Building & Construction

The NSW Design and Building Practitioners (DBP) scheme sets out who must be registered when preparing designs for certain types of buildings and what responsibilities come with that registration. Only the person who signs off and declares that a design meets legal requirements must be registered. While a team may contribute to preparing drawings or documents, the supervising designer (the person lodging the formal declaration) is the one who must hold registration, ensuring a clear line of accountability.

Registration is required when working on certain “regulated buildings,” including class 2 apartment buildings, class 3 hotels and boarding houses, and class 9c aged care buildings. This includes mixed-use buildings that contain any of these classes. You must register if you prepare regulated designs and sign the design compliance declaration, if you coordinate designs as a principal design practitioner, or if you are an architect or engineer from interstate working under mutual recognition.

Regulated designs relate to key building elements such as structure, waterproofing, fire safety, or drainage, or any design that relies on a performance solution. The registered design practitioner must ensure their design complies with the Building Code of Australia and integrates with the other designs on the project. The practitioner must only work within the limits of their registration class.

Before Construction Begins

Before building work can start, a registered design practitioner must prepare the construction-issued regulated designs for any part of the work involving a building element or performance solution. Once the design is ready for use on site, they must complete a design compliance declaration confirming the design complies with the BCA and fits properly with other relevant designs. A certifier cannot issue a construction certificate or complying development certificate without these documents.

These designs and declarations must be lodged on the NSW Planning Portal by the building practitioner or an “appropriate practitioner,” such as a registered design practitioner or principal design practitioner. Lodgement must occur before construction begins. On larger or more complex projects, a principal design practitioner may be appointed to coordinate all designs and declarations. After everything is lodged, the building work may start. The Building Commission NSW may inspect the site or review the lodged designs, and any issues must be rectified before work can proceed.

During Construction

If the building practitioner makes a change that affects a building element or a performance solution after construction has started, a registered design practitioner must prepare a new regulated design and complete a new compliance declaration. These must be lodged within one day. Work may need to pause while updated documents are prepared. Variations that do not affect a building element or performance solution do not require a design declaration but must be recorded by the building practitioner.

Before completion

As the project nears completion, and before an occupation certificate can be applied for, the applicant must give the building practitioner at least 14 days’ notice. If a principal design practitioner is involved, they must also receive 14 days’ notice to complete their principal compliance declaration. The building practitioner must then lodge a building compliance declaration confirming the work has been carried out according to the lodged designs. Only a registered building practitioner can make this final declaration.

This scheme helps ensure that building work is carried out safely and in line with properly checked, compliant designs. Knowing who must be registered, when declarations are required, and how documents must be lodged helps prevent delays and protects the integrity of the construction process. If there is any uncertainty about whether your role falls under the scheme, it is advisable to seek guidance early to avoid issues later in the project.

Papallo Kouchoo Lawyers are here to assist you and guide you through your construction project.

Reach out to us for a free professional consultation.

The Home Building Compensation Fund (HBCF) protects NSW homeowners if their builder cannot finish the work or fix defects because they have become insolvent, died, disappeared, or had their licence suspended for failing to comply with a Tribunal or Court money order. When one of these events occurs (called a trigger event), you may be able to claim under the HBCF policy issued for your project.

Any residential building work over $20,000 must be covered by HBCF insurance before the builder starts work or takes any payment, including a deposit. After the builder is assessed, they receive a Certificate of Eligibility and then a Certificate of Insurance must be issued specifically for your property.

As a homeowner, you must receive this Certificate of Insurance before work starts. It must show your name, the builder’s exact legal name, your site address, the contract price, and a description of the work. You can check the certificate and the builder’s licence online. HBCF applies to most homes, including strata buildings up to three storeys.

If a trigger event occurs, HBCF may help with losses such as:

• Failure to start the work (loss of deposit)
• Failure to finish the work (up to 20% of the contract price)
• Major defects (covered for six years from completion)
• Non-major defects (covered for two years from completion)

If defects are discovered in the last six months of these periods, you have an extra six months to make your claim. The maximum cover is $340,000 for most current policies, and the protection also benefits future owners of your home unless a previous claim has used up the cover.

