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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Home Building Amendment Bill 2008
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Home Building Act 1989 No 147 2
4 Repeal of Act 2
Schedule 1 Amendments 3
b2007-035-35.d16
New South Wales
Home Building Amendment Bill 2008
No , 2008
A Bill for
An Act to amend the Home Building Act 1989 to make further provision with respect
to the suspension of building licences, the taking of disciplinary action and the
requirements for home warranty insurance.
Clause 1 Home Building Amendment Bill 2008
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Home Building Amendment Act 2008. 3
2 Commencement 4
This Act commences on 1 April 2009. 5
3 Amendment of Home Building Act 1989 No 147 6
The Home Building Act 1989 is amended as set out in Schedule 1. 7
4 Repeal of Act 8
(1) This Act is repealed on the day following the day on which this Act 9
commences. 10
(2) The repeal of this Act does not, because of the operation of section 30 11
of the Interpretation Act 1987, affect any amendment made by this Act. 12
Page 2
Home Building Amendment Bill 2008
Amendments Schedule 1
Schedule 1 Amendments 1
(Section 3) 2
[1] Section 18E Proceedings for breach of warranties 3
Omit section 18E (2). Insert instead: 4
(2) The fact that a person entitled to the benefit of a statutory 5
warranty specified in paragraph (a), (b), (c), (e) or (f) of section 6
18B has enforced the warranty in relation to a particular 7
deficiency in the work does not prevent the person from 8
enforcing the same warranty for a deficiency of a different kind 9
in the work (the other deficiency) if: 10
(a) the other deficiency was in existence when the work to 11
which the warranty relates was completed, and 12
(b) the person did not know, and could not reasonably be 13
expected to have known, of the existence of the other 14
deficiency when the warranty was previously enforced, 15
and 16
(c) the proceedings to enforce the warranty in relation to the 17
other deficiency are brought within the period referred to 18
in subsection (1). 19
[2] Section 42A 20
Insert after section 42: 21
42A Automatic suspension of licence for failure to comply with order 22
to pay money in relation to building claim 23
(1) In this section: 24
building claim has the same meaning as in Part 3A, and includes 25
a claim for the payment of an unspecified sum of money that 26
arises from a supply of building goods or services as referred to 27
in section 48A. 28
licence means: 29
(a) a contractor licence (whether or not an endorsed contractor 30
licence), or 31
(b) a building consultancy licence. 32
(2) If the holder of a licence fails to comply with an order of a court 33
or the Tribunal to pay an amount of money in respect of a 34
building claim by the due date, the licence is, subject to this 35
section, suspended until such time as the Director-General is 36
satisfied that the order has been complied with. 37
Page 3
Home Building Amendment Bill 2008
Schedule 1 Amendments
(3) For the purposes of this section, the due date for payment of an 1
amount of money in respect of a building claim is: 2
(a) the end of the time limit specified in the order for payment, 3
or 4
(b) if no such time limit is specified in the order--the end of 5
the period determined by the Director-General. 6
(4) The suspension of the licence takes effect: 7
(a) 28 days after the due date for payment, or 8
(b) if the Director-General is, before the end of that 28-day 9
period, provided with a copy of an order staying the 10
operation of the decision of the court or the Tribunal 11
pending an appeal against the decision--as soon as the 12
decision of the court or the Tribunal is confirmed on 13
appeal. 14
Note. In the case of an order of the Tribunal, section 69 of the 15
Consumer, Trader and Tenancy Tribunal Act 2001 provides that an 16
appeal against (or an application for a rehearing of) the Tribunal's 17
decision does not automatically affect the operation of the decision. 18
However, an order may be made under that section to stay the operation 19
of the Tribunal's decision. 20
(5) The Director-General may, by notice in writing to the holder of a 21
licence, defer the operation of the suspension of the licence under 22
this section for any period up until the date on which the licence 23
is due for renewal. 24
(6) A decision by the Director-General to defer, or not to defer, the 25
operation of the suspension of a licence under this section cannot 26
be reviewed by the Administrative Decisions Tribunal in an 27
application for review made under this Act. 28
(7) If a licence is suspended by operation of this section, the holder 29
of the licence must, as soon as practicable after the suspension 30
takes effect: 31
(a) return the licence to the Director-General by lodging it at 32
an office of the Office of Fair Trading, Department of 33
Commerce, or 34
(b) if unable to lodge the licence, lodge at an office of the 35
Office of Fair Trading, Department of Commerce a 36
statement signed by the person providing accurate and 37
complete details of why the licence cannot be lodged. 38
Maximum penalty: 40 penalty units in the case of a corporation 39
