Home owner’s appeal fails: builder’s director and supervisor stay out of her defects case (NCAT, 2026)

What happened

The home owner engaged a company, Granda Venture Pty Ltd trading as Butopia, to build a house on her property. The building contract was signed on 18 March 2024 for work totalling $1,431,823.92. On 21 April 2025 she filed an application at NCAT against the company claiming damages.

On 17 October 2025 she tried to file Points of Claim (the document setting out the detail of a claim) that added two more respondents: a supervisor at the company and a director of the company. The Registry rejected it because she had not been given leave, meaning permission from the Tribunal, to join them. She served her evidence on 29 January 2026 and then, on 16 February 2026, filed an application for leave to join the two individuals. With both sides' consent the application was decided on the papers, without a hearing, and on 31 March 2026 a Senior Member dismissed it.

Her Points of Claim relied on three causes of action: breach of contract, breach of the statutory warranties implied by s 18B of the Home Building Act 1989 (NSW), and misleading or deceptive conduct under s 18(1) of the Australian Consumer Law. She did not say the two individuals were personally liable on the contract or warranty claims. She sought to join them only on the misleading conduct claim.

Against the supervisor, she alleged that on a Zoom call on 28 August 2024 the company agreed it would not charge for work to fix defects, that in September 2024 it invoiced her for that remedial work anyway, that the call was with the supervisor, and that he was directly or indirectly knowingly concerned in that conduct. Against the director, she alleged that change orders were approved in her name using her initials without her approval, that invoices were prepared and sent containing overcharging, and that the director was knowingly concerned in that conduct. The two individuals did not object to being joined. She filed her appeal on 28 April 2026, and it was heard on 27 August 2026.

What each side wanted

The home owner argued that the Tribunal member had made legal errors: that it was wrong to say claims under the Australian Consumer Law must be brought against the party you contracted with, that relying on s 84 of the Competition and Consumer Act 2010 (Cth) ignored the personal liability of an individual who engages in misleading conduct, that a claimant chooses who to sue rather than having the Tribunal pick the parties she needs, that deciding everything between everyone in one proceeding fits the Tribunal's guiding principle of a just, quick and cheap resolution and avoids inconsistent results, and that the member had relied on an Appeal Panel decision (Fine) that the Court of Appeal had later overturned. The builder's side argued that the reasons had to be read as a whole, that there was no evidence the supervisor was directly involved or responsible, and that the allegations against the director were vague and unparticularised.

What the tribunal decided

The Appeal Panel, made up of a Principal Member and a Senior Member, made two orders: "(1) The appeal is dismissed. (2) The appellant is to pay the costs of the respondents."

No sum of money was ordered. On costs, both sides agreed that the amount in issue in the proceedings was above the threshold in rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW), which is what allows a costs order to be made, and that costs should follow the event, meaning the losing side pays. The amount of those costs is not set out in the decision. The refusal to join the supervisor and the director therefore stood, and the home owner's claim continues against the company alone.

Why the tribunal decided it that way

The 31 March 2026 refusal was an interlocutory decision, meaning a decision made along the way rather than one that finally decides the case. Under s 80(2)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), you can only appeal such a decision if the Appeal Panel grants leave. The Appeal Panel said an application for leave to appeal an interlocutory decision on practice and procedure faces a "high hurdle". Because the original decision was a discretionary one, the home owner had to show one of the errors described in House v R: an error of legal principle, a material error of fact, taking an irrelevant matter into account, failing to take a relevant matter into account or giving it too little weight, or a result so unreasonable it suggests one of those errors happened.

On the statement that proceedings under the Australian Consumer Law and the Home Building Act must be filed against the party you contracted with, the Appeal Panel said reasons must be read fairly and as a whole, not combed through for error, and that there is room for loose phrasing or verbal slips. The very next paragraph of the original decision had qualified that statement by giving examples where joining a director or employee does have a point, such as where a director has given a personal guarantee and the company may be insolvent, where the person's conduct fell outside acting as agent for the company, or where the building work was done without a licence. Read in context, the Appeal Panel declined to find an error of law. It took the same approach to the references to s 84 of the Competition and Consumer Act, which treats conduct by a director, employee or agent within their actual or apparent authority as also being conduct of the company.

The joinder power itself is in s 44 of the NCAT Act: the Tribunal may order that a person be joined if it considers they should be, and may remove a person who has been improperly or unnecessarily joined. The original member had found that the contract was with the company only, that the allegations about the two individuals' conduct would be fully heard in the case against the company anyway, that the full relief sought was available without joining them, and that adding parties makes proceedings more complicated rather than quicker or cheaper. On the balance of probabilities there was not enough utility or justification in joining either of them, even though neither objected. The Appeal Panel accepted that this finding was open to the member, and noted the member had accepted the builder's submission that the Points of Claim did not sufficiently set out a case against the two proposed respondents.

Two of the home owner's points were partly accepted but did not change the outcome. The Appeal Panel agreed that a claimant with pleaded causes of action selects who to pursue, but did not accept that the member had decided otherwise. It also agreed that deciding all issues between all parties in one proceeding fits the guiding principle in s 36 of the NCAT Act, but treated that as only one consideration in the discretion, which the member had referred to. The Appeal Panel accepted that the Fine decision had later been overturned by the Court of Appeal, but held that the principles the member drew from it, including that joinder is a serious step not to be exercised lightly, remain good law and are supported by other authorities. It was not persuaded that any House v R error had been shown, and dismissed the appeal.

What this means if you are in a similar position

If you are in a similar position, this decision shows how NCAT applies the joinder power in s 44 of the NCAT Act when someone wants to add a company's director or employee as a party. The starting point is who you contracted with. Even where a claim includes misleading or deceptive conduct under s 18 of the Australian Consumer Law, the Tribunal will look at whether adding an individual actually achieves anything you cannot already get from the company, partly because s 84 of the Competition and Consumer Act treats conduct by a director, employee or agent acting within their authority as the company's conduct too. The fact that the individuals did not object to being added made no difference here.

It also shows how much detail matters. The Tribunal accepted that the Points of Claim did not sufficiently set out a case against the supervisor and the director, and the allegations against the director were described as vague and unparticularised. And it shows the cost of challenging a procedural ruling mid-case: appealing an interlocutory decision needs leave, faces a high hurdle, and where the amount in issue is above the rule 38 threshold the losing side can be ordered to pay the other side's costs, as happened here.

In a dispute of this kind about defective or overcharged building work, most people start by putting the problem to the builder in writing, with a dated list of the defects or disputed charges and a reasonable time to fix or credit them, and only lodge a tribunal application if that written notice does not resolve it.

How to apply: our step-by-step guide to a NCAT application. More decisions: NCAT cases and builders and building defects.

Source: Anderson v Granda Venture Pty Ltd trading as Butopia [2026] NSWCATAP 286 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.