To comply with the policy and protect your right to claim, you must notify icare HBCF as soon as you become aware of any defect, loss, or problem—usually by lodging a Loss Notification Form. This must be done within the required timeframes, generally within six months of becoming aware of the issue. Even after notifying HBCF, you must still take reasonable steps to pursue the builder until a trigger event occurs.

By making sure your builder provides the correct insurance, keeping copies of your documents, notifying HBCF promptly, and continuing to follow the required process, you can ensure you remain protected under the HBCF scheme.

Delay in serving and filing evidence can be a dangerous thing sometimes. The case of The Owners – Strata Plan No. 94784 v Mirvac Projects Pty Ltd (No 3) [2024] NSWSC 936 is informative in this regard.

In the matter the plaintiff sought the leave of the Court to rely on expert reports served very late in breach of a “Guillotine order”. The plaintiff’s had effectively bought a motion to rely on further late expert evidence. The plaintiff solicitor was ordered to ‘show cause’ why he should not personally meet the costs of the motion and why he should not charge, his client, the plaintiff, for those costs. A more junior solicitor for the plaintiff had initially attempted to explain the delays in serving the reports as being due to ‘competing commitments and other general reasons’. However, for various reasons including the timing of the retainment of the experts the Court did not accept that initial explanation and so, it was left with the supervising lawyers to show cause. Fortunately, the further evidence showed that the delay was not caused by solicitors and the Court (Stevenson J) did not find grounds for personal costs orders.

It should always be remembered that evidence especially in the form of expert reports, should be lodged on time and every effort should be made to ensure that the case management timetable imposed by the courts and tribunals is met and abided by, especially where ‘guillotine orders’ are in place (these orders mandate the lodgement of material by a certain date – if there is a breach, the party responsible needs to provide an explanation to the court in order to have that evidence permitted).

Our solicitors at Papallo Kouchoo are experts in ensuring that your matter is conducted with efficiency and you receive the right advice, at the right time.

If you have any questions, please do not hesitate to contact us for a professional free consultation.

When someone makes a building defect claim after the two-year warranty period for non-major (minor) defects has already passed, one of the first and most important questions is whether the issue qualifies as a “major defect” under the Home Building Act 1989 (NSW) (the Act). This is critical because major defects have a six-year warranty period, while all other defects only have two years. If a defect is not correctly classified as a major defect, the claim may fail simply because it is out of time for a minor defect.

A major defect is defined in section 18E of the Act. In simple terms, it is a defect in a major element of the building that arises from things like faulty workmanship, bad materials, defective design or failure to meet the structural requirements of the National Construction Code. To be considered “major”, the defect must either make the building (or part of it) unable to be lived in or used properly, or be likely to cause serious damage, destruction, or even a threat of collapse. The law also includes certain safety-related defects, such as combustible external cladding on high-rise buildings, or the use of banned building products as major defects.

A major defect must also involve a “major element” of the building. These include structural components such as foundations, walls, floors, beams and roofs, as well as fire safety systems and waterproofing. The Tribunal (or NCAT) has repeatedly confirmed that waterproofing is a major element, and it should be understood in a broad, practical sense, not a narrow technical one.

A common misunderstanding is that a defect must already be severe or close to causing significant damage before it can be classed as major. That is not the case. The Supreme Court in, Stevenson v Ashton [2019] NSWSC 1689, has confirmed that a major defect does not need to be “imminent”, “dire”, or already causing major harm. It is enough if the defect is likely to cause one of the serious outcomes listed in the Act.

In deciding whether a defect is a major defect usually involves a two-step process: first, determining whether the defect affects a major element of the building, and second, deciding whether it has caused or is likely to cause serious consequences.

It is also important to consider how long the defect has existed, whether it has already caused any damage, and the expected lifespan of the materials involved. Water ingress, even if only during heavy rain, is often taken seriously because of the risk of future damage, mould or structural problems.

Understanding what counts as a major defect is important because of the strict time limits in the Act. The definition is broader than many people expect, especially when it comes to waterproofing and defects that may worsen over time. Knowing these principles can help homeowners and owners corporations protect their rights and take action within the required timeframes.

