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Residential Focus

29 March 2023

8 min read

#Property, Planning & Development, #Construction, Infrastructure & Projects

Published by:

Scott Watkinson-Hall

Residential Focus

More categories of work for HBCF exemption

The categories of residential building work (above the $20,000 threshold) which are exempt from the requirement to obtain a policy of insurance under the Home Building Compensation Fund (HBCF) have, thus far, been limited to multi-storey buildings, retirement villages, built-in furniture and community care work funded by government.

The Home Building Amendment (Insurance Cover) Regulation 2023 (the Amending Regulation) amends the Home Building Regulation 2014 (Regulation) by adding new types of building work for which a contractor is exempt from obtaining a policy under Part 6 of the Home Building Act 1989 (NSW) (the Act). 

This amendment will be of particular interest to developers contemplating build to rent projects, given that a policy of insurance under the HBCF represents a significant expense. Although build to rent schemes may be more prevalent in the UK and Europe, this amendment may help foster that market segment by reducing upfront costs to developers.

Summary of relevant changes


New clauses 59A-59C set out the type of work for which a contractor may be exempt from home building insurance, namely:

  • certain registered charities, provided that the work is being done for a developer who is a recognised housing provider or in accordance with development consent to a recognised housing provider
  • rental accommodation under a community benefits scheme for a contract entered into with a Local Aboriginal Land Council
  • build to rent schemes, provided that the work is being done in accordance with development consent, to an existing dwelling, or to a building that is being used as a build to rent property
  • local government, provided that the work is being done on behalf of a developer who is a council.

Conditions apply to trigger each of the new exemptions and those conditions have been prepared with an emphasis on content over form.

Like the legacy exemptions (clauses 56-59), these are automatic exemptions and do not require an application, however, unlike the legacy exemptions, the contract for the work must state that the contractor is relying on the exemption.

Register of exemptions

Clause 55A of the Regulation establishes an online public register of exemptions granted under section 97 of the Act. These are exemptions from the obligation to insure for work not carried out under a contract, for which exceptional circumstances or hardship must be established. The public register may include the following information:

  • the name of the person, their ACN, and their contractor licence
  • a description of the exempt work
  • the address, lot, and DP number of the land on which the work is to be done
  • the date on which the exemption was granted.


The amendments establishing the public register will commence on 1 June 2023, whereas the amendments establishing the new automatic exemptions commenced on 2 March 2023.

If you have any questions about these changes, or how the expansion may impact you, please contact partner Christine Jones below.

Authors: Christine Jones & Scott Watkinson-Hall

In the media

Court ruling hits builders, gives subcontractors a boost
Building companies have scored a win with the NSW Supreme Court giving businesses in administration a legal way to claw back money owed to them before they failed, potentially boosting the pool of funds available to creditors (19 March 2023).  More…

New building codes to help industry reach net zero
The construction industry is one of the world’s greatest contributors to air, water and noise pollution. It makes up about 40 per cent of global carbon emissions primarily due to poor energy efficiency, suboptimal air quality and carbon-dense building materials. New building codes in Australia and worldwide can help construction projects reach net zero emissions (17 March 2023).  More…

High-rise construction insurance is back
The return of building warranty insurance policies for major constructions after 20 years will add costs for buyers but provide much-needed certainty (16 March 2023).  More…

Due Dates for Payment on Exempt residential construction contracts
The intention of Security of Payment legislation has always been to provide a simple pathway for small contractors to improve cash flow, without the need for legal assistance. However, experience gained as an adjudicator in Queensland , NSW and Victoria since 2014 and over 175 determinations has shown that some of the details of the Act are not always clear to first-time users without proper legal advice (23 March 2023).  More…

New Deadline for Homebuilder Paperwork: June 2025
The Australian government has announced that it will extend the deadline for approved HomeBuilder applicants. Homeowners now have until June 30, 2025, instead of the original deadline of April 30, 2023. This announcement brings relief to homeowners who were facing significant delays and supply chain issues due to the Covid-19 pandemic (27 March 2023).  More…

In practice and courts

Decision reserved as at 17 March 2023
The Court of Appeal maintains a list of matters before the Court for which judgment is reserved. Read more here.


