How long do you have to bring a DBP Act duty of care claim in NSW?

Generally six years from accrual under s 14 of the Limitation Act 1969, but the accrual date for s 37 claims is unsettled. Separately, ss 6.19 and 6.20 of the Environmental Planning and Assessment Act 1979 bar a civil action, including a counter-claim, for loss or damage arising out of defective building work more than 10 years after completion, and after Fortius [2026] NSWSC 710 that long-stop also bars contribution claims against parties alleged to be responsible for the relevant defective building work. A three-year limit under s 48K(3) of the Home Building Act can apply in NCAT.

The Statutory Duty of Care under the Design and Building Practitioners Act 2020 (NSW) after Pafburn [2024] HCA 49

Q: What is the statutory duty of care under the Design and Building Practitioners Act, and who owes it?

Section 37 of the Design and Building Practitioners Act 2020 (NSW) requires anyone who carries out construction work to exercise reasonable care to avoid economic loss caused by defects in or related to a building for which the work is done. It is owed to each owner and each subsequent owner, and s 38 extends it to owners corporations. Builders, developers, designers, individual directors and supervisors with substantive control can all owe it. Section 39 prevents it being delegated and s 40 prevents it being contracted out of.

Q: Can NCAT hear a claim under section 37 of the Design and Building Practitioners Act?

Yes, within limits. In Binah [2021] NSWCATAP 68 the Appeal Panel considered that a s 37 claim was arguably a building claim; in Deaves [2023] NSWCATAP 94 it held that a s 37 claim is a building claim. The $500,000 cap and the three-year limit in s 48K(3) of the Home Building Act 1989 apply. Multi-party claims generally belong in the Supreme Court.

Q: Does the Building (Approvals and Practitioners) Act 2026 replace the DBP Act duty of care?

It will re-enact it in substantially the same terms in Part 8 rather than abolish it. Apart from specified items that commenced on assent on 14 August 2026, the Act commences by proclamation. Until Part 8 commences, Part 4 of the DBPA remains the operative law. Confirm the commencement status before relying on either Act.

John Merlo

4 minutes ago

54 min read

Key Takeaways

Section 37 of the Design and Building Practitioners Act 2020 (NSW) (DBPA) reaches beyond the contract. It imposes a statutory duty of care on anyone who carries out construction work. That includes supervisors, project managers, directors and designers who had substantive control, whether or not they had a contract with the owner. Section 40 of the DBPA prevents anyone contracting out of it.
Pafburn moved the insolvency risk. In Pafburn Pty Limited v The Owners – Strata Plan No 84674 [2024] HCA 49, a 4:3 majority held that a developer and head contractor sued under s 37 of the DBPA cannot use Part 4 of the Civil Liability Act 2002 (NSW) (CLA) to apportion liability to those they entrusted with the work. Their remedy is a cross-claim, and the risk that the cross-defendant is insolvent now sits with them.
A defect is not, of itself, a pleaded breach. Under Loulach, the claimant must identify, defect by defect, the risk the defendant had to manage and the precaution it should have taken. A schedule that merely identifies non-compliances or defects will not, without more, sufficiently plead a DBPA s 37 case.
The 10-year long-stop bars contribution claims, not just the owner's claim, against parties alleged to be responsible for the relevant defective building work. Section 6.19 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) defines "civil action" to include a counter-claim. The 10-year long-stop in EP&A Act s 6.20 applies to contribution claims under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (LRMPA) (Fortius Broadway No 1 Pty Ltd v ACN 103 211 141 Pty Ltd [2026] NSWSC 710). Cross-claims therefore have to be filed on the claimant's timetable, not the defendant's. Within that outer limit, contribution claims remain subject to s 26 of the Limitation Act 1969 (NSW).

Introduction

After Pafburn, the party that pays for a defect under s 37 of the DBPA is often not the party that built it. Who pays is decided by five choices made well before trial: whether you are a duty-holder, whether you can still apportion, whether the claimant has proved breach rather than defect, whether your cross-claims beat the clock, and which forum hears the claim.

Consider a typical file. An owners corporation sues the developer and the head contractor of a Class 2 building for waterproofing failures under the statutory duty of care in the DBPA. The waterproofer is in liquidation. Relying on Pafburn, the claimant strikes out the defendants' proportionate liability defence. What is left is a cross-claim against a company that cannot pay, and a second one against a certifier whose limitation defence gets stronger every month. That pattern reaches every tier of the supply chain: developers and builders, their directors and nominated supervisors, site supervisors and project managers, designers and engineers, certifiers, product suppliers, and the insurers who price all of them.

The area is harder than it looks because the duty sits where several statutes meet, and they were not designed to work together. The DBPA supplies the duty and bars delegation; the CLA governs breach and apportionment; the EP&A Act and the Limitation Act govern time; the LRMPA supplies contribution; and the Home Building Act 1989 (NSW) (HBA) governs NCAT. Each turns on a different fact: control, delegation, completion, supply.

This guide takes those five choices in order. It covers who owes the duty, what Pafburn actually decided, where proportionate liability survives, how breach is proved, how contribution and cross-claims work, which clocks decide the file, which forum can hear it, and what contracts and insurance can still do. It closes with four worked scenarios and a library of failure modes. Who this is for: directors and principals, site supervisors and nominated supervisors, contracts administrators, subcontractor coordinators, design practitioners and certifiers, and owners corporations assessing a claim.

What this guide is not: a treatment of Home Building Act warranties, warranty periods or quantum. Those are covered in our guide to NSW building defects, warranties and claims, which is the broader resource for building defect claims and defective construction works in New South Wales.

Currency note: This guide states the law as at 29 September 2026. The Building (Approvals and Practitioners) Act 2026 (NSW) (2026 Act) was assented to on 14 August 2026. Apart from specified items that commenced on assent, it commences on a day or days to be appointed by proclamation. This guide treats DBPA Part 4 as the law in force. Check the commencement position for Part 8 of the 2026 Act before relying on this guide for any file.

At a Glance: Where Section 37 Sits on Your File

Find your row first. Table A gives your position, the clock that matters most to you and your first move. Table B lists the authorities the rest of the guide relies on and how settled each one is. To see the framework applied before reading the detail, go to the worked scenarios near the end, which cover four common positions: the developer and head contractor facing an insolvent waterproofer, the director named personally, the civil contractor on a subdivision, and the consultant or certifier arguing apportionment.

Table A: Routing by position

Your position	Do you owe the DBPA s 37 duty?	Can you plead apportionment?	Clock you must diarise	First move	Go to section
Developer	Yes, if it supervised, coordinated, project managed or had substantive control (s 36(1)(d) of the DBPA)	Not against those it entrusted with the work (Pafburn)	EP&A Act s 6.20 long-stop, for claim and contribution; Limitation Act s 26 for each contribution claim	Map every party it entrusted and cross-claim early	Who owes the duty, Pafburn, Cross-claims
Head contractor	Yes, for building work it carries out, directly or through others	Not against its subcontractors (Pafburn)	EP&A Act s 6.20 long-stop; Limitation Act s 26; subcontract notice clauses	Check subcontractor solvency and insurance; file protective cross-claims	Pafburn, Cross-claims, Contract and insurance
Director or nominated supervisor	Possibly, personally, where they had substantive control (Kazzi; Boulus)	Depends on what they entrusted; open	Limitation Act s 14 accrual; EP&A Act s 6.20; Limitation Act s 26 if cross-claiming	Collect the records of who directed each element	Who owes the duty, Scenario: director named personally
Trade subcontractor	Yes, for its own scope	Arguably yes, against parties outside its scope; open	EP&A Act s 6.20; Limitation Act s 26; contract notice	Define and evidence the limits of its scope	Proportionate liability, Contract and insurance
Designer or engineer	Yes, for designs for building work (DBPA s 36(1)(b))	Arguably yes, where it did not delegate; open	EP&A Act s 6.20; Limitation Act s 26; PI notification	Notify PI insurer; identify concurrent wrongdoers	Who owes the duty, Proportionate liability, Scenario: consultant or certifier
Certifier	Only if substantive control is shown. Issuing certificates alone is not enough (Multiplex)	Arguably yes; open	EP&A Act s 6.20 (Fortius); Limitation Act s 26	Test the control pleading; watch for late amendments	Who owes the duty, Cross-claims, Scenario: consultant or certifier
Manufacturer or supplier	Yes, for building products used for building work (s 36(1)(c), (4); Building Products (Safety) Act 2017 (NSW) (BPS Act)	Arguably yes; open	EP&A Act s 6.20; Limitation Act s 26	Trace the product's use and specification	Who owes the duty
Owners corporation (claimant)	Owed the duty (DBPA ss 37(2), 38)	Not applicable	Limitation Act s 14; EP&A Act s 6.20; HBA s 48K(3) if in NCAT	Plead risk and precaution for each defect; choose the forum	Proving breach, Limitation, Forum

