Does the builder have to come back and fix it? (NSW)

Building defects are stressful. Full stop.

You’ve paid a stack of money, lived through the noise and dust, and all you want is a finished job that doesn’t leak, crack, short‑circuit, or look like it was done on a Friday at 4:55pm. Then the defects show up… and suddenly the question becomes weirdly personal:

“Do you have to let the builder back on site?”

Thing is, people assume there’s a neat rule. Like: builder gets one chance to fix it or owner can always refuse. In NSW, it’s not that tidy. It depends on what the claim is about (defective work vs incomplete work), what stage the project is at (practical completion, defects liability period, termination), and what’s reasonable in the circumstances.

Also—this is the 2026 update part—there’s an extra layer people miss: NSW has a statutory duty not to unreasonably refuse access in statutory warranty disputes, and that can seriously affect outcomes if things go to NCAT or court.

So, coffee-chat version. No fluff.

Last updated: 6 February 2026

First up: “defective” and “incomplete” aren’t the same thing (and the law treats them differently)

This always surprises people.

A lot of owners use “defect” to mean “anything wrong”. But legally, there’s often a difference between:

• Defective work: it’s done, but it’s done badly (leaking shower, crooked tiling, non-compliant waterproofing, etc.)
• Incomplete work: it just isn’t finished (missing doors, missing balustrade, unfinished roof… the obvious gaps)

Why does that matter? Because NSW law talks about “rectification of defective work” in a very particular way.

Under section 48MA of the Home Building Act 1989 (NSW), a court or tribunal determining a building claim involving an allegation of defective residential building work must have regard to the principle that rectification by the responsible party is the preferred outcome.

Preferred. Not guaranteed. Not automatic. But it’s the starting point for defective-work disputes.

And importantly: that “preferred rectification” idea doesn’t automatically scoop up incomplete work the same way. That’s been tested.

So… do you have to let the builder come back?

Sometimes yes. Sometimes no. Frustrating answer, but it’s the honest one.

Here’s the cleaner way to think about it in 2026:

1. What is being claimed—defects, incomplete work, or both?
2. Is the contract still on foot, or has it ended/been terminated?
3. Is refusing access actually “reasonable” in the eyes of NCAT/court?
4. What evidence exists to back up either decision?

Because this isn’t just a “site access” argument anymore. It can become a damages/rectification argument, and those choices can affect what NCAT is willing to order.

The 2026 trap: refusing access can hurt a statutory warranty claim

This part doesn’t get talked about enough.

NSW has a provision (section 18BA) that says a person with the benefit of the statutory warranties must make reasonable efforts to give written notice of the breach within a certain time after it becomes apparent, and—here’s the relevant bit—must not unreasonably refuse access to the builder (or other responsible party) for the purpose of rectifying the breach.

And if a court/tribunal finds there was an unreasonable refusal of access, it must take that into account.

So what does that mean in plain terms?

It doesn’t mean a builder has a free pass to wander back in whenever they like. But it does mean a flat “no entry, ever” can backfire unless there’s a solid, evidence-backed reason.

Worth noting: “reasonable access” can still be on your terms—controlled times, written scope, supervision, photos, a paper trail. Reasonable doesn’t mean chaotic.

Defects vs incomplete work: why the difference matters in NCAT

If it’s a defects case

For defects, s 48MA pushes NCAT/court toward: “rectification by the responsible party is preferred”.

But that does not mean the owner must accept it no matter what. It means if the owner wants damages instead (money to get someone else to do it), the owner usually needs a sensible reason and evidence.

If it’s incomplete work

The source discusses a NSW decision (Clements v Murphy) where the Tribunal Appeal Panel considered whether s 48MA covers completion of incomplete work and found it doesn’t oblige the tribunal to prioritise “builder returns and completes” in the same way it does for rectification of defects.

That doesn’t mean NCAT can’t order a builder back to finish work. It can. The point is just that s 48MA isn’t a magic lever for incomplete work.

Actually—small correction—some incomplete items can also have the character of defective work. Missing cupboard handles is a good example: it’s “incomplete”, but it’s also not properly functional.

But obviously some incomplete work is just… incomplete. A missing roof isn’t “defective”. It’s unfinished, and it’s serious.

The “right to rectify” people talk about… not unlimited, not forever

Contrary to popular belief, builders don’t have an unlimited right to come back.

There’s a common law idea sometimes called a “right to rectify”, but it usually only exists while the contract is still operating—before practical completion or during the defects liability period—because it comes from the contract, not from thin air.