If you’re concerned about possible defects or uncertain about your rights, reach out to us for a free professional consultation – we’re here to help.

A simple guide for homeowners and strata committees

Use this checklist to help work out whether a building problem may qualify as a major defect. This does not replace expert advice, but it helps you recognise the signs early.

1. Does the problem affect a major part of the building?

Tick any that apply:

☐ Structural parts (foundations, walls, floors, beams, columns, roof)

☐ Waterproofing (bathrooms, balconies, roofs, planter boxes, basement walls, etc.)

☐ Fire safety system (alarms, sprinklers, hydrants, smoke control systems)

☐ Combustible external cladding (especially on high-rise buildings)

☐ Major structural supports in garages, basements or retaining walls

If you ticked any of these, continue to step 2.

2. What caused the problem?

Tick any of the following you suspect or have been told:

☐ Poor or faulty workmanship

☐ Bad or unsuitable materials

☐ Defective design

☐ Not meeting the National Construction Code

☐ Use of unsafe or banned building products

If you ticked any of these, continue to step 3.

3. Could this defect cause serious consequences?

Tick any that apply:

☐ The area is hard or unsafe to use

☐ Water is entering the building

☐ Cracking or movement appears to be getting worse

☐ Parts of the building feel unstable

☐ There is mould, dampness or water staining

☐ You are worried about collapse or major damage

☐ The issue could spread or worsen over time

☐ The defect might stop the building being used normally in the future

If you ticked one or more, the defect may be a major defect.

4. What should you do next?

If you ticked items in all three sections (1, 2 and 3), your issue could be a major defect, and you may have six years from the building’s completion date to make a claim.

You should consider:

• Getting an expert report (engineer, building consultant, or waterproofing specialist)
• Seeking legal advice if the claim period may be running out
• Acting promptly to avoid losing your rights

Important Reminder

A defect does not have to be severe right now to be a major defect.
It only needs to be likely to cause serious problems in the future if not fixed.

If you’re concerned about possible defects or uncertain about your rights, reach out to us for a free professional consultation – we’re here to help.

The Building and Design Practitioners Act 2020 was a revolution in the way defects related claims in relation to home building (and in fact, in relation to commercial buildings) projects are brought in NSW.

The NSW Supreme Court has held time and again that many of these claims are quite ‘defective’ because of their pleading – because of the way that the claim has been drafted.

Our lawyers are experts in drafting these claims and in defending them.

As we have said in other publications on these pages, it is extremely important that these claims (or their defences) are correctly and logically pleaded, otherwise the claimant, usually the owner, will face either an uphill battle in proving the claim effectively, or an application for summary dismissal, or in the least, an application for the striking off of the pleadings (all with costs).

The worst-case scenario of course will be an embarrassing defeat in the final hearing.

That’s why the pleadings need to take into account all of the following factors (this is not an exhaustive list):

• What was done;
• How was it done;
• How and why it was defective;
• What do various aspects of the expert evidence say about the defects and how they appeared;
• What does the expert evidence say about what was done which shouldn’t have been done and what was not done which should have been;
• What precautions were missed;
• What else should the builders, or their subcontractors, have done which they missed;
• How was the developer involved, and what did they do, not do;
• What kind of supervision was carried out if any, were there any notes left around, is there any evidence of proper supervision;
• Is there any evidence from foremen, site managers/coordinators, supervisors, project managers, construction/operations managers etc.;
• Related to the supervision question, what did the superintendent do/didn’t do and was there one?
• What aspects of the DBPA were breached; what about Australian Standards, or the Building Code of Australia (BCA) regulations;
• Is there any factual (non-expert) evidence available about any of this;
• were there any other aspects of the case to which due consideration should be given;
• How can all this be effectively integrated within a properly drafted pleading; and
• What defences are available to any of these claims based on all the material available, including expert evidence.

Our lawyers have considerable experience in drafting these pleadings including the Supreme Court ‘list statements’ (claims) or ‘list responses’ (defences).

Our lawyers have seen enough of these claims on both side of a claim and can effectively prosecute or defend all DBPA (as well as Home Building type) matters.

