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QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION ACT 1991 - SCHEDULE 1B

SCHEDULE 1B – Domestic building contracts

Part 1 - Interpretation

1 Definitions for sch 1B

In this schedule—

"building" includes—

(a) a structure, including a temporary building and other temporary structure; and
(b) a part of a structure.

"building contractor" means a person who—
(a) carries out domestic building work; or
(b) manages the carrying out of domestic building work; or
(c) has carried out, or managed the carrying out of, domestic building work; or
(d) intends to carry out, or to manage the carrying out of, domestic building work.

"building owner" means the person for whom domestic building work has been, is being, or is to be, carried out.

"building site" means a place where domestic building work has been, is being, or is to be, carried out.

"certificate of inspection" , for a regulated contract, means a certificate that—
(a) is issued under an Act following an inspection of the subject work or a part of the subject work; and
(b) contains a certification to the effect that the subject work, or a stated stage of the subject work, has been satisfactorily completed.

"contract price" , for a domestic building contract, see schedule section 2 .

"consumer building guide" means a statement prepared and published by the commission under schedule section 46 (1) .

"contracted services" , for a domestic building contract, means the thing done, being done or to be done by the building contractor under the contract in relation to domestic building work, being either—
(a) the carrying out of the work; or
(b) the managing of the carrying out of the work.

"cost plus contract" means a domestic building contract under which the amount the building contractor is to receive under the contract can not be accurately calculated when the contract is entered into, even if prime cost items and provisional sums are ignored.

"defects document" , for a domestic building contract, means a document that—
(a) lists the minor defects and minor omissions in the subject work that the building contractor and building owner agree exist; and
(b) states when the building contractor is to remedy the minor defects and minor omissions mentioned in paragraph (a) ; and
(c) lists the minor defects and minor omissions that the building owner claims exist and the building contractor does not agree exist; and
(d) is signed by the building contractor.

"detached dwelling" means—
(a) a single detached dwelling; or
(b) a duplex.

"development approval" ...

"domestic building contract" see schedule section 3 .

"domestic building work" see schedule section 4 .

"draftsperson" means a person who holds a contractor’s licence authorising the person to prepare plans and specifications for domestic building work.

"excluded building work" means any of the following work—
(a) work relating to any of the following buildings—
(i) a farm building, or proposed farm building, that is not a home;
(ii) a building intended to be used only for business purposes;
(iii) a building intended to be used only to accommodate animals;
(b) design work carried out by an architect, engineer or draftsperson;
(c) the preparation of plans, specifications or bills of quantity for the carrying out of domestic building work;
(d) work involved in obtaining foundations data about a building site;
(e) transporting a building or kit home;
(f) work declared under a regulation to be excluded building work if there are reasonable grounds for considering the work to be excluded building work.

"farm building" means a building that—
(a) is constructed on land used entirely or mainly for agricultural or pastoral purposes; and
(b) is used, or intended to be used, for agricultural or pastoral purposes.

"foundations data" see schedule section 8 .

"home" see schedule section 9 .

"level 1 regulated contract" see schedule section 6 .

"level 2 regulated contract" see schedule section 7 .

"manage" , the carrying out of domestic building work, includes the provision of supervisory, advisory or administrative services for carrying out the work.

"mixed-purpose contract" means a contract entered into between a building contractor and building owner that entitles the building contractor to be paid for both of the following—
(a) carrying out, or managing the carrying out of, domestic building work;
(b) additional services.

"practical completion" , for a domestic building contract, means the day when the subject work is completed—
(a) in compliance with the contract, including all plans and specifications for the work and all statutory requirements applying to the work; and
(b) without any defects or omissions, other than minor defects or minor omissions that will not unreasonably affect occupation; and
(c) if the building owner claims there are minor defects or minor omissions—the building contractor gives the building owner a defects document for the minor defects or minor omissions.

"prime cost item" , for a domestic building contract, means an item, including, for example, a fixture or fitting—
(a) that has not been selected, or the price of which is not known, when the contract is entered into; and
(b) for the cost of supply and delivery of which a reasonable allowance is, or is to be, made in the contract by the building contractor.

"progress payment" , for a regulated contract, means a payment of an amount that is a part of the contract price for the contract, but does not include a payment of an amount that is, or is in the nature of, a deposit under the contract.

"provisional sum" , for a domestic building contract, see schedule section 10 .

"reasonably believes" ...

"regulated amount" means $3,300 or the higher amount, if any, prescribed by a regulation.

"regulated contract" see schedule section 5 .

"resident owner" , under a domestic building contract, means a building owner who—
(a) is an individual; and
(b) intends to reside in the building—
(i) on completion of the domestic building work; or
(ii) within 6 months after the completion of the work.

"schedule section" , in relation to a reference, means the section of this schedule corresponding to the reference.
Example—
Schedule section 14 means section 14 of this schedule.

