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Queensland
DOMESTIC BUILDING
CONTRACTS BILL 1999
Queensland
DOMESTIC BUILDING CONTRACTS
BILL 1999
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3 Purpose of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
PART 2--INTERPRETATION
Division 1--Dictionary
5 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Division 2--Basic concepts
6 Meaning of "contract price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7 Meaning of "domestic building contract" . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8 Meaning of "domestic building work" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9 Meaning of "regulated contract" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Division 3--Secondary concepts
10 Meaning of "associated third party amount" . . . . . . . . . . . . . . . . . . . . . . . . . 12
11 Meaning of "cost escalation clause" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
12 Meaning of "foundations data" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
13 Meaning of "home" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
14 Meaning of "provisional sum" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
15 Meaning of "repair contract" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
16 Meaning of "variation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Division 4--Other concepts
17 Domestic building work carried out in stages . . . . . . . . . . . . . . . . . . . . . . . . 17
2
Domestic Building Contracts
18 Effective completion date or period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
19 Mixed-purpose contracts--amount referable to contracted services . . . . . . 19
Division 5--References to particular terms
20 Building contractors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
21 Building owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
22 Contracted services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
23 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
24 Contract price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
25 Subject work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
PART 3--CONTRACTS AND RELATED DOCUMENTS
Division 1--The contract
26 Contracts must be in writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
27 General contents of contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
28 General contents--required matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
29 General contents--required things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
30 Contracts must be signed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
31 Parties to contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
32 Forms of contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Division 2--Details in contracts about delays affecting time
estimates
33 Calculable delays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
34 Incalculable delays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Division 3--Contract price
35 Inclusion of fixtures and fittings in contract price . . . . . . . . . . . . . . . . . . . . . 27
Division 4--Handling of contracts and related documents
36 Copy of contract for building owner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
37 Imprinted copy of contract or schedule for building owner . . . . . . . . . . . . . 28
38 Imprinted copy of contract or schedule for authority . . . . . . . . . . . . . . . . . . 28
39 Copies of contract related documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
40 Copy of contract information statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
PART 4--WARRANTIES
Division 1--Incorporation of warranties
41 Implied warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3
Domestic Building Contracts
Division 2--Implied warranties for all contracts
42 Suitability of materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
43 Compliance with legal requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
44 Standard of work and exercise of care and skill . . . . . . . . . . . . . . . . . . . . . . 32
Division 3--Implied warranties for particular contracts
45 Adherence to plans and specifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
46 Suitability of premises for occupation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
47 Carrying out work with reasonable diligence . . . . . . . . . . . . . . . . . . . . . . . . 33
48 Calculation of provisional sums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Division 4--General
49 Warranties run with building . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
50 Protection of rights given by warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
51 Proceedings for breach of warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
PART 5--RESTRICTIONS RELATING TO CONTRACTS
Division 1--Entering into contracts
52 Licensing requirement for building contractors . . . . . . . . . . . . . . . . . . . . . . . 35
53 Foundations data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
54 Mixed-purpose contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
55 Cost plus contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
56 Cost escalation clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
57 Price change clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
58 Arbitration clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Division 2--Prime cost items and provisional sums
59 Stating amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
60 Effect of improper statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
61 Schedule of details . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
62 Evidence of cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
63 Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Division 3--Payments relating to contracts
64 Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
65 Progress payments for contracts other than designated stages contracts . . 44
66 Progress payments for designated stages contracts . . . . . . . . . . . . . . . . . . . . 44
4
Domestic Building Contracts
67 Completion payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
68 Associated third party amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Division 4--Consequences of contravening requirements relating to
