Do I Have to Let My Builder Fix Defects? A Guide for Homeowners in WA

When a homeowner discovers defective building work, a common question is whether they must give the builder an opportunity to return to the property and rectify the defects before engaging another contractor or commencing legal proceedings.

The short answer is: not necessarily. There is no general rule requiring a homeowner to give a builder an opportunity to rectify defective work. However, refusing a builder access may still have consequences if the refusal is unreasonable and results in avoidable loss.

Two recent decisions of the Supreme Court and Court of Appeal of New South Wales, The Owners – Strata Plan No 89074 v Ceerose Pty Ltd [2024] NSWSC 1494 and Ceerose Pty Ltd v The Owners – Strata Plan No 89074 [2025] NSWCA 235 (together, Ceerose), provide useful guidance on this issue.

Although Ceerose concerned NSW legislation and a strata dispute, the Court's discussion of the common law principles of mitigation provides useful guidance when considering building disputes involving individual homeowners in Western Australia.

There is no automatic right for a builder to return and fix defects

The starting point is the law of mitigation.

A homeowner who suffers loss as a result of defective building work is generally required to act reasonably to avoid unnecessarily increasing that loss. However, this does not mean that a homeowner is under a positive obligation to accept every offer by a builder to return and rectify defective work.

The Court of Appeal in Ceerose made this clear. There is no invariable requirement in building disputes that an owner provide the builder with an opportunity to rectify defects.

The fact that a homeowner has refused the builder access is relevant, but it is only the beginning of the mitigation analysis. The builder must still establish that the refusal was unreasonable in all the circumstances and that the homeowner's conduct caused avoidable loss.

This is an important distinction.

A builder cannot simply argue:

The owner refused to let me fix the defects, therefore the owner failed to mitigate their loss.

Instead, the builder must establish why the refusal was unreasonable in the circumstances.

The Court also rejected the suggestion that, once it was established that the owner had refused access, the evidentiary burden shifted to the owner to prove that the refusal was reasonable. The builder retains the legal and evidentiary burden of proving the alleged failure to mitigate. A homeowner does not have to positively establish, as a separate obligation, why a reasonable person would have rejected the builder's offer.

This does not mean, however, that homeowners should automatically refuse a builder access.

The circumstances surrounding the refusal remain critical.

What happened in Ceerose?

The dispute in Ceerose involved a large residential strata development in Sydney known as "The Eliza". The strata company brought proceedings concerning a range of alleged building defects.

The builder argued that it had always been ready, willing and able to rectify the defects, but that the strata company had refused to allow it to do so. The builder contended that this amounted to a failure by the strata company to mitigate its loss.

The strata company had, however, lost confidence in the builder's ability and willingness to properly rectify the defects. There had been a history of negotiations and discussions concerning rectification, and the strata company had communicated that it was unwilling to provide the builder with further opportunities to undertake the works.

The Court of Appeal upheld the finding that the strata company had not acted unreasonably in refusing the builder further access.

Importantly, the Court rejected the builder's argument that its mere willingness to undertake rectification was sufficient to establish a failure to mitigate. The builder had to prove that the refusal was unreasonable in all the circumstances. The fact that the strata company had refused access did not, of itself, shift the onus of proof to the strata company.

The decision therefore demonstrates that a builder cannot insist on an automatic "right" to another opportunity to rectify simply because it says it is willing and able to carry out the work.

The history of the dispute matters.

What does Ceerose mean for individual homeowners?

For an individual homeowner in Western Australia, Ceerose provides some reassurance that refusing a builder access will not, by itself, prevent the homeowner from recovering the reasonable costs of having defective work rectified by another contractor.

However, this should not be taken as encouragement to immediately refuse a builder access.

A homeowner who discovers defective work should carefully consider the circumstances before deciding how to proceed.

In many cases, it will be appropriate to:

1. Document the defects carefully, preferably with photographs and an independent building inspection or expert report.
2. Notify the builder in writing of the defects.
3. Give the builder a reasonable opportunity to inspect the defects.
4. Ask the builder to provide a clear scope and methodology for the proposed rectification.
5. Consider whether the proposed works are technically adequate and appropriate.
6. Keep a record of all communications and any previous attempts by the builder to rectify the defects.
7. Obtain legal advice before refusing access or engaging another contractor, particularly where substantial rectification costs are involved.

If a builder has previously attempted repairs that were unsuccessful, refuses to acknowledge the extent of the defects, proposes inadequate repairs, repeatedly delays the work, or otherwise demonstrates that there is no realistic prospect of appropriate rectification, the homeowner may have a stronger basis for refusing further access.

The key question is not simply whether the builder was willing to return.

The question is whether, in all of the circumstances, the homeowner's decision to refuse access was unreasonable.

That distinction is important because, following Ceerose, the builder bears the burden of proving the alleged failure to mitigate. The homeowner does not have to prove, as a separate positive obligation, that they were entitled to reject the builder's offer.

What should a homeowner do before refusing access?

The decision to refuse a builder access should be approached carefully.

A homeowner should consider the builder's conduct throughout the dispute, not simply the builder's latest offer to return and carry out repairs.

For example, the homeowner should consider:

• Is there any statutory or contractual entitlement for the builder to rectify the defects?
• Has the builder previously attempted to rectify the defects?
• Were those repairs successful?
• Has the builder acknowledged the defects?
• Has the builder provided a clear and technically credible rectification proposal?
• Has the builder delayed or failed to engage with the homeowner's concerns?
• Is there a genuine prospect that the builder will complete the work properly?
• Is there an urgent need to carry out the rectification works?

Generally, the more substantial the proposed rectification works, the more important it is that the homeowner carefully documents the reasons for their decision.

If the homeowner ultimately refuses access and engages another contractor, the builder may still argue that the homeowner failed to mitigate their loss. Ceerose does not prevent that argument from being made. It does, however, make clear that the builder bears the burden of proving that the homeowner's refusal was unreasonable and that the claimed loss could reasonably have been avoided.

What about Western Australia?

It is important not to assume that Ceerose automatically determines the position under Western Australian law. The decisions concerned NSW legislation, and the precise contractual and statutory obligations applying to a particular WA building dispute must be considered separately.

Nevertheless, the Court's analysis of the common law principles of mitigation provides useful guidance.

The key takeaway for homeowners is that there is no general positive obligation requiring you to give your builder an opportunity to rectify defective work.

However, that does not mean you can refuse access without consequence.

A refusal of access remains a relevant fact in determining whether your conduct was unreasonable and whether the loss you claim could have been avoided. If the builder alleges that you failed to mitigate your loss, the builder bears the burden of proving that your refusal was unreasonable in the circumstances.

The safest approach is therefore to obtain legal and expert advice before refusing a builder access or engaging another contractor to undertake substantial rectification works.

Ultimately, the question is likely to turn on the particular facts, including the seriousness of the defects, the builder's history of dealing with them, the adequacy of the proposed repairs, the urgency of the required works and any applicable contractual or statutory obligations.

If you are dealing with defective building work, the important question is not simply whether your builder wants another opportunity to fix the defects. The question is whether, in all of the circumstances, it would be unreasonable for you to refuse that opportunity.