"statutory warranties" means the warranties that are part of a regulated contract because of schedule section 19 .

"subcontractor" means a person who enters into a contract with a building contractor to carry out domestic building work to be carried out under a domestic building contract.

"subject work" , for a domestic building contract, means—
(a) the domestic building work carried out, being carried out or to be carried out under the contract; or
(b) the domestic building work the carrying out of which has been, is being or is to be managed under the contract.

"written form" , for a regulated contract, means—
(a) in handwritten or typewritten form; or
(b) in a combination of handwritten and typewritten forms.

2 Meaning of contract price

(1)
"Contract price" , for a domestic building contract, means the total amount payable under the contract to carry out domestic building work and includes—
(a) an amount the building contractor is entitled to receive and keep under the contract; and
(b) an amount the building contractor is entitled to receive under the contract for payment to another person.
(2) However, the
"contract price" does not include an amount a person, other than the building contractor, is entitled to receive directly from the building owner for any of the following matters if the matter for which it is payable relates to the carrying out of the subject work—
(a) conveying services to the building site;
(b) connecting or installing services for use at the building site;
Examples of services—
gas, electricity, telephone, water and sewerage
(c) issuing a development approval or similar authorisation.

3 Meaning of domestic building contract

(1) A
"domestic building contract" is—
(a) a contract to carry out domestic building work; or
(b) a construction management contract for the provision of building work services for domestic building work; or
(c) another contract to manage the carrying out of domestic building work.
(2) However, a
"domestic building contract" does not include—
(a) a contract between a building contractor and subcontractor; or
(b) a contract between a building contractor and a building owner for the construction of 2 or more detached dwellings; or
(c) a contract between the holder of an owner-builder permit and a building contractor; or
(d) a contract under which the building owner is the State, an entity representing the State or a local government.
(3) Subsection (4) applies if—
(a) a building contractor and building owner enter into 2 or more separate contracts, each for the construction of 1 detached dwelling; and
(b) the separate contracts could be the subject of a single contract for the construction of 2 or more detached dwellings.
(4) The separate contracts are taken to be a contract between a building contractor and a building owner for the construction of 2 or more detached dwellings.

4 Meaning of domestic building work

(1) Each of the following is
"domestic building work"
(a) the erection or construction of a detached dwelling;
(b) the renovation, alteration, extension, improvement or repair of a home;
(c) removal or resiting work for a detached dwelling;
(d) the installation of a kit home at a building site.
(2) However—
(a) removal work for a detached dwelling is
"domestic building work" only if the dwelling is intended to be resited at another place and used, at the place, as a residence; and
(b) resiting work for a detached dwelling is
"domestic building work" only if the dwelling is intended to be used at the place at which it is being resited as a residence.
(3)
"Domestic building work" includes—
(a) work (
"associated work" ) associated with the erection, construction, removal or resiting of a detached dwelling; and
(b) work (
"associated work" ) associated with the renovation, alteration, extension, improvement or repair of a home.
(4) Without limiting subsection (3) , associated work includes—
(a) landscaping; and
(b) paving; and
(c) the erection or construction of a building or fixture associated with the detached dwelling or home.
Examples of buildings and fixtures—
retaining structures, driveways, fencing, garages, carports, workshops, swimming pools and spas
(5) For the erection or construction of a detached dwelling,
"domestic building work" includes the provision of services or facilities to the dwelling or the property on which the dwelling is, or is to be, situated.
(6) For the renovation, alteration, extension, improvement or repair of a home,
"domestic building work" includes the provision of services or facilities to the home or the property on which the home is situated.
Examples of services and facilities for subsections (5) and (6)—
lighting, heating, ventilation, air conditioning, water supply, sewerage and drainage
(7) Also,
"domestic building work" includes—
(a) site work relating to work mentioned in subsection (1) , (3) , (5) or (6) ; and
(b) work declared under a regulation to be domestic building work if there are reasonable grounds for considering the work to be domestic building work.
(8) However,
"domestic building work" does not include excluded building work.
(9) In this section—
(a) a reference to a detached dwelling includes a reference to any part of a detached dwelling; and
(b) a reference to a home includes a reference to any part of a home; and
(c) a reference to site work includes a reference to work required to be carried out to gain access, or to remove impediments to access, to a site.
(10) In this section—

"kit home" means a set of building components offered for sale on the basis that the components are sufficient for the construction of 1 of the following if constructed in compliance with a plan or instruction provided by the seller—
(a) a detached dwelling;
(b) a garage;
(c) a carport;
(d) another structure prescribed by regulation.

"removal work" , for a detached dwelling, means work relating to the dwelling carried out at the place at which the dwelling is located for relocating the dwelling to another place.

"resiting work" , for a detached dwelling, means work relating to the dwelling carried out at a place for resiting the dwelling at the place following its removal from another place.