payments
69 Order to refund overpaid amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
70 Ending of contract for contravention of order . . . . . . . . . . . . . . . . . . . . . . . . 48
71 Rights of building contractor if contract ended . . . . . . . . . . . . . . . . . . . . . . . 49
PART 6--COOLINGOFF PERIOD
72 Right of building owner to withdraw from contract in cooling-off period . . 49
73 Restrictions affecting right of withdrawal in cooling-off period . . . . . . . . . . 50
74 Right of building owner to withdraw from contract if cooling-off
warning not given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
75 Withdrawal procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
76 Rights and obligations of parties following withdrawal in
cooling-off period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
77 Rights of building contractor following withdrawal for failure to
give warning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
78 Waiving right of withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
PART 7--VARIATIONS OF CONTRACTS
79 Variations must be in writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
80 General contents of variation document . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
81 General contents--appropriate provision for payments to reflect
contract price changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
82 Variation document must be signed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
83 Copy of variation document for building owner . . . . . . . . . . . . . . . . . . . . . . 57
84 Right of building contractor to recover amount for variation . . . . . . . . . . . . 58
PART 8--BUILDING SITES
85 Building contractor does not acquire interest in land . . . . . . . . . . . . . . . . . . 60
86 Control of building sites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
87 Access to building sites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
PART 9--OTHER MATTERS RELATING TO CONTRACTS
88 Display of documents at display homes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
89 Construction of home based on display home . . . . . . . . . . . . . . . . . . . . . . . . 61
5
Domestic Building Contracts
90 Ending contract if completion time extended or contract price
increased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
91 Rights of building contractor if contract ended . . . . . . . . . . . . . . . . . . . . . . . 63
92 Effect of failure by building contractor to comply with requirement . . . . . . 63
93 Contracting out prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
PART 10--MISCELLANEOUS
94 Responsibility for acts or omissions of representatives . . . . . . . . . . . . . . . . 64
95 Executive officers must ensure corporation complies with Act . . . . . . . . . . 65
96 Treatment of partnerships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
97 Fines payable to authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
98 Relationship with other Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
99 Approval of information statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
100 Supply of copies of information statements . . . . . . . . . . . . . . . . . . . . . . . . . . 67
101 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
PART 12--TRANSITIONAL PROVISIONS
102 Application of Act to contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
103 Application of QBSA Act to contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
PART 13--CONSEQUENTIAL AND OTHER AMENDMENTS
104 Acts amended--sch 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 69
CONSEQUENTIAL AND OTHER AMENDMENTS
COMMERCIAL ARBITRATION ACT 1990 . . . . . . . . . . . . . . . . . . . . . . . . 69
QUEENSLAND BUILDING SERVICES AUTHORITY ACT 1991 . . . . . . 69
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . 71
DICTIONARY
1999
A BILL
FOR
An Act to regulate certain domestic building contracts, and for other
purposes
s1 8 s4
Domestic Building Contracts
The Parliament of Queensland enacts-- 1
ART 1--PRELIMINARY 2
P
title 3
Short
1. This Act may be cited as the Domestic Building Contracts Act 1999. 4
5
Commencement
2. This Act commences on a day to be fixed by proclamation. 6
of Act 7
Purpose
3. The purpose of this Act, in regulating domestic building contracts, is-- 8
(a) to achieve a reasonable balance between the interests of building 9
contractors and building owners; and 10
(b) to maintain appropriate standards of conduct in the building 11
industry. 12
binds all persons 13
Act
4. This Act binds all persons, including the State, and, so far as the 14
legislative power of the Parliament permits, the Commonwealth and the 15
other States.1 16
1 See, however, section 7(2)(b) (Meaning of "domestic building contract").
s5 9 s7
Domestic Building Contracts
PART 2--INTERPRETATION 1
Division 1--Dictionary 2
3
Definitions
5. The dictionary in schedule 2 defines particular words used in this Act. 4
Division 2--Basic concepts 5
of "contract price" 6
Meaning
6.(1) This section does not apply to a cost plus contract. 7
(2) The "contract price", for a domestic building contract, is the total 8
amount payable under the contract for the contracted services. 9
(3) The "contract price" includes-- 10
(a) the amount the building contractor is entitled to receive and keep 11
under the contract; and 12
(b) the amount the building contractor is entitled to receive under the 13