Table B: Key cases

Case	Citation	Court	Principle	Status
Pafburn Pty Limited v The Owners – Strata Plan No 84674	[2024] HCA 49	High Court	A developer or head contractor sued under DBPA s 37 cannot apportion to those it entrusted with the work; cross-claims are preserved	Settled on the pleaded facts
The Owners – Strata Plan No 84674 v Pafburn	[2023] NSWCA 301	NSWCA	Apportionment defences struck out	Affirmed
The Owners – Strata Plan No 87060 v Loulach Developments (No 2)	[2021] NSWSC 1068	NSWSC	A defect is not, of itself, a pleaded breach; risk and precaution must be pleaded	Settled pleading practice
Goodwin Street Developments v DSD Builders (in liq)	[2022] NSWSC 624	NSWSC	DBPA Pt 4 applied to a boarding house development; individual project manager and supervisor held liable under ss 36 and 37	Affirmed
Roberts v Goodwin Street Developments	[2023] NSWCA 5	NSWCA	Appeal dismissed; findings that DBPA Pt 4 applied to boarding houses and that an individual who supervised and had substantive control over the work was carrying out construction work upheld	Appellate; applied on its facts
Boulus Constructions v Warrumbungle Shire Council (No 2)	[2022] NSWSC 1368	NSWSC	Leave to join a managing director and site supervisor	Leave-stage only
Kazzi v KR Properties Global Pty Ltd t/as AK Properties Group	[2024] NSWCA 143	NSWCA	Sole director and nominated supervisor personally liable based on his own decisions and supervision of defective work	Appellate; applied on its facts
Mangano v Amescorp Pty Ltd	[2024] NSWDC 195	NSWDC	Sole director and nominated supervisor personally liable despite the engagement of an on-site supervisor, based on his own supervisory involvement, site attendance and active control	First instance; no appeal reported as at 24 September 2026
Alta Vale Residential Pty Ltd (in liq) (rec apptd) v STM123 Pty Ltd	[2026] NSWSC 882	NSWSC	Builder's project manager was carrying out construction work under DBPA s 36(1)(d), and owed and breached the s 37 duty	First instance; no appeal reported as at 24 September 2026
University of Sydney v Multiplex Constructions	[2023] NSWSC 383	NSWSC	Issuing certificates alone was insufficient to support a pleading of substantive control; leave to replead was allowed	Pleading-stage
The Owners – Strata Plan No 86807 v Crown Group Constructions (No 2)	[2023] NSWSC 520	NSWSC	Leave to add DBPA s 37 made conditional on evidence of BCA non-compliance	Leave-stage
The Owners – Strata Plan No 92648 v Binah Constructions	[2021] NSWCATAP 68	NCAT Appeal Panel	A DBPA s 37 claim is arguably a "building claim"	Tribunal-level
Deaves v Sigma Group NSW	[2023] NSWCATAP 94	NCAT Appeal Panel	A DBPA s 37 claim is a "building claim"	Tribunal-level
Promina Design & Construction Pty Ltd v Owners of Strata Plan No 97449	[2023] NSWCATAP 252	NCAT Appeal Panel	HBA s 48K(3) does not limit NCAT's jurisdiction over statutory warranty claims, which are governed by the separate warranty-period provisions of s 48K; NCAT may transfer proceedings to a court even where it lacks jurisdiction	Tribunal-level
McLachlan v Edwards Landscapes	[2023] NSWSC 532	NSWSC	HBA s 48L transfer where warranty claims were "front and centre"	Appellate; applied on its facts
Fortius Broadway No 1 v ACN 103 211 141	[2026] NSWSC 710	NSWSC	EP&A Act s 6.20 (read with s 6.19) bars contribution claims against parties alleged to be responsible for the relevant defective building work; s 6.20(4) prevents Limitation Act machinery, including s 74, from outflanking the long-stop	First instance; no appeal reported as at 24 September 2026

The Statutory Duty of Care under the Design and Building Practitioners Act: What Section 37 Imposes

The duty is short, but three things around it make it hard to escape: a broad definition of the work it covers, a rule against delegation and a rule against contracting out.

The statutory duty of care is in Part 4 of the DBPA. It is the reason a party with no contract with the owner can still be sued by the owner. It is also why the owner's usual problem, finding a defendant in privity who is still solvent, has become the defendant's problem.

Sections 36 to 41: What Each Provision Does

Six sections of the DBPA do the work. Section 36 defines the work the duty covers, and ss 37 to 41 each close a different escape route. The table summarises them; the detail follows.

Section	What it does	Escape route it closes
s 36	Defines construction work in four limbs: building work, design, building products and substantive control	Arguing that a non-contracting designer, supplier, developer or supervisor did no construction work
s 37	Imposes a duty of reasonable care to avoid economic loss caused by defects, owed to each owner and subsequent owner	Lack of privity with the owner
s 38	Extends the duty to owners corporations and associations that bear rectification costs, including alternative accommodation	Arguing that a strata or community body paying for rectification is not an owner
s 39	Makes the duty non-delegable	Discharging the duty by engaging a competent subcontractor
s 40	Overrides contracts that would annul, vary or exclude Part 4	Relying on exclusion clauses against the owner
s 41	Makes Part 4 cumulative and subject to the Civil Liability Act	Arguing that s 37 displaces warranties or common law claims

Section 36 of the DBPA defines construction work in four limbs: (a) building work; (b) the preparation of regulated designs and other designs for building work; (c) the manufacture or supply of a building product used for building work; and (d) supervising, coordinating, project managing or otherwise having substantive control over the carrying out of any of that work. For Part 4, "building work" includes residential building work within the meaning of the Home Building Act (s 36(1)), and "building" has the same meaning as in the EP&A Act. "Regulated design" takes its meaning from DBPA s 5. Section 36(4) of the DBPA provides that a reference to a person who carries out construction work includes a manufacturer or a supplier (within the meaning of the BPS Act) of a building product used for building work. "Owner" and owners corporation are defined by reference to the Strata Schemes Management Act 2015 (NSW) (SSM Act); "association" is defined by reference to the Community Land Management Act 2021 (NSW) (CLM Act) (DBPA s 36(1) and (3)).

Section 37(1) provides that "a person who carries out construction work has a duty to exercise reasonable care to avoid economic loss caused by defects (a) in or related to a building for which the work is done, and (b) arising from the construction work". Section 37(2) says the duty is owed "to each owner of the land and to each subsequent owner". Section 37(3) makes the duty enforceable "as if the duty were a duty established by the common law".

Section 38 brings in owners corporations (SSM Act) and associations (CLM Act) where they bear "the cost of rectifying defects", and that loss includes "the reasonable costs of providing alternative accommodation where necessary".

Section 39 provides that a person who owes the duty "is not entitled to delegate that duty". Pafburn gave that sentence its commercial force (see the discussion of Pafburn below).

Section 40 of the DBPA provides that the Part applies despite any contract to the contrary made after the commencement of the Part, and that no contract or agreement made, entered into or amended after that commencement operates to annul, vary or exclude a provision of the Part. For construction work caught by the retrospective application in DBPA Sch 1 cl 5, cl 5(4) extends s 40 to a contract, agreement or stipulation relating to that work whenever made.

Section 41(1) of the DBPA makes the Part cumulative: its provisions "are in addition to duties, statutory warranties or other obligations imposed under the Home Building Act 1989, other Acts or the common law and do not limit" them. Section 41(3) of the DBPA makes the Part subject to the CLA. That is how CLA s 5B (breach), ss 5R and 5S (contributory negligence), s 5D (causation), s 5Q (non-delegable duties) and Part 4 (including ss 34, 35 and 39) all come into play. The note to DBPA s 41 also flags the Limitation Act 1969 and EP&A Act s 6.20.

Defect versus Damage: Why Non-Conformance Is Not Loss

The duty is framed around economic loss "caused by defects". That wording matters because the defect is the non-conforming work, while the loss is its financial consequence: the cost of rectification works, resulting damage and, for owners corporations, alternative accommodation. A claim that shows only non-conformance has not yet shown loss. A claim that shows resulting damage without connecting it back to a defect in the work has not shown causation. Coverage disputes turn on the same distinction, because liability wordings often respond differently to the cost of fixing defective work and to damage that the defect causes elsewhere. The claimant has to prove both limbs.

Which Buildings, Which Work, and How Far Back

The duty is broader than its origins suggest. It was born of the Class 2 defects crisis, but Part 4 is not confined to the classes prescribed for "building work" elsewhere in the DBPA.

Two definitional tracks must be kept apart. Under s 4 of the DBPA, read with clause 12 of the Design and Building Practitioners Regulation 2021 (NSW), "building work" for the practitioner-registration scheme is prescribed by reference to class 2 buildings, class 3 buildings other than specified temporary accommodation facilities, and class 9c buildings, including mixed-use buildings containing a relevant part. Clause 13 of the Regulation separately excludes specified categories of work from being building work. Part 4 of the DBPA uses a different set of definitions in s 36. For Part 4, "building" has the same meaning as in the EP&A Act, "building work" includes residential building work within the meaning of the Home Building Act, and "construction work" extends to design, building products and substantive control under s 36(1)(a)–(d). In Goodwin Street Developments Pty Ltd as trustee for Jesmond Unit Trust v DSD Builders Pty Ltd (in liq) [2022] NSWSC 624, the Supreme Court held that Part 4 applied to the construction of boarding houses and was not confined to residential building work as defined in the Home Building Act. The decision has subsequently been cited as supporting the proposition that the statutory duty is not confined to Class 2 apartment buildings. The Court also found, on the facts, that an individual who attended site meetings, project managed and supervised the builder's work was carrying out construction work, and owed and breached the duty. The Court of Appeal dismissed his appeal in Roberts v Goodwin Street Developments Pty Ltd [2023] NSWCA 5. In Goodwin Street itself, the relevant development comprised three boarding houses intended for student accommodation. The practical result is that DBPA s 37 needs to be considered by reference to s 36 and the EP&A Act concept of "building", not solely by reference to the class 2/3/9c prescription in Regulation clause 12. Where civil works feed into a building, the interface still needs a DBPA s 36 analysis; it should not be assumed either way. Our earlier analysis of civil works that interface with a Class 2 building shows how that interface can also attract Building Commission NSW enforcement.