5 Meaning of regulated contract

(1) Each of the following is a
"regulated contract"
(a) a domestic building contract for which the contract price is more than the regulated amount;
(b) a cost plus contract under which the total amount payable for the contracted services is reasonably estimated to be more than the regulated amount;
(c) a mixed-purpose contract under which the amount referable to the contracted services is more than the regulated amount.
(2) However, a contract mentioned in subsection (1) (c) is a
"regulated contract" only to the extent to which the contract relates to the contracted services.
(3) In this section—

"additional services" means 1 or more of the following—
(a) carrying out work that is not domestic building work;
(b) managing the carrying out of work that is not domestic building work;
(c) another matter.

"amount referable to contracted services" , for a mixed-purpose contract, means—
(a) the amount the building contractor is entitled to receive under the contract for the contracted services; or
(b) a reasonable estimate of the amount the building contractor is entitled to receive under the contract based on a fair and reasonable apportionment between the contracted services and the additional services.

6 Meaning of level 1 regulated contract

(1) A
"level 1 regulated contract" is—
(a) a domestic building contract for which the contract price is more than the regulated amount but less than the level 2 amount; or
(b) a cost plus contract for which the total amount payable for the contracted services is reasonably estimated to be more than the regulated amount but less than the level 2 amount; or
(c) a mixed-purpose contract for which the amount referable to the contracted services is more than the regulated amount but less than the level 2 amount.
(2) In this section—

"level 2 amount" means the amount prescribed under schedule section 7 (2) .

7 Meaning of level 2 regulated contract

(1) A
"level 2 regulated contract" is—
(a) a domestic building contract for which the contract price is equal to or more than the level 2 amount; or
(b) a cost plus contract for which the total amount payable for the contracted services is reasonably estimated to be equal to or more than the level 2 amount; or
(c) a mixed-purpose contract for which the amount referable to the contracted services is equal to or more than the level 2 amount.
(2) In this section—

"level 2 amount" means the amount prescribed by regulation.

8 Meaning of foundations data

(1)
"Foundations data" is the information about a building site a building contractor exercising reasonable care and skill would need to have to prepare—
(a) an appropriate footings design for the site and, if appropriate, an appropriate concrete slab design for the site; and
(b) an adequate estimate of the cost of constructing the footings and, if appropriate, concrete slab.
(2) The information mentioned in subsection (1) includes—
(a) relevant information contained in, or obtainable from, reports, surveys, test results, plans, specifications or calculations prescribed under a regulation; and
(b) other information prescribed under a regulation.

9 Meaning of home

(1) A
"home" is a building or portion of a building that is designed, constructed or adapted for use as a residence.
Examples—
a detached or semi-detached dwelling, transportable house, terrace or townhouse, duplex, villa home, strata or community title home unit or residential unit
(2) However, a
"home" does not include a building or a part of a building declared under a regulation not to be a home.

10 Meaning of provisional sum

(1) A
"provisional sum" , for a domestic building contract, is an amount that is an estimate of the cost of providing particular contracted services.
(2) However, subsection (1) applies only to contracted services for which the building contractor, after making all reasonable enquiries, can not state a definite amount when the contract is entered into.
(3) The reference in subsection (1) to the cost of providing the contracted services includes a reference to the cost of supplying materials needed for the subject work.

11 Multiple contracts for the same domestic building work

(1) This section applies if a building contractor and building owner enter into 2 or more separate contracts that—
(a) could be the subject of a single contract for carrying out domestic building work; and
(b) if they were the subject of a single contract, would be a contract for carrying out domestic building work.
(2) The separate contracts are taken to be a single contract for which the contract price is the sum of the contract prices for the separate contracts.
Example for this section—
A building contractor that manufactures and installs kitchens enters into one contract with a building owner for the manufacture of a kitchen and a second contract for its installation.

12 References to particular terms

In this schedule—

(a) a reference to a building contractor in association with a reference to a domestic building contract is a reference to the building contractor under the contract; and
(b) a reference to a building owner in association with a reference to a domestic building contract is a reference to the building owner under the contract; and
(c) a reference to contracted services in association with a reference to a domestic building contract is a reference to the contracted services for the contract; and
(d) a reference to subject work in association with a reference to a domestic building contract is a reference to the subject work for the contract; and
(e) a reference to a building site in association with a reference to a domestic building contract is a reference to the building site for the contract.

Part 2 - Contracts and related documents

Division 1 - The contract

13 Requirements for contract—level 1 regulated contract

(1) This section applies to a level 1 regulated contract.
(2) The contract must be in a written form, dated and signed by or on behalf of each of the parties to it.
(3) The contract must contain all of the following—
(a) the names of the parties to it, including the name of the building contractor as it appears on the contractor’s licence;
(b) the building contractor’s licence number as it appears on the building contractor’s licence;
(c) a description of the subject work;
(d) any plans and specifications for the subject work;
(e) the contract price or the method for calculating it, including the building contractor’s reasonable estimate;
(f) a provision that states the date for practical completion or how the date is to be determined;
(g) a conspicuous notice advising the building owner of the right the owner may have to withdraw from the contract under schedule section 35 .
(4) The contract must also comply with all other requirements prescribed by regulation.
(5) The contract has effect only if it complies with subsection (2) .

