Updated 4 November 2026
Off the Plan Potential Problem #2: Quality of Construction
Explore CM Lawyers’ off-the-plan purchase services.
A display apartment can show finishes, but it cannot establish how the completed building will perform. Waterproofing, structural work and fire safety deserve attention alongside kitchens and flooring. For an off-the-plan purchase, the practical task is to understand what has been promised, how quality will be checked and what happens if defects emerge.
Why does construction quality matter beyond the appearance of an apartment?
Construction quality affects safety, durability, maintenance costs and whether the property can be comfortably occupied. Defects may involve waterproofing, structure, fire systems, plumbing or finishes. Some become apparent only after occupation or heavy rain. A new building, expensive fit-out or attractive display suite does not eliminate those risks.
Consider the whole building, including roofs, balconies, basements and shared services. A fault outside your apartment can affect access, insurance, rental income and strata expenses. Cosmetic presentation is only one part of the assessment.
What should I check in the plans and specifications?
Check the actual contract documents describing the apartment, finishes, fixtures, layout and common facilities. Identify what is included, what remains discretionary and how substitutions or variations are permitted. Marketing images and verbal assurances may not match the enforceable specification, so important requirements should be addressed before you commit.
Keep dated brochures, emails and the version of every plan supplied. My practical advice is to make a short list of features you would not accept losing, then ask your solicitor how each is protected in the contract.
How should I investigate the builder and developer?
Identify the legal entities involved, rather than relying only on a development’s brand name. Check the builder’s licence, relevant registrations, completed projects and publicly available regulatory information. A good history can inform your decision, but it cannot guarantee this project’s workmanship or the financial capacity to address future defects.
Use the Service NSW licence check and compare the result with the entity named in the documents. Ask who will actually carry out and supervise construction. Keep deeper financial and corporate checks separate from inspecting technical quality.
Which building standards apply to the project?
New building work must comply with the applicable National Construction Code and relevant approvals. The applicable edition depends on the approval process and timing, including rules for staged construction. Do not assume that a recently announced code or building-law reform already governs the project or replaces existing requirements.
NSW guidance identifies NCC 2022 Amendment 2 as current, with NCC 2025 adoption scheduled for 1 May 2027. The 2026 building productivity reforms await implementing regulations. Ask the project team and your adviser which requirements apply to this development.
Does an occupation certificate guarantee there are no defects?
No. An occupation certificate has an important statutory purpose, but it is not a comprehensive guarantee of workmanship or compliance with every contractual promise. Certifiers inspect specified stages and perform regulatory functions. They do not act as your private building inspector, project manager or supervisor of the builder’s work.
NSW explains the certifier’s role. Check that the necessary certificate and contractual completion documents are available, while separately investigating visible defects and specification differences. Approval to occupy does not replace an independent assessment of the property you are buying.
Should I arrange an independent inspection before settlement?
An independent inspection can identify accessible defects and departures from the agreed specification before settlement. Arrange access early under the contract and use an appropriately qualified inspector. Ask what the inspection covers, what cannot be inspected and whether structural, waterproofing, electrical or other specialist assessment is needed.
A visual inspection cannot reveal every concealed defect. Request a written report with photographs, locations and recommended action. Give it to your solicitor promptly, allowing time to address issues before the settlement deadline rather than relying on an informal walk-through.
What if the developer changes the design or substitutes materials?
Compare the change with the contract, disclosure statement and applicable off-the-plan protections. Some changes require notification and may create rights where statutory tests are satisfied. A substitution is not automatically unlawful, and a difference from a brochure does not automatically permit cancellation. Obtain advice before accepting revised documents.
NSW off-the-plan guidance explains disclosure and material changes. Keep the original and revised specifications so an adviser can assess what changed and its effect. Notice and remedy deadlines can be short; respond promptly rather than waiting until completion.
Who deals with defects in common property?
The owners corporation generally maintains and repairs common property, while responsibility for individual lot items depends on the strata plan, by-laws and applicable law. A leak inside an apartment may originate in common property. Identify responsibility before commissioning work, while taking appropriate steps to address any immediate safety issue.
