Building dispute? You usually have to try Fair Trading / Building Commission NSW first
Most homeowners with a building defect want to go straight to NCAT. For residential building work, that's usually the wrong first move. The expected pathway is to complain to Building Commission NSW (the building regulator now sitting alongside NSW Fair Trading) and give the builder a reasonable opportunity to rectify before the Tribunal will want to see your file.
This page sets out the practical first-steps pathway: when to lodge a complaint with Building Commission NSW, what an inspection and a rectification order actually do, roughly how long it takes, and what to do when Fair Trading closes the file so you can escalate to NCAT.
Information, not legal advice. Figures current as at 1 July 2025.
What this dispute is
"Residential building work" means construction, alteration, repair or renovation of a dwelling — covered by the Home Building Act 1989 (NSW). When that work is defective or left incomplete, NSW has a deliberate two-stage system: a free regulator-led stage first, then the Tribunal.
Stage one is Building Commission NSW. The Building Commission is the consumer-facing building regulator that handles complaints about builders and tradespeople and conducts the on-site inspections that used to sit under NSW Fair Trading. (Fair Trading still runs the broader consumer-complaint function — the two work together, and you'll see both names.) A building inspector can look at the work and, where the trader is responsible, direct them to fix it.
Stage two is NCAT (the Home Building List), where you can seek a binding work order or money order. NCAT's Home Building application asks you to confirm that you have referred the dispute to the regulator first. In practice that makes the Building Commission / Fair Trading step an expected precondition for most homeowners — with narrow exceptions (an impending limitation deadline, an unlicensed builder, or where the regulator declines to act).
The point of going first is twofold: a great many disputes are resolved at the inspection stage without a hearing, and where they aren't, the inspector's report becomes persuasive evidence you carry into NCAT.
Time limits that bite
These deadlines are strict. The Tribunal can extend in some cases, but extensions are not automatic — they're weighed on length, reason, prospects and prejudice.
- Before NCATRefer the dispute to Building Commission NSW / Fair TradingNCAT Home Building application precondition
- Reasonable timeGive the builder a genuine opportunity to rectify before escalatingHBA Pt 3A / s18BA
- By the due dateBuilder must comply with a rectification orderHBA Pt 3A
- 6 yearsMajor defect — statutory warranty period from completion (don't let it run out)HBA s18E(1)(a)
- 2 yearsNon-major defect — statutory warranty period from completionHBA s18E(1)(b)
The process, step by step
- 1
Work out what kind of dispute you actually have
The right first step depends on the dispute. Use this decision tree:
Residential building work (defects, incomplete work, work that breaches the standards) → lodge a complaint with Building Commission NSW and ask for an inspection / rectification. This is the main pathway covered on this page.
A rental bond → this isn't a building matter at all. Bonds go through Rental Bonds Online (DCS), then NCAT if disputed — see our bond guide.
A general consumer purchase (goods or a service that isn't residential building work) → a Fair Trading complaint is optional but often useful, then NCAT under the Australian Consumer Law.
- 2
Talk to the builder in writing first
Before the regulator will be much use, you generally need to have put your complaint to the builder in writing and given them a genuine chance to come back and fix it. The Home Building Act contemplates the owner allowing the builder reasonable access to rectify (s18BA), and denying that access without good reason can later reduce what you recover.
Send a dated letter or email listing each defect, attaching photos, and asking the builder to rectify by a reasonable date. Keep the thread. This becomes the spine of both your Building Commission complaint and any later NCAT application.
- 3
Lodge the complaint with Building Commission NSW
Lodge online through the NSW Government building-complaints pathway. Attach your contract, your written complaint to the builder and their response (or silence), your defect list, and dated photos. The complaint is free.
A building inspector assesses the file and, where appropriate, arranges an on-site inspection. Published service figures indicate complainants are typically contacted within a couple of working days and inspections occur within a few weeks on average, though the Building Commission has at times flagged longer wait times — treat any specific number as indicative and check the current position when you lodge.