contract for payment to another person. 14
(4) However, the "contract price" does not include the following-- 15
(a) an associated third party amount; 16
(b) an amount to which section 53(7) applies.2 17
(5) If a contract is varied, the reference in subsection (2) to the total 18
amount payable under the contract is a reference to the total amount payable 19
under the contract, as varied. 20
of "domestic building contract" 21
Meaning
7.(1) A "domestic building contract" is a contract-- 22
(a) to carry out domestic building work; or 23
2 Section 53 (Foundations data)
s8 10 s8
Domestic Building Contracts
(b) to manage the carrying out of domestic building work. 1
(2) However, a "domestic building contract" does not include-- 2
(a) a contract between a building contractor and subcontractor; or 3
(b) a contract under which the building owner is the State, an entity 4
representing the State or a local government. 5
of "domestic building work" 6
Meaning
8.(1) Each of the following is "domestic building work"-- 7
(a) the erection or construction of a detached dwelling; 8
(b) the renovation, alteration, extension, improvement or repair of a 9
home; 10
(c) removal or resiting work for a detached dwelling. 11
(2) However-- 12
(a) removal work for a detached dwelling is "domestic building 13
work" only if the dwelling is intended to be resited at another 14
place and used, at the place, as residential premises; and 15
(b) resiting work for a detached dwelling is "domestic building 16
work" only if the dwelling is intended to be used at the place at 17
which it is being resited as residential premises. 18
(3) "Domestic building work" includes-- 19
(a) work ("associated work") associated with the erection, 20
construction, removal or resiting of a detached dwelling; and 21
(b) work ("associated work") associated with the renovation, 22
alteration, extension, improvement or repair of a home. 23
(4) Without limiting subsection (3), associated work includes-- 24
(a) landscaping; and 25
(b) paving; and 26
(c) the erection or construction of a building or fixture associated with 27
the detached dwelling or home. 28
s8 11 s8
Domestic Building Contracts
1
Examples of buildings and fixtures for subsection (4)(c)--
2
Retaining structures, driveways, fencing, garages, carports, workshops,
3
swimming pools and spas.
(5) For the erection or construction of a detached dwelling, "domestic 4
building work" includes the provision of services or facilities to the 5
dwelling or the property on which the dwelling is, or is to be, situated. 6
(6) For the renovation, alteration, extension, improvement or repair of a 7
home, "domestic building work" includes the provision of services or 8
facilities to the home or the property on which the home is situated. 9
10
Examples of services and facilities for subsections (5) and (6)--
11
Lighting, heating, ventilation, air conditioning, water supply, sewerage and
12
drainage.
(7) Also, "domestic building work" includes-- 13
(a) site work relating to work mentioned in subsection (1), (3), (5) 14
or (6); and 15
(b) work declared under a regulation to be domestic building work if 16
there are reasonable grounds for considering the work to be 17
domestic building work. 18
(8) However, "domestic building work" does not include excluded 19
building work. 20
(9) In this section-- 21
(a) a reference to a detached dwelling includes a reference to any part 22
of a detached dwelling; and 23
(b) a reference to a home includes a reference to any part of a home; 24
and 25
(c) a reference to site work includes a reference to work required to 26
be carried out to gain access, or to remove impediments to access, 27
to a site. 28
(10) In this section-- 29
"removal work", for a detached dwelling, means work relating to the 30
dwelling carried out at the place at which the dwelling is located for 31
relocating the dwelling to another place. 32
s9 12 s 10
Domestic Building Contracts
"resiting work", for a detached dwelling, means work relating to the 1
dwelling carried out at a place for resiting the dwelling at the place 2
following its removal from another place. 3
of "regulated contract" 4
Meaning
9.(1) A "regulated contract" is a domestic building contract for which 5
the contract price is more than the regulated amount. 6
(2) A "regulated contact" includes a cost plus contract under which the 7
total amount payable for the contracted services is reasonably estimated to 8
be more than the regulated amount. 9
(3) A "regulated contract" includes a mixed-purpose contract under 10
which the amount referable to the contracted services is more than the 11
regulated amount. 12
(4) However, a contract mentioned in subsection (3) is a "regulated 13
contract" only to the extent to which the contract relates to the contracted 14
services. 15
3--Secondary concepts 16
Division
of "associated third party amount" 17
Meaning
10.(1) An "associated third party amount", for a domestic building 18
contract, is an amount a person, other than the building contractor, is entitled 19
to receive directly from the building owner for-- 20
(a) conveying services to the building site; or 21
(b) connecting or installing services for use at the building site; or 22
(c) issuing a development approval or similar authorisation. 23
24
Examples of services for subsection (1)(a) and (b)--
25
Gas, electricity, telephone, water and sewerage.
