Brander Smith McKnight advises builders, home owners, property developers, contractors, engineers and body corporates on residential, commercial and industrial construction matters, including contract drafting, administration and building disputes under the Home Building Act 1989 (NSW) and the Building and Construction Industry Security of Payment Act 1999
Our construction lawyers are industry experts with many years of experience handling residential, commercial and industrial projects, providing general construction legal advice, drafting contracts and handling building disputes. Every construction lawyer at Brander Smith McKnight is a construction expert. Our clients include builders, home owners, property developers, contractors, engineers and body corporates. We have a proven track record, over 85% of our building and construction disputes are settled without litigation.
Recent Successful Construction Results achieved by BSM Lawyers
Water Ingress & Mould in a 3 year old Home (2025)
Water ingress had caused severe damage and mould to our client’s home which had been built three years prior to our client’s purchase of the property. Our expert building and construction lawyers carefully reviewed documents and instructed a construction expert with over 20 years of experience to draft an expert witness report for NCAT proceedings. NCAT found in our client’s favour, finding that the builder breached the Home Building Act 1989 and subsequently refused to carry out rectification works. Our lawyers successfully negotiated a work order and recovery of legal costs. In addition, we successfully negotiated a deal with the expert to monitor the builder’s compliance and ensure that all works were carried out in accordance with the Home Building Act 1989.
Termination of Contract for Delay in Completion (2025)
Our clients were land owners who engaged a builder to construct a home on this land. The contract stipulated that the building works must reach a stage of practical completion within 51 weeks. The builder failed to reach completion within the contract period and was therefore in breach of contract. Our clients were therefore entitled to damages pursuant to the warranties set out in a clause in the building contract and implied under S18B of the Home Building Act 1989 (NSW). The highly experienced construction lawyers at Brander Smith McKnight were able to efficiently negotiate a successful outcome for our homeowners.
Benefits of Statutory Warranties for Major Defects & Successor in title (2025)
Major defects were noted by our client in their newly purchased home. The homeowners were entitled to statutory warranties under the Home Building Act 1989 NSW, as a successor in title. The construction lawyers at Brander Smith McKnight commissioned an expert report which identified water ingress from the neighbouring property causing substantial interference with use and enjoyment of the plaintiff’s property. It also identified flooding of the property with ongoing disputes about responsibility for design and construction.
The building and construction legal team sent letters of demand to the builder, engaged with building experts to identify and document major defects in the property, including stormwater issues, roofing defects, and water ingress. We expertly laid out the breaches of statutory warranties under the HBA, actively engaged in settlement negotiations and insisted on guarantees for obligations under the settlement. The settlement included arrangements for rectification works to be carried out at the property. Our client agreed to vacate the property to allow these works to proceed with their temporary accommodation being paid by the builder and strict time limits placed on the rectification of works.
Ultimately the builder agreed to resolve all claims relating to both water ingress and non-water-related building defects through a comprehensive and water-tight Deed of Settlement and Release which our construction lawyers drafted.
Landmark Precedent set by Brander Smith McKnight Construction Lawyers (2024)
BSM lawyers created a legal precedent in the Supreme Court decision of Step-Up. Step-Up concerned a dispute between a licensed builder who entered into an agreement under which the builder performed residential building work to an existing dwelling situated on a property for the owner. The agreement was documented in a standard form Master Builders Association of NSW Residential Building BC4 Contract and incorporated a substantial number of the applicable form and content requirements for contracts (large jobs) as set out in legislation.
The contract document was not however signed or dated by the parties as required by section 7(1) of the HB Act. It was held the unsigned and undated contract constituted a contract in writing’ pursuant to the relevant provision. The highly experienced construction lawyers successfully defended two appeals from the owner. A final decision was handed down in 2024 by the Supreme Court in favour of our client, the builder.
This case marked a landmark finding that settles whether a contract to do residential building work or specialist work, which is undated, unsigned and not given to the other party to the contract (as required by section 7B) is unenforceable by reason of section 10(1)(c) of the HB Act
Experienced Building Contract Lawyers
We have extensive experience in every stage of the building process. Many construction disputes occur because of issues with contract drafting and administration. Our construction lawyers aim to help you prevent future disputes by meticulous, collaborative and authoritative advice, drafting and administration. For more information please see our article on understanding different types of construction contracts.
Pre-Contract Negotiations
The highly experienced building contract lawyers at BSM Sydney Construction Lawyers will aggressively negotiate to remove any unreasonable risks in the building and construction contract. We will ensure that you have adequate control over the building process, that the schedule of payments reflect the progress of works and that there are no unexpected price variations.
Contract Drafting
Our building contract lawyers are renowned as industry experts and will deliver on the 3 key elements of quality, expediency and value for money. Factors that often need to be addressed in contract drafting are risk and responsibility allocation, provision for instructions and variations, provisions for quality and inspection, liabilities and insurance, delay and extension of time, payment and potential disputes. The issue of risk and responsibility allocation can be handled in several ways, including design and construction, construction management and collaborative or traditional approaches. The highly experienced Sydney construction lawyers at Brander Smith McKnight can clearly advise on the relative merits and reflect this in the drafting of the building contracts.