and 20 penalty units in any other case. 40
Page 4
Home Building Amendment Bill 2008
Amendments Schedule 1
(8) This section does not operate to prevent the taking of disciplinary 1
action under Part 4 against a person on the grounds that the 2
person has failed to comply with an order of a court or the 3
Tribunal to pay an amount of money in respect of a building 4
claim. 5
[3] Part 3A, Division 6 6
Insert after Division 5: 7
Division 6 Miscellaneous 8
48V Requirement to notify Director-General of court order to pay 9
money in relation to building claim 10
(1) If the holder of a licence within the meaning of section 42A is 11
ordered by a court to pay an amount of money in respect of a 12
building claim, the licence holder must, within 7 days after the 13
order is made, notify the Director-General in writing of the 14
following particulars: 15
(a) the amount of money ordered to be paid, 16
(b) the date on which the money is due to be paid if such a date 17
is specified in the order, 18
(c) the name of the person to whom the money is to be paid, 19
(d) such other particulars as may be prescribed by the 20
regulations. 21
Maximum penalty: 40 penalty units in the case of a corporation 22
and 20 penalty units in any other case. 23
(2) Without limiting any requirement to notify under subsection (1), 24
if a court makes an order for the payment of money in respect of 25
a building claim, any party to the proceedings in which the order 26
was made may notify the Director-General of the making of the 27
order and the terms of the order. 28
(3) A reference in this section to a building claim includes a 29
reference to a claim for the payment of an unspecified sum of 30
money that arises from a supply of building goods or services. 31
[4] Section 51 Improper conduct: generally 32
Insert "or with an order of a court in respect of a building claim as referred to 33
in Part 3A" after "the Tribunal" wherever occurring in section 51 (2) (c) and 34
(2A) (d). 35
Page 5
Home Building Amendment Bill 2008
Schedule 1 Amendments
[5] Section 99 Requirements for insurance for residential building work 1
Insert after section 99 (2): 2
(3) For the purposes of subsection (1), a reference to the insolvency, 3
death or disappearance of a contractor is taken to include a 4
reference to the suspension of the contractor's licence under 5
section 42A. Accordingly, a contract of insurance in relation to 6
residential building work required by section 92 must include 7
provision that enables the person on whose behalf the work is 8
being done and the person's successors in title (the beneficiary) 9
to make a claim if the contractor's licence is suspended under 10
section 42A. 11
(4) The following provisions apply in relation to any such claim: 12
(a) the insurer is only required to accept liability for the claim 13
if the Tribunal or a court has ordered the contractor to pay 14
the beneficiary an amount of money in respect of a 15
building claim within the meaning of Part 3A and the 16
contractor has failed to comply with the order, 17
(b) if the insurer pays the claim, the insurer is entitled to 18
recover from the contractor, as a debt in a court of 19
competent jurisdiction, the amount paid by the insurer 20
under the claim (including costs associated with 21
processing the claim), 22
(c) if, after the claim has been paid, the contractor complies 23
with the order of the Tribunal or court or completes the 24
residential building work, the insurer is entitled to recover 25
from the beneficiary, as a debt in a court of competent 26
jurisdiction, so much of the amount paid by the insurer 27
under the claim as equals the amount paid to the 28
beneficiary under the order (excluding any such amount 29
paid under the order that does not relate to a matter for 30
which the insurer is liable under the contract of insurance), 31
(d) the insurer is not entitled to recover an amount under 32
paragraph (b) or (c) if the insurer has already recovered an 33
amount under either of those paragraphs in respect of the 34
same claim. 35
[6] Section 120 Register 36
Insert after section 120 (3) (e): 37
(e1) any instance of non-compliance with an order made by a 38
court in respect of a building claim within the meaning of 39
Part 3A, 40
Page 6
Home Building Amendment Bill 2008
Amendments Schedule 1
[7] Schedule 4 Savings and transitional provisions 1
Insert at the end of clause 2 (1): 2
Home Building Amendment Act 2008 3
[8] Schedule 4, Part 14 4
Insert after Part 13: 5
Part 14 Provisions consequent on Home Building 6
Amendment Act 2008 7
79 Application of amendments 8
(1) In this clause, amending Act means the Home Building 9
Amendment Act 2008. 10
(2) Section 42A, as inserted by the amending Act, applies in relation 11
to a building claim made after the commencement of that section 12
regardless of whether the claim arises from a contract that was 13
entered into before or after the commencement of that section. 14
(3) The amendment made to section 99 by the amending Act does not 15
apply in relation to an insurance contract that was entered into 16
before the commencement of that amendment. 17
Page 7
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