If you’re dealing with a building dispute, don’t wait for the building commission to act. Seeking early legal advice from a qualified lawyer can make the difference between ensuring that your rights are protected and missing out altogether, writes Commercial Litigation Special Counsel Melany Dowse.
A recent ABC News investigation has raised serious questions about the enforcement approach of the Building Commission in New South Wales. Despite issuing 208 building work rectification orders under the Residential Apartment Buildings Act, 60 per cent remain unfulfilled, and not a single developer has been penalised for ignoring them.
This delay in enforcement has undoubtedly left many property owners facing mounting repair costs and potential safety risks while waiting for regulatory action that may never materialise.
One of the most common misconceptions we encounter is the belief that owners must wait for the Building Commission NSW (the NSW commission) or the Queensland Building and Construction Commission (QBCC), depending on the state in which the dispute is located, to finalise their investigation before pursuing legal action.
This is not the case. In fact, waiting puts the property owners at risk of missing strict statutory deadlines for commencing legal proceedings. By the time the regulator has completed its review or chosen not to act, the opportunity to commence a claim for damages in the tribunal or court system may have disappeared.
The ABC report focused on the story of Thomas Luxton, who launched his own legal action against the developer of his apartment building in Sydney, after growing frustrated with the NSW commission for not commencing proceedings. Luxton’s dispute was over unresolved fire safety defects, and he described the regulator’s defect order as “about as useful as a sunroof on a submarine.”
Unfortunately, this scenario plays out all too often. Clients come to us after waiting far too long for the commission to act, such as by issuing a rectification order or prosecuting if that order isn’t complied with.
Even if rectification orders are eventually issued, the process often takes months or years – and by then, the statute of limitations may have expired.
The NSW commission is reportedly taking a collaborative rather than punitive approach, preferring to work with builders and developers rather than pursuing prosecution. Sources told the ABC that there is a “lack of appetite for legal action within management” at the NSW commission. Indeed, the regulatory body only prosecuted its first case in June 2025 – nearly five years after it was granted the powers to do so – and has secured no court-imposed fines to date.
While this ABC investigation focused on NSW, similar enforcement challenges exist across Australia. Property owners should also be aware of the limitations of waiting on regulators such as the QBCC.
Each jurisdiction has its own set of homeowner protections – but all of them operate within strict timeframes.
The need to act quickly: deadlines matter
Regulatory path
There are safety nets for homeowners who are facing incomplete or defective building work carried out by a builder or tradesperson.
QBCC’s Home Warranty Insurance Scheme protects homeowners in Queensland, offering payouts of up to $200,000 if something goes wrong during the building process, including because of contract termination or builder insolvency. It covers both non-completion claims and defective works claims.
New South Wales has the Home Building Compensation Fund, managed by iCare. The Home Building Compensation Fund limits the amount recoverable to 20% of the contract price (including variations) in relation to non-completion of work, with a total of $340,000 for all loss and damage covered by the Home Building Compensation Fund.
To be eligible to make a claim under the Home Building Compensation Fund, home owners in New South Wales must notify the insurer within six months after the loss becomes apparent.
In Queensland, a structural defect must be reported within three months of first noticing the problem. For a non-structural defect, you have seven months to report it.
If these deadlines are missed, the scheme may be unable to help you.
Court action
Regulatory processes can offer a resolution, but they are not your only option, and they should never delay you from seeking legal advice.
In addition to insurance claims, filing a claim for damages for breach of statutory warranties may be another avenue for compensation.
However, property owners also need to be aware of statutory limitations for the commencement of legal proceedings for breaches of statutory warranties. These are:
In New South Wales:
- Two years for minor defects, and
- Six years for major defects.
In Queensland:
- One year for minor defects, and
- Six years for major defects.
The clock starts ticking as soon as a defect becomes apparent – not when the Commission completes its investigation or when an order is issued.
To make sure that the time limitation periods are not missed, speak with a solicitor at the earliest opportunity.
We have heard of several cases where a regulator has told a client that they cannot commence legal proceedings until the regulator has completed its investigation into the dispute. But that is wrong.
An independent lawyer experienced in property and building matters will assess your situation, advise you of your options and help ensure your claim is brought within the necessary timeframes.
Attwood Marshall Lawyers – experts in the building and construction sector
Don’t let a dispute with a builder or the regulatory authority ruin your dream home.
With a team of specialist construction litigation lawyers and a strong understanding of the legal options available to its clients, Attwood Marshall Lawyers is well-versed in helping homeowners resolve disputes that arise throughout and after construction.
Don’t go it alone. Have a consultation with one of our experienced construction law specialists, who will be able to assess your situation and help you navigate these complex disputes, so you’re in the best position to protect your rights.
If you are involved in a building and construction dispute, please get in touch with our Commercial Litigation Department Manager Georgia Trapp, on (07) 5506 8257, email gtrapp@attwoodmarshall.com.au, or free call 1800 621 071.