NSW strata repair guidance explains the distinction. Coordinate common property investigations through the strata committee or manager, preserve reports and raise concerns at meetings. Developer liability and the owners corporation’s continuing repair obligations are related but separate questions.
What statutory warranties may protect purchasers?
The Home Building Act provides statutory warranties for relevant residential building work, including due care and skill, suitable materials and compliance with applicable law. These protections can benefit subsequent owners. Generally, proceedings must begin within six years of completion for major defects and two years for other defects.
Building Commission NSW explains the time limits, including a limited additional period where loss becomes apparent near expiry. A ‘major defect’ must meet the statutory test; an expensive repair is not automatically enough. Obtain advice on completion dates and preserve proceedings in time.
Are statutory warranties the only possible remedy?
No. Depending on the facts, contractual rights, consumer law and the statutory duty of care for construction work may also matter. Under the Design and Building Practitioners Act, relevant persons owe owners a duty to avoid economic loss caused by defects arising from their construction work. Liability still requires proof.
Legal Aid NSW outlines the duty. Your adviser should identify the correct defendants, evidence, available loss and applicable limitation periods, including any long-stop rule. Do not assume one remedy extends another deadline or that every participant is automatically liable.
Will a building bond or insurance pay for every defect?
No. The strata building bond scheme and home building compensation arrangements have different eligibility rules, procedures and limits. A bond is not an unlimited repair fund, and insurance does not cover every building or circumstance. Confirm which protection applies to the project and obtain the relevant documents.
The strata building bond scheme provides inspections and a process for eligible defect rectification. The current bond is two per cent; the increase to three per cent has been deferred to 1 July 2028. Check any alternative insurance arrangement and its actual policy cover.
Can I refuse to settle until every defect is fixed?
Not necessarily. Your rights depend on the contract, the defect and any applicable statutory remedy. Some contracts require settlement despite specified outstanding work. Refusing payment or withholding an amount without a valid basis can expose you to default consequences. Obtain advice before taking action that prevents completion.
Possible negotiated arrangements include documented rectification obligations, access and deadlines, or an agreed retention where appropriate. Record exactly what is agreed and who is responsible. A developer’s verbal promise is not a substitute for clear advice about your position.
What should I do if defects emerge after occupation?
Record the problem, notify the appropriate builder, developer or owners corporation in writing and seek technical advice. Keep dated photographs, reports, correspondence and evidence of expenses. Address urgent risks safely. If the matter remains unresolved, consider Building Commission NSW’s complaint process and obtain advice about tribunal or court proceedings.
A building defect complaint does not necessarily preserve a litigation deadline. Avoid allowing negotiations to run past the time for filing. Keep evidence before repairs where safe, and give appropriate access for inspection and rectification without agreeing to an unsuitable release.
What does Pafburn show about responsibility for construction defects?
Pafburn Pty Limited v The Owners – Strata Plan No 84674 [2024] HCA 49 shows that responsibility under the statutory construction duty cannot simply be passed to subcontractors. The High Court rejected the developer and head contractor’s attempt to apportion their alleged liability to others entrusted with the relevant work.
The claim concerned defects in a North Sydney strata building. The owners corporation alleged economic loss under the Design and Building Practitioners Act. By majority, the High Court dismissed the appeal against orders striking out the challenged proportionate-liability defence. The Court explained that the duty was non-delegable within its scope. This was a ruling about the defence available, not a final finding that every alleged defect was proved or an award of a particular repair sum. Breach, causation and loss still had to be established.
How can CM Lawyers help with construction quality concerns?
CM Lawyers can review the purchase contract, identify relevant disclosure and completion obligations, and advise on responding to defects before or after settlement. We can work with independent building experts to assess the legal issues, preserve deadlines and consider negotiation, regulatory complaints or proceedings suited to the evidence.
For construction and property advice, contact CM Lawyers on 02 9557 9000 or at lawyers@cmlaw.com.au. Our office is Level 3, Unit 3.07, 18–30 Faversham Street, Marrickville NSW 2204.
General information only, current at 4 November 2026. Obtain legal and building advice for your property and contract.
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