14 Requirements for contract—level 2 regulated contract

(1) This section applies to a level 2 regulated contract.
(2) The contract must be in a written form, dated and signed by or on behalf of each of the parties to it.
(3) The contract must contain all of the following—
(a) the names of the parties to it, including the name of the building contractor as it appears on the contractor’s licence;
(b) the building contractor’s licence number as it appears on the building contractor’s licence;
(c) a description of the subject work;
(d) any plans and specifications for the subject work, including all plans and specifications required for carrying out the work in compliance with any development approvals or similar authorisations that are required by law for carrying out the work;
(e) the contract price or the method for calculating it, including the building contractor’s reasonable estimate;
(f) a provision that states the date for the start of the subject work at the building site, or how the date is to be determined;
(g) a provision that states the date for practical completion or how the date is to be determined;
(h) a statement of each of the statutory warranties that apply to the subject work;
(i) a conspicuous notice advising the building owner of the right the owner may have to withdraw from the contract under schedule section 35 .
(4) If the contract price is fixed, it must be stated in a prominent position on the first page of the contract schedule.
(5) If the contract price is not fixed, the method for calculating it, including any allowances, must be stated in the contract schedule.
(6) If the contract price may be changed under a provision of the contract, the contract must also contain—
(a) a warning to that effect; and
(b) a brief explanation of the effect of the provision allowing change to the contract price.
(7) The warning and explanation mentioned in subsection (6) must be in a prominent position on the first page of the contract schedule.
(8) The contract must not state the name of any person—
(a) as the building contractor; or
(b) so it may reasonably be mistaken to be the building contractor;
unless the person is the building contractor under the contract.
Example—
a domestic building contract stating a company name as the building contractor if an individual is actually the building contractor under the contract
(9) The contract must also comply with all other requirements prescribed by regulation.
(10) The contract has effect only if it complies with subsection (2) .

Division 2 - Copies of documents

Note—
The Australian Consumer Law (Queensland) also contains provisions regulating unfair terms of standard form contracts as defined under that law.

15 Copy of contract for building owner

Within 5 business days after entering into a regulated contract, the building contractor must give the building owner a readily legible signed copy of the contract, including any plans and specifications for the subject work.

Penalty—
Maximum penalty—60 penalty units.

16 Copy of commencement notice

(1) This section applies to a level 2 regulated contract.
(2) Within 10 business days of starting the subject work at the building site, the building contractor must give the building owner a commencement notice signed by the contractor and stating—
(a) the date the subject work started at the building site; and
(b) the date for practical completion.
Penalty—
Maximum penalty—40 penalty units.

17 Copies of certificate of inspection

(1) This section applies if the building contractor under a regulated contract is responsible for engaging a building certifier for the subject work under regulated contract (whether personally or as agent for the building owner).
(2) The building contractor must give the building owner a copy of each certificate of inspection issued by the building certifier for the subject work as soon as practicable after receiving the certificate.
Penalty—
Maximum penalty—20 penalty units.
(3) In a proceeding for a contravention of subsection (2) in relation to a certificate of inspection, it is a defence for the building contractor to prove that the contractor did not comply with the subsection because the contractor reasonably believed the building owner already had a copy of the certificate of inspection.

18 Copy of consumer building guide

(1) This section applies to a level 2 regulated contract.
(2) The building contractor must give the building owner a copy of the consumer building guide before the owner signs the contract.
Penalty—
Maximum penalty—20 penalty units.
(3) The consumer building guide may be given to the building owner separate from, or attached to, the contract.

Part 3 - Warranties

Division 1 - Incorporation of warranties

19 Implied warranties

(1) The warranties mentioned in division 2 are part of every regulated contract.
(2) A warranty mentioned in a section of division 3 is part of each regulated contract that is a contract of the type to which the section applies.
Note—
The Australian Consumer Law (Queensland) also provides particular statutory consumer guarantees if a person supplies, in trade or commerce, goods or services to a consumer as defined under that law.

