Construction Legal Update: Half Yearly Report 2026

Categories: Liability, Professional Indemnity5 min readPublished On: July 28, 2026

Keeping our business partners up to date on market changes that matter

This update highlights the legal and regulatory developments, occurring in the first half of 2026, that we see as the most relevant within the Australian construction sector when it comes to professional indemnity insurance.

Legislative and Regulatory Developments

National Construction Code

The NCC undergoes updates every three years, with the publishing of NCC 2025 being delayed. However, NCC 2025 was introduced on 1 February 2026, with jurisdictions informed to adopt the amendments from 1 May 2026. The amendments to NCC 2025 include:

1. Amendments to car park fire safety to include requirements for sprinkler protection for open-deck car parks, and reduced scenarios where concessions to fire-resistance levels apply.

2. Introduction of measures aimed at reducing energy consumption in buildings, including mandatory on-site solar photovoltaic systems, and improved lighting control requirements.

Decennial Liability Insurance (NSW)

Plans to introduce Decennial Liability Insurance (DLI) into the NSW market are now in effect through amendments to the Strata Schemes Management Act 2015(NSW) to introduce definitions for defects covered under DLI.

Having passed in April of this year, DLI in strata schemes will become mandatory by 2028 and will essentially be a no-fault scheme. This will leave the door ajar for PI insurers to exercise subrogation rights to pursue at-fault parties within 24 months after a claim is made on a DLI policy.

There are further proposed amendments to the Fair Trading and Building Legislation Amendment Bill 2026 which would see DLI expanded into the construction industry more widely but these are not yet in effect.

Design and Building Practitioners Act 2020 (NSW)

Amendments effective 1 July 2026 include:

  • Professional indemnity insurance for every registered building practitioner will be mandatory;
  • DBPA also Expands to cover remedial work, specifically repairs and alterations on Class 3 and Class 9c buildings bringing a higher level of oversight and accountability to the maintenance and renovation on building types such as concrete repairs, waterproofing, structural strengthening or fire safety upgrades with requirement that they are carried out by registered building practitioners and lodged on the NSW Planning Portal.

Victoria Amendments

Surveyor and Inspector Registration Reform (VIC)

Some amendments to the Building Act 1993 (Vic) (the Act) have been passed and will come into force 1 September 2026. This essentially increases the training requirements for building surveyors before registration.

The primary amendment of relevance are the specific definitions in relation to “approved competence standard”, “approved prescribed qualification” and “prescribed competence criteria”. This sets out minimum competency standards in skills, experience and knowledge that must be met by applicants for registration as a building surveyor must meet. The introduction of these definitions lays the platform for building surveyors to be classed as registered building practitioners and subject to the requirements thereof as outlined in the Act.

As a result, the competency requirements of building surveyors have been increased. Tighter regulation of the industry, where insureds are compliant, may have the effect of reducing risk of insuring building surveyors and inspectors, assuming compliance by insureds.

Building and Construction Industry Security of Payment Act 2022 (VIC)

These amendments, coming into force on 1 September 2026, introduce changes to payment claims and corresponding damages claims include:

  • Contractors will be able to include contested claims for scope variations, delay costs and latent conditions in payment claims
  • Removal of reference dates permitting claimants to make one payment claim per month
  • Definition of business day to exclude a black out period between 22 December to 10 January each year, suspending enforcement periods for claims
  • Extending the last day for serving a payment claim to within six months of performance of the relevant construction work
  • Due dates for progress claims to be 20 business days of issue of payment claims
  • Restriction on pursuing only the defences and reasons set out in the payment schedule, not new reasons in adjudication
  • Introduction of the power of adjudicators to declare contract terms as unfair and unenforceable.
Creation of the new Building and Plumbing Commission (VIC)

Amendments to the Building Legislation Amendment (Buyer Protections) Act 2025 will take effect from 1 July 2026 including the creation of the Building and Plumbing Commission which consolidates the Victorian Building Authority, the Domestic Building Dispute Resolution Victoria and the domestic building insurance of the Victoria Managed Insurance Authority.

The new Commission’s role will include regulatory monitoring, dispute resolution services, disciplinary functions and insurance oversight. The Commission will also have rectification powers allowing it to order the rectification of defective, incomplete or non-compliant building works.

With these new powers of the Commission, there may well be a corresponding reduction of legal costs if more claims are resolved at the Commission stage.