(2) However, an amount is an "associated third party amount", for a 26
domestic building contract, only if the matter for which it is payable relates 27
to the carrying out of the subject work. 28
s 11 13 s 11
Domestic Building Contracts
of "cost escalation clause" 1
Meaning
11.(1) A "cost escalation clause" is a provision of a domestic building 2
contract under which the contract price may be increased to reflect-- 3
(a) increased costs of labour or materials; or 4
(b) increased costs caused by delays-- 5
(i) in providing the contracted services; or 6
(ii) if the contracted services consist of managing the carrying 7
out of the subject work--in carrying out the subject work. 8
(2) However, a "cost escalation clause" does not include a provision 9
providing for an increase of the contract price for labour or materials if-- 10
(a) the contract is entered into before 1 July 2000; and 11
(b) the increase relates to labour or materials supplied on or after 12
1 July 2000; and 13
(c) the increase results from the application of the New Tax System 14
changes; and 15
(d) the increase is worked out in the way prescribed under a 16
regulation; and 17
(e) the provision explains how, applying the provisions of the 18
regulation made for paragraph (d), the increase is worked out. 19
(3) Also, a "cost escalation clause" does not include a provision 20
allowing for an increase in the contract price to reflect-- 21
(a) cost increases resulting from the introduction of new, or changes 22
to existing, government taxes or charges, other than increases 23
resulting from the application of the New Tax System changes; or 24
(b) prime cost items; or 25
(c) provisional sums. 26
(4) In this section-- 27
s 12 14 s 13
Domestic Building Contracts
"New Tax System changes" has the meaning given by the Trade 1
Practices Act 1974 (Cwlth), section 75AT.3 2
of "foundations data" 3
Meaning
12.(1) "Foundations data" is the information about a building site a 4
building contractor exercising reasonable care and skill would need to have 5
to prepare-- 6
(a) an appropriate footings design for the site and, if appropriate, an 7
appropriate concrete slab design for the site; and 8
(b) an adequate estimate of the cost of constructing the footings and, 9
if appropriate, concrete slab. 10
(2) The information mentioned in subsection (1) includes-- 11
(a) relevant information contained in, or obtainable from, reports, 12
surveys, test results, plans, specifications or computations 13
prescribed under a regulation; and 14
(b) other information prescribed under a regulation. 15
of "home" 16
Meaning
13.(1) A "home" is any residential premises. 17
(2) A "home" includes a part of commercial or industrial premises used 18
as residential premises. 19
(3) However, a "home" does not include the following-- 20
(a) premises not intended to be used for permanent habitation; 21
3 Trade Practice Act 1974 (Cwlth), section 75AT--
"New Tax System changes" means the following:
(a) the amendment of the Sales Tax (Exemptions and Clarifications) Act 1992
made by the GST Transition Act;
(b) the ending of sales tax, as provided for in the A New Tax System (End of
Sales Tax) Act 1999;
(c) the imposition of GST;
(d) any other changes (including changes to Commonwealth, State or
Territory laws) prescribed by the regulations for the purposes of this
definition.