Division 2 - Implied warranties for all contracts

20 Suitability of materials

(1) The building contractor warrants that all materials to be supplied for use in the subject work—
(a) will be good and, having regard to the relevant criteria, suitable for the purpose for which they are used; and
(b) unless otherwise stated in the contract, will be new.
(2) Subsection (1) applies to the building contractor for materials only if the materials are supplied by the responsible person for the contract.
(3) Despite subsection (2) , if the contract is being administered by an architect engaged by the building owner, subsection (1) does not apply to the building owner for materials if the responsible person is subject to the direction of the architect for supplying the materials.
(4) Also, despite subsection (2) , subsection (1) does not apply to the building contractor for materials if—
(a) the building owner is responsible for nominating the materials for use in the subject work; and
(b) either—
(i) there are no reasonable grounds for not using the materials; or
(ii) if there are reasonable grounds for not using the materials—the building owner insists on the materials being used despite written advice to the contrary given to the building owner by the building contractor.
(5) A building owner is responsible for nominating materials for use in the subject work only if—
(a) the building owner nominates the materials specifically; and
(b) the nomination is made without any recommendation, representation, suggestion or other approach being made to the building owner by the building contractor—
(i) supporting, or approving, the use of the materials; or
(ii) criticising, or disapproving the use of, other materials that could be considered to be appropriate for use for the purpose for which the materials nominated by the building owner are to be used.
(6) In this section—

"relevant criteria" , for materials, means—
(a) generally accepted practices or standards applied in the building industry for the materials; or
(b) specifications, instructions or recommendations of manufacturers or suppliers of the materials.

"responsible person" , for a regulated contract, means—
(a) if the contract is a contract for carrying out the subject work—the building contractor; or
(b) if the contract is a contract for managing the carrying out of the subject work—the person responsible for carrying out the work.

21 Compliance with legal requirements

The building contractor warrants the subject work will be carried out in accordance with all relevant laws and legal requirements, including, for example, the Building Act 1975 .

22 Standard of work and exercise of care and skill

The building contractor warrants the subject work will be carried out—

(a) in an appropriate and skilful way; and
(b) with reasonable care and skill.

Division 3 - Implied warranties for particular contracts

23 Adherence to plans and specifications

(1) This section applies to a regulated contract if plans and specifications form part of the contract.
(2) The building contractor warrants the subject work will be carried out in accordance with the plans and specifications.

24 Suitability of premises for occupation

(1) This section applies to a regulated contract if the subject work—
(a) consists of the erection or construction of a detached dwelling to a stage suitable for occupation; or
(b) is work intended to renovate, alter, extend, improve or repair a home to a stage suitable for occupation.
(2) The building contractor warrants the detached dwelling or home will be suitable for occupation when the work is finished.

25 Carrying out work with reasonable diligence

The building contractor warrants the subject work will be carried out with reasonable diligence.

26 Calculation of provisional sums and prime cost items

(1) This section applies to a regulated contract providing for a provisional sum or prime cost item.
(2) The building contractor warrants the provisional sum or prime cost item has been calculated with reasonable care and skill, having regard to all the information reasonably available when the contract is entered into (including information about the nature and location of the building site).

Division 4 - General

27 Warranties run with building

(1) An associated person for a regulated contract has the same rights for a breach of a warranty mentioned in division 2 or schedule section 23 or 24 as if the person were the building owner.
(2) However, subsection (1) applies to the associated person—
(a) only if, at the relevant time, the person did not know, and could not reasonably have known, of the existence of the breach; and
(b) only to the extent the rights are rights that, immediately before the person became an associated person for the contract, were held by—
(i) the building owner; or
(ii) another associated person for the contract.
(3) In this section—

"associated person" , for a regulated contract, means a person, other than the building owner, who is the owner for the time being of the building in relation to which, or land on which, the subject work was carried out.

"relevant time" , for an associated person, for a regulated contract, means the time the person entered into the agreement under which the person became an associated person for the contract.

28 Protection of rights given by warranties

A provision of an agreement or other document that purports to restrict or take away the rights of a person for a breach of a warranty mentioned in this part is void.

29 Proceedings for breach of warranties

(1) Proceedings for a breach of a statutory warranty must be started before the end of the warranty period for the breach.
(2) However, if the breach of statutory warranty becomes apparent within the last 6 months of the warranty period, proceedings may be started within a further 6 months after the end of the warranty period.
(3) The
"warranty period" for a regulated contract—
(a) is 6 years for a breach that results in a structural defect, as prescribed by regulation, or 1 year in any other case; and
(b) starts—
(i) if the subject work is completed—on completion of the work; or
(ii) if the subject work is not completed—
(A) if the contract is terminated—the date the contract is terminated; or
(B) if the contract is not terminated—the date on which work under the contract ceased; or
(C) if the contract is not terminated and work under the contract was not started—the date the contract was entered into.
(4) A breach of a statutory warranty becomes apparent when any person entitled to the benefit of the warranty first becomes aware, or ought reasonably to have become aware, of the breach.
(5) The fact that a person entitled to the benefit of a statutory warranty has enforced the warranty in relation to a particular deficiency in domestic building work does not prevent the person from enforcing the same warranty for a deficiency of a different kind in the work (the
"other deficiency" ) if—
(a) the other deficiency was in existence when the work to which the warranty relates was completed; and
(b) the person did not know, and could not reasonably have been expected to know, of the existence of the other deficiency when the warranty was previously enforced; and
(c) the proceedings to enforce the warranty in relation to the other deficiency are brought within the period mentioned in subsection (1) .
(6) In proceedings for a breach of a statutory warranty, it is a defence for the defendant to prove that—
(a) the deficiencies of which the plaintiff complains arise from instructions given by the person for whom the work was done contrary to the written advice of the defendant or the person who did the work; or
(b) the defendant was not reasonably given access to rectify the deficiencies of which the plaintiff complains.

