13 October 2025
17 min read
#Property, Planning & Development
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As we recounted in our 2022 piece, ‘what about the directors?’ is a frequently asked question from asset owners in the residential space, when considering counterparty solvency risk in the context of a decision to litigate.
That piece related to a 2022 decision Zhang and Mills v JSW Property Projects Pty Ltd and Ors [2021] NSWDC 655 where it was (unsuccessfully) argued that the director was a party to the building contract (which was not in writing), by virtue of his personal involvement in the works.
In Zhang the Court, which found that the registered company was a counterparty, noted:
“This, after all, is why companies are incorporated. The raison d’etre of companies is to create a prima facie position whereby a director and shareholder is not personally liable for the liabilities, acts, and omissions of the company, with which they are associated.”
That brings us to a recent decision of the Appeal Panel of the Tribunal, in which was argued that section 137 of the Home Building Act 1989 (NSW) (HBA) bridged that gap. That section provides:
137 Offence by body corporate--general liability of directors etc (1)If a body corporate contravenes any provision of this Act or the regulations, each person who is a director of the body corporate or who is concerned in its management is to be taken to have contravened the same provision if the person knowingly authorised or permitted the contravention. (1A) Subsection (1) does not apply in respect of a contravention of a provision of Division 4 of Part 6A or a contravention that constitutes an executive liability offence for the purposes of section 137A. (2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the body corporate has been proceeded against or convicted under that provision.
The Appeal Panel found as follows:
“Section 137 is, in our opinion, restricted to imposing liability on directors where a company contravenes a provision of the Home Building Act (as opposed to breaching an implied warranty of the contract). It is clear from s 137(2) that the subject of s 137 is restricted to contraventions by which a person may be convicted. In our view, s 137 is concerned only with enabling a director to be convicted by reason of the breach of a provision by a company and does not impose upon a director personal liability for breach of a contractual provision imposed upon the company, including one or more of the contractual warranties implied into the contract by reason of s 18B.”
It should be acknowledged that the parties were litigants in person, but notwithstanding this, a line can be drawn under this avenue. Prior attempts to use legislation in this manner have also failed, for example Fair Trading Administration Corporation v Smith [2001] NSWCA 435, which sought to hang personal liability on “done or contracted to be done” in the recovery right in s 98(1) of the Building Services Corporation Act 1989 (the predecessor to the HBA).
To conjure Sir Humphrey Appleby, it would be ‘a very brave decision, Minister’ to take the current reforms in the direction of creating an explicit right for asset owners to pursue directors. However, the upper limits of the statutory duty in the Design and Building Practitioners Act (2020) NSW remain to be defined.
Author: Christine Jones
More Homes Approved Under National Environmental Laws
The Albanese Government is continuing to deliver more housing for Australians, with 4,641 new homes approved through national environment laws since August. These numbers are expected to continue growing thanks to the creation of the housing strike team established within the Department of Climate Change, Energy, the Environment and Water, as an outcome of the Government’s Economic Reform Roundtable last month. The team’s work has already begun, with a goal to accelerate the assessment of 26,000 housing projects currently under EPBC Act consideration and speed up new applications. Read more here.
NSW launches guarantee to accelerate housing delivery
The New South Wales government has opened Expressions of Interest (EOI) for its landmark Pre-sale Finance Guarantee (PFG) program, designed to accelerate housing delivery across the state by reducing risk in construction finance and unlocking thousands of homes currently stuck between approval and commencement. From 22 September 2025, eligible developers can apply to have the NSW government commit to purchasing off-the-plan dwellings in approved residential projects. The commitment is aimed at helping builders meet pre-sale requirements, one of the biggest hurdles in securing finance and getting projects out of planning and into delivery. Read more here.
‘Too expensive: pressure on to roll back ‘Opal Tower’ laws
The NSW government is under pressure from the construction industry to wind back some of the tough legislative requirements that came in the wake of the Opal Tower and Mascot Towers calamities. The Master Builders Association of New South Wales (MBA) says the legislation introduced “negative impacts” on the residential sector. “NSW now has one of the most administratively burdensome and expensive regulatory systems for the construction of apartment buildings in Australia.” Read more here.
Housing industry slams ‘weak’ building approvals, calls for reform
Monthly dwelling approval data has recorded a drop in the number of homes to be constructed. Industry bodies have slammed the government inaction and called for reforms. As reported by the Australian Bureau of Statistics, the total number of dwellings approved in August fell by 6 per cent, to a total of 14,744. This fall was driven by an 8.1 per cent drop in private dwellings excluding houses, following a 25.8 per cent fall in July. The value of total residential building fell 3.1 per cent, to $9.17 billion. Read more here.
