27 September 2026
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A recent decision of the NSW Civil and Administrative Tribunal (Tribunal) has considered whether Loulach schedules are required in Tribunal proceedings for breach of the statutory duty of care contained in section 37 of the Design and Building Practitioners Act 2020 (NSW) (DBPA).
Loulach schedules are named for the decision in The Owners - Strata Plan No 87060 v Loulach Developments Pty Ltd (No 2) [2021] NSWSC 1068, which introduced the concept of requiring a modified scott schedule in proceedings under section 37, to include columns identifying:
Subsequent decisions have developed this requirement further, namely:
In the Tribunal, the Appeal Panel in Bahrami Group Pty Ltd v Moriarty [2026] NSWCATAP 294 considered arguments by a nominated supervisor/director that precautions identified in a schedule of alleged defects, such as 'ensure the work complies', 'check the work', 'inspect the work' and 'properly supervise construction', were insufficiently specific.
Although the Appeal Panel accepted the principles from Loulach Developments (No.2), it was not satisfied that Loulach Developments (No.2) was relevant to the issues before it because it concerned “the adequacy of a pleading or proposed pleading”.
There are no formal pleadings in the Tribunal and section 38(4) of the Civil and Administrative Tribunal Act 2013 (NSW) requires the Tribunal to act with as little formality as the circumstances of the case permit.
The Appeal Panel found that the Tribunal had not erred in its finding that the nominated supervisor/director breached section 37 of the DBPA in view of:
If it seems unusual that this issue was considered in the Tribunal five years after the decision in Loulach Developments (No.2), we have two suggestions for explaining this. Firstly, the Tribunal’s limited monetary jurisdiction means that larger disputes, which may justify the complexity of a section 37 claim, are brought elsewhere. Secondly, section 48K(3) imposes a time limit on proceedings (other than for breach of a Home Building Act 1989 (NSW) statutory warranty (HBA claim)) of three years from the date of the last supply. Given that an owner will typically prefer to make an HBA claim (limited in time to six years from completion for major defects and two years otherwise) if it is available against a viable respondent, a section 37 claim is more likely to be outside of the section 48K(3) time limit and brought elsewhere.
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Rayman v Brown [2026] NSWSC 731
TORT – negligence – duty of care at common law and under s 5B of the Civil Liability Act 1995 (NSW) – whether there was a breach of a duty of care by failing to take reasonable precautions to minimise or reduce the risk of damage to neighbouring property
TORT – negligence – whether breach of the duty of care pursuant to s 177 of the Conveyancing Act 1919 (NSW) – whether s 177 imposes a non-delegable duty
TORT – proportionate liability under s 35 of the Civil Liability Act 1995 (NSW) – whether concurrent wrongdoers – principles to be applied in apportioning liability
DAMAGES – claim for diminution in value and consequential losses
Tan v Platinumhomeland Pty Ltd [2026] NSWDC 343
BUILDING AND CONSTRUCTION – breach of contract – defective workmanship and materials – breach of statutory warranties under Home Building Act 1989 (NSW) – breach of statutory duties under Design and Building Practitioners Act 2020 (NSW) – misleading and deceptive conduct – contravention of Australian Consumer Law – unlicensed builder – rectification of defects – remedies – assessment of damages – measure of damages
Lebnan v Secretary, Department of Customer Service [2026] NSWCATOD 125
ADMINISTRATIVE LAW – home building — application for contractor licence — general building work — application of instrument — experience requirements — meaning of employee
Bahrami Group Pty Ltd v Moriarty [2026] NSWCATAP 294
BUILDING AND CONSTRUCTION – s 37 Design and Building Practitioners Act 2020 (NSW) – negligence – duty of care – statutory extension – breach of duty by nominated supervisor of works – nominated supervisor directed construction otherwise than in accordance with the approved plans and specifications – failure by builder to carry out works with due care and skill and in accordance with the plans and specifications set out in the contract
In the matter of Phoenix Fitouts and Construction Pty Ltd [2026] NSWSC 1111
