Builder marketing rules in NSW: ACL, Home Building Act and Fair Trading

Key takeaways

• NSW residential builders sit under the Australian Consumer Law plus the Home Building Act 1989 (NSW), and Fair Trading NSW is the state-level regulator that runs enforcement.
• Licence number, class and expiry must appear on any advertising for residential building work over $5,000, under section 19 of the Home Building Act 1989.
• Section 18 of the ACL bans misleading or deceptive conduct in trade. Overall impression is the test, not literal accuracy.
• Fake reviews and paid testimonials without disclosure breach ACL sections 18 and 29 and now attract fines under the 2024 Unfair Trading amendments.
• Building Commission NSW proactive inspectors check advertising during builder audits and issue rectification directions where marketing overpromises what was delivered.

The two regimes that apply

NSW residential builder marketing sits under two layers. The Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010) covers every business in trade. The Home Building Act 1989 (NSW) adds licensed-trade rules on top, mostly around licence display, work-type limits and contract disclosures.

Fair Trading NSW enforces both regimes in the residential space. From 1 December 2023, building-specific compliance sits with Building Commission NSW, which has proactive inspection powers.

Licence display under the Home Building Act

Section 19 of the Home Building Act 1989 requires any advertisement for residential building work over the threshold to show the licence number of the contractor. Fair Trading NSW guidance is that this covers websites, print, social media, vehicle signage and email footers. The requirement extends to sub-licences: a nominee's specialist trade must be shown if the ad promotes that trade specifically.

What counts as misleading in NSW

ACL section 18 covers any conduct in trade that is misleading or deceptive, or is likely to mislead. Intent is not required. NSW cases against builders have turned on three patterns:

• Undisclosed exclusions in quotes. Fair Trading treats a low headline price with a footer of exclusions as misleading if the exclusions are not in the customer's field of view.
• Testimonials without a real customer. Displaying a review that was not actually written by a customer breaches ACL s29(1)(e). The 2024 Unfair Trading amendments made incentivised reviews without disclosure a separate offence.
• Comparative claims without substantiation. "Cheapest builder in Sydney" or "best rated" needs evidence at the time of publication. ACCC guidance sets the substantiation standard.

Enforcement pathway

Fair Trading NSW handles complaints through its online form. Building Commission NSW inspectors flag advertising issues during proactive audits under the Design and Building Practitioners Act 2020 (NSW). A rectification direction can order removal of the ad, correction and, on repeat, a licence show cause notice.

What builders should audit today

• Licence number visible on the header or footer of every marketing page.
• Every review has a real, verifiable customer.
• Every comparative claim has evidence saved in a file.
• Every quote states clearly what is and is not included in the headline price.
• Website terms include a complaints contact that meets Fair Trading NSW guidance.