Based on the material our lawyers can also advise on adding parties, making cross-claims etc. as the circumstances of each particular case properly require.

As we emphasise here, there are always potential traps in drafting these very important documents, of which traps the client should be made aware. We make sure of that.

At Papallo Kouchoo Lawyers, we do our utmost to uphold your rights in order to ensure that all your rights are properly safeguarded.

If you have any questions, please do not hesitate to contact us for an obligation free professional consultation.

Claims under the Building and Construction Security of Payment Act 1999 (NSW) (SOPA), the related responses (payment schedules) as well as disputes which can follow, can generally be very complicated to deal with, especially in terms of time and timing.

It is extremely important that the SOPA related steps as provided for under the SOPA regime are taken in a timely manner.

We at Papallo Kouchoo have been involved in drafting claims, payment schedules, and running the related adjudication aspects of the SOPA scheme.

However, we are especially adept in helping our clients in relation to appeals to the Supreme Court.

Our lawyers have significant experience in launching proper appeals in this jurisdiction and are experts at identifying the proper errors of adjudicators.

It is not easy to bring these appeals, because simple errors will not suffice: a party needs to prove that the adjudicator made a ‘jurisdictional error’ (e.g. the adjudicator acted beyond the power that they had).

Hence, and again, as is usually the case with all of our matters, we carefully assess the relative prospects of these kinds of matters before giving you the advice to proceed, in order to save you costs and expenses.

Some of these matters can settle before costs are expended on running a full-blown appeal, and so a very ‘strong showing’ at the time of the preparation of the documents for the Supreme Court is a must in order to ensure that the other party is at least motivated to enter negotiations.

At Papallo Kouchoo Lawyers, we do our utmost to uphold your rights and to ensure that your contractual rights, and your rights to the fees which you rightly earned in your projects, are safeguarded. We ensure that this is done in a cost-effective way.

If you have any questions, please do not hesitate to contact us for an obligation free professional consultation.

As we have intimated on these pages previously, the NSW Home building Act 1989 (HBA) and the Building and Design Practitioners Act 2020 (DBPA) have been a revolutionary feature in the way that defects related damages claims are brought, and are adjudicated, in NSW.

One of the areas which many clients seem to have a distinct problem with is the ‘Owner Builder’ sphere.

Many clients have opted to ‘project manage’ their home building venture and this means that both the HBA, and DBPA can be used to potentially bring claims against these owner builders by subsequent buyers of the properties. These claims usually related to property defects and damages allegedly caused by these usually unlicensed project managers and supervisors of the development.

Under HBA, and more importantly under the DBPA, developers, as well as supervisors and project managers can be sued by subsequent owners in respect of these kinds of projects.

We have seen disasters where Owner-Builders have refused to follow our advice in relation to these kinds of matters and have sought to defend these matters (through other law firms) where they have lost a significant part of their livelihood (not only having had to pay for the damages claimed after trial, but also having had to pay out their own and the owners’ legal costs).

If you are being sued in these kinds of matters, we fully review your case and assess your chances of success from the outset, by carefully examining factors such as:

• The claimed defects;
• The manner in which (and the reason why) these are said to be defects;
• Assessment of any owner related expert evidence;
• The calibre and quality of project management and supervision of the development;
• The nature of the work of the builders and subcontractors, and others (were there any superintendents?);
• any available lay (non-expert) evidence;
• What aspects of the DBPA, or what aspect of the HBA warranties were breached if any;
• what aspects of any Australian Standards, the Building Code of Australia (BCA) and related regulations were breached, if any; and
• the availability of any defences, including further assessment of Owner-Builder’s expert evidence.

We will then inform you whether your case has a good defence, or if other avenues (such as a reasonable compromise and settlement) are available.

Our lawyers have considerable experience in all HBA and DBPA matters and can advise you if any ancillary steps (such as cross-claims) are required.

At Papallo Kouchoo Lawyers, we do our utmost to uphold your rights in order to ensure that all your rights as an Owner-Builder are properly safeguarded.

If you have any questions, please do not hesitate to contact us for an obligation free professional consultation.