Receiving a rectification order from Building Commission NSW can have serious consequences for a builder, particularly where complying with the order could involve demolishing and rebuilding substantial parts of a home.
But what if the builder believes the work is not defective?
A recent NCAT decision, Glenbuilt Constructions Pty Ltd v Secretary, Department of Customer Service [2026] NSWCATCD 100, highlights what builders need to know about challenging a rectification order in NSW and, importantly, what happens while an appeal is being decided.
What happened in this building dispute?
Glenbuilt Constructions Pty Ltd was constructing a residential home at Hill Top, NSW.
In January 2026, the builder received a rectification order from the Building Commission NSW identifying 16 items of allegedly defective work.
By the time the matter came before NCAT, the builder had complied with all but four items. The remaining disputed items concerned:
- excessive brick cavity widths;
- omitted concrete slab set-downs in wet areas;
- signs of excessive cracking in concrete slabs; and
- timber formwork embedded in finished concrete, potentially creating a pathway for termite entry.
The builder appealed the rectification order and sought a stay, which would temporarily stop the order from operating while the appeal was determined.
Does an appeal automatically stop a rectification order?
No. This is an important point for NSW builders.
Under the Home Building Act 1989 (NSW), a contractor can appeal a rectification order to NCAT. Generally, the appeal must be lodged within 30 days after notice of the order is given, unless NCAT grants leave for a late appeal.
However, simply lodging an appeal does not automatically stay the rectification order.
Unless NCAT orders otherwise, the order continues to operate, and the builder remains required to comply.
That can create a significant problem where compliance involves substantial and potentially irreversible work.
Why did the builder seek a stay?
The builder relied on evidence from an experienced building consultant who disputed the need for further work on the remaining items.
For several items, the expert’s opinion was that no work or action was necessary.
NCAT found the builder had an arguable appeal.
There was also a significant practical issue.
NCAT observed that rectifying one item appeared likely to require demolition and reconstruction of brick walls. Rectifying another appeared likely to require replacement of the slab, potentially requiring the removal of framing and brickwork already constructed on it.
If the builder completed all of that work before its appeal was heard, a successful appeal could become largely pointless.
What does NCAT consider when granting a stay?
NCAT identified three key considerations when deciding whether a stay should be granted:
- Is there an arguable appeal?
- Would refusing a stay create a real risk of prejudice or damage that could not be adequately addressed if the appeal succeeds?
- Where does the balance of convenience lie between the parties?
In this case, NCAT considered that the builder had an arguable case and could incur substantial costs if forced to carry out the disputed rectification work immediately.
There was also no evidence before NCAT establishing what prejudice the homeowner or another party would suffer if the stay was granted.
NCAT therefore stayed the rectification order until further order or determination of the appeal.
Importantly, NCAT had not decided that the alleged building defects did not exist. That question remained to be determined in the substantive appeal.
Why expert evidence matters
The decision also contains an important lesson about evidence.
NCAT noted that a rectification order itself provides some evidence that the identified defects exist. A builder challenging the order therefore needs evidence capable of contradicting the allegations made in it.
In this case, the builder relied on an expert building consultant’s report addressing the disputed items.
For builders considering an appeal, obtaining appropriate expert evidence early may therefore be critical.
What should you do after receiving a rectification order?
A rectification order should not be ignored.
There may be strict time limits for appealing, and lodging an appeal alone does not necessarily suspend the obligation to comply.
Builders should promptly consider the allegations, obtain appropriate expert evidence and legal advice, and determine whether an appeal and an application to stay the order are appropriate.
At The Law Office of Conrad Curry, we assist builders and contractors with home building disputes in NSW, including Building Commission NSW rectification orders, NCAT appeals, building defect disputes and regulatory proceedings.
Contact our friendly team today to discuss your circumstances.
Frequently Asked Questions
Can a builder appeal a rectification order in NSW?
Yes. Under the Home Building Act 1989 (NSW), a contractor can appeal a rectification order to NCAT.
How long do I have to appeal?
An appeal must generally be lodged within 30 days after notice of the rectification order is given, although NCAT can grant leave for an appeal to be made outside that period.
Does appealing stop the rectification order?
No. An appeal does not automatically stay the order. A builder may need to apply to NCAT for a stay while the appeal is determined.
What is a stay of a rectification order?
A stay temporarily suspends the operation of the rectification order. In Glenbuilt Constructions, NCAT granted a stay until further order or determination of the appeal.
Do I need expert evidence to challenge a rectification order?
Expert evidence may be very important. NCAT noted that it is incumbent on a contractor appealing a rectification order to provide evidence contradicting the allegations contained in the order.
DISCLAIMER
This article reflects the current law at the time of publication. Please note that cases may have been the subject to appeal or subsequent judicial consideration since the date of posting. The decisions referred to are summarised for general understanding only. It is intended for informational purposes only and does not constitute legal advice. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.