Building & Construction Law

No matter how large or small your building project, teaming with an experienced construction lawyer is invaluable to assist with due diligence, minimise risk, and structure contracts to help manage expectations and achieve objectives.

Are you entering into a building contract?

When you’re building or renovating a home, you might be tempted to engage a builder or contractor on a handshake. However, in NSW all residential building work must have a written contract if the work is valued at over $5,000. These contracts must be in writing, dated and signed by each party. 

Building contracts come in different forms depending on the size and type of project.

Work valued between $5,000-$20,000 requires a “small jobs” contract and must include a description of the work to be carried out and the contract price.

Residential work valued over $20,000 requires an extensive home building contract. These contracts must also include a description of the work, and a contract price (or a warning if the price is unknown or could change). There are numerous other requirements for these contracts.

Most building contract conflict actually arises because a builder used a template and simply “filled out” the information that was known at the time. For the protection of both parties, a major residential work agreement should be seen as a serious contract and both parties should get legal advice before signing the contract.

Do you need help with dispute resolution over a building contract?

Builders, developers, and tradespeople “warrant” (essentially guarantee) that their work has been performed with due care and skill. Consumers can enforce these warranties within certain time periods (6 years for major defects, but only 2 years for minor defects). Major defects include problems such as instability in the foundation, or faulty waterproofing.

Whether you are the builder or the consumer, conflicts over building work can be highly stressful. If there is incomplete or defective work, or damage caused to other parts of a property during building work, both parties should try to resolve the matter informally. The parties can start by talking through the issue or writing letters setting out their own concerns.

If you cannot resolve your dispute informally, you can apply to Fair Trading NSW. For minor defects, you will be referred to the Issue Resolution and Advisory Services team. For a major defect case, a Fair Work Inspector will meet with both the builder and the consumer on-site to inspect the work under dispute. If the inspector finds that the builder was responsible for a defect, they will issue a rectification order.

Are you making a building claim or appeal?

If your home building dispute involves a claim of more than $500,000, it is dealt with by the District Court of NSW, or for matters above $750,000, the Supreme Court of NSW. Appearing before these courts to make a claim, or to appeal against a decision, is best done with the support of an appropriately experienced solicitor.

For home building disputes valued at less than $500,000, you can apply to have the matter heard by the NSW Civil and Administrative Tribunal (NCAT).

Are you going to NCAT?

NCAT has the authority to resolve disputes about residential building work in NSW. This includes any residential building work done by a building contractor or tradesperson such as new homes or extensions, swimming pool installation, or renovations of bathrooms and kitchens.

One of the most important things to know is that NCAT has strict time limits for home building dispute applications. For breach of statutory warranties, you have 6 years for major defects, but only 3 years for other defects. For supply of building goods or services, you have 3 years from the last supply (or when the supply was scheduled). For appeals about insurance claims, you have 10 years from the completion of the work, but only 45 days from the date when the insurer advised you that your claim was rejected.

Many people represent themselves at NCAT, but you can request permission to have a solicitor act on your behalf at the hearing. 

Are you going to the Land and Environment Court?

The Land and Environment Court of New South Wales conducts cases about planning, environmental, land, mining and other matters. You may be appearing in this court for a relatively simple matter (such as a request to have your neighbour’s overhanging trees trimmed) or for something extremely complex (such as an appeal against a compulsory acquisition of your land). In either case, your chances of success are greatly increased by having a solicitor on your side.

If you need assistance, contact one of our lawyers at [email protected] or call 02 49691800 for expert legal advice.