NSW building standard crackdown wraps up
An inspection blitz between Port Stephens and Port Macquarie to lift building standards has wrapped up. Crews from the Building Commission of NSW visited 41 sites across Nelson Bay, Forster, Diamond Beach, Bonny Hills and Port Macquarie, focusing on identifying defective building work and unlicensed or unsupervised specialist trades. In total 13 rectification orders were issued as well as 22 Penalty Infringement Notices (PINS) worth $17,970, with more than half relating to improper builder or certifier site signage. Read more here.
NSW Industrial Land Summit – Insights Report
The NSW Industrial Land Supply Summit Insights Report captures the key messages, solutions, and shared priorities that emerged from the Property Council’s Industrial Land Supply Summit, held in September 2025. Bringing together leaders from government, industry, and the investment sector, the event focused on one of the state’s most critical economic challenges: addressing Sydney’s chronic undersupply of serviced industrial land. Read more here and access the report here.
Land audit unlocks another 600 dwellings
The Minns Labor Government’s ongoing statewide property audit has identified a further seven government-owned sites with the potential to deliver more than 600 new homes as part of its Building Homes for NSW program. All sites identified as part of the land audit are first offered to Homes NSW and Landcom, the NSW Government’s developer. Among the latest tranche of government-owned sites, three are in Greater Sydney and four are in regional centres. In the Northern Tablelands region, Homes NSW are investigating the former Duval High School site in Armidale which has the potential for over 100 new social, affordable and market dwellings to support regional growth driven by the New England Renewable Energy Zone. Read more here.
ABS - Building Approvals, Australia
The Australian Bureau of Statistics (ABS) provides an overview of the number of dwellings and value or buildings approved. The August 2025 seasonally adjusted estimate revealed that total dwellings approved fell 6.0% to 14,744, and Private sector dwellings excluding houses fell 8.1% to 5,408 and private sector houses fell 2.6%, to 9,027. The value of total residential building fell 3.1%, to $9.17b and The value of total non-residential building rose 26.1%, to $7.92b. Access the statistics here
Grbevska & Grbevski v Zac Homes Pty Ltd [2025] NSWCATAP 243
Building and Construction – where contract still on foot and construction incomplete – damages for ongoing loss of interest and lenders charges due to delay – whether within the reasonable contemplation of the parties
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal 2013 (NSW)
Nguyen v Nguyen [2025] NSWCATAP 238
BUILDING AND CONSTRUCTION – contract – repudiation by builder – compensation for breach
Civil and Administrative Tribunal Act 2013 (NSW), ss 50, 80; cl 12 of Sch 4; Civil and Administrative Tribunal Rules 2014 (NSW), rr 25, 38, 38A
Allan v Renfay Projects Pty Ltd [2025] NSWDC 357
BUILDING AND CONSTRUCTION – residential building work – claim by homeowner against builder for breach of statutory and contractual warranties
CONTRACT – proper construction of standard form of Master Builders Association Residential Building Contract
STATUTORY CONSTRUCTION – Home Building Act 1989 (NSW) – proper construction of s 18B and s 7E warranties as incorporated in contract
STATUTORY CONSTRUCTION – Home Building Act 1989 (NSW) – proper construction of “relates solely” in Schedule 2 cl 2(2)
STATUTORY CONSTRUCTION – Home Building Act 1989 (NSW) – proper construction of “specific purpose or result” for purpose of s 18B(1)(f) – various defects the subject of the claim relating to leaking roof caused by and thus relating solely to defective design – claim dismissed
STATUTORY CONSTRUCTION – Home Building Act 1989 (NSW) – to what extent can builder be liable for failures caused by design – the Owners – Strata Plan No 66375 v King [2018] NSWCA 170 distinguished and explained
Environmental Planning and Assessment Act 1979 (NSW); Home Building Act 1989 (NSW) s 7E; s 18B; s 18F; Schedule 2
Rushton v St George Community Housing Limited [2025] NSWCATAP 222
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – alteration of premises by tenant – without consent of landlord – compensation payable to landlord – no error of law established – no grounds to grant leave to appeal established
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Residential Tenancies Act 2010 (NSW); Residential Tenancies Regulation 2019 (NSW)
Reed v Brown [2025] NSWCATAP 250