Part 4 - Restrictions relating to contracts

Division 1 - Entering into contracts

30 Contracted services must not start before regulated contract complies with requirements

The building contractor for a regulated contract must not start to provide the contracted services before the contract complies with the requirements of—

(a) for a level 1 regulated contract—schedule section 13 ; or
(b) for a level 2 regulated contract—schedule section 14 .
Penalty—
Maximum penalty—100 penalty units.

31 Foundations data

(1) This section applies if the subject work proposed for a regulated contract—
(a) requires the construction or alteration of footings, or a concrete slab, for a building; or
(b) may adversely affect the footings of a building or a concrete slab forming part of a building.
(2) Before entering into the contract, the building contractor must obtain the foundations data that is appropriate for the building site, having regard to the following—
(a) the Building Code of Australia;
(b) the need for a drainage plan;
(c) the need for engineer’s drawings and computations;
(d) the need for information on the fall of the land at the building site.
Penalty—
Maximum penalty—100 penalty units.
(3) However, subsection (2) does not apply if—
(a) the building contractor is not lawfully entitled to enter the land at the building site to obtain the foundations data before entering into the contract; and
(b) the contract guarantees that there will be no increase in the contract price because of the foundations data.
(4) Nothing in subsection (2) requires a building contractor to commission the preparation of foundations data to the extent the data already exists and it is reasonable for the building contractor to rely on the data.
(5) The building contractor must give a copy of any foundations data obtained by the building contractor for this section to the building owner on payment by the building owner of the costs incurred by the building contractor in obtaining the data.
Penalty—
Maximum penalty—10 penalty units.
(6) Subsection (5) does not apply to a building contractor for foundations data if the data is given to the building contractor by the building owner.
(7) In a proceeding for a contravention of subsection (5) in relation to a copy of any foundations data, it is a defence for the building contractor to prove that the building contractor reasonably believes the building owner already has a copy of the data.
(8) The building contractor under a regulated contract can not seek from the building owner an amount not already provided for in the contract if—
(a) the building contractor entered into the contract before obtaining the foundations data under subsection (2) ; and
(b) the need for the additional amount could reasonably have been established, and the amount calculated, had the building contractor complied with the subsection.
(9) For subsection (8) , an amount is not taken to be provided for in a regulated contract only because the contract contains a provision allowing for an increase to be made of the contract price.
(10) Nothing in this section prevents the building contractor from claiming an amount not provided for in the contract if—
(a) the building contractor has complied with subsection (2) ; and
(b) the need for the additional amount can not be established from the foundations data obtained by the building contractor.

32 Arbitration clauses

(1) A provision of a regulated contract, or other agreement, requiring that a dispute under the contract be referred to arbitration is void.
(2) Subsection (1) does not apply to a provision of an agreement, other than a regulated contract, if the agreement is entered into after a dispute under the contract arises.

Division 2 - Payments relating to contracts

33 Deposits

(1) The building contractor under a regulated contract must not, before starting to provide the contracted services at the building site, demand or receive a deposit under the contract of more than—
(a) for a level 1 regulated contract (other than a contract mentioned in paragraph (c) )—10% of the contract price; or
(b) for a level 2 regulated contract (other than a contract mentioned in paragraph (c) )—5% of the contract price; or
(c) for a level 1 or 2 regulated contract under which the value of the off-site work is more than 50% of the contract price—20% of the contract price.
Penalty—
Maximum penalty—100 penalty units.
(2) In this section, a reference to the contract price for a contract includes, for a cost plus contract, a reference to the estimated amount for the contract.
(3) In this section—

"deposit" , for a regulated contract, includes any payment for domestic building work demanded or received by the building contractor prior to the contracted services commencing at the building site, including, for example, any insurance premium paid under part 5 .

"off-site work" , for a regulated contract, means contracted services performed at a place that is not the place at which the domestic building work is to be finally installed or constructed under the contract.

34 Progress payments for regulated contracts

(1) The building contractor under a regulated contract must not claim an amount under the contract, other than a deposit, unless the amount—
(a) is directly related to the progress of carrying out the subject work at the building site; and
(b) is proportionate to the value of the subject work that relates to the claim, or less than that value.
Example for paragraph (b)—
The claimed amount is for half of the contract price for a regulated contract, less a 5% deposit, and is demanded after the completion of half of the subject work.
Penalty—
Maximum penalty—50 penalty units.
(2) A regulation may prescribe when an amount is proportionate to the value of subject work under a regulated contract.
(3) For subsection (1) , a building contractor is taken to claim an amount if the contractor demands or receives the amount.
(4) In this section—

"building site" , for a regulated contract, does not include a place where the subject work has been, is being, or is to be, carried out if the work is required to later be installed or constructed at another place under the contract.