- 4
The inspection and a rectification order
At the inspection the building inspector forms a view on whether the work is defective and whether the trader is responsible. If it is, the inspector can issue a rectification order under Part 3A of the Home Building Act directing the builder to fix the work by a due date. Failing to comply with a rectification order is itself a breach of the Act.
The inspection can also resolve the dispute by conciliation — the inspector's view often prompts the builder to agree to rectify. Either way, the inspector's written findings are strong, persuasive evidence if the matter later goes to NCAT.
- 5
What if Fair Trading closes the file
The regulator can't make a binding money order, and it won't pursue every dispute — for example where the issue is contractual rather than a building defect, where the work isn't covered, or where the builder simply refuses and a rectification order hasn't produced a fix. When that happens, Fair Trading / Building Commission closes the file and effectively releases you to take the matter to NCAT.
That closure letter is what you carry into the NCAT Home Building application. From there, NCAT can make a binding work order (builder rectifies) or money order (builder pays the cost of someone else doing it). See our full NCAT home building guide for what happens next.
- 6
Don't let the warranty clock run while you wait
The Fair Trading stage takes time, and the statutory warranty periods in s18E keep running the whole time — 6 years for a major defect, 2 years for everything else, from completion of the work. If you're getting close to a limitation deadline, that is one of the recognised exceptions to going through the regulator first: lodge at NCAT to protect time and let the conciliation continue alongside.
Evidence that actually works
Cases are lost on missing documents more than on weak arguments. Get these in order before you file.
The building contract and every signed variation
Confirms scope, price and the parties. A contract missing terms required by s7 of the Home Building Act is itself a breach.
Your written complaint to the builder and their response
Shows you gave a reasonable opportunity to rectify. Keep full email threads, not screenshots.
A clear defect list
Each defect described and located. This becomes a Scott Schedule later — see the Scott Schedule guide.
Dated photos and video of every defect
Wide and close, with a scale reference. EXIF metadata helps prove dates.
Proof of payments and progress claims
Invoices, receipts and bank statements as backup.
Certificates and approvals
Occupation Certificate, the HBCF certificate of insurance for the job, council approvals.
Records of access you offered for rectification
Dates you made the property available. Denying reasonable access can reduce your damages under s18BA.
Common reasons people lose
Going straight to NCAT without referring to the regulator
NCAT's Home Building application asks you to confirm a Fair Trading / Building Commission referral. Skipping it without a valid exception can see your application held up or struck out.
Never giving the builder a chance to fix it
If you locked the builder out or never put the defects to them in writing, both the regulator and NCAT will ask why. Reasonable access to rectify is part of the scheme (s18BA).
Letting the warranty clock run out during conciliation
The s18E periods (6 years major, 2 years other) don't pause while Fair Trading works the file. Watch the deadline and lodge at NCAT to protect time if it's close.
Treating the inspector's report as the final word
The regulator can't award you money. If the order doesn't produce a fix, you still need to take a binding claim to NCAT.
Bringing a contractual dispute to the building regulator
The Building Commission deals with building defects and standards. Pure payment or contract disputes may be bounced — those often go straight to NCAT's Home Building List.
Orders NCAT can make
This is the kind of order you can ask for — not a guarantee you'll get it. Frame your application around the order you actually want.
Rectification order (Building Commission NSW)
Issued by a building inspector under Part 3A of the Home Building Act, directing the builder to fix defective work by a due date. Not a money order — but failing to comply is a breach of the Act.
Conciliated agreement to rectify
Many disputes resolve at inspection when the inspector's view prompts the builder to agree a scope and date to fix the work, without any formal order.
Inspection report / outcome letter
The inspector's written findings on whether the work is defective and who is responsible — persuasive evidence at NCAT if the dispute escalates.
File closure letter
Where the regulator can't resolve it, the closure of the Fair Trading file effectively releases you to lodge the binding claim at NCAT.