CORPORATIONS – statutory demand – where statutory demand served on Plaintiff claiming judgment debt arising from adjudication determination – where Plaintiff has commenced proceedings against Defendant in Supreme Court of Queensland seeking damages for defective and incomplete construction work – whether statutory demand failed to specify the debt due – whether genuine dispute regarding the claim for post-judgment interest – where Defendant accepts there is a genuine offsetting claim arising from construction defects but disputes quantum of claim – where dispute regarding construction of provisions of contract – whether quantum of genuine offsetting claim is greater than admitted amount of debt – whether relief ought to be conditional of payment of adjudicated amount into Supreme Court of Queensland
Succar v Dominium Homes Pty Ltd [2026] NSWSC 1117
BUILDING AND CONSTRUCTION – separate question – residential building work – where builder insolvent – insurance – where plaintiffs claim on a policy of insurance issued in accordance with the Home Building Act 1989 (NSW) – whether cover excluded because plaintiffs were developers within the meaning of s 3A of the Home Building Act – whether each plaintiff 'will be' an 'owner' of 4 or more dwellings – where plaintiffs executed a deed of partition – where plaintiffs will be registered proprietors of land when construction of 10 dwellings will be completed – ownership of dwellings at law sufficient within the meaning of s 3A of the Home Building Act irrespective of position in equity – each plaintiff was a developer – insurance cover excluded – proceedings dismissed
Arise Solar Pty Ltd v Secretary, Department of Customer Service [2026] NSWCATOD 126
ADMINISTRATIVE LAW – administrative review of decision not to renew contractor licence – application for stay or interim order – contractor licence expired – ability of Tribunal to make the order sought – order otherwise affecting the operation of the decision – application of s 42(3) of the Home Building Act 1989 (NSW)
Spectrum Pools & Spas Pty Ltd v Young [2026] NSWCATAP 284
BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) - Scope of work having regard to statutory warranties under s 18B - s48 MA - Circumstances justifying a money order
Anderson v Granda Venture Pty Ltd trading as Butopia [2026] NSWCATAP 286
BUILDING & CONSTRUCTION - appeal from interlocutory decision - appeal dismissed
Drummond v Karakatsis [2026] NSWDC 322
BUILDING AND CONSTRUCTION — Design and Building Practitioners Act 2020 (NSW) — allegations of breach of s 37 in the course of constructing a house and in the course of performing remedial building work pursuant to an NCAT work order — whether breaches have been proven — assessment of damages — whether costs incurred in prior proceedings in NCAT can be claimed in these proceedings
Le Plastrier and Short v Galilee Alpha Pty Ltd and Mowbray [2026] NSWDC 323
CONTRACTS — breach of contract — consequences of breach — assessment of damages — where claim exceeds the monetary jurisdictional limit of the District Court
NEGLIGENCE — allegations of common law negligence and of breach of statutory duty under the Design and Building Practitioners Act 2020 — damages — economic loss — assessment of damages
Kozakiewicz v Secretary Department of Customer Service [2026] NSWCATOD 118
ADMINISTRATIVE LAW — application for review of decision to refuse contractor licence following company liquidation — whether there is evident risk to the public — whether all reasonable steps taken to avoid liquidation — whether sufficient risk mitigation measures to avoid future liquidation — application of section 33B, section 33C(3) and section 33(4) of the Home Building Act 1989 (NSW)
Wraps and Snags Erina Pty Ltd t/as Rainbow Home Designs v Aggarwal [2026] NSWCATAP 279
APPEAL — dispute between builder and homeowners-claim in quantum meruit-failure to satisfy relevant criteria or produce evidence of value-rejection of fresh evidence lodged in support of appeal- error concerning terms on which the Homeowners agreed to fund the work.
John Goubran & Associates Pty Ltd v The Owners – Strata Plan 57150 [2026] NSWCA 188
APPEALS — leave to appeal — whether primary judge erred by failing to address claims for the cost of repairs and interest — primary judge erred in failing to address each claim — claim for the cost of repairs faces basic problems — small quantum in dispute — failure to apply to the primary judge under UCPR r 36.16 to set aside or vary judgment — primary judge’s omission contributed to by the applicant — leave to appeal refused.
Qube Re Services (No 2) Pty Limited v Martinus Rail Pty Ltd [2026] NSWSC 717
ARBITRATION – public policy — whether enforcement of partial arbitral awards is contrary to domestic public policy pursuant to section 36(1)(b)(ii) Commercial Arbitration Act 2010 (NSW) – Whether difference between international and domestic principles concerning public policy in refusing to enforce arbitral awards.