"deposit" , for a regulated contract, means the deposit permitted for the contract under schedule section 33 (1) .

Part 5 - Cooling-off period and withdrawing from regulated contracts

35 Right of building owner to withdraw from contract in cooling-off period

(1) The building owner under a regulated contract may withdraw from the contract within 5 business days after the day on which the owner receives a copy of the signed contract from the building contractor.
(2) Also, if the building owner under a level 2 regulated contract does not receive the consumer building guide before receiving a copy of the signed contract, the owner may withdraw from the contract within 5 business days after the day on which the owner receives the consumer building guide.
(3) If 5 business days have elapsed from the day the contract was entered into and the owner has not received from the building contractor a copy of the signed contract and, for a level 2 regulated contract, the consumer building guide, the owner may withdraw from the contract.
(4) Nothing in subsection (3) affects the right of the building owner to withdraw from the contract under subsection (1) or (2) if the owner subsequently receives from the building contractor a copy of the signed contract and, for a level 2 regulated contract, the consumer building guide.

36 Restrictions affecting right of withdrawal in cooling-off period

(1) This section applies despite schedule section 35 .
(2) A building owner may not withdraw from a regulated contract (the
"current contract" ) under schedule section 35 if—
(a) the building owner and building contractor previously entered into a regulated contract (the
"previous contract" ); and
(b) the terms of the previous contract and current contract are substantially the same; and
(c) the contracted services for the previous contract and current contract—
(i) are substantially the same; and
(ii) relate to the same detached dwelling, home or land.
(3) Also, a building owner may not withdraw from a regulated contract under schedule section 35 if—
(a) before entering into the contract, the building owner received formal legal advice about the contract; or
(b) when, or after, the contract is entered into, the building owner tells the building contractor that the building owner received formal legal advice about the contract before entering into the contract.
(4) In this section—

"formal legal advice" means independent advice—
(a) given by a practising legal practitioner; and
(b) for the giving of which an amount is paid, or is payable, to the legal practitioner by the person to whom the advice is given.

"practising legal practitioner" means a lawyer authorised under a law of the State to practise as a lawyer for purposes including the giving, for reward, of advice, including, for example, advice about domestic building contracts.

37 Withdrawal procedure

(1) To withdraw from a regulated contract under schedule section 35 , the building owner must, within the time allowed under the section for the withdrawal—
(a) give a withdrawal notice to the building contractor; or
(b) leave a withdrawal notice at the address shown as the building contractor’s address in the contract; or
(c) serve a withdrawal notice on the building contractor in accordance with any provision in the contract providing for service of notices on the building contractor by the building owner.
(2) In this section—

"withdrawal notice" means a written notice signed by the building owner under a regulated contract stating—
(a) that the building owner withdraws from the contract; and
(b) the section of this schedule under which the withdrawal is made.

38 Rights and obligations of parties following withdrawal in cooling-off period

(1) This section applies if a building owner withdraws from a regulated contract under schedule section 35 .
(2) If there is a prepaid amount for the contract that is not less than the retainable amount, the building contractor—
(a) may keep an amount equal to the retainable amount out of the prepaid amount; and
(b) must refund any balance of the prepaid amount to the building owner.
(3) If there is a prepaid amount for the contract that is less than the retainable amount, the building owner must pay the building contractor an amount equal to the difference between the retainable amount and the prepaid amount.
(4) If there is no prepaid amount for the contract, the building owner must pay the building contractor an amount equal to the retainable amount.
(5) If an amount is not paid by a person as required under this section, the person to whom it is payable may recover the amount from the other person as a debt.
(6) Except as provided under subsection (3) or (4) , the building owner is not liable to the building contractor in any way for withdrawing from the contract.
(7) In this section, a reference to the prepaid amount for the contract is a reference to the amount paid to the building contractor under the contract by the building owner before the building owner withdrew from the contract.
(8) Also, in this section, a reference to the retainable amount for the contract is a reference to the sum of—
(a) an amount equal to any out-of-pocket expenses reasonably incurred by the building contractor before the building owner withdrew from the contract; and
(b) if the building owner withdraws from the contract under schedule section 35 (1) —$100.

39 Waiving right of withdrawal

(1) The building owner under a repair contract may waive the building owner’s right to withdraw from the contract.
(2) To waive the right, the building owner must—
(a) give a waiver notice to the building contractor; or
(b) leave a waiver notice at the address shown as the building contractor’s address in the contract; or
(c) serve a waiver notice on the building contractor in accordance with any provision in the contract providing for service of notices on the building contractor by the building owner.
(3) This section has effect despite section 108D .
(4) In this section—

"repair" includes an alteration, improvement or replacement that it is necessary or reasonable to carry out instead of effecting a repair.