NCAT work order (the escalation)
Once at NCAT, a binding order that the builder rectify specified defects by a date — the teeth the regulator stage lacks.
NCAT money order (the escalation)
A binding order that the builder pay the cost of rectification by another contractor, plus consequential losses.
Free help
- Building and renovating complaints — NSW Government
Lodge a complaint about a builder or tradesperson here.
- How Building Commission NSW deals with building defect complaints
The regulator's own explanation of the complaint pathway.
- Resolving building disputes with your builder — NSW Government
Step-by-step on rectification orders and what they do.
- NCAT — Home Building case type
Forms, fees and procedural directions for the next stage.
- Home Building Act 1989 (NSW)
The legislation itself — Part 3A covers rectification orders.
- LawAccess NSW — 1300 888 529
Free legal info line, Mon-Fri 9am-5pm.
Questions self-reps ask
Do I need to go to Fair Trading before NCAT for a builder dispute?
For residential building work, in practice yes. NCAT's Home Building application asks you to confirm you've referred the dispute to the regulator — Building Commission NSW / Fair Trading — first.
There are narrow exceptions: an impending limitation deadline, an unlicensed builder, or where the regulator declines to act. But most homeowners should expect to complete the free complaint and inspection step first. It resolves many disputes without a hearing.
Is it Fair Trading or Building Commission NSW now?
Both names are in use. Building Commission NSW is the building regulator that handles complaints about builders and tradespeople and runs the on-site inspections. NSW Fair Trading runs the broader consumer-complaint function and the two work together.
For a residential building defect, the building-complaints pathway is the one you want — you'll be directed to the right team when you lodge.
What does a rectification order actually do?
A building inspector who finds the work defective and the trader responsible can issue a rectification order under Part 3A of the Home Building Act, directing the builder to fix the work by a due date. Failing to comply is a breach of the Act.
It is not a money order — it can't make the builder pay you. If the builder doesn't comply, you take a binding claim to NCAT, and the order plus the inspector's report become useful evidence.
How long does the Fair Trading stage take?
It varies. Published service figures suggest complainants are contacted within a couple of working days, inspections happen within a few weeks on average, and many complaints resolve within a month or two — but the regulator has at times flagged longer wait times of several weeks before inspection.
Treat any specific number as indicative and check the current position when you lodge. The statutory warranty clock keeps running the whole time, so watch your s18E deadline.
What if the builder has gone broke?
If the builder is insolvent, has died, disappeared, or had their licence suspended for not complying with a money order, the rectification pathway won't help — there's no solvent builder to direct.
Instead you may be able to claim on the Home Building Compensation Fund (HBCF) through icare, the last-resort insurance for residential work over the threshold where cover is required. See our HBCF claim guide.
Does this apply to a rental bond or a normal consumer purchase?
No. A rental bond is not a building matter — bonds go through Rental Bonds Online and then NCAT's tenancy list. A general consumer purchase goes under the Australian Consumer Law, where a Fair Trading complaint is optional but often useful before NCAT.
The Building Commission complaint pathway is specifically for residential building work under the Home Building Act.
Related guides
- NCAT home building disputesThe full guide to fighting defects and incomplete work at NCAT — the next stage after Fair Trading.
- Scott Schedule for building defectsHow to build the defect-by-defect table the Tribunal expects.
- HBCF claim when the builder is insolventIf the builder has gone bust, your last-resort icare insurance claim, step by step.
- Enforcing NCAT ordersWhat to do when a builder ignores a work order or money order.
Work out your first step in 2 minutes
Five questions. Two minutes. You'll walk out knowing the list, the form, the fee, and your statutory deadlines.
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NCAT Tracker is not a law firm. This page is information, not legal advice. Figures, fees and statutory periods cited here are current as at 1 July 2025 and are CPI-indexed or amended from time to time — verify on ncat.nsw.gov.au and legislation.nsw.gov.au before you lodge.