We have previously discussed the importance of the NSW Home building Act 1989 (HBA) and the Building and Design Practitioners Act 2020 (DBPA) in revolutionising the building adjudication sphere, in the state of NSW.

Many times, clients (especially builders) do not know who to counter-sue (or who to cross-claim against) in relation to claims brought against them by owners.

One option could amount to counter-claims brought against designer (‘regulated’ designers under the DBPA), architects insurers, or even certifiers.

If you as a builder, are being sued in these kinds of matters, we fully review your case and assess your chances of success from the outset and we endeavour to see if you could potentially claim against those responsible for the designs, by carefully examining factors such as:

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the claimed defects and how they are said to be defects;
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assessment of any owner related expert evidence and an examination of whether any of the defects are said to be related to any design features (for example, a foundational, loadbearing wall or structure may have been badly designed and you simply followed the designs as handed down to you by the owners or others);
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tracing the responsibility for the alleged defect back to the design function;
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the nature of your work as the builder, and the quality of your subcontractors’ works, and the assessment of any potential contribution made by you (or your subcontractors) to the alleged defect;
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nature of the work of any supervisors (many times, architects) or other superintendents;
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any available lay (non-expert) evidence; and
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the availability of any defences and cross-claims, including further assessment of any further available expert evidence.

It needs to be noted that any DBPA action against certifiers needs to proceed with extreme caution as certifiers were effectively immune from negligence (breach of the duty of care) type actions before the advent of DBPA and hence, if a certifier is to be added as a cross-defendant in a cross-claim, careful assessment of all the circumstances and the law is needed e.g. see The Owners Corporation SP 90832 v Dyldam Developments Pty Ltd [2024] NSWSC 1519, or Forrest v Yuncken Builders & Project Managers Pty Limited [2025] NSWSC 1054

Furthermore, sometimes some clients are keen to proceed on the basis of ‘speculative damages’, opting to sue designers, architects or insurers, where there is perceived to be (usually as provided for by expert evidence) a significant design flaw amounting to a major defect, and yet the owners have not brought any proceedings against the builder. In those circumstances too, our lawyers approach any such ‘speculative’ claims with extreme caution, ensuring that on balance, there are good and reasonable prospects of success.

Our lawyers have considerable experience in all HBA and DBPA matters and can advise you if any ancillary steps (e.g. further 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 a builder are properly safeguarded.

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