What the builder promises by law
NSW calls these statutory warranties. Even when they are not written into the contract, the law says they still apply to the work. Among them, the work will be done:
- with due care and skill, and to the plans and specifications in the contract
- with materials that are suitable for their purpose, and new unless the contract says otherwise
- in line with the Home Building Act 1989 and any other law
- with due diligence, within the time in the contract or otherwise in a reasonable time
- so that, for a new home, alterations, additions or renovation, the result is reasonably fit to live in.
Victoria has implied warranties in the Domestic Building Contracts Act 1995 alongside consumer guarantees in the Australian Consumer Law, and Consumer Affairs Victoria says both apply by law and cannot be signed away. In Queensland, contracts of $20,000 or more must state the statutory warranties.
The clock on a defect
- NSW: from completion
Homeowners can start proceedings for a breach of statutory warranty within 6 years of completion for major defects and 2 years for all other defects. If you find out about a breach in the last 6 months, you have an extra 6 months after the period ends. Work is complete when it matches the contract; if there is no contract, or it does not say when work is complete, when it is usable for its intended purpose and has no major defects.
- NSW: near the end
If the warranty period is close to ending, you can still use Building Commission NSW’s complaint service, but you should also apply to NCAT to preserve your rights. Applying to the Tribunal before the period expires is the homeowner’s responsibility.
- Queensland: from noticing
To stay eligible for a home warranty claim, lodge a defective work complaint with the QBCC within 3 months of noticing structural defects, and within 7 months of completion for non-structural defects.
- Victoria: within 10 years
The BPC’s dispute service does not take disputes about building work more than 10 years old. Home Warranty has its own, shorter claim periods, set out in notice 02.
A major defect, in NSW
The Building Commission NSW defines it as “a defect in a major element of the building due to defective design, workmanship or materials, or failure to comply with the National Construction Code structural performance requirements.” It may include load-bearing parts such as foundations, footings, floors, walls, roofs, columns or beams, fire safety systems, and waterproofing.
A structural defect, in Queensland
Defective work that adversely affects the building’s structural performance, the health or safety of the people living in it, or its functional use, or that lets water into the building.
Defective work, or a contract issue?
The QBCC can help with defective work complaints but has limited power over contractual disputes, and it gives these examples of the difference.
| Defective work | Contractual issue |
|---|---|
| Leaking roof | Roof tiles the wrong colour |
| Sticking door | A different type of door installed from the one agreed |
| Loose handrail | Disagreement about the cost to change a handrail from timber to steel |
| Cracked floor tiles | Dispute about delays in finishing laying floor tiles |
From the builder to the tribunal, in three states
Every path starts the same way: raise it with the builder. Each state then has a service that tries to settle it before a tribunal hears it.
NSW
- Try to resolve it with the contractor or builder first.
- If you cannot agree, make a complaint to Building Commission NSW, which offers a free complaint handling service.
- For major defects or incomplete work, a building inspector may meet you both on site and may issue a Rectification Order with a date to fix the work.
- If it is still not resolved, you may lodge a building claim with NCAT.
Queensland
- Raise it with your contractor first.
- If they will not fix it, lodge a defective work complaint with the QBCC. It may try to facilitate an agreement, inspect the work, and issue a direction to rectify.
- The QBCC cannot order anyone to pay or refund money, make decisions about your contract, or fix the work itself.
- QCAT requires you to go through the QBCC first; the QBCC’s outcome letter lets you apply to QCAT.
Victoria
- Take reasonable steps to resolve it with the other party within the last 3 months, preferably stating your concerns in writing.
- Apply to the BPC’s free dispute resolution service, previously known as Domestic Building Dispute Resolution Victoria (DBDRV), where officers run conciliation.
- If conciliation does not settle it, the BPC can issue binding dispute resolution orders, or certificates that let you take the dispute to VCAT.
The service does not take disputes about a contract covering only one type of work, such as tiling alone. Victorian home owners can also get information, referrals and legal advice from the Domestic Building Legal Service.
The records that carry a complaint
Building Commission NSW asks complainants to gather these before they complain:
- details of the property owner and of the contractor who did the work
- the type of work and the date it started, including plans and contracts
- evidence of the date the work was completed, such as an occupation certificate
- copies of correspondence about the dispute
- copies of reports or photos of the defects.
The BPC’s tips run the same way: keep copies of contracts, invoices and written communications, keep a record of every conversation, and photograph the work in dispute. If talking does not settle it, write to the other party setting out the remaining issues and a reasonable deadline to respond.