South Australia Amendments

The Statutes Amendment (Building and Construction Industry Review – Penalties) Act 2025 commenced on 15 January 2026 to strengthen consumer protections, introduce new offences, expand enforcement options and increase penalties in the building and construction industry.

The changes will affect the relevant legislation:

  • Building work Contractors Act 1995;
  • Fair Trading Act 1987;
  • Magistrates Court Act 1991; and
  • Plumbers, Gas Fitters and Electricians Act 1995.

These changes indicate a likely increase in regulatory action and inquiry in South Australia including:

  • New offences related to unlicensed work
  • Increased penalties for all offences including penalties up to $550,000
  • Authorities have 2 years to prosecute most offences

International Model Building Act

In February 2026, the International Building Quality Centre introduced the International Model Building Act (IMBA) representing an international instrument for modern building regulation and is aimed at introducing clearer responsibility when defects arise, stronger oversight on construction and certification processes, and clearer resolution processes.

The IMBA is not in force in Australia and is not binding and is mainly designed to be read in conjunction with pre-existing regulations and legislature and currently adopts many features of current legislation, such as requirements of building certifiers. We will advise further if the IMBA is proposed to be adopted as binding in Australia.

Construction Case Law Developments

Interpretation of insurance contracts in a strict liability claim
Owners Corporation 1 Plan No. PS 650567Y v Shangri-La Construction Pty Ltd [2026] VSC 117
  • In Owners Corporation 1 Plan No. PS 650567Y v Shangri-La Construction Pty Ltd [2026] VSC 117the Court clarified the limits of professional indemnity insurance in cladding disputes, confirming that strict statutory liability imposed on directors will not be covered.
  • In determining the issues, the Court examined two design and construction PI policies (covering the periods August 2017 to August 2018 and August 2018 to 6 August 2019) including the Proposal Forms, the terms and the Certificates of Insurance.
  • As to whether the claim had been made and notified, the issue for this Director was that the facts and circumstances were first known in 2017-2019 (during the period of Policy cover) as a result of VCAT proceedings. However, the government did not introduce the strict liability clause until December 2020, well after the Policies had expired. This meant there was no Claim capable of being made or notified within either period of insurance
  • Another issue for the Court’s consideration was the interpretation of ‘in the conduct of Professional Business’ and whether his ‘design and advice’ was considered to arise from the professional business, however the court determined that the Director’s liability did not arise from his design and advice, but arose from installation of cladding and it was a strict liability provision and not civil liability incurred in conduct of the Professional Business.
  • It is not clear why the Director did not run arguments under section 40(3) ICA, however it’s likely because, given the strict liability did not exist at the time of the initial notification, it therefore could not have been anticipated as a potential claim in future.
  • This case provides useful commentary on the use of all proposal and insurance documents in interpretation of a policy and identifies a gap in insurance (and potential market) in relation to the introduction of strict liability legislation

 

Construction contracts and limitation periods
Wang v Creation Homes Qld Pty Ltd [2026] FCA 136
  • Wang v Creation Homes Qld Pty Ltd[2026] FCA 136 is a statute of limitations case which required determination of when a cause of action first arose in a breach of contract and Australian Consumer Law claim.
  • The parties entered into a construction contract on 2 February 2016 for the construction of a property. The applicant’s purchase of the property settled on 30 August 2017. Construction commenced in April 2018, following confirmation of finance for the project on 5 April 2018. Contract works were suspended in June 2018, owing to the applicant’s refusal to pay invoices and formal contract termination occurring in January 2020. Proceedings commenced in December 2024.
  • The chronology of events provided different potential dates from which the limitation period could accrue, the Court was required to consider when the cause of action arose and determined the material date was 20 working days after the confirmation of financing, pursuant to the terms of the contract. The Applicant’s claim was out of time and statute barred.
  • This case highlights the possibility for insureds to present limitation arguments where it can be identified that the specific cause of action complained of falls outside the limitation period.

