Defects liability in Western Australia

What defects liability means in Western Australia

Western Australia regulates residential building work through two principal statutes. The Home Building Contracts Act 1991 (WA) (HBCA) implies statutory warranties into home building contracts. The Building Services (Registration) Act 2011 (WA) governs builder registration through the Building Services Board.

Defect claims against a builder are usually framed as breach of contract or breach of implied warranty. The Limitation Act 2005 (WA) sets the time limit for bringing such an action.

Statutory warranties under HBCA

Section 12 of the Home Building Contracts Act 1991 (WA) implies several warranties into every home building work contract:

• The work will be performed in a workmanlike manner and in accordance with the plans and specifications
• Materials will be good and proper, and (unless the contract says otherwise) new
• The work will be carried out within the time specified in the contract, or a reasonable time if none is specified
• The home will be reasonably fit for human habitation on completion (for new homes)
• The work will be reasonably fit for any specified purpose

These warranties are non-excludable. Any clause that attempts to limit or remove them is void.

Limitation period

WA does not have a building-specific limitation period like NSW's section 18E or Victoria's section 134. Building actions in WA are governed by the general Limitation Act 2005 (WA), which sets a 6-year limitation period for actions in contract or tort.

The 6-year period runs from the date the cause of action arose. For breach of contract, this is typically the date of breach. For breach of an implied warranty about defects, courts have generally taken the date the defect manifested or should reasonably have been discovered.

There is no major-defect or non-major-defect split in WA. A single 6-year window applies to all building actions.

Comparison to NSW, VIC and QLD

WA: 6-year general limitation under Limitation Act 2005, no building-specific period, no major/non-major split.

NSW: 6 years major and 2 years other from completion under HBA s 18E.

VIC: 10-year limitation under Building Act 1993 s 134 from occupancy permit.

QLD: 6 years structural and 1 year non-structural under QBCC Act Schedule 1B from completion.

WA sits between QLD and VIC on the tightness of its window. A builder operating in WA carries a more compact statutory exposure than VIC but broader than QLD for non-structural defects.

Home Indemnity Insurance

Home Indemnity Insurance (HII) is WA's equivalent of HBCF (NSW), DBI (VIC) and QBCC HWI (QLD). It is administered through approved insurers (commercial market, not a single state insurer) and required for residential building work above $20,000 incl GST.

HII responds to incomplete work or defective work where the builder dies, disappears or becomes insolvent. Cover is for a 6-year period from completion. The HII threshold matches the NSW HBCF threshold.

Practical implications for builders

For Western Australian residential builders:

Keep records for at least 6 years from completion. The general limitation period is the disposal benchmark.

Maintain Home Indemnity Insurance for all residential work above $20,000 incl GST. The certificate of cover must be in place before deposit or work begins.

Document compliance with the implied warranties through the project record. Variations, photographs, certificates of currency and inspection notes all become evidence in the event of a defect claim within the 6-year window.

Related entries

The HBCA implied warranties are explored in more detail in the forthcoming statutory-warranties-hbca-wa entry. The builder registration framework under the Building Services (Registration) Act 2011 is also forthcoming. The NSW equivalent of this entry is defects-liability-period-nsw-v2. The VIC equivalent is defects-liability-period-vic-v2. The QLD equivalent is defects-liability-period-qld-v2.