BUILDING and CONSTRUCTION – HOME BUILDING – COSTS – Calderbank offers – reasonableness of rejection – APPEALS – challenge to discretionary decision – question of law – errors of law and of fact – re-exercise of discretion
Civil and Administrative Tribunal Act 2013 (NSW), Civil and Administrative Tribunal Rules 2014 (NSW), Home Building Act 1989 (NSW), Supreme Court Act 1970 (NSW) s 101(2)(c), Uniform Civil Procedure Rules (UCPR) r 20.26(2)(c), Pt 42 Div 3
Hawach v A & A Building Services Pty Ltd [2025] NSWSC 1174
BUILDING AND CONSTRUCTION – leave to appeal from determination of the New South Wales Civil and Administrative Tribunal Appeal Panel – alleged contract with defendant to carry out or to arrange to carry out a range of building works – where defendant assisted the plaintiffs by recommending subcontractors to them and allowed the plaintiffs to use the defendant’s trade account to order materials – whether the Appeal Panel constructively failed to exercise jurisdiction in finding there was no evidence that there was a term of a contract that the defendant would provide a waterproofing certificate – whether Appeal Panel erred in law in finding that the Home Building Act 1989 (NSW) did not preclude the defendant’s entitlement to set off – principles applicable to partly oral contracts
APPEAL – leave to appeal from determination of the New South Wales Civil and Administrative Tribunal Appeal Panel – scope and construction of contract – post-contractual conduct – whether the Appeal Panel erred in law by failing to correctly apply the principles in relation to post-contractual conduct
Civil and Administrative Tribunal Act 2013 (NSW), s 83, Design and Building Practitioners Act 2020 (NSW), s 36, Home Building Act 1989 (NSW), ss 7, 10, 18B, 92
APPEAL – appeal against a decision to refuse to join as respondent the director of a company that had entered into a home building contract – whether s137 of the Home Building Act imposes personal liability on the director.
Bankruptcy Act 1966 (Cth), Corporations Act 2001 (Cth), Home Building Act 1989 (NSW)
McClatchey v The Owners of Strata Plan No. 91138 [2025] NSWCATCD 91
COSTS – proceedings not determined on the merits because of a compromise – whether special circumstances established – whether an insurance claim made by the owners corporation could support a deferral under s. 106(4) of the Strata Schemes Management Act 2015 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW) s. 60
Zahedi v Secretary, Department of Customer Service [2025] NSWCATOD 136
ADMINISTRATIVE LAW – application for review of decision to refuse contractor licence – whether fit and proper person to hold the licence – impact of failure to declare previous criminal convictions – insufficient evidence of rehabilitation
Administrative Decisions Review Act 1997 (NSW), Home Building Act 1989 (NSW)
ADMINISTRATIVE LAW – administrative review of disciplinary decisions – applications to stay operation of decisions – factors relevant to stay
Administrative Decisions Review Act 1997 (NSW), Home Building Act 1989 (NSW)
Revive Kitchens & Bathrooms Pty Ltd v Crome [2025] NSWCATAP 24
APPEALS – whether appeal raised a question of law – no question of principle – whether appeal raises an error warranting a grant of leave – no question of principle – appeals of interlocutory decisions – no question of principle
Civil and Administrative Tribunal Act 2013 (NSW), ss 63, 80; cl 12 of Sch 4, Civil and Administrative Tribunal Rules 2014 (NSW), r 25
The Owners – Strata Plan No 93543 v Zhang (No 4) [2025] NSWSC 1059
CIVIL PROCEDURE – default judgment – procedural imbroglio – non-compliance with self-executing order – mistake by defendant’s solicitor – whether Court has power to extend time for compliance – where no ongoing prejudice to plaintiff and defendant’s solicitor submits to personal costs order
Civil Procedure Act 2005 (NSW), Home Building Act 1989 (NSW), Uniform Civil Procedure Rules 2005 (NSW)
Elrob Construction Group Pty Ltd v Haddad [2025] NSWDC 380
BUILDING AND CONSTRUCTION – contract – damages – claim by builder for cost of variations – alternative claim in quantum meruit
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – cross-claim by owner for damages for alleged defects and incomplete works – claim for restitution of money paid under the Building and Construction Industry Security of Payment Act 1999 (NSW)
Building and Construction Industry Security of Payment Act 1999, Home Building Act 1989
Sharma v Manhattan Custom Homes Pty Ltd [2025] NSWCATCD 89