s 13 15 s 13
Domestic Building Contracts
(b) a guesthouse, hostel or similar residential premises; 1
(c) a motel, residential club, residential hotel, residential part of 2
licensed premises or serviced apartments; 3
(d) a hospital, nursing home, aged care home or hostel or retirement 4
village; 5
(e) residential premises associated with a hospital or educational 6
institution; 7
(f) residential premises specifically set aside as a place at which 8
specialised care services are supplied to children or disabled 9
persons residing at the place; 10
(g) a prison or similar establishment; 11
(h) a caravan; 12
(i) residential premises declared under a regulation not to be a home 13
if there are reasonable grounds for considering the premises not to 14
be a home. 15
(4) Subsection (3)(e) applies to residential premises associated with a 16
hospital only if the premises-- 17
(a) are used, or intended to be used, only or mainly by patients of, or 18
staff employed at, the hospital; and 19
(b) are not a detached dwelling. 20
(5) Subsection (3)(e) applies to residential premises associated with an 21
educational institution only if the premises-- 22
(a) are used, or intended to be used, only or mainly by students of the 23
institution; and 24
(b) are not a detached dwelling. 25
(6) In this section-- 26
"caravan" means a caravan under the Residential Tenancies Act 1994. 27
"licensed premises" means licensed premises under the Liquor Act 1992. 28
"retirement village" means a retirement village under the Retirement 29
Villages Act 1988. 30
s 14 16 s 16
Domestic Building Contracts
of "provisional sum" 1
Meaning
14.(1) A provisional sum, for a domestic building contract, is an amount 2
that is an estimate of the cost of providing particular contracted services. 3
(2) However, subsection (1) applies only to contracted services for which 4
the building contractor, after making all reasonable enquiries, can not state a 5
definite amount when the contract is entered into. 6
(3) The reference in subsection (1) to the cost of providing the contracted 7
services includes a reference to the cost of supplying materials needed for 8
the subject work. 9
10
of "repair contract" 11
Meaning
15.(1) A "repair contract" is a regulated contract under which the 12
subject work is composed of any 1 or more of the following-- 13
(a) the repair of a home; 14
(b) work associated with the repair of a home; 15
(c) the provision, for the repair of a home, of services or facilities to 16
the home or the property on which the home is situated; 17
(d) site work relating to work mentioned in paragraph (a), (b) or (c). 18
(2) In this section-- 19
"repair" includes an alteration, improvement or replacement that it is 20
necessary or reasonable to carry out instead of effecting a repair. 21
of "variation" 22
Meaning
16.(1) A "variation", of a domestic building contract, is-- 23
(a) an addition of domestic building work to the subject work; or 24
(b) an omission from the subject work. 25
(2) However, for a cost plus contract, an addition or omission is a 26
"variation" only if the addition or omission is not reasonably contemplated 27
by the contract. 28
s 17 17 s 18
Domestic Building Contracts
Division 4--Other concepts 1
building work carried out in stages 2
Domestic
17.(1) This section applies if a building contractor and building owner 3
enter into a series of separate domestic building contracts for the carrying 4
out of domestic building work in stages. 5
(2) The separate contracts are taken to be a single contract for which the 6
contract price is the sum of the contract prices for the separate contracts. 7
(3) In this section, a reference to the contract price for a contract includes, 8
for a cost plus contract, a reference to the total amount the building 9
contractor is likely to receive under the contract. 10
completion date or period 11
Effective
18.(1) The "effective completion date", for a regulated contract that has 12
a stated completion date, is the stated completion date, as adjusted under this 13
section. 14
(2) The "effective completion period", for a regulated contract that has a 15
stated completion period, is the stated completion period, as adjusted under 16
this section. 17
(3) For an allowance mentioned in section 334 for which a number of 18
days is stated in the contract, the stated completion date or period must be 19
adjusted to take account of any additional days required to be applied for the 20
allowance for carrying out the subject work. 21
(4) If the carrying out of the subject work is affected by a delay that is not 22
a delay of a kind for which an allowance is required to be made under 23
section 33, the stated completion date or period must be adjusted to take 24
account of the actual number of days involved in the delay. 25
(5) If the contract is varied and the building contractor has complied with 26
the variation provisions for the variation, the stated completion date or 27
period must be adjusted to take account of any additional days, or any 28
reduction in the number of days, required to carry out the subject work. 29
4 Section 33 (Calculable delays)
s 18 18 s 18
Domestic Building Contracts
(6) If the contract is varied but the building contractor has not complied 1
with a variation provision for the variation, the stated completion date or 2