The duty also reaches back. Schedule 1 clause 5 of the DBPA applies Part 4 to economic loss where the loss first became apparent within the 10 years immediately before the commencement of section 37, or where it first becomes apparent after commencement (Sch 1 cl 5(1)–(2)). Part 4 commenced on 11 June 2020, so the retrospective limb reaches loss that first became apparent from 11 June 2010. Loss becomes apparent when an owner first becomes aware, or ought reasonably to have become aware, of it (Sch 1 cl 5(5)). The extended duty applies whether or not common law proceedings had been commenced before s 37 commenced, and may be taken into account in those proceedings unless the court considers that it would not be in the interests of justice to do so (Sch 1 cl 5(3)). DBPA Sch 1 cl 5(4) extends s 40 to a contract, agreement or stipulation relating to that construction work whenever made, so contracting-out is ineffective on retrospective files even where the contract pre-dates Part 4. A defendant cannot assume a project is safe because the work predates 2020.

Currency Flag: Part 8 of the Building (Approvals and Practitioners) Act 2026

The only question this section answers is whether the duty survives. It does.

As at 24 September 2026, the 2026 Act has been assented to, and apart from specified items in its Schedule 3 it commences by proclamation (s 2). Part 8 re-enacts the duty of care in substantially the same terms: definitions (s 177), carrying out construction work including manufacturers and suppliers (s 178), the duty (s 179), owners corporations and community land associations (s 180), non-delegation (s 181), no contracting out (s 182), relationship with other law and the Civil Liability Act (s 183), and regulation-making for prefabricated buildings and split ownership (s 184).

The principal structural changes are:

construction work is defined in s 177 without hinging on the DBPA s 4 / Regulation clause 12 "building work" prescription;
s 178 expressly treats manufacturers and suppliers as carrying out construction work where the product is used in the building (within the meaning of the BPS Act);
s 184 allows regulations to govern how the duty applies to prefabricated buildings and to cases where the owner of the building differs from the owner of the land.

Section 183(3) of the 2026 Act makes Part 8 subject to s 192 and the CLA. Section 192 imposes a 10-year long-stop on a civil action, including a counterclaim, for loss or damage arising out of or in connection with defective building work. The 2026 Act spells the word "counterclaim", while the EP&A Act uses "counter-claim"; this guide follows each statute's spelling. The completion triggers in s 192(2) (completion approval; required inspection; otherwise first occupation or use) are not worded identically to EP&A Act s 6.20(2) and should be checked on their own terms once Part 8 is in force. Section 202 repeals the DBPA and the Regulation once the relevant provisions commence. Until Part 8 commences, DBPA Part 4 governs. The wider changes made by the 2026 Act are outside the scope of this guide.

Who Owes the Duty of Care: Contractors, Developers, Designers and Individuals

Most defence analysis goes wrong at this point, because it assumes the duty follows the contract. It follows the work.

This part of the guide matters most to directors, site supervisors, nominated supervisors, licensed contractors, designers and certifiers who are, or may become, named respondents.

The central question under s 37 of the DBPA is simple to state: did this person carry out construction work within one of the four limbs of s 36? The duty of care a contractor owes attaches to the work actually performed or controlled, not to the party that signed the head contract. That is why the same project can produce six or more duty-holders, and why the corporate structure offers less protection than people expect.

Builders, Head Contractors and Developers with Substantive Control

The builder is the obvious duty-holder. The developer is the one that gets missed.

A head contractor that carries out building work, itself or through subcontractors, falls within DBPA s 36(1)(a). Pafburn confirms that its duty extends to the whole of the work it undertook, including work it subcontracted. A developer usually falls within limb (d) instead. In Pafburn, the owners corporation alleged that the developer supervised, coordinated, project managed and had substantive control over the building work carried out by the builder. That allegation was how the developer came within the duty.

"Substantive control" is not defined. It is proved from documents, and the indicia that matter tend to be found in the project records rather than in organisation charts:

who directed the trades on the element in question;
who held the power to stop work or vary it;
who chaired site meetings and who issued the minutes;
who approved the substitution of a product or method;
who gave instructions on the specific defective element.

One argument is that substantive control may require only that control be held, not that it be exercised. In our view that proposition is not settled, and it should not be relied on. The outer boundary of limb (d) remains open after Pafburn (see the discussion of what Pafburn left open, below). Alta Vale Residential Pty Ltd (in liq) (rec apptd) v STM123 Pty Ltd [2026] NSWSC 882 raised whether a builder's project manager owed the duty. The Court has been reported as finding that the individual, who was project managing the builder's work, was carrying out construction work under s 36(1)(d), owed the s 37 duty to the owner and breached it. The decision is a first instance judgment and, as at 24 September 2026, no appeal has been reported. The breach finding was based on the individual's supervision and project management of the works, including failures to implement appropriate support or shoring measures, respond adequately to warnings concerning subsidence risk and cease or investigate the works despite signs of structural deterioration at the neighbouring property.

Directors, Nominated Supervisors and Site Supervisors

The corporate veil is not a defence to DBPA s 37. The only question is what the individual actually did.

In Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 2) [2022] NSWSC 1368, a council cross-claimant sought leave to join the builder's managing director and its project site supervisor. Stevenson J granted leave. As reported, his Honour held that "person" in DBPA s 37 includes natural persons, that registration under the Design and Building Practitioners Act is not a precondition to owing the duty, and that the argument that personal liability was inconsistent with the Corporations Act 2001 (Cth) should be rejected. Boulus was an interlocutory leave decision. It did not finally find that either individual owed or breached the duty.

Kazzi v KR Properties Global Pty Ltd t/as AK Properties Group [2024] NSWCA 143 went further. The Court of Appeal held the builder's sole director, who was also its nominated supervisor, personally liable under s 37. The Court's conclusion rested on his own decisions and conduct in supervising the works, including admissions made in cross-examination concerning aspects of the defective work.

The Court identified specific decisions:

failing to undertake necessary check surveys or cause them to be performed;
causing the foyer and façade to be built in a way that departed significantly from the approved plans;
his involvement in the decision to install non-compliant door jambs in favour of a performance solution;
non-compliances with fire-resistance requirements, including the installation of non-fire-rated external cladding without the required fire protection beneath it.

Liability followed from his own decisions, acts and omissions in supervising the work, not merely from his title as director or nominated supervisor. In Mangano v Amescorp Pty Ltd [2024] NSWDC 195, a District Court judge held a sole director and nominated supervisor personally liable under s 37 notwithstanding the engagement of an on-site supervisor. The finding was based on the director's own supervisory involvement, regular site attendance and active control of the works, rather than his title alone. The decision is a reported first-instance authority and, as at 24 September 2026, no appeal has been reported.

The same principles reach the residential end of the market. Because building work for Part 4 includes Home Building Act residential building work, s 37 is not confined to apartment buildings. The sole director who is also the nominated supervisor and runs the site personally is the profile in both Kazzi and Mangano, and liquidation of the company does not end that director's exposure. Engaging an on-site supervisor did not assist the director in Mangano, because he remained actively in control. For a small builder, the practical protections are to record who actually makes each decision on site, to check whether any policy responds to claims against the director personally and, if a claim is brought in NCAT, to check the three-year limit under s 48K(3) of the Home Building Act from the date of last supply, because a claim lodged outside it is beyond jurisdiction.

For site supervisors, Goodwin Street and Roberts are the warning: an individual who attended site meetings, project managed and supervised the builder's work was held personally liable after the Court found that, on the facts, those activities constituted construction work under s 36(1)(d).

The records that decide personal exposure are the same as those that prove substantive control, which is why the list of failure modes near the end of this guide includes failing to keep them.

Practice note: records to keep from day one.

For supervisors, project managers and directors, these documents later decide whether you had substantive control of a defective element, and on whose instruction it was built:

site meeting minutes that name the person who gave each direction, rather than a company or a role;
written instructions, requests for information and responses on defect-critical elements such as waterproofing, façade and fire;
product submittals and substitution approvals, including who approved them and on whose advice;
hold-point and inspection records, for example membrane inspections before tiling and fire-stopping inspections before linings are closed up;
delegations showing who could stop or vary work on each element;
emails approving any departure from the approved plans or any performance solution;
subcontract scopes, variations, insurance certificates and noted-interest confirmations.

Keep them for at least 10 years after the completion date fixed under EP&A Act s 6.20(2), because that is the period within which a claim or contribution cross-claim can be brought, and until any claim on foot is resolved.

Designers and Engineers: Professional Liability and Professional Negligence

For design practitioners, the duty turns what used to be a contractual exposure into a statutory one owed to strangers.

Section 36(1)(b) of the DBPA makes "the preparation of regulated designs and other designs for building work" construction work in its own right. "Regulated design" is defined in s 5. An architect, engineer or building designer therefore owes the s 37 duty directly to each owner and subsequent owner, alongside any contractual duty to the client and any common law duty of care.

Three consequences follow for professional liability.

The lack of a written appointment does not remove the duty. Designers already exposed on fees for design practitioners working without a written contract are equally exposed on defects.
Professional negligence claims and s 37 claims will usually be pleaded together, and the breach test under CLA s 5B applies to both.
DBPA s 40 prevents a design appointment from excluding Part 4, so limitation-of-liability clauses operate, if at all, only between the contracting parties.

A designer facing a s 37 letter of demand, or a cross-claim from a builder that has lost its apportionment defence, has two deadlines running at once: the PI notification window and the contribution clocks. Our work on design professional disputes is built around managing both.

Certifiers, Manufacturers and Suppliers

For these parties, the question is whether a statutory function or a supply relationship amounts to construction work.