BUILDING and CONSTUCTION – NSW Government home building contract for work over $20,000 – contract not terminated at the time of the hearing – notice of suspension – meaning of ‘prevents the contractor from carrying on the work’ – Clause 24
Home Building Act 1989
Gordon v Mirosevich; Mirosevich v Gordon [2025] NSWCATCD 87
CONTRACT – novation – by express words – by conduct – breach – repudiation
Civil and Administrative Tribunal Act 2013 (NSW), Home Building Act 1989 (NSW)
Hadwani v Hanna [2025] NSWCATCD 85
BUILDING AND CONSTRUCTION – Incomplete work, defective work, damage to property alleged
CIVIL PROCEDURE – Assessment of damages – ex parte hearing – Tribunal should neither adopt claims of an applicant without scrutiny nor act as advocate for the absent respondent
Civil and Administrative Tribunal Act 2013 (NSW), Civil and Administrative Tribunal Rules 2014 (NSW), Home Building Act 1989 (NSW)
Schach v Dowdy Constructions Pty Ltd [2025] NSWCATCD 84
COSTS – proceedings resolved by consent orders – application of Lai Qin principles
Civil and Administrative Tribunal Act 2013 (NSW), Civil and Administrative Tribunal Rules 2014 (NSW)
Pan v St George Design & Construction Pty Ltd (No 2) [2025] NSWCATCD 77
COSTS – r 38 Civil and Administrative Tribunal Rules 2014 (NSW) – Calderbank offer – whether unreasonably refused
Civil and Administrative Tribunal Act 2013 (NSW), Civil and Administrative Tribunal Rules 2014 (NSW), Health Practitioner Regulation National Law 2009 (NSW), Home Building Act 1989 (NSW)
Pan v St George Design & Construction Pty Ltd [2025] NSWCATCD 76
BULDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – s 18E Home Building Act 1989 (NSW) – major defect – whether defects are major defects – appropriate method to rectify
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – successor in title – extension of statutory warranties – knowledge of owner when purchased property – extent and nature of defects at date of purchase – causation
Civil and Administrative Tribunal Act 2013 (NSW), Civil and Administrative Tribunal Rules 2014 (NSW), Home Building Act 1989 (NSW)
Somaskanthan v Hayes [2025] NSWCATCD 74
BUILDING & CONSTRUCTION: Home Building – where Builder unlicensed at date of contract – no insurance – no contract in writing
Home Building Act 1989
PRACTICE AND PROCEDURE – summary disposal application
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – improper conduct – show cause notice – whether notices given or served
Electronic Transactions Act 2000 (NSW), ss 13, 13A, Home Building Act 1989 (NSW), ss 56, 59, 61, 62, 64, 123
ADMINISTRATIVE REVIEW – Home Building Act 1989 – Design and Building Practitioners Act 2020 – disciplinary proceedings – disciplinary action – improper conduct – penalties – quantification of penalty – protection of consumers
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)
Proclamations commencing Acts
Nil
Regulations and other miscellaneous instruments
Centennial Park and Moore Park Trust Amendment (Events) Regulation 2025 (2025-534) – published LW 3 October 2025
Child Protection (Working with Children) and Other Legislation Amendment (Children’s Guardian Review Functions) Regulation 2025 (2025-533) – published LW 2 October 2025
Water Sharing Plan for the NSW Great Artesian Basin Groundwater Sources Amendment Order 2025 (2025-535) – published LW 3 October 2025
Work Health and Safety Amendment Regulation 2025 (2025-536) – published LW 3 October 2025
Environmental Planning Instruments
Bayside Local Environmental Plan 2021 (Map Amendment No 7) (2025-537) – published LW 3 October 2025
Blacktown Local Environmental Plan (Precincts – Central River City) (Map Amendment No 9) (2025-538) – published LW 3 October 2025
Byron Local Environmental Plan 2014 (Amendment No 51) (2025-539) – published LW 3 October 2025
Central Coast Local Environmental Plan 2022 (Map Amendment No 14) (2025-540) – published LW 3 October 2025
Central Coast Local Environmental Plan 2022 (Map Amendment No 15) (2025-541) – published LW 3 October 2025
Cessnock Local Environmental Plan 2011 (Amendment No 48) (2025-542) – published LW 3 October 2025
Greater Hume Local Environmental Plan 2012 (Amendment No 11) (2025-543) – published LW 3 October 2025
Greater Taree Local Environmental Plan 2010 (Map Amendment No 6) (2025-544) – published LW 3 October 2025
Hunters Hill Local Environmental Plan 2012 (Amendment No 3) (2025-545) – published LW 3 October 2025
Narrabri Local Environmental Plan (Miscellaneous) 2012 (2025-546) – published LW 3 October 2025
North Sydney Local Environmental Plan 2013 (Map Amendment No 12) (2025-547) – published LW 3 October 2025
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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