period-- 3
(a) must be adjusted to take account of any reduction in the number 4
of days required to carry out the subject work; and 5
(b) may, with the tribunal's approval given on an application made to 6
the tribunal by the building contractor, be adjusted to take account 7
of any additional days required to carry out the subject work. 8
(7) However, subsection (3) applies only if the need for an allowance for 9
the additional days could not reasonably have been foreseen by the building 10
contractor when the contract was entered into. 11
(8) Also, subsection (4) applies for a delay only if-- 12
(a) the contract contains a statement of the matters mentioned in 13
section 34(2)5 for the delay; or 14
(b) the reason for the delay could not reasonably have been foreseen 15
by the building contractor when the contract was entered into. 16
(9) Also, for subsection (5), if the variation is not a variation that was 17
originally sought by the building owner, the subsection applies for an 18
adjustment for additional days only if the ground of unforeseen 19
circumstances applies. 20
(10) The tribunal may give an approval for subsection (6)(b) only if it is 21
satisfied that-- 22
(a) either of the following applies-- 23
(i) there are exceptional circumstances to warrant an allowance 24
being made for the additional days; 25
(ii) the building contractor would suffer unreasonable hardship if 26
an allowance for the additional days were not made; and 27
(b) it would not be unfair to the building owner to make an allowance 28
for the additional days. 29
(11) For subsection (9), the ground of unforeseen circumstances applies 30
if the relevant variation became necessary because of circumstances that 31
5 Section 34 (Incalculable delays)
s 19 19 s 19
Domestic Building Contracts
could not have been reasonably foreseen by the building contractor when the 1
contract was entered into. 2
(12) In this section-- 3
"variation provision" means section 79, 80, 82 or 83.6 4
contracts--amount referable to contracted services 5
Mixed-purpose
19.(1) For a mixed-purpose contract, the amount referable to the 6
contracted services is the total of the following amounts-- 7
(a) the amount the building contractor is entitled to receive under the 8
contract for unmixed contracted services; 9
(b) an amount that is a reasonable estimate of the amount the building 10
contractor is entitled to receive under the contract for mixed 11
contracted services, based on a fair and reasonable apportionment 12
of the contracted services and the additional element. 13
(2) The reference in subsection (1)(a) to unmixed contracted services is a 14
reference to contracted services for which the amount the building contractor 15
is entitled to receive under the contract is a distinguishable amount. 16
(3) The reference in subsection (1)(b) to mixed contracted services is a 17
reference to contracted services-- 18
(a) that are associated with the additional element; and 19
(b) for which the amount the building contractor is entitled to receive 20
under the contract is not, because of the association, a 21
distinguishable amount. 22
(4) In this section-- 23
"distinguishable amount", for a mixed-purpose contract, means an 24
amount that-- 25
(a) the building contractor is entitled to receive under the contract for 26
the contracted services; and 27
6 Section 79 (Variations must in writing), 80 (General contents of variation
document), 82 (Variation document must be signed) or 83 (Copy of variation
document for building owner).
s 20 20 s 23
Domestic Building Contracts
(b) is clearly identifiable and distinguishable from any amount the 1
building contractor is entitled to receive for the additional element. 2
5--References to particular terms 3
Division
contractors 4
Building
20.(1) In this Act, a reference to a building contractor in association with 5
a reference to a domestic building contract is a reference to the building 6
contractor under the contract. 7
(2) A reference to a building contractor under a domestic building 8
contract includes a reference to a building contractor who is a party to the 9
contract because of section 31.7 10
owners 11
Building
21. In this Act, a reference to a building owner in association with a 12
reference to a domestic building contract is a reference to the building owner 13
under the contract. 14
services 15
Contracted
22. In this Act, a reference to contracted services in association with a 16
reference to a domestic building contract is a reference to the contracted 17
services for the contract. 18
19
Contracts
23.(1) In this Act, if a reference is made to a domestic building contract 20
and the contract's contract price, the reference to the contract does not 21
include a reference to a cost plus contract. 22
7 Section 31 (Parties to contract)
s 24 21 s 26
Domestic Building Contracts
(2) However, subsection (1) does not apply to references in sections 17, 1
64 and 68.8 2
price 3
Contract
24.(1) This section applies to a reference in this Act to the contract price 4
for a regulated contract in a context in which the reference is intended to 5
refer to the actual amount of the contract price. 6
(2) The reference is a reference to the amount constituting the contract 7
