The building job has gone wrong: who do I go to, and in what order?

The order, step by step

1. Talk to the builder. “Discuss your concerns with the contractor as soon as you become aware of a problem. It may simply be a misunderstanding that can be quickly resolved through constructive communication.”
2. Put it in writing. After the conversation, send the builder a letter or email saying what was agreed to be done and by when. Date it and keep a copy, and consider registered post or email for proof it was sent.
3. Ask Building Commission NSW for help. If that fails, “the next step is to contact Building Commission NSW to assist with dispute resolution.” The service is free, and it goes ahead only if you and the builder both agree to it.
4. Tell the insurer, if the job has compensation cover. “If you become aware of defective or incomplete work, you must immediately notify your insurer in writing,” says the NSW Government. Do it as soon as you know, whatever stage the dispute has reached.
5. An inspection, and perhaps an order. An inspector is sent only where there is a major building defect; other complaints go to Building Commission NSW’s issue resolution and advisory service. Where the inspector finds defects, incomplete work or damage from the builder’s work, a rectification order may be issued.
6. The tribunal. “If the order is not complied with, or you are not satisfied with the decision made, you may lodge a claim with the NSW Civil and Administrative Tribunal.” Apart from the kinds of complaint that go straight to it, NCAT requires the parties to have taken part in dispute resolution first.
7. A claim on the compensation cover. For a job over $20,000, the cover steps in only when a trigger event happens, such as the builder becoming insolvent or disappearing. While the builder is still trading, icare expects other routes to be tried first.

From NSW Government, Resolving building disputes with your builder or tradesperson and NSW Government, How Building Commission NSW deals with building defect complaints.

Building Commission NSW reports that its on-site inspection takes place, on average, within 22 working days, and that resolution, including the rectification work, takes 39 days on average.

From NSW Government, Home building dispute resolution.

Where to lodge

If you cannot reach agreement with the builder, the home owner (or the owners corporation, for a strata building) can make a complaint at their nearest Service NSW centre. Building Commission NSW is on 13 27 00, Monday to Friday, 8:30am to 5pm, excluding public holidays.

Before you complain, gather the following information and documents:

• details of the contractor who undertook the work
• the type of work done and date commenced, including plans and contracts
• evidence of the date the work was completed. For example, occupational certificates
• copies of correspondence about the dispute
• copies of reports or photos in relation to defects.

At NCAT, home building cases go through the Consumer and Commercial Division. “Most people represent themselves at NCAT,” it says, and before a hearing it must encourage the parties to reach agreement through conciliation.

From NSW Government, How Building Commission NSW deals with building defect complaints and NCAT, Home building.

What a rectification order does

“A Rectification Order under the Home Building Act requires a contractor for residential building work to take the steps specified in the order to ensure that a defect in residential building work or damage is rectified.” It lists the work, sets conditions for both sides, such as giving the builder access, and sets a date for the work to be done.

The builder cannot appeal the order, and a builder who ignores it may face disciplinary action. If you lodge a building claim with the tribunal before the order’s expiry date, the order ends automatically and the tribunal hears the matter. In a case about defective work, section 48MA of the Act tells the court or tribunal that the builder fixing the work is the preferred outcome.

From NSW Government, Resolving building disputes and Home Building Act 1989, section 48MA.

Time limits

“It is the responsibility of the home owner to apply to the Tribunal before the expiry of the statutory warranty period,” the NSW Government says. Near the end of that period, you can still use Building Commission NSW’s complaint service, but you should also lodge with NCAT to preserve your rights. The periods themselves, 6 years for a major defect and 2 years otherwise, are in the defects guide.

Section 48K of the Act sets the tribunal’s limits. It can hear building claims of up to $500,000. It cannot hear a claim about building goods or services lodged more than 3 years after they were supplied, a claim on the compensation cover lodged more than 10 years after the work was completed, or a warranty claim lodged after the warranty period. Some complaints go straight to the tribunal, among them claims whose time for lodging runs out within 3 months.

From Home Building Act 1989, section 48K and NSW Government, How Building Commission NSW deals with building defect complaints.

Legal help, from Western Sydney

The Home Building Advocacy Service (HoBAS) is a program provided by the Western Sydney Community Legal Centre, with funding from Building Commission NSW, the NSW Government’s disputes page says. To use it, you first need to contact Building Commission NSW and complete its dispute resolution process.

From NSW Government, Resolving building disputes.

For a dispute with a compensation cover insurer rather than the builder, see the compensation cover guide. For what the builder must have put in writing, see the contract guide.