Certifiers. In The University of Sydney v Multiplex Constructions Pty Ltd [2023] NSWSC 383, Stevenson J held, at the pleading stage, that the certifier's issuing of compliance reports and certificates was insufficient, without more, to support an allegation that it had substantive control over construction work, and gave the plaintiff an opportunity to reformulate its pleading. A certifier therefore comes within limb (d) only if something more is pleaded and proved: direction, approval of methods, or a role in how the work was actually done. The decision did not finally determine whether McKenzie Group owed a duty under s 37. Rather, it held that the facts then pleaded were insufficient to support the allegation of substantive control and permitted the pleading to be reformulated. Fortius (discussed below under cross-claims) shows the other side of this. A late attempt to add a s 37 claim against a certifier can fail on prejudice even where the substantive argument is available.

Manufacturers and suppliers. DBPA s 36(1)(c) covers the manufacture or supply of a building product used for building work. Section 36(4) confirms that a reference to a person who carries out construction work includes a manufacturer, or a supplier within the meaning of the Building Products (Safety) Act 2017 (NSW), of a building product used for building work. "Building product" has the same meaning as in that Act (s 36(1)). The trigger is the product being used, so a supplier's exposure depends on tracing its product into the defective element. For manufacturers and suppliers, s 37 sits alongside any product liability exposure under the Australian Consumer Law (ACL), and the two should be assessed together. Part 8 of the 2026 Act, once commenced, restates the mechanism expressly in s 178 (see the discussion of Part 8 of the 2026 Act, above). Until then, s 36(1)(c) and (4) govern.

Pafburn [2024] HCA 49: What the High Court Decided

Pafburn is widely summarised and less often read. The case was decided on the pleaded facts: a developer alleged to have supervised, coordinated, project managed and had substantive control over the work, and a head contractor that carried out the work and entrusted parts of it to others. Its holding should be read in that context. The Court did not determine the position of parties who did not entrust construction work to others.

The Question and the Path through the Courts

The question was narrow, but the answer changed how every multi-party defects case is run.

The owners corporation sued Pafburn Pty Limited (the builder) and Madarina Pty Limited (the developer) under Part 4 of the DBPA for defects in the common property. The defendants pleaded proportionate liability defences under Part 4 of the CLA. As reported, the alleged concurrent wrongdoers included the waterproofing subcontractors, the manufacturer of the aluminium composite panels and others in that supply chain, the architect, the principal certifying authority and the local council.

The primary judge dismissed the Owners Corporation's strike-out application and held that the apportionment defences could be pleaded. The Court of Appeal (Ward P, Adamson JA and Basten AJA) allowed the appeal in [2023] NSWCA 301, set aside the primary decision and struck out the pleaded apportionment defences. The High Court dismissed the appeal 4:3 on 11 December 2024.

The Majority: DBPA s 39 and CLA ss 5Q and 39(a)

The majority (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) reasoned in three connected steps.

First, s 39 of the DBPA makes the s 37 duty non-delegable. A duty-holder cannot discharge the duty merely by exercising reasonable care in arranging for another person to perform work within the scope of the duty. The duty-holder must ensure that reasonable care is taken by those it entrusts with the work.

Second, s 5Q of the CLA provides that liability for breach of a non-delegable duty to ensure reasonable care is taken by a person entrusted with a task is to be determined as if it were vicarious liability for that person's negligence. Because the builder and developer were responsible for constructing the building as a whole, their liability for their subcontractors' carelessness is treated as vicarious.

Third, s 39(a) of the CLA provides that Part 4 does not prevent a person from being held vicariously liable for a proportion of an apportionable claim for which another person is liable. An apportionable claim is defined in s 34(1); a concurrent wrongdoer is defined in s 34(2); and s 35 is the provision that would otherwise limit judgment to each defendant's just proportion. Taken together, DBPA s 39 and CLA ss 5Q and 39(a) meant the developer and head contractor could not use Part 4 of the CLA to apportion liability to the parties they had entrusted with the work.

The majority expressly left the defendants' cross-claims for contribution intact. The appeal was dismissed.

Practice note: The majority did not say that a builder is liable for everything. It said a builder is liable for the work it undertook, including work it delegated. That is a head contractor's liability for subcontractor work quality in its plainest form. Pleadings and contracts that define exactly what a party undertook now carry more weight than any apportionment defence could.

The Dissent, and What Pafburn Left Open

The dissent matters because the questions it raised have not gone away.

Gordon, Edelman and Steward JJ would have allowed proportionate liability. As reported, they read "carries out construction work" as limited to work the defendant or its agent actually performed, and read s 39 more narrowly: as preventing a person escaping liability by assigning part of its own work, not as creating a common law-style non-delegable duty. They described as "an odd result" the proposition that a head contractor or builder that agreed to procure specialised plumbing, concreting, electrical or woodworking work would be liable for the careless work of the specialist it engaged.

The majority left two questions open, and neither was determined in Pafburn:

The outer boundary of "carries out construction work". The Court did not fix where supervision or coordination ends and substantive control begins (see the discussion of builders, head contractors and developers, above).
Parties who did not delegate. The majority's reasoning depends on entrustment. A consultant, certifier or trade that performed its own scope without entrusting it to anyone else was not before the Court. Whether such a party can still plead Part 4 is undecided (see the upstream and downstream table below).

Proportionate Liability in New South Wales Construction after Pafburn

Proportionate liability still exists in DBPA s 37 claims. It now depends on the defendant's position in the chain. The practical difference is significant. Under Part 4 of the CLA, a defendant pays only its share and the claimant carries the risk that another wrongdoer cannot pay. Under CLA s 5Q and Pafburn, the defendant pays everything and carries that risk itself.

For owners corporations, Pafburn works the other way. A claimant that sues the developer with substantive control and the head contractor under s 37 is no longer exposed to a reduced judgment because a waterproofer or other trade has been deregistered. Three choices follow. First, name the upstream parties whose control can be pleaded from the documents, and consider joining individuals whose own conduct brings them within the duty (see the discussion of directors above). Second, be cautious about suing only downstream parties, such as a designer or certifier, whose ability to apportion remains open. Third, remember that Pafburn removes the apportionment risk, not the burden of proof: the schedule must still plead risk and precaution for each defect under Loulach.

Concurrent Wrongdoers and the Civil Liability Act in NSW Construction Claims

Part 4 of the CLA has three components: an apportionable claim, a concurrent wrongdoer, and limiting judgment to each wrongdoer's share.

Part 4 of the CLA applies to apportionable claims. Under s 34(1), the main category is a claim for economic loss or property damage in an action for damages arising from a failure to take reasonable care. Under s 34(2), a concurrent wrongdoer is a person whose acts or omissions caused, independently of or jointly with the acts or omissions of the defendant, the damage or loss that is the subject of the claim. Section 35 then limits each defendant's liability to the proportion the court considers just, having regard to that defendant's responsibility. Section 35(3)(b) and (4) allow the court to take account of the comparative responsibility of concurrent wrongdoers who are not parties. Section 35A deals with a defendant's duty to inform the plaintiff of other concurrent wrongdoers. Where Part 4 does apply and judgment is given under s 35, s 36 restricts further contribution or indemnity between concurrent wrongdoers in respect of the apportioned liability.

Three provisions limit Part 4 in construction claims:

s 34(3A) removes claims for breach of the statutory warranties under the Home Building Act from Part 4, so warranty claims are not apportionable;
s 5Q treats liability for a non-delegable duty as vicarious;
s 39(a) keeps vicarious liability outside the apportionment that Part 4 would otherwise produce.

On Pafburn's reasoning, a concurrent wrongdoer defence on a s 37 claim remains available only where these carve-outs do not apply.

Mixed pleadings complicate things. A claimant who pleads DBPA s 37, common law negligence and ACL counts together may face apportionment defences on the non-s 37 counts. Whether that happens depends on how each count is framed and whether s 5Q also reaches the common law duty on the facts. Treat this as arguable, not settled.

Upstream versus Downstream: Who Can Still Plead Apportionment

The contrast is between parties that handed work down the chain and parties that performed their own scope. Pafburn decided the first category and left the second open.

Party	Entrusted work to others?	Apportionment on s 37 claim	Basis	Certainty
Developer with substantive control	Yes: head contractor and the chain below it	Not against those it entrusted	Pafburn; s 5Q, s 39(a) CLA	Settled on the pleaded facts
Head contractor	Yes: subcontractors	Not against its subcontractors	Pafburn	Settled
Trade subcontractor that sub-subcontracted	Yes, within its scope	Likely not against its own sub-subcontractors	Pafburn reasoning applied within scope	Arguable; not decided
Trade subcontractor (self-performing)	No	Arguably yes, against parties outside its scope	Majority reasoning depends on entrustment	Open
Designer or engineer	Usually no, unless it sub-consulted	Arguably yes	Not before the Court	Open
Certifier	No	Arguably yes	Not before the Court; Multiplex on control	Open
Manufacturer or supplier	Depends on the supply chain	Arguably yes, if it did not entrust	Not before the Court	Open

Two points arise from the table. First, the word "arguably" is doing real work: until an appellate court decides the downstream question, those parties should plead apportionment and file cross-claims, not choose between them. Second, whether a party delegated is a matter of fact, proved from the same documents that prove substantive control. A consultant that sub-consulted part of its design may have moved itself into the upstream category.

Decision Tree: Can You Plead Apportionment?

Work through these steps for each party you would want to apportion to.