Once the contract has ended (especially if it’s been terminated), whether the builder comes back becomes much more fact-driven: contract terms, fairness, evidence, and what NCAT orders.

When refusing access is reasonable (and when it backfires)

This is the bit that’s emotionally loaded.

Owners refuse access because trust is gone. The relationship is cooked. There’ve been delays, excuses, maybe bullying, maybe serious workmanship issues. So the instinct is: “No chance. Not again.”

That reaction is human. But if the dispute goes to NCAT/court, the question becomes: was the refusal reasonable?

Refusal tends to be more defensible where there’s evidence of things like:

• repeated failed rectification attempts (same issue “fixed” and still leaking)
• safety concerns or site-control concerns
• the builder’s conduct being so poor that confidence is genuinely gone (and you can point to facts)
• the contract being terminated because of the builder’s conduct before completion (often unusual for NCAT to send them back to finish, depending on circumstances)
• serious non-compliance issues supported by expert evidence

In other words: if refusing access, have receipts. Emails. Photos. Reports. A timeline. Not just anger.

Newer NSW landscape: rectification orders and regulator involvement (quick note)

These days, it’s not always only “owner vs builder”.

The Home Building Act has a framework where inspectors/NSW Fair Trading side can make rectification orders for incomplete work, defects, or damage (and there are also newer provisions dealing with defect investigations and rectification orders). There are appeal rights and consequences for non-compliance.

No need to deep-dive here, but it matters because sometimes the builder coming back isn’t just “a negotiation”—it’s happening in the shadow of regulatory steps.

If you’re already at that stage, get advice early.

If the builder asks to come back: a practical, low-drama way to handle it

Before saying yes or no, lock in the basics:

• What exactly are they proposing to fix/finish? Get it in writing.
• What’s the timeframe? Start date, end date, access times.
• Who supervises? Who’s the site contact?
• What happens if it’s not done properly?
• Will they warrant the rectification work (and how)?
• If you allow access, keep a record of who attended and what was done.

Pro tip: avoid the “sure, come whenever” approach. Access should be controlled and documented. Otherwise it turns into another argument later: who said what, who attended, what got damaged, what was actually fixed.

So what does this mean for you?

If the problem is a defect, NSW law pushes toward rectification by the responsible party as the starting point—but it’s not an absolute rule, and it can be displaced with evidence.

If the problem is incomplete work, the builder doesn’t get to wave s 48MA around and demand the preferred-outcome treatment. NCAT still has broad powers, but it’s more open.

And now the 2026 reality check: if the dispute is really about statutory warranties, be careful about refusing access without a solid reason. NSW law expects people not to unreasonably refuse reasonable access for rectification, and NCAT/courts can take that into account.

Either way, the smart move is to treat it like a dispute that may need to be proved later:

• document the issues
• get expert reports where appropriate
• communicate in writing
• avoid emotional back-and-forth that creates messy evidence trails

And if there’s any hint the dispute is heading toward NCAT/court—or the sums are big, or the defects are serious—it’s worth it to consult experienced legal professionals before granting access or refusing it, because one wrong step can change the whole remedy on the table.

FAQ: questions people actually ask

Can a homeowner refuse to let the builder back in NSW?

Yes, but refusal can have consequences if the dispute goes to NCAT/court—especially where the claim is about defective work and rectification is the preferred outcome. Also, in statutory warranty disputes, unreasonably refusing reasonable access can be taken into account.

Does section 48MA mean the builder always gets to fix defects?

No. It creates a preference, not an absolute right. NCAT/court can still order damages instead of rectification in an appropriate case.

Is incomplete work treated the same as defective work under 48MA?

Not necessarily. The decision discussed in the source indicates 48MA doesn’t force the tribunal to prioritise “builder returns to complete” for incomplete work the same way it does for defect rectification.

If the contract has been terminated, does the builder still have a right to rectify?

Often, any “right to rectify” comes from the contract and usually applies while the contract is still on foot (before practical completion or during a defects liability period). After termination, it’s more complicated and fact-dependent.

What does “reasonable access” look like?

Usually, it means access that allows rectification work to be done properly—within agreed times and conditions. It doesn’t mean unlimited access or the owner losing control of the site.

Neutral next step

Before allowing access—or refusing it—get the defects/incomplete items properly documented, and get a clear written proposal from the builder about scope and timing. If the relationship is hostile or the defects are serious, get tailored advice early.

Legal disclaimer

This article is general information only and does not constitute legal advice. It does not take into account individual circumstances. For advice about your matter, obtain advice from a qualified Australian lawyer.