Pool builder’s appeal fails: $75,405 award over a retaining wall that would not last stands (NCAT, 2026)

What happened

In June 2023 the owner of a home in the Sutherland Shire in Sydney signed a written home building contract with Spectrum Pools & Spas Pty Ltd for an in-ground swimming pool. The contract was made up of the NSW Fair Trading standard form, showing a total contract sum of $71,500, a document the builder called a "pool quotation" and a payment schedule. The quotation covered council approvals, excavation, formwork, plumbing, coping and walkways, and provided for the coping and walkway to be laid on top of an existing timber retaining wall on the eastern side of the site. It listed ten exclusions, and none of them mentioned retaining walls.

The builder obtained structural drawings from an engineering firm in July 2023 and the development application was approved in October 2023. Around 27 October 2023 the owner asked the builder's director whether she should remove the timber of the eastern retaining wall before excavation. He said no: the timber would be used as formwork, and she would only need to dress or paint over it once the pool was finished.

Work started on 4 December 2023 and was suspended on 8 February 2024. A meeting at the house on 12 February 2024 went badly. The tribunal at first instance found the owner was very upset, shaking and appeared to be crying, that there was a verbal altercation, that one of the builder's associates was aggressive and angry, that the director withdrew an offer of rectification work in anger, and that the owner felt intimidated and continued to do so. The tribunal described it as a "disturbing confrontation" in which the owner and her two supporters were vastly outnumbered by six people on the builder's side. Emails followed about replacing the eastern retaining wall, including one from the owner on 26 February 2024 describing the replacement as "a variation to the original scope of works". The owner terminated the contract on 2 October 2024, saying she accepted that the builder had repudiated it.

The owner had already applied to the tribunal on 11 June 2024 for compensation for defective work. After a two-day hearing in August 2025 and written closing submissions, the tribunal gave reasons on 29 April 2026. It found the work defective and in breach of the statutory warranties in section 18B of the Home Building Act 1989 (NSW) — the promises that the law writes into every residential building contract. It ordered the builder to pay the owner $75,405.27 and made a costs order in her favour. Of that total, $31,115.44 was allowed for the retaining wall, after a 4% uplift for price rises between the time the estimates were prepared and the hearing.

What each side wanted

On appeal the builder asked for the compensation order to be set aside to the extent it included the cost of a new retaining wall, or for the case to be reheard by a differently constituted tribunal. It ran ten grounds: that the tribunal wrongly read "indispensably necessary works" into a contract with a precise, defined scope and a closed list of exclusions; that the reasons did not explain why its engineering case was rejected; that the tribunal left an issue about the length of the pool coping undecided; that it was wrong to give less weight to the builder's engineer because he was not independent; that evidence about a work order was ignored; that the number of its people at the February meeting was overstated; that a statement attributed to one of its associates was never put to him in cross-examination; and that the 4% price uplift was a forecast rather than recorded data. The owner argued the builder had promised a pool fit for its purpose, that the absence of any exclusion for the retaining wall meant the work needed to deliver that result was within scope, that her own use of the word "variation" was a lay person's description and not a legal admission, and that most of the grounds were challenges to findings of fact rather than questions of law.

What the tribunal decided

The Appeal Panel made three orders: to the extent necessary, leave to appeal was refused; the appeal was dismissed; and the builder was ordered to pay the owner's costs of the appeal on the ordinary basis, including the reserved costs of the builder's application for a stay.

The effect is that the first-instance orders stand, including the order that the builder pay the owner $75,405.27 and the costs order made in her favour at that hearing. The $31,115.44 allowed for the retaining wall, and the 4% price uplift applied to the estimates, were both left in place.

Why the tribunal decided it that way

On the central point, the panel held the tribunal had construed the contract correctly. The parties had agreed that the builder would do all the work involved in constructing the pool, subject to specified exclusions, and the contract carried the section 18B warranties. Those warranties included a promise that the pool would be fit for its purpose, which meant the pool and the structure around it had to have the lifetime expected of a new pool. There was no exclusion cutting that promise down. So the fact that a new retaining wall was not priced into the quotation was no answer; absent an exclusion, the builder had to do the work needed to produce a pool that would last its reasonably expected life. The owner's own email calling the wall "a variation" did not change this, because whether something is a variation is a legal conclusion and her private view of it was irrelevant. The panel also accepted that an existing but inadequate retaining wall is no different in principle from no wall at all.

The builder relied, for the first time in oral argument, on two cases said to show that the section 18B warranties do not apply to work outside the contract scope. The panel noted it had not had proper argument on them because the builder's written submissions were weeks late, but in any event found them distinguishable: in the leading case the contract had a precise scope limited to specified possible causes of water entry, while here the contract was for all the work in building a pool subject only to listed exceptions. The panel said those cases supported, rather than undermined, the tribunal's decision.

On the reasons, the panel said a tribunal need not spell out every step or mention every piece of evidence; it is enough that the reasons reveal the basis of the decision and the findings critical to it. The coping length did not need to be decided because the whole wall had to be replaced and only the owner had quantified that cost. Several grounds — the weight given to the builder's engineer, the evidence about a work order, the headcount at the meeting and the statement not put in cross-examination — were held to be challenges to findings of fact, not questions of law, so they could only be considered on an application for leave to appeal.

Leave to appeal was refused on both remaining grounds. The decision on the wall was not against the weight of evidence: the builder's engineer had prepared the specifications, had an ongoing commercial relationship with the builder and had never attended the site, while the owner's engineer had, and the tribunal gave several other reasons for preferring his evidence. On the choice of remedy, the panel explained that section 48MA of the Home Building Act makes rectification by the builder a mandatory consideration, not a presumption, and the owner bore no onus to justify a money order instead. Because the choice is discretionary, the panel had to find an error in how the discretion was exercised, not merely take a different view. It found none: the tribunal had weighed the director's reluctance to accept valid defects, its concern that he did not appreciate the standard of work required, and the breakdown of the relationship.

What this means if you are in a similar position

If you are in a similar position, this decision shows how a tribunal reads the scope of a residential building contract. A list of exclusions does not automatically mean that everything not priced in the quotation is outside the job. Where the contract is to build an entire thing — here a swimming pool — and the statutory warranties in section 18B of the Home Building Act 1989 (NSW) apply, the builder is promising a result: work done with due care and skill, with due diligence, and a product reasonably fit for its purpose for its expected life. Work that is genuinely necessary to deliver that result can fall inside the scope even though nobody wrote it down, unless the contract clearly excludes it.

It also shows two practical things about evidence and remedies. An expert who designed or specified the disputed work, and who has continuing commercial ties to the party calling them, may be given less weight than an independent expert who inspected the site. And while the Act treats having the builder come back and fix the work as the preferred outcome, that is a factor the tribunal must consider rather than a rule it must follow; findings about how the parties have behaved toward each other can support a money order instead. Appeal panels will not re-weigh the facts: unless a ground raises a question of law, an appeal needs leave, and leave usually requires something closer to a clear injustice than a different view of the evidence.

In disputes of this kind, most people start by putting the problem in writing to the builder — a defects notice that lists each item, says what is wrong and asks for it to be fixed by a date — and only apply to the tribunal if that 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: Spectrum Pools & Spas Pty Ltd v Young [2026] NSWCATAP 284 (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.