWSC 642, the NSW Supreme Court held it applies to buildings generally, including houses.

How long do you have?

6 years

Warranty — major defect, from completion of the work.

2 years

Warranty — any other defect, from completion.

Check your contract

Defects liability period — your builder’s own promise in the contract to come back and fix things. In the common NSW home building contracts it’s often 13 weeks, with defects to be reported within 10 business days after it ends and 30 business days to fix them. Check yours.

10 years

The final limit for any court action over defective building work, from completion (the occupation certificate date; or the final inspection; or when it was first occupied or used). It doesn’t extend any shorter limit.

What to do, in order

Record it now. Dated photos, and a note of when you first noticed it. Every right depends on timing.
Report it in writing, not by text or phone. Say what and where the defect is, ask for it to be fixed, and keep a copy. If your contract sets an address or method for notices, use it.
Check the dates yourself. Find your completion date and count from it. “That’s out of warranty” is a claim, not a fact.
Find out if it’s a major defect. That decides whether you have 6 years or 2 under the warranties. It’s a question for an expert, and worth answering early.
Get advice before a deadline passes. Which rights you have, against whom, and by when depends on your situation. Waiting to see if it gets worse is the expensive option.

Every change and every notice, in writing

eSiteOffice writes up changes and defect notices the way your contract requires, sends them with proof, and keeps track of every date. Opens October.