On 1st February 2012, the NSW State Government amended the Home Building Act 1989 (Home Building Amendment Act 2011) as it relates to the period for a Home Owner to claim for rectification/compensation for defective Residential Building work (Building Disputes). The Act requires Home Owners to commence proceedings in NCAT, within time limits of:-

  1. Six [6] years from completion of the work for structural defects;
  2. Two [2] years from completion for other defects.

In 2014 the NSW Government introduced further amendments that affects the handling of Building Disputes pursuant to The Home Building Amendment Act 2014 (“The Act”). These amendments changed the requirement of “structural defect” to a “major defect.”

Definition of a “major defect” is defined in s18E(4) of the Act.

The definition is as follows:-

“(a) a defect in a major element of a building that is attributable to defective design, defective or faulty workmanship, defective materials, or a failure to comply with the structural performance requirements of the National Construction Code (or any combination of these), and that causes, or is likely to cause:
(i) the inability to inhabit or use the building (or part of the building) for its intended purpose, or
(ii) the destruction of the building or any part of the building, or
(iii) a threat of collapse of the building or any part of the building, or
(b) a defect of a kind that is prescribed by the regulations as a major defect, or
(c) the use of a building product (within the meaning of the Building Products (Safety) Act 2017 ) in contravention of that Act.”

These changes have been considered in numerous Tribunal Proceedings including the Appeal Decision of Ashton v Stevenson; Stevenson v Ashton [2019] NSWCATAP 67. Importantly the Appeal Panel in this case commented on the evidence required to prove a “major defect.”

The evidence required to prove such an element is complex and can be costly to the inexperienced. If you fail to prove or defend the Claim, costs can be ordered against you

At Adams & Partners Lawyers, we specialise in Building Disputes and Construction Law. We can assist both Home Owners and Building Contractors.

If you gave a Building Dispute or just need legal advice contact Peter Adams, Atul Singh or Cameron Spanner on 02 4721 6200

Information current as at: 1 January 2020

Written by Peter Adams

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