What is the claim against you? If it is an HBA statutory warranty claim, CLA s 34(3A) takes it outside Part 4 and there is nothing to apportion. If a common law negligence or Australian Consumer Law count sits alongside the s 37 count, apportionment on that count may be arguable; treat it as open. For the s 37 count, go to step 2.
Did you entrust any part of the relevant work to someone else? If yes, go to step 3. If no, go to step 4.
Is the party you want to apportion to someone you entrusted with the work, directly or through your chain? If yes, Pafburn bars apportionment against them, and your remedy is a contribution cross-claim under LRMPA s 5. If no, the position is less clear-cut: plead apportionment and cross-claim, rather than choosing between them.
If you entrusted nothing, apportionment is arguably available but undecided. Plead it, and file cross-claims at the same time.
Whatever the answer, diarise the EP&A Act s 6.20 long-stop and Limitation Act s 26 for every cross-claim on the day the file opens.

Proving Breach: From Defect to Failure of Reasonable Care

The DBPA removed one obstacle for claimants and left the others in place. The duty question is resolved by statute. Breach, causation and loss must still be proved in the usual way, and s 37 files are most often won or lost on breach.

That was clear from the second reading speech and was confirmed early in Loulach. Section 41(3) of the DBPA makes that Part subject to the CLA, so CLA s 5B supplies the breach test: a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable to the person, was not insignificant, and in the circumstances a reasonable person in that person's position would have taken those precautions. CLA s 5C sets out other negligence principles. Under s 5E, the plaintiff bears the onus of proving, on the balance of probabilities, facts relevant to causation in negligence proceedings.

Contractor Negligence in New South Wales and the Section 37 Duty

The s 37 duty is modelled on negligence, but it is not the same cause of action.

Contractor negligence in New South Wales at common law requires the claimant to establish a duty of care. For pure economic loss that is a significant obstacle, and it often cannot be overcome for subsequent owners. Section 37 removes that obstacle by statute, and s 37(3) then makes the duty enforceable as if it were a common law duty. Everything after duty therefore works as it does in negligence: breach under CLA s 5B, causation under s 5D, and damage. Section 41(1) preserves the common law claim alongside s 37, so the two are usually pleaded together. The practical difference lies in the defences. A common law negligence count may still support apportionment. A s 37 count against an upstream party does not. The standard also differs from a contractual fitness for purpose obligation. Section 37 requires reasonable care; it does not guarantee a result. A contractor that took every reasonable precaution has not breached s 37 even if the work fails, although it may still be liable under a fitness for purpose term in its contract or under the statutory warranties.

The Standard of Care for a Contractor: Risks and Precautions after Loulach

The standard of care for a contractor is measured risk by risk, not defect by defect.

In The Owners – Strata Plan No 87060 v Loulach Developments Pty Ltd (No 2) [2021] NSWSC 1068, the owners corporation relied on a Scott Schedule identifying 451 alleged defects. The Court held, at the pleading stage, that alleging "a defect exists" does not sufficiently plead a breach of the s 37 duty. The claimant must identify the risk of harm the defendant was required to guard against, and the precautions a reasonable person in the defendant's position would have taken, for each defect. Practitioners now add risk and precaution columns to the defect schedule, so that each item pleads the non-conformance, the risk, the missed precaution and the resulting loss. The sample row below shows the shape of a compliant item. The wider structure of a Scott Schedule is beyond the scope of this guide.

Sample defect schedule row (hypothetical)

Item	Non-conformance	Risk of harm	Precaution a reasonable person in the defendant's position would have taken	Resulting loss	Evidence
14	Balcony membrane to Unit 402 not turned up behind the door sill, contrary to the approved waterproofing specification	Water entering the slab and the unit below through the sill junction	Inspecting membrane upturns at a hold point before tiling, and not permitting tiling until the upturns were confirmed	Cost of rectification works to remove tiles, replace the membrane and reinstate finishes; resulting water damage to the Unit 302 ceiling	Expert report; hold-point and inspection records; tiling subcontractor's sequencing records

The precaution column is where most schedules fail. It must say what the defendant, in its role, should have done, not simply restate the specification.

The same discipline applies when leave is sought to add a s 37 claim. In The Owners – Strata Plan No 86807 v Crown Group Constructions Pty Ltd (No 2) [2023] NSWSC 520, leave to add a DBPA claim was granted on condition that there be evidence the building work did not comply with the Building Code of Australia. The Court considered it unnecessary, at that stage, to decide whether the claim was apportionable. Evidence comes before amendment.

For respondents, Loulach is often the first procedural line of defence. A defect schedule that does not identify the relevant risks and precautions should be challenged at the pleading stage, before it becomes expert evidence.

Expert Evidence, Causation and Contributory Negligence

Once the pleading is right, the file turns on experts. Their reports need to answer questions the defect schedule does not.

Expert evidence on defective construction works needs to do more than identify non-conformance. It needs to address what a reasonable contractor in the defendant's position would have done, when the risk was or should have been apparent, and whether the precaution would have avoided the loss (CLA s 5D causation). For limb (d) defendants, the expert case also has to connect the individual's control to the defective element. That is a factual question the documents answer better than opinion evidence can.

Contributory negligence is the respondent's other lever. Sections 5R and 5S of the CLA supply the standard and the court's power to reduce damages.

It raises two questions:

whether an owner's failure to maintain, or its own intervening work, contributed to the loss (s 5R);
whether contributory negligence reduces damages for pure economic loss under a s 37 claim at all, and if so how s 5S operates on that claim.

The first question is factual. The second is unsettled, and a contributory negligence argument in a s 37 construction claim should be pleaded as arguable, not assumed to be available.

Cross-Claims, Contribution and the Empty Chair

Before Pafburn, an upstream defendant could point to the empty chair. Now it must fill that chair itself, and pay for it if it cannot. Multi-party mediation (see our treatment of alternative dispute resolution in NSW) usually happens only once every cross-claim is on foot. That is another reason to file them early.

Contribution under Section 5 of the LRMPA, and Who Now Carries Insolvency Risk

Contribution is the only route left for an upstream defendant, and it has conditions that apportionment does not.

Section 5(1)(c) of the LRMPA allows a tortfeasor liable for damage to recover contribution from any other tortfeasor who is, or would if sued have been, liable for the same damage. Contribution is not available from a person who is entitled to be indemnified by the party claiming it. Under LRMPA s 5(2), the amount is what the court finds just and equitable having regard to each party's responsibility, and the court may exempt a party from contribution or order a complete indemnity. Procedurally, contribution is pursued by cross-claim under s 22 of the Civil Procedure Act 2005 (NSW) and Part 9 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

Three consequences follow for a developer or head contractor after Pafburn:

It pays the claimant in full, then seeks recovery.
Its recovery is only as good as the cross-defendant's solvency and insurance. A deregistered or insolvent waterproofer is an empty chair the defendant now pays for.
Its contribution claim has its own conditions: same damage, no indemnity bar, and the long-stop.

The loss has not disappeared. It has moved from the claimant to the upstream defendant, which is why supply chain insolvency in construction is now a defence cost as much as a claimant's problem.

For residential claimants, the Home Building Compensation Fund under Part 6 of the Home Building Act may stand behind an insolvent builder. It does not stand behind an insolvent subcontractor for the benefit of the head contractor.

Timing Cross-Claims before the Long-Stop: Fortius Broadway

The first months after a s 37 claim is served often decide what can be recovered from others years later.

In Fortius Broadway No 1 Pty Ltd v ACN 103 211 141 Pty Ltd (formerly known as Watpac Construction (NSW) Pty Ltd) [2026] NSWSC 710, the plaintiff sued 23 defendants over defects in a mixed-use development. Shortly before the 10-year long-stop expired, it applied to the Duty Judge to amend its claim to add a s 37 claim against the certifier.

The basis for that amendment had been discovered eight months earlier, and the delay was not disclosed to the Duty Judge.

Rees J held that:

s 6.20 of the EP&A Act applies to contribution claims under the LRMPA against parties alleged to be responsible for the relevant defective building work;
EP&A Act s 6.19 already defines "civil action" to include a counter-claim, and a contribution claim is for the same loss arising from defective building work;
EP&A Act s 6.20(4) operates "despite any other Act or law" and does not extend limitation periods under the Limitation Act or the Home Building Act, so Limitation Act machinery (including s 74, which deals with the timing of set-off and counterclaim for that Act's purposes) cannot be used to outflank the long-stop;
leave to amend should be refused. The certifier had viable cross-claims that were now time-barred, and the resulting prejudice was "obvious and significant". Her Honour also rejected the suggestion that the certifier could have filed protective cross-claims in the few hours available.

The decision is at first instance. As at 24 September 2026, no appeal from it has been reported.

Warning: Once 10 years have passed from completion, a contribution claim against a party alleged to be responsible for the relevant defective building work cannot be revived under EP&A Act s 6.20. Separately, s 26 of the Limitation Act imposes its own contribution limitation (generally two years from the date the contribution cause of action accrues, or four years from the end of the limitation period for the principal cause of action, whichever is the earlier), and s 14(2)(b) excludes contribution claims from the ordinary s 14 period. A defendant served with a s 37 claim late in the long-stop period may already be unable to recover from anyone else. The only protection is to identify and file cross-claims on the claimant's timetable, tracking both EP&A Act s 6.20 and Limitation Act s 26.

Practice note: After Pafburn, the cross-claim list is the defence. Map every party that performed or controlled each defective element, check their solvency and insurance, and file protective cross-claims under Civil Procedure Act s 22 and UCPR Part 9 while time remains under both EP&A Act s 6.20 and Limitation Act s 26. That mapping should start when the s 37 letter of demand arrives, not when the statement of claim is served, which is why our early dispute advice is built around that window.

Receiving a Cross-Claim: Trades, Consultants and Suppliers

After Pafburn, the upstream defendant's route to recovery runs through the parties below it. For a trade, consultant or supplier, a contribution cross-claim is now where much of the practical exposure in a subcontractor dispute in New South Wales construction lands, and the first weeks decide how much of it sticks.