There are multiple standard forms such as those produced by Housing Industry Association (HIA) and Australian Standards (AS). Our building contract lawyers are familiar with these standard forms and can provide you with clear advice and relevant amendments. We can clearly explain the legal terms and repercussions to you and negotiate with the other parties and their legal representatives.
Review of Contracts by Expert Building Contract Lawyers
BSM construction lawyers Sydney will independently review your contract, no matter where it was drafted. Changes and additions can be inserted anytime prior to the signing of contracts. We can negotiate with the other party to ensure necessary amendments are made. These necessary amendments may include the timing of progress payments, the inclusion of liquidated damages, control of the building schedule and approval of all variations. Our building contract lawyers will identify and alert you of any unusual clauses in the construction contract that may cause problems and additional expense for you in the future.
Administration Advice
Once the building contract has been drafted, amended, agreed to by all parties and executed, it will need to be well administered. Our building contract lawyers can provide you with advice in the administration of the contract. Issues that may arise include variations, delays, extension of time, payment claims, requests for information, insurance matters and defective works.
The building and construction lawyers at BSM have over 50 years of experience and have worked extensively at all levels of construction law.
Extensive Experience at all levels of Construction
Residential Buildings: Building Lawyers Sydney
We act for builders and home owners throughout Sydney providing clear and efficient advice on your rights and obligations. We can advise on issues such as the definition of a defect, is it a major or minor defect, has there been a breach of the Home Building Act and is there a defence under this act. Our Sydney construction lawyers can also assist you with development applications.
Multi-dwelling Buildings: Construction Lawyers Sydney
We have acted for builders, developers and home owners throughout NSW. We can provide advice on planning requirements, council approvals, building practitioner registration, payment claims, payment schedules, design contracts, construction contracts and building disputes.
Commercial and Infrastructure
This includes office blocks, roads, railways, pipelines and bridges. We have acted for principals, contractors and sub-contractors. BSM’s Sydney construction lawyers have worked for privately funded finance projects in excess of 1 billion dollars. These include drafting contracts and acting for Sydney Ports Corporation during negotiations for port redevelopment in Botany Bay and for Sydney Airport Corporation during the process of runway safety redevelopment.
Major Project Experience
Brander Smith McKnight has provided premium legal advice regarding construction law issues to the construction industry for many years. In addition to small and medium sized construction projects, we have worked on infrastructure projects with values of over $1 billion. Our Sydney construction lawyers have provided legal advice, contract drafting and dispute resolution on major projects such as a rail line to a mine in Queensland for Xstrata Coal, runway extensions at Sydney Airport Corporation; Enfield Terminal redevelopment for Sydney Ports Corporation; rail constructions and civil works for Barclay Mowlem (acquired by Laing O’Rourke).
We have the experience, dedication and knowledge to provide expert building and construction advice at a considerable saving compared to large city firms. We have a reputation as the best construction lawyers in Sydney.
Expertise in Dispute Resolution & Litigation
Unfortunately, disputes are reasonably common in the building industry. They include disputes in relation to defective building work, variations, delays and payment. Every construction lawyer at BSM takes great pride in their ability to resolve at least 85% of disputes without the need for costly litigation. We have decades of experience in the building and construction industry and are able to advise you of your rights and options and fiercely advocate for you. Our Sydney construction lawyers recognise that there are many different ways of resolving disputes and we work hard to find practical and commercially advantageous solution. We can advise and act for you across all forms of dispute resolution including in mediation conference, expert determination and arbitration. BSM Sydney construction lawyers will clearly present and argue your case effectively. We can also issue legal demands such as Letter of Demand, Notice to Comply or make ‘without prejudice’ offers on your behalf. For further information see our article on home building and construction disputes.
If alternative dispute resolution and mediation fail to resolve your dispute, BSM building dispute lawyers are able to litigate for you. Our construction lawyers have extensive experience and are able to run most litigation matters independently, saving you the cost of engaging a barrister. We regularly appear in the Consumer, NSW Civil Administrative Tribunal NCAT and Local and District Courts. If required, for instance in the Supreme Court, we have a panel of barristers that we can call on to help represent you. Our lawyers are considered to be the best construction lawyers in Sydney and take pride in both the meticulous and considered preparation for court and their ability to effectively and persuasively advocate for your rights whilst representing you in court.
Debt Recovery
SOPA: Building Dispute Lawyer
The Building and Construction Industry Security of Payment Act provides builders, contractors, architects, engineers and surveyors with a process for recovering payment for their work. Although rapid and cost effective, it has specific time constraints and detailed requirements that must be followed. The building dispute lawyers at BSM are very familiar with SOPA. They can advise and represent you through this process including preparing payment claims, payment schedules and adjudication applications and defences. We can also enforce adjudications and judgements handed down by adjudicators and the court.