 

Combustible cladding and contractual indemnities
The Star Entertainment Sydney Properties Pty Ltd v Buildcorp Group Pty Ltd t/as Buildcorp Interiors [2026] NSWSC 27
  • In The Star Entertainment Sydney Properties Pty Ltd v Buildcorp Group Pty Ltd t/as Buildcorp Interiors [2026] NSWSC 27 aluminum composite panels (ACPs) were installed on the external façade of three casino buildings during 2014 and 2016.
  • The parties were contractually obliged to ensure the works complied with the Building Code of Australia (BCA), which required non-combustible cladding to be utilised.
  • Star’s claim against the builder failed in respect of two of the projects because, at the time of installation, the BCA permitted the use of attachments to external walls of buildings that were not ‘non-combustible’.
  • In relation to the third project, the ACP was found to be non-compliant under the BCA. The installation of non-compliant ACPs and the resulting physical alteration and damages were found to constitute “Property Damage”.
  • The Court’s findings here aligned with the views expressed in Insurance Australia t/as CGU Insurance v Capral Ltd [2025] FCAFC 46 where the Full Court dismissed CGU’s appeal, upholding the finding that the installation of non-compliant ACPs caused “Property Damage” (as defined by the insurance policy) and were not subject to exclusion under the product recall clause. Following this decision, insurers should keep a close eye on the Court’s willingness to interpret the meaning of ‘property damage’ and the definition of ‘property damage’ in a liability insuring clause more expansively.

 

DBPA duties, “construction work” and proportionate liability
  • Following the decisions of Pafburn and Kapila, the questions of whether statutory duties are owed under the DBPA and under what circumstances remain a central feature in NSW construction disputes.
  • Cadence (90) Investments Pty Ltd v Aspire Constructions Pty Ltd [2026] NSWSC 136 builds on Pafburnand provides further analysis on the application of the duty of care imposed under s 37 of the DBPA. The court determined the plaintiff failed to establish breach of the DBPA in circumstances there was no evidence adduced to connect any particular breach of duty to individual building defects or to establish that further supervision ought to have been provided. Further, the court found, in obiter dicta comments, that any alleged breaches did not cause the economic loss claimed. This is important as s 37 of the DBPA places the duty on building practitioners to “avoid economic loss caused by defects”. In drawing that conclusion, the court found the plaintiff’s claim for economic loss was unreasonable.

This case highlighted that claims that are poorly pleaded and lack of specific evidence to substantiate the alleged breach will be treated harshly by a court where the applicant attempts to impose a breach of the duty under section 37 of the DBPA.

Conclusion

The law is always evolving and at HBA Legal, our focus is keeping you up to date with the changes that actually matter to the businesses we partner with.

Recent themes show:

  • NSW and Victoria lead the way in legislative changes likely affecting the construction industry.
  • In Victoria, surveyors will be classed as registered building practitioners and subject to more stringent legislated requirements. The introduction of the new consolidated Commission coupled with the security of payment reforms, may well introduce more frequent but potentially lower costs claims into the industry.
  • In NSW:
    – Professional indemnity insurance is now mandatory for all building practitioners. Decennial Liability Insurance has also been introduced into the NSW market. With the ten-year liability period, we expect there to be a newfound emphasis on ensuring that every aspect of construction is done with the utmost care and adherence to safety standards. Whilst currently for strata schemes, it is expected to be more widely introduced.
    – As the introduction into DLI gains traction, there is an opportunity present for professional indemnity insurers to strengthen the wording of their subrogation clauses to increase the likelihood of successful claims against at-fault parties in claims for defective workmanship.
    – DBPA‑driven claims and decisions like Cadence show that builders, developers and supervisory professionals can face uncapped statutory exposure where they are found to have carried out “construction work” and proportionate liability is unavailable. This reinforces the importance of scrutinizing how responsibilities are allocated across design, construction and certification, especially on larger commercial and mixed‑use developments and projects with multiple tiers of consultants.
  • South Australia shows increased regulatory oversight, likely increasing inquiry costs in that jurisdiction and putting strain on noncompliant businesses with large penalties being issued for noncompliant businesses.
  • Queensland and WA are a ‘watch this space’ as many proposed amendments have been stalled, but we will monitor and update you again soon.

Looking ahead to 2026 and beyond

We will be keeping an eye on market movements and legislation changes and will keep you updated. Currently there is a focus on increased regulatory oversight and insurance in the industry, if the trend continues, we may well see a decrease in claim costs and earlier resolution of claims.


Key contacts

Courtney Steele, Partner

Mario Raciti, Partner

Iona Sjahadi, Partner

 

Disclaimer: This article is intended for informational purposes only and should not be construed as legal advice. For any legal advice please contact us.

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