AGY Global Wealth Pty Ltd v Gillies [2023] NSWCATAP 85
APPEAL – notice of appeal – filed outside of the prescribed time – whether extension of time should be granted – no sound recording or transcript of the Tribunal’s oral reasons for decision filed – extension of time refused.
State Environmental Planning Policy (Resilience and Hazards) 2021; Sutherland Shire Local Environmental Plan 2015.

Strata Plan 99576 v Central Construct Pty Ltd [2023] NSWSC 212
CIVIL PROCEDURE – application for stay of proceedings – where defective building works the subject of the proceedings are also the subject of an investigation process under the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) (“the Act”) – where the investigation process may ultimately result in the making of orders against the defendants to carry out building rectification work – whether it is appropriate for the Court to order a stay of the proceedings to effectively allow the investigation process under the Act to proceed to a conclusion – stay refused.
Civil Procedure Act 2005 (NSW); Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW).

Rona v Opes Lifestyle Homes Pty Ltd (No 2) [2023] NSWCATAP 81
COSTS – whether rules 38 and 38A Civil and Administrative Tribunal Rules 2014 apply – whether special circumstances exist – claim in dispute under $30,000.
Administrative Decisions Tribunal Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Supreme Court Act 1970 (NSW).

Rigby v Oxenford [2023] NSWCATAP 79
APPEALS – constructive failure to exercise jurisdiction – failure to address a material issue and material evidence – failure not established APPEALS – leave to appeal – principles governing – leave to appeal refused.
APPEALS – procedural fairness - bias or apprehension of bias – prejudgment not established.
APPEALS – procedure – time limits – extension of time – application granted.
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – building dispute – where the builder breached statutory warranties – money order made against the builder.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW).

Roberts v Goodwin Street Developments Pty Ltd [2023] NSWCA 5
BUILDING AND CONSTRUCTION – contract – defects – duty of care – whether statutory duty of care under the Design and Building Practitioners Act 2020 (NSW) applies in relation to “boarding houses” – meaning of “building work” – meaning of “construction work.”
BUILDING AND CONSTRUCTION – contract – damages – whether proper measure of damages to reversionary interest in property is the rectification of the damage or the diminution in value of the reversionary interest.
CIVIL PROCEDURE – commercial List, technology and construction List – procedure – list statements – where respondent failed to plead action on the case in trespass in List Statement – whether denial of procedural fairness to determine the matter on that basis.
American Restatement (First) of Torts; Civil Procedure Act 2005 (NSW); Community Land Management Act 1989 (NSW); Community Land Management Act 2021 (NSW); Conveyancing Act 1919 (NSW); Corporations Act 2001 (Cth); Design and Building Practitioners Act 2020 (NSW); Design and Building Practitioners Regulation 2021 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Home Building Act 1989 (NSW); Interpretation Act 1987 (NSW); Landlord and Tenant Act 1927 (UK); Uniform Civil Procedure Rules 2005 (NSW).


NSW Legislation

Regulations and other miscellaneous instruments
NSW Admission Board Amendment (Fees) Rule 2023 – Published LW 24 March 2023
Electoral Funding (Adjustable Amounts) (Electoral Expenditure) Notice 2023 – Published LW 24 March 2023
Heavy Vehicle (Vehicle Standards) National Amendment Regulation 2023 – Published LW 17 March 2023

Environmental Planning Instruments
Woollahra Local Environmental Plan 2014 (Amendment No 32) – Published LW 24 March 2023
Murray Local Environmental Plan 2011 (Map Amendment No 1) – Published LW 24 March 2023
Port Macquarie-Hastings Local Environmental Plan 2011 (Map Amendment No 3) – Published LW 17 March 2023
Ku-ring-gai Local Environmental Plan 2015 (Amendment No 33) – Published LW 17 March 2023

Commonwealth Legislation
Work Health and Safety Amendment Act 2023 24/03/2023 – Act No. 9 of 2023 as made.

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Scott Watkinson-Hall

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