A common issue in residential building disputes is whether a homeowner must allow the original builder access to the property to rectify defective work. In New South Wales, the answer depends on reasonableness. A homeowner is not required to give a builder unlimited access to the property, but they should be careful before refusing access entirely.
Statutory Warranties Under the Home Building Act
Section 18B of the Home Building Act 1989 (NSW) (HBA) implies statutory warranties into residential building contracts. These include warranties that
- the work will be carried out with due care and skill,
- in accordance with the plans and specifications,
- done with proper materials,
- and in compliance with the law.
Where a builder breaches these warranties, the homeowner may bring a claim for defective building work.
When Must a Homeowner Allow the Builder Back?
Pursuant to s 18BA of the HBA, a person who has suffered loss or damage arising from a breach of a statutory warranty under the HBA has a positive duty to mitigate loss. The duty to mitigate loss includes, but is not limited to, the person who has suffered the loss making reasonable efforts to ensure that the person against whom the warranty can be enforced is given notice in writing of the breach within 6 months after the breach becomes apparent, and not unreasonably refusing access to the building works to enable those works to be rectified.
In addition to the above, pursuant to section 48MA of the HBA, it states that where there are breaches of statutory warranties, rectification is the preferred outcome, meaning rectification is more likely than not to be ordered by NCAT for the builder to return to the property to rectify the defects, as opposed to a money order requiring the builder to pay money for those works to be rectified by another person.
What the NSW Courts Have Said
In The Owners – Strata Plan No 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067 at 44, it was held that the owner is expected to give reasonable opportunities to the builder to rectify defects and not unreasonably deny entry to the property for that purpose. However, in The Owners – Strata Plan No 89074 v Ceerose Pty Ltd [2024] NSWSC 1494 at [71], it was held that there is no automatic positive obligation for the owner to provide these opportunities; instead, when access to the property is denied to a builder by the owner, the onus is on the builder to prove that the refused access was unreasonable. A homeowner’s genuine loss of confidence in the builder may justify refusing access, particularly where the builder has previously failed to repair defects, delayed rectification, denied responsibility, or failed to provide a workable scope of works as discussed at [44].
Conclusion
Although it would appear from the HBA that a homeowner has a positive obligation to inform the builder of the defects that require rectification within 6 months of those defects becoming apparent, and must allow that builder to return to the property and have access to rectify those defects, recent case law has clarified that the obligation to grant access is not absolute. If the homeowner refuses to allow the builder access to the property to rectify the defects, the builder may have a defence on grounds of the homeowner breaching his or her duty to mitigate loss if that builder can prove that the homeowner acted unreasonably. If the builder can establish that there was an unreasonable refusal to access the property, then NCAT can take that into consideration at the time of making a final decision and may find a builder is not liable to the owner, or instead, make an order for the builder to rectify the defects, as opposed to a money order.
At Leo Lawyers, we understand that disputes concerning defective building work, rectification rights, and access to a homeowner’s property can have serious consequences for builders and homeowners alike and may require swift legal action.
Whether you are a homeowner considering whether to refuse a builder access to rectify alleged defects, or a builder seeking to enforce a reasonable opportunity to carry out rectification works, obtaining legal advice at an early stage can significantly affect the outcome of a dispute. Feel free to contact Damin Murdock at Leo Lawyers via our website, on (02) 8201 0051 or at office@leolawyers.com.au. Further, if you liked this article, please subscribe to our newsletter via our Website, and subscribe to our YouTube, LinkedIn, Facebook and Instagram. If you liked this article or video, please also give us a favorable Google review.
DISCLAIMER: This is not legal advice and is general information only. You should not rely upon the information contained in this article and if you require specific legal advice, please contact us.
Damin Murdock (J.D | LL.M | BACS - Finance) has over 17 years of experience as a commercial lawyer. He helps businesses navigate construction and technology law. Damin has held several big leadership roles, including serving as a director of a national law firm and the Chief Legal Officer for Lawpath.
He has personally helped more than 2,000 startups and small businesses. With over 300 five-star reviews, his clients clearly value his practical advice and simple way of explaining things. Damin has also hosted over 100 webinars that thousands of people have watched to get reliable legal help.