Five steps matter.

Make the cross-claimant prove your liability. Contribution under s 5(1)(c) of the LRMPA is available only from a party who is, or would if sued have been, liable for the same damage. The cross-claimant therefore has to plead your breach the way the owner must plead its own: risk and precaution, element by element, under Loulach.
Check your indemnity position. Contribution is not available from a person who is entitled to be indemnified by the party claiming it. If your subcontract or consultancy entitles you to an indemnity from the cross-claimant for the relevant work, that may answer the claim.
Work out whether you entrusted any of the work. A trade that sub-subcontracted, or a consultant that sub-consulted, may have moved itself upstream (see the upstream and downstream table above). If you did not entrust the work, plead apportionment as well as defending the cross-claim.
Run your own clocks. The EP&A Act s 6.20 long-stop and Limitation Act s 26 apply to your contribution claims against your own sub-subcontractors, suppliers and consultants, just as they apply to the claim against you. Late in the long-stop period, those claims may need to be filed within weeks of service.
Notify your insurer. A cross-claim will usually need to be notified under your liability or professional indemnity policy. Notify before you respond on the merits.

Limitation Period for Defective Works Claims under Section 37 in New South Wales

Two statutes set the time limits: a six-year period that runs from an uncertain starting point, and a 10-year long-stop that runs from a fixed one. The HBA s 18E warranty clocks do not apply to a DBPA s 37 claim and are covered in our guide to NSW building defects, warranties and claims.

The limitation period for defective works claims under s 37 in New South Wales is governed by the Limitation Act for the ordinary period (s 14) and contribution claims (s 26), and by the EP&A Act for the outer limit (ss 6.19–6.20).

Accrual, Latent Defects in Construction Works and the Unsettled Point

The six-year period is clear. When it starts is not.

Section 14 of the Limitation Act allows six years from the date the cause of action first accrues. Because DBPA s 37(3) makes the duty enforceable as if it were a common law duty, and damage is part of that cause of action, accrual depends on when economic loss is first suffered.

There are at least three arguable dates:

when the defective work is completed;
when the claimant acquires the property;
when the defect becomes known or reasonably discoverable.

Which of these applies to a s 37 claim has not been authoritatively settled.

For latent defects in construction works, the uncertainty is critical. A defect that appears in year seven may be in time on a discoverability analysis and out of time on a completion analysis. The working rule is to work to the earliest date a defendant could argue. Claimants should issue within six years of that date where possible. Defendants should plead the earliest arguable date and test the claimant's evidence of knowledge, including the date of the first adverse expert report.

Section 6.20 of the EP&A Act then imposes a ceiling. A civil action for loss or damage arising out of or in connection with defective building work cannot be brought more than 10 years after completion. "Civil action" includes a counter-claim (s 6.19). "Building work" for this Division is defined broadly in s 6.19 and includes the design or inspection of building work and the issue of an occupation certificate. For building work, s 6.20(2) fixes completion as the date an occupation certificate is issued authorising occupation of the relevant building or part. If an occupation certificate is not required, it is the date a compliance certificate is issued for the completed work. If neither certificate has been issued, the date of a required inspection of the completed work applies; if there was no such inspection, completion is when the relevant building or part was first occupied or used. Section 6.20(4) makes the long-stop effective "despite any other Act or law" and provides that it does not operate to extend any period of limitation under the Limitation Act or the HBA. After Fortius, the ceiling applies to cross-claims for contribution against parties alleged to be responsible for the relevant defective building work as well. Section 6.21 preserves actions for damages for death or personal injury. Contractual practical completion is not the trigger. The date the contract administrator certifies practical completion under the head contract can differ from the s 6.20(2) date, which turns on the applicable occupation certificate, compliance certificate, required inspection or first occupation or use. Diarise the statutory date, and record the contractual date alongside it so that any difference is visible on the file.

The Clocks that Decide a Section 37 File

Five clocks can apply to a s 37 file, and they have different triggers. The table also includes retrospective reach, which is not a clock but a threshold rule: it decides whether the duty applies at all.

Clock	Length	Trigger	Source	Applies to	Settled?
Accrual period	6 years	Accrual of the cause of action	Limitation Act s 14 (s 14(2)(b) excludes contribution)	Principal claim	Length settled; trigger unsettled
Contribution under LRMPA s 5	2 years from contribution accrual, or 4 years from end of principal limitation, whichever is earlier	Accrual of the contribution cause of action / end of principal limitation	Limitation Act s 26	Contribution and indemnity claims	Length settled; still subject to EP&A Act s 6.20 outer limit
Long-stop	10 years	Completion of the building work (EP&A Act s 6.20(2)); “civil action” includes counter-claim (s 6.19)	EP&A Act ss 6.19–6.20	Claim and contribution claims against parties alleged to be responsible for the relevant defective building work (Fortius)	Settled at first instance
NCAT jurisdictional limit	3 years	Date of supply of the building goods or services (last instalment)	HBA s 48K(3)	s 37 claims brought in NCAT	Settled on the statutory text
Retrospective reach (threshold rule, not a time limit)	Loss first apparent within 10 years before commencement	Commencement of Part 4	DBPA Sch 1 cl 5	Whether the duty applies at all	Existence settled
Contractual notice under the cross-claim subcontract	As set by the relevant subcontract	As set by the relevant subcontract	The subcontract	Contractual indemnity and cross-claims	Contract-specific

Diarise the long-stop date on the day the file opens. It is the only clock with a fixed trigger, and after Fortius it is the outer limit that matters for both the principal claim and contribution claims against parties alleged to be responsible for the relevant defective building work. Inside that outer limit, diarise Limitation Act s 26 for every contribution claim.

Worked Example: How the Clocks Interact

The dates below are hypothetical. They show how the clocks combine on a single file, and why the long-stop, rather than the claimant's timetable, usually decides whether a cross-claim survives.

Date	Event	Clock consequence
1 March 2017	Occupation certificate issued for a Class 2 building	Completion under EP&A Act s 6.20(2). The long-stop expires on 1 March 2027. On a completion analysis, the owners corporation's Limitation Act s 14 period also starts here.
1 March 2018	Head contractor completes its last defect rectification visit	Last supply for HBA s 48K(3). NCAT's jurisdiction over a s 37 claim against the head contractor ends on 1 March 2021.
15 June 2022	Owners corporation receives its first expert report identifying the waterproofing failure	Earliest date on a discoverability analysis. On that analysis, the s 14 period runs to 15 June 2028.
1 March 2023	Six years from completion	On a completion analysis, the principal claim is now out of time under Limitation Act s 14. Defendants will plead this date.
10 September 2026	Owners corporation serves a s 37 claim on the developer and head contractor in the Supreme Court	The claim is within the long-stop. Whether it is within Limitation Act s 14 depends on the unresolved accrual question.
1 March 2027	Ten years from completion	Last day for the head contractor to bring a contribution cross-claim against the certifier or architect (EP&A Act s 6.20, read with s 6.19 and Fortius). On the earliest arguable accrual date, the four-year limb of Limitation Act s 26 expires on the same day.

On these dates, the head contractor has 172 days from service to identify every party that performed or controlled the defective elements, check their solvency and insurance, and file and serve its cross-claims. In practice it has less, because it needs documents to plead each cross-claim properly. A claim served in the last weeks of the long-stop leaves the defendant with the problem Fortius illustrates: cross-claims that are viable in substance but out of time.

A discoverability analysis would give more time under s 26, but the long-stop caps it at 1 March 2027 either way. The date to diarise is whichever comes first.

Forum for a Section 37 Claim: Court or NCAT

The choice of forum is usually presented as a question of cost. For s 37 claims it is mostly a question of time and of who the parties are. The HBA s 48J investigation gateway and NCAT costs are covered elsewhere and are not repeated here.

NCAT Jurisdiction and the Three-Year Limit in Section 48K(3)

NCAT can hear a s 37 claim. It often cannot hear it at the point where the claimant needs it.

NCAT's power comes from Part 3A of the HBA, not from the DBPA. Section 48A of the HBA defines a "building claim" as a claim for payment of a specified sum, supply of specified building goods or services, relief from payment, or a combination of those, that arises from a supply of building goods or services whether under a contract or not. "Building goods or services" means goods or services supplied for or in connection with the carrying out of residential building work or specialist work, being goods or services supplied by the person who contracts to do, or otherwise does, that work (s 48A(1)). In The Owners – Strata Plan No 92648 v Binah Constructions Pty Ltd [2021] NSWCATAP 68, the Appeal Panel considered a s 37 claim arguably fell within that definition. In Deaves v Sigma Group NSW Pty Limited [2023] NSWCATAP 94, it held that a s 37 claim was a building claim. Section 48K(1) caps NCAT's jurisdiction at $500,000 (or any other figure prescribed).

The obstacle is HBA s 48K(3). NCAT has no jurisdiction over a building claim relating to building goods or services if the claim is lodged "more than 3 years after the date on which the supply was made (or, if made in instalments, the date on which the supply was last made)". The Appeal Panel treated the jurisdictional categories in s 48K(3), (4), (6), (7) and (8) as mutually exclusive in Promina Design & Construction Pty Ltd v Owners of Strata Plan No 97449 [2023] NSWCATAP 252. Read together with Deaves v Sigma Group NSW Pty Limited [2023] NSWCATAP 94, that reasoning supports the conclusion that the longer statutory warranty period in s 48K(7) does not extend the time for bringing a s 37 claim in NCAT. In practice, owners often turn to s 37 only after the warranty periods have expired, and by then the three-year NCAT limit has usually expired as well. The claim can still be brought, but only in a court. This statement of s 48K reflects the text in force as at 24 September 2026.

