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ARTICLE · 26 JANUARY 2026

NSWCA Confirms In The Absence Of Appropriate Evidence, Owners Can Refuse Builder Rectification

Barry Nilsson
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Owners corporation does not have a positive obligation to allow a builder the opportunity to return to rectify defects unless the builder proves the factual foundation for that obligation.

AustraliaReal Estate and Construction
Lachlan Commins
Lachlan Commins
Maddison Storniolo
Maddison Storniolo
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The NSW Court of Appeal has confirmed that an owners corporation does not have a positive obligation to allow a builder the opportunity to return to rectify defects unless the builder proves the factual foundation for that obligation.

In issue

  • Whether the primary judge erred in failing to find that the referee had denied the appellants procedural fairness by relying on evidence contrary to an earlier ruling,
  • whether the primary judge erred by failing to find that the referee had misapplied the legal principles relating to mitigation, in particular by not accepting that the respondent had a 'positive obligation' to afford the builder a reasonable opportunity to rectify alleged defects,

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