There have been two recent amendments in 2021 to SOPA. In March 2021, the act was amended to provide that SOPA applied to home building where the builder contracted directly with the home owner. Previously, SOPA applied when the builder contracted with the developer or parties other than the home owner. In June 2021 a further amendment was made that legislates all construction contracts over the value of $20,000 must include a SOPA guide. In 2024 there was a further amendment to SOPA that states that a building contractor must be properly licensed and insured to rely on SOPA to make a payment claim. For more information please see our article on SOPA.
Other Legal Processes used by Construction Lawyers
The other legal avenues for debt recovery are Letter of Demand, Statement of Claim and litigation. The first and least expensive step is a Letter of Demand which is sent to the debtor and details the amount of the debt and under what circumstances the debt became due and payable. It details when payment must occur and explains that if this does not occur there will be further legal action. We can prepare this Letter of Demand within a few days and it generally results in the recovery of your debt.
If payment is not received, we can issue a Statement of Claim. A Statement of Claim is a document that initiates legal proceedings, describes the course of action, the nature of the claim and often the claim amount. This document is filed with court and subsequently served on the defendant. This obliges the defendant to file a defence within 28 days and often results in the defendant making a payment or entering into negotiations to avoid litigation.
The next step in debt recovery is litigation. Our experienced building dispute lawyers regularly run legal proceedings in NCAT, Local Courts and District Courts. They will advocate fiercely and effectively for you and get the possible outcome. If your matter proceeds to the Supreme Court, we can instruct one of the barristers that we regularly work with to assist with your legal representation.
BSM Construction Lawyers Sydney has Major Project Experience
Brander Smith McKnight has provided premium legal advice regarding construction law issues to the construction industry for many years. In addition to small and medium sized construction projects, we have worked on infrastructure projects with values of over $1 billion. Our Sydney construction lawyers have provided legal advice, contract drafting and dispute resolution on major projects such as a rail line to a mine in Queensland for Xstrata Coal, runway extensions at Sydney Airport Corporation; Enfield Terminal redevelopment for Sydney Ports Corporation; rail constructions and civil works for Barclay Mowlem (acquired by Laing O’Rourke).
We have the experience, dedication and knowledge to provide expert building and construction advice at a considerable saving compared to large city firms. We have a reputation as the best construction lawyers in Sydney.
FAQs
Do I need a construction lawyer to review my contract?
Yes. Building contracts include many complicated legal issues and terms. Building and construction usually involve large amounts of money and any errors or omissions can have significant consequences on the timing and completion, quality and cost of your building project. BSM Sydney Construction Lawyers has highly experienced building contract lawyers who are able to assist you. You may find our article on Understanding different types of Construction Contracts helpful.
What is a variation?
Any party to the contract can trigger a variation. A variation means a change in the work to be completed and usually involves an increase in the price and an extension of the time to complete the project. Your construction contract must include a proper process for requesting and approving variations. The experienced building contract lawyers at BSM are able to review existing contracts and draft water tight contracts for you. We offer a free 20-minute consultation.
What is a time delay?
A time delay means that the contractor has fallen behind the building schedule. A builder who is delayed may request an extension of time to the building schedule. Every construction contract must include a process for the notification of delays and for approvals for extension of time. The building contract lawyers at Brander Smith McKnight Sydney Construction Lawyers are experts and can review existing contracts and draft new legally binding contracts. We have advised thousands of builders, contractors and owners regarding the administration and management of delays and extension of time.
What is SOPA?
SOPA is an act which was introduced in 1999 aimed at alleviating the problem of delayed or non-payment for work in the building industry. The full name is the Building and Construction Industry Security of Payment Act. It provides builders, contractors, subcontractors, architects, engineers, surveyors and designers with a process for recovering payment for their work. Although rapid and cost effective, it has specific time constraints and detailed requirements which must be followed. BSM Sydney construction lawyers are very familiar with SOPA and are able to advise and represent you through this process including preparing payment claims, payment schedules and adjudication applications and defences. BSM Construction Lawyers Sydney are also experts in the enforcement of adjudications and judgments. Our expert construction team offer a free 20-minute consultation.
What is a Letter of Demand?
A letter of demand is a legal document stating your legal rights in relation to an unpaid debt. It must be addressed to the debtor and state that it is a letter of demand. It gives details of the amount of the debt and under what circumstances the debt became due and payable. It details when payment must occur and advises that unless payment is made by this date, there will be further legal proceedings.
BSM Lawyer Sydney has conveniently located Offices
Level 57 25 Martin Place Sydney NSW 2000
Suite 2/9 15 East Parade Sutherland NSW 2232
Level 14, Suite 2/3 Parramatta Square Macquarie Street Parramatta NSW 2150
Level 1, Suite 1 90 Market Street Wollongong NSW 2500
Unit V20, Shop 1 4 Benson Avenue Shellharbour City Centre NSW 2529
Your Building & Construction Law Team