That definition fits some duty-holders poorly. Whether a designer, certifier or remote product supplier supplies "building goods or services" within s 48A(1) is doubtful. That is another reason multi-party s 37 claims tend to end up in court.

Warning: Do not start an NCAT s 37 claim without first calculating the s 48K(3) date from the last supply by each respondent. A claim lodged out of time is outside jurisdiction, not simply late.

For the gateway, orders and costs, see our guide to NCAT and the Building Commission in NSW. For representation in an NCAT building dispute, see the service page. The Tribunal's own procedural material is published by NCAT.

Transfer, Multi-Party Joinder and the Technology and Construction List

Where the claimant files can differ from where the claim is heard. HBA s 48L can move the case, and the number of parties can move it back.

Section 48L of the HBA provides for proceedings on a building claim commenced in a court to be transferred to NCAT on a defendant's application, subject to the section's terms. In McLachlan v Edwards Landscapes Pty Ltd [2023] NSWSC 532, the Supreme Court upheld a transfer where the warranty claims were "front and centre" of a claim that also pleaded negligence, the DBPA, the ACL and contract. Chen J noted that the defendant accepted that, if the plaintiffs' case ultimately extended beyond the statutory warranty claim, those matters could continue to be litigated. Defendants can use s 48L tactically where a claimant's DBPA s 37 claim is out of time in NCAT but its warranty claim is in time.

Multi-party s 37 claims are complex construction litigation, and they generally belong in the Supreme Court's Technology and Construction List. That is especially so where the claim exceeds the NCAT cap, where cross-claims against designers, certifiers or suppliers are needed, or where interlocutory relief such as freezing orders is in play. Those files call for Supreme Court litigation planning from the outset. For the wider map of forums, see resolving a construction dispute in New South Wales.

Contract, Insurance and Structure after a Non-Delegable Duty

On commercial projects the contract usually governs, but against a s 37 claim it does less than its drafting suggests.

Section 40, Scope Definition and Back-to-Back Subcontracts

Section 40 removes exclusion. It does not remove the choice of what a party undertakes to do.

A contract or agreement made, entered into or amended after Part 4 commenced cannot annul, vary or exclude a provision of Part 4 (s 40). On retrospective files, Schedule 1 clause 5(4) extends s 40 to contracts relating to the construction work whenever made. Drafting still has four legitimate functions.

Define scope precisely. The duty attaches to construction work the party actually carries out or controls. A head contract or consultancy that clearly places a specialist element outside the party's scope, and a project run in line with that allocation, narrows the work to which the duty attaches. That follows from the majority's focus on the work a party undertook (see the practice note in the discussion of the majority, above). Precision in the documents only helps if conduct on site matches it.
Flow liability down. Back-to-back indemnities in subcontracts do not affect the owner, but they give the head contractor a contractual route to recovery alongside statutory contribution. That route may not be subject to the same "same damage" condition. Any indemnity should also be read against s 5(1)(c) of the LRMPA, which bars contribution from a person who is entitled to be indemnified by the party claiming it.
Take security. Retention, bank guarantees and parent company guarantees from subcontractors address the empty-chair risk directly.
Audit solvency. Pre-award and periodic solvency checks on trades that carry defect-critical scopes, such as waterproofing, façade and fire, are now a risk-allocation tool as well as a procurement step.

Defects liability period drafting and flow-down clause mechanics are covered in our guide to construction contracts in NSW and their key risks. One point bears repeating here: expiry of the defects liability period under the contract does not end the s 37 duty. The defects liability period governs contractual rectification rights between the parties; the s 37 claim runs on the statutory clocks set out above. Group structuring, special purpose vehicles and parent guarantees raise business structuring and contracts questions that should be settled before contracts are signed, not after the claim arrives.

Professional Indemnity Insurance, Liability Cover and Noted Interests

Insurance is where the shift in risk shows up in cash terms, and it is where late notification does the most damage.

Three disciplines matter.

Notification. Claims-made professional indemnity insurance policies and liability policies each have notification triggers. A s 37 letter of demand, a Building Commission inspection or a defect schedule can each amount to a notifiable circumstance. Late notification can leave a defendant uninsured for a claim it cannot apportion and, depending on the wording, a circumstance known but not notified may fall within a known-circumstances exclusion on renewal.
Noted interests. A head contractor should have its interest noted on subcontractor policies where the policy terms allow, and should verify that cover is current. That is what gives a contribution claim against a subcontractor practical value.
Reserving and pricing. Pafburn increases the exposure of head contractors and developers to losses they cannot recover from others, and that exposure can be expected to feature in underwriting and renewal discussions. Reserving should assume full liability with uncertain recovery, not a proportionate share.

No insurer-specific statement is made here. Policy wording decides coverage, and wordings vary. A coverage review should form part of any construction law advice on a s 37 exposure.

Practice note: Most of what a contract can still do against a s 37 claim was fixed at tender: the scope was drawn, the security was taken, the subcontractor's insurance was verified, and interests were noted. By the time a claim arrives, the drafting that matters is already in the file or it isn't.

Worked Scenarios

The four scenarios below apply the framework to positions that commonly arise. Each is hypothetical, and none is a client matter or a reported outcome. Each is organised around the choices that matter most on that file, drawn from the five set out in the introduction: duty-holder, apportionment, proof, clock and forum.

Class 2 Strata: Developer, Head Contractor and an Insolvent Waterproofer

This scenario is viewed from the respondent side, where after Pafburn the loss ends up with the upstream defendant.

In year eight after completion, an owners corporation sues the developer and head contractor of a Class 2 building under s 37 for balcony and podium waterproofing failures. The warranty periods have expired, and the NCAT three-year limit has long passed, so the claim is in the Supreme Court.

Duty-holder: The head contractor carried out the building work. The developer is pleaded as having had substantive control through its project director's instructions on the membrane system.

Apportionment: Both defendants plead Part 4 against the waterproofer, the architect and the certifier. The claimant applies to strike out the defences as they relate to the waterproofer and, on Pafburn, succeeds. The waterproofer is deregistered.

Proof: The defendants test the claimant's schedule against Loulach. The early items allege only non-conformance, and the claimant amends to add risk and precaution columns.

Clock: Two years of the long-stop remain. The defendants' cross-claims against the architect and the certifier must be filed and served well within that period, and the certifier may argue that any s 37 claim against it has no substantive control foundation (Multiplex).

The recovery gap: Take illustrative figures. If rectification is costed at $2.4 million and, before Pafburn, a court would have apportioned 60% to the waterproofer, the defendants would have faced judgment for $960,000 between them. After Pafburn, and before any argument about the architect's and certifier's shares, they face judgment for the full $2.4 million, and the $1.44 million attributable to the waterproofer cannot be recovered from a deregistered company. That share is now borne by the defendants between themselves, subject to the "just and equitable" allocation under s 5(2) and any contractual indemnity between developer and builder.

The Director and Nominated Supervisor Named Personally

In this scenario the question is no longer the company's liability. It is whether the director's own conduct brings him within the duty.

A three-storey residential building is completed by a company whose sole director is also its nominated supervisor. The director personally chaired fortnightly site meetings and approved, by email, a change from the specified membrane to a cheaper alternative. The company is now in liquidation, and the owners sue the director under s 37.

Duty-holder: On Kazzi, the director's liability does not depend on his title. It depends on decisions like the membrane approval. On Boulus, joining him is procedurally available.

Records: The minutes, the approval email, the product submittal and any consultant's comments will decide whether he had substantive control of the defective element. If the minutes show that a site supervisor or consultant made the substitution decision independently, his position improves. The records must be preserved now.

Apportionment: If he is treated as having entrusted work to the company's trades, Pafburn may bar apportionment to them. If his conduct is confined to his own decisions, the position is open.

Insurance: The director should check whether he holds any personal cover, whether any company policy responds to claims made against individuals, and whether the claim or circumstance has been notified within each policy's notification requirements.

Civil Subdivision: A Defective Earthworks Claim in New South Wales Reframed under Section 37

In this scenario the threshold question comes first: is the work within the duty at all?

A developer's subdivision includes bulk earthworks, retaining and stormwater drainage, followed by dwellings on the lots. Settlement cracking develops in several dwellings. A lot owner's advisers recast what began as a defective earthworks claim against the civil contractor as a s 37 claim, with defective drainage works pleaded as a contributing cause.

Threshold: The claim depends on whether the bulk earthworks and drainage were construction work within s 36 — including "building work" as defined for Part 4 (which includes Home Building Act residential building work, and is not the same test as s 4 read with Design and Building Practitioners Regulation 2021 cl 12) — or otherwise work "in or related to a building" for which the work was done under s 37. Earthworks carried out as preparation for a particular dwelling sit differently from subdivision-wide civil works carried out before any building was designed. The point should be raised as a threshold issue by reference to s 36 and the EP&A Act meaning of "building", not assumed either way. The same caution applies, more strongly, to defective road construction in NSW. Whether a road is related to a "building" for the purposes of the duty is doubtful and should be treated as open.

If the threshold is met: The civil contractor's defence runs through proof of breach (Loulach), causation (was it the compaction, the drainage, or the footing design?), and the downstream apportionment question. For the water-infrastructure version of this defence, see how water infrastructure contractors defend a s 37 claim. It is not repeated here.

The Consultant Engineer or Certifier Arguing Apportionment

This scenario tests the question Pafburn left open, from the side of a party that did not delegate.

A structural engineer and the principal certifier are both named as defendants in a s 37 claim over a cracked transfer slab. Both plead Part 4 apportionment against the builder, the concrete subcontractor and each other. The claimant applies to strike out the defences, relying on Pafburn.