BUILDING AND CONSTRUCTION — policy under Building and Construction Industry Security of Payment Act 1999 (NSW) which allows contractors to receive progress payments pending final resolution of dispute — whether SOPA policy is a public policy for the purposes of section 36(1)(b)(ii).
COSTS — whether plaintiff entitled to its costs — where defendant may be entitled to further monies following finalisation of arbitration — where partial arbitral awards final — whether post-judgment interest rate under Civil Procedure Act 2005 (NSW) is applicable.
PINN 386 Pty Ltd v The Owners – Strata Plan No 67607 [2026] NSWSC 1110
LAND LAW — strata title — statutory interpretation — whether New South Wales Civil and Administrative Tribunal has the power to apportion liability for insurance premiums for damage policies under section 162 of the Strata Schemes Management Act 2015 (NSW) where no non-strata part in building — application of subsection 160 and 162 — where strata management statement apportioned liability for insurance inconsistently with section 162.
Keay v The Owners - Strata Plan 3132 [2026] NSWSC 1150
STRATA TITLES — by-laws — common property rights by-laws — exclusive use of parking spaces and storeroom — agreed errors in registered consolidated by-laws — whether lot owner entitled to declarations concerning rights under original by-laws — where owners corporation does not dispute lot owner’s underlying rights — whether sufficient controversy and utility to support declaratory relief — owners corporation possess an interest in opposing relief — declarations made.
REAL PROPERTY — correction of Register — powers of Supreme Court under s 138 of the Real Property Act 1900 (NSW) — distinction between a dealing and a recording in a folio of the Register — whether power to order amendment of a recording in a folio extends to orders requiring correction and lodgement of a set of consolidated by-laws — instrument 'needed' to give effect to Court’s determination — power extends to orders concerning instrument and underlying recording — ancillary orders made.
OPES Lifestyle Homes Pty Ltd v KMA Concrete Constructions Pty Ltd [2026] NSWCATAP 275
APPEALS — appeal on question of law – scope of question of law
APPEALS — leave to appeal — principles governing – leave to appeal refused
APPEALS — whether appellant permitted to raise issues on appeal not raised at first instance — principles —certain issues not permitted to be raised
NSW Self Insurance Corporation v CN1 Pty Limited [2026] NSWCATAP 287
APPEAL – appeal remitted from Supreme Court one one ground – whether new evidence should be permitted in appeal – whether Appeal Panel should exercise powers under section 81(2) of the Civil and Administrative Tribunal Act 2013 (NSW)
Bills introduced by Government
Fair Work Amendment (Disqualified Officers) Bill 2026 introduced 19 August 2026
Amends the: Fair Work (Registered Organisations) Act 2009 to enable the administrator of a registered organisation to permanently expel members and disqualify officers in certain circumstances, removing the current five-year limit on periods of expulsion and disqualification; and Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024 to make a consequential amendment.
Workplace Relations Legislation Amendment (Clearing the Fair Work Commission Backlog) Bill 2026 introduced 24 June 2026
Amends the: Fair Work Act 2009 in relation to ministerial membership arrangements for the National Construction Industry Forum, travel allowances for members of the Road Transport Advisory Group, Fair Work Commission processes, and supported bargaining authorisations; Fair Work Act 2009 and Independent Contractors Act 2006 in relation to the road transport contractor high income threshold; and Fair Work (Registered Organisations) Act 2009 in relation to reporting timeframes for the Administrator of the Construction and General Division of the Construction Forestry Manufacturing and Energy Union.
Bills assented to by Government
Workplace Relations Legislation Amendment (Building Cooperative Workplaces No. 1) Bill 2026 assented to on 6 July 2026
Amends the: Fair Work Act 2009 in relation to ministerial membership arrangements for the National Construction Industry Forum, travel allowances for members of the Road Transport Advisory Group, Fair Work Commission processes, exemptions from general protections in certain circumstances, and supported bargaining authorisations; Fair Work Act 2009 and Independent Contractors Act 2006 in relation to the road transport contractor high income threshold; and Fair Work (Registered Organisations) Act 2009 in relation to reporting timeframes for the Administrator of the Construction and General Division of the Construction Forestry Manufacturing and Energy Union.
Disclaimer
The information in this article 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 article is accurate at the date it is received or that it will continue to be accurate in the future.
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