Duty to mitigate loss – Upcoming amendments to the Home Building Act 1989 (NSW)

Upcoming amendments to the Home Building Act 1989 (NSW) confirm the duty for owners to mitigate loss in statute. Under the new section 18BA, an owner: must make reasonable efforts to notify the builder of the breach within 6 months of it becoming apparent; and has a duty to allow reasonable access. Furthermore, under the new section 48MA, “[a] court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the “responsible party” ) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome.” Both sections are scheduled to be incorporated on 1 March 2015.