The engineer's argument: It prepared designs under DBPA s 36(1)(b) and entrusted none of that work to anyone else. The majority's reasoning depends on entrustment, and CLA s 5Q applies to non-delegable duties to ensure reasonable care by a person entrusted with a task. With no entrustment, CLA s 5Q is arguably not engaged, and Part 4 applies as it would to any other apportionable claim. In our view the argument is properly open, but no court has yet decided it.

The certifier's argument: It is first a duty-holder question. On Multiplex, issuing certificates alone was insufficient to support a pleading of substantive control. If the claimant cannot plead additional facts capable of establishing substantive control, the s 37 claim against the certifier may fail. If it can, the certifier's apportionment argument is the same as the engineer's.

Practical course: Plead apportionment and cross-claim at the same time. Watch the long-stop: Fortius shows that a certifier can be prejudiced by a late s 37 amendment. The same applies in the other direction, where a certifier's own contribution rights expire while its apportionment argument remains undecided.

How Section 37 Claims and Defences Are Lost

Each of these failures is avoidable, and each has a remedy at a particular stage of the file.

Pleading defects instead of breach. A schedule of non-conformances without risk and precaution columns invites a Loulach challenge. The fix belongs in the first pleading.
Assuming the corporate structure shields individuals. Directors, nominated supervisors, project managers and site supervisors have all been joined or held liable (Boulus, Kazzi, Goodwin Street). The fix is to understand personal exposure before signing site instructions.
Pleading proportionate liability as the primary defence. For an upstream party, Pafburn will usually strike it out. Cross-claims have to carry the defence.
Filing cross-claims late. After Fortius, EP&A Act s 6.20 bars contribution claims against parties alleged to be responsible for the relevant defective building work. EP&A Act s 6.20(4) operates despite any other Act or law, so Limitation Act machinery (including s 74) cannot outflank it. Limitation Act s 26 still governs contribution timing inside that outer limit. File protective cross-claims early.
Letting the NCAT three-year limit pass on a s 37 route. HBA s 48K(3) removes NCAT's jurisdiction. It does not merely make the claim late. Calculate the date from the last supply by each respondent.
Treating an exclusion clause as effective against Part 4. DBPA s 40 prevents it, and Sch 1 cl 5(4) extends that protection to retrospective files, whatever the date of the contract. Scope definition is the legitimate tool.
Failing to preserve records of who directed each element. Substantive control is proved from minutes, emails and approvals. Destroying records, or never creating them, loses the argument either way.
Leaving subcontractor insurance unverified and interests un-noted. A contribution claim against an uninsured, insolvent trade has no practical value.
Assuming the 2026 Act is already in force for the file. As at 24 September 2026, Part 4 of the DBPA governs unless and until Part 8 commences by proclamation.

How Section 37 Connects to the Rest of Your NSW Defects File

DBPA s 37 rarely comes up on its own. These are the connections that matter, each linked to where it is developed.

The warranty claim, HBA s 18E clocks, completion and quantum sit in our guide to NSW building defects, warranties and claims, linked in the introduction. Where a subcontractor's payment claim arrives while a defect dispute is open, the question of deducting subcontractor defect costs in a payment schedule runs on security of payment deadlines, not s 37 deadlines. A payment schedule that fails to raise the defect deduction in time can lose it, so payment claim advice may be needed within days. Regulatory orders, the HBA s 48J gateway and NCAT costs are explained in our guide to NCAT and the Building Commission in NSW, linked in the forum section above. The Home Building Compensation Fund is discussed in the section on contribution above.

Conclusion

The order that matters is the one this guide follows:

Establish whether each party carried out construction work within DBPA s 36, from the documents rather than the contract.
Decide which parties can still plead apportionment after Pafburn, and treat cross-claims as the primary defence for anyone who delegated.
Test or build the breach case risk by risk under Loulach, because a defect is not, of itself, a pleaded breach.
Fix the completion date under EP&A Act s 6.20(2), run the Limitation Act s 14 period from the earliest arguable accrual, diarise Limitation Act s 26 for contribution, and diarise the EP&A Act s 6.20 long-stop (read with s 6.19), which after Fortius also applies to contribution claims against parties alleged to be responsible for the relevant defective building work.
Choose the forum with the HBA s 48K(3) limit and the multi-party joinder question in view.

That order works because each step can close options the next one needs. A party that apportions before mapping its cross-claims, or picks a forum before calculating the clock, has usually lost something it cannot get back.

Merlo Law acts on s 37 files for developers, head contractors, directors and nominated supervisors, trades, designers, certifiers and owners corporations in NSW. The work covers duty-holder analysis, pleadings and strike-out applications, cross-claim strategy, limitation analysis and forum selection. The right time to call is when a s 37 letter of demand, a defect schedule or a Building Commission inspection first arrives, while the cross-claim and notification windows are still open. Our first step on a new file is to fix the EP&A Act s 6.20(2) completion date, map every party that performed or controlled each defective element, and set out the cross-claim and insurer-notification deadlines that follow. To discuss a file, request a consultation.

FAQs

What is the statutory duty of care under the Design and Building Practitioners Act, and who owes it?

Section 37 of the DBPA requires anyone who carries out construction work to exercise reasonable care to avoid economic loss caused by defects in or related to a building for which the work is done. It is owed to each owner and each subsequent owner, and s 38 extends it to owners corporations and associations. Construction work under DBPA s 36 covers building work (including HBA residential building work), preparation of regulated designs (DBPA s 5) and other designs, manufacture or supply of building products (DBPA s 36(1)(c) and (4); BPS Act), and supervising, coordinating, project managing or otherwise having substantive control. Builders, developers, designers, individual directors and supervisors can all owe it. Section 39 prevents it being delegated, and s 40 prevents it being contracted out of.

Can a builder or developer rely on proportionate liability after Pafburn?

Generally not against the parties it entrusted with the work. In Pafburn [2024] HCA 49, a 4:3 High Court majority held that a developer and head contractor sued under s 37 cannot use Part 4 of the CLA (ss 34–35) to apportion liability to those they entrusted. CLA s 5Q treats their liability as vicarious, and s 39(a) keeps vicarious liability outside Part 4. They must file cross-claims for contribution under LRMPA s 5 instead, subject to Limitation Act s 26 and EP&A Act s 6.20, and they carry the risk that a cross-defendant is insolvent. Whether consultants, certifiers and self-performing trades can still apportion remains an open question.

Can a company director be personally liable under section 37 of the DBPA?

Yes, where the director personally carried out or had substantive control over the relevant construction work. In Kazzi [2024] NSWCA 143, the Court of Appeal held a sole director who was also the nominated supervisor personally liable. The liability rested on specific decisions, including departures from the approved plans and the approval of non-compliant elements. In Boulus (No 2) [2022] NSWSC 1368, the Court granted leave to join a builder's managing director and site supervisor, although that was an interlocutory decision rather than a finding of liability. What decides the question is what the individual did, as shown by minutes, emails and approvals, not the title they held.

How long do you have to bring a DBPA duty of care claim in NSW?

Several time limits can run together. Under s 14 of the Limitation Act, the principal claim must generally be brought within six years of accrual. When a s 37 claim accrues is unsettled, so work to the earliest date a defendant could argue. Contribution claims are governed by s 26 of the Limitation Act, not s 14 (see s 14(2)(b)). Separately, EP&A Act ss 6.19 and 6.20 bar a civil action, including a counter-claim, more than 10 years after completion of the building work. After Fortius [2026] NSWSC 710, that long-stop also bars contribution claims against parties alleged to be responsible for the relevant defective building work. If the claim is brought in NCAT, a separate three-year limit under HBA s 48K(3) can apply.

Can NCAT hear a claim under section 37 of the Design and Building Practitioners Act?

Yes, within limits. In The Owners – Strata Plan No 92648 v Binah Constructions Pty Ltd [2021] NSWCATAP 68, the NCAT Appeal Panel considered that a s 37 claim arguably fell within the definition of a "building claim" under s 48A of the HBA. In Deaves v Sigma Group NSW Pty Limited [2023] NSWCATAP 94, the Appeal Panel held that a s 37 claim did fall within that definition and that NCAT had jurisdiction to determine the claim under s 48K. The $500,000 cap applies, and so does s 48K(3): NCAT has no jurisdiction if the claim is lodged more than three years after the building goods or services were supplied. Owners often turn to s 37 only after the warranty periods have expired, when the NCAT window has usually closed as well. Multi-party claims against designers, certifiers or suppliers generally belong in the Supreme Court.

Does the Building (Approvals and Practitioners) Act 2026 replace the DBPA duty of care?

It will re-enact it rather than abolish it. Part 8 of the 2026 Act carries the duty across in ss 177–184 in substantially the same terms. The changes include a freestanding definition of construction work in s 177, an express manufacturer and supplier mechanism in s 178, and a regulation-making power for prefabricated buildings in s 184. Section 183(3) of the 2026 Act makes Part 8 subject to s 192 and the CLA. Section 192 of the 2026 Act carries across a 10-year long-stop (including counterclaims), with completion triggers that should be checked against s 192(2) rather than assumed identical to EP&A Act s 6.20(2). Section 202 provides for repeal of the DBPA once the relevant provisions commence. As at 24 September 2026, apart from specified items that commenced on assent on 14 August 2026, the 2026 Act commences on a day or days to be appointed by proclamation. Until Part 8 commences, Part 4 of the DBPA remains the operative law, so confirm the commencement position before relying on either Act.

This guide is for informational purposes only and does not constitute legal advice. For advice tailored to your specific circumstances, please contact Merlo Law

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