"repair contract" means a regulated contract under which the subject work is composed of any 1 or more of the following—
(a) the repair of a home;
(b) work associated with the repair of a home;
(c) the provision, for the repair of a home, of services or facilities to the home or the property on which the home is situated;
(d) site work relating to work mentioned in paragraph (a) , (b) or (c) .

"waiver notice" means a written notice signed by the building owner under a repair contract stating that the building owner waives the building owner’s right to withdraw from the contract.

Part 6 - Variations of contracts

40 Variations must be in writing

(1) This section applies if there is to be a variation of a regulated contract.
(2) The building contractor must give the building owner a copy of the variation in writing before the first of the following happens—
(a) 5 business days elapse from the day the building contractor and the building owner agree to the variation;
(b) any domestic building work the subject of the variation starts.
Penalty—
Maximum penalty—20 penalty units.
(3) The building contractor may give the building owner the variation under subsection (2)
(a) personally; or
(b) by sending it by post, facsimile or email; or
(c) in accordance with any provision in the contract providing for service of notices on the building owner by the building contractor.
(4) In a proceeding for a contravention of subsection (2) , it is a defence for the building contractor to prove that—
(a) the variation is for domestic building work that is required to be carried out urgently; and
(b) it is not reasonably practicable, in the particular circumstances, to produce a copy of the variation in writing before carrying out the work.
(5) The building contractor must not start to carry out any domestic building work the subject of the variation before the building owner agrees to the variation in writing.
Penalty—
Maximum penalty—20 penalty units.

41 General contents of document evidencing a variation

(1) The building contractor under a regulated contract must ensure a document evidencing a variation of the contract complies with the formal requirements for a variation.
Penalty—
Maximum penalty—20 penalty units.
(2) The document evidencing the variation complies with the formal requirements if it—
(a) is readily legible; and
(b) describes the variation; and
(c) states the date of the request for the variation; and
(d) if the variation will result in a delay affecting the subject work—states the building contractor’s reasonable estimate for the period of delay; and
(e) states the change to the contract price because of the variation, or the method for calculating the change to the contract price because of the variation; and
(f) if the variation results in an increase in the contract price—states when the increase is to be paid; and
(g) if the variation results in a decrease in the contract price—states when the decrease is to be accounted for.
(3) Any increase in the contract price as a result of the variation can not be required to be paid before work the subject of the variation is started.

42 Extension of time

(1) The building contractor under a regulated contract may only claim for an extension of time under the contract if—
(a) the delay causing the need for the extension of time was—
(i) not reasonably foreseeable and beyond the reasonable control of the contractor; or
(ii) caused by the building owner; or
(iii) caused by a variation of the contract complying with schedule section 40 ; and
(b) the claim is made to the building owner in writing; and
(c) the claim is given to the building owner within 10 business days of the building contractor becoming aware of the cause and extent of the delay or when the building contractor reasonably ought to have become aware of the cause and extent of the delay; and
(d) the owner approves the claim in writing.
(2) A building contractor under a regulated contract must not seek to rely on an extension of time under the contract unless the contractor claimed for the extension of time in compliance with subsection (1) .
Penalty—
Maximum penalty—20 penalty units.
(3) A building contractor under a regulated contract must give the building owner a signed copy of a claim for an extension of time within 5 business days of the owner approving the claim.
Penalty—
Maximum penalty—20 penalty units.
(4) A regulation may prescribe when a series of similar delays may be taken to be a single delay for the purpose of subsection (1) (c) .

Part 7 - Building sites

43 Building contractor does not acquire interest in land of resident owner

(1) A domestic building contract does not give the building contractor an interest in land of a resident owner for the Land Title Act 1994 , section 122 .
(2) A building contractor who lodges a caveat claiming an interest in land of a building owner under a domestic building contract knowing the owner to be a resident owner commits an offence.
Penalty—
Maximum penalty for subsection (2) —100 penalty units.

Part 8 - Other matters relating to contracts

44 Effect of failure by building contractor to comply with requirement

Unless the contrary intention appears in this Act, a failure by a building contractor to comply with a requirement under this Act in relation to a domestic building contract does not make the contract illegal, void or unenforceable.

Part 9 - Miscellaneous

45 Relationship with other Acts

The Commercial Arbitration Act 2013 does not apply to domestic building work unless the relevant arbitration agreement under that Act—

(a) is an agreement other than a domestic building contract; and
(b) is entered into after the dispute to which it relates arises.

46 Consumer building guide

(1) The commission must prepare and publish a consumer building guide in a form prescribed by regulation.
(2) The consumer building guide may, for informational purposes, contain information about the following—
(a) warnings about cost plus contracts;
(b) information about the cooling-off period;
(c) commencement notice requirements;
(d) deposit and progress payment requirements;
(e) variation procedures;
(f) statutory warranties;
(g) dispute resolution procedures.
(3) Subsection (2) does not limit the type of information the commission may include in the consumer building guide.



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