price, to the extent the amount is known at the relevant time. 8
work 9
Subject
25. In this Act, a reference to subject work in association with a reference 10
to a domestic building contract is a reference to the subject work for the 11
contract. 12
ART 3--CONTRACTS AND RELATED 13
P
DOCUMENTS 14
1--The contract 15
Division
must be in writing 16
Contracts
26. A building contractor who enters into a regulated contract must 17
ensure the contract-- 18
(a) is in written form when it is entered into; or 19
(b) is put into written form-- 20
(i) as soon as practicable (but within 5 business days) after it is 21
entered into; and 22
8 Sections 17 (Domestic building work carried out in stages), 64 (Deposits) and
68 (Associated third party amounts)
s 27 22 s 27
Domestic Building Contracts
(ii) before a start is made in carrying out the subject work. 1
Maximum penalty--20 penalty units. 2
contents of contracts 3
General
27.(1) The building contractor under a regulated contract must ensure the 4
contract, in written form, complies with the formal requirements for a 5
regulated contract. 6
Maximum penalty--20 penalty units. 7
(2) A regulated contract complies with the formal requirements for a 8
regulated contract if the contract-- 9
(a) is in English and is readily legible; and 10
(b) sets out in full all the terms of the contract; and 11
(c) sets out the warranties that are part of the contract because of 12
section 41;9 and 13
(d) states the required matters;10 and 14
(e) contains the required things;11 and 15
(f) includes any plans and specifications for the subject work 16
forming part of the contract; and 17
(g) each time a word or phrase defined for the contract is 18
used--indicates the word or phrase is defined in the contract's 19
definition provision; and 20
(h) complies with any other requirements prescribed under a 21
regulation. 22
(3) If the formal requirement mentioned in subsection (2)(f) applies to a 23
contract, and a development approval or similar authorisation is required for 24
carrying out the subject work, the contract complies with the requirement 25
only if the plans and specifications contain the appropriate information. 26
9 Section 41 (Implied warranties)
10 See section 28 (General contents--required matters).
11 See section 29 (General contents--required things).
s 28 23 s 28
Domestic Building Contracts
(4) For subsection (3), the plans and specifications contain the 1
appropriate information if they contain enough information to enable a 2
development approval or similar authorisation to be obtained for the subject 3
work. 4
contents--required matters 5
General
28.(1) This section sets out the required matters for a regulated contract 6
for section 27(2)(d). 7
(2) The required matters are as follows-- 8
(a) the names and addresses of the parties to the contract; 9
(b) the building contractor's licence number, as it appears on the 10
building contractor's licence card; 11
(c) the date the contract is made; 12
(d) the location (including a lot-on-plan, or similar, description) of the 13
building site for the subject work; 14
(e) the date the subject work is to start, or how the date is to be 15
decided; 16
(f) if the starting date for the subject work is not yet known--that the 17
building contractor will do everything it is reasonably possible for 18
the building contractor to do to ensure the work starts as soon as 19
possible; 20
(g) except for a cost plus contract--the date the subject work is to be 21
finished or, if the starting date for the work is not yet known, the 22
number of days that will be required to finish the work once it is 23
started; 24
(h) the contract price or, for a cost plus contract, how the amount the 25
building contractor is to receive under the contract is to be 26
calculated. 27
(3) A cost plus contract may state the matter mentioned in 28
subsection (2)(g). 29
s 29 24 s 31
Domestic Building Contracts
contents--required things 1
General
29.(1) This section sets out the required things for a regulated contract for 2
section 27(2)(e). 3
(2) The required things are as follows-- 4
(a) a detailed description of the subject work; 5
(b) if the subject work is residential construction work--either of the 6
following-- 7
(i) an imprint of the licence card for the contractor's licence held 8
by the building contractor; 9
(ii) a conspicuous notice advising the building owner of the 10
requirements imposed on the building contractor under 11
section 37;12 12
(c) a conspicuous notice advising the building owner of the right the 13
owner may have to withdraw from the contract under 14
section 72;13 15
(d) a separate provision defining the key words and phrases used in 16
the contract. 17
18
Example of phrases for paragraph (d)--
19
Prime cost item and provisional sum.
must be signed 20
Contracts
30. A regulated contract has effect only if it is signed by the building 21
contractor and building owner (or their authorised agents). 22
to contract 23
Parties
31.(1) This section applies to a regulated contract for which-- 24
(a) the subject work is residential construction work; and 25
12 Section 37 (Imprinted copy of contract or schedule for building owner)
13 Section 72 (Right of building owner to withdraw from contract in cooling-off
period)
s 32 25 s 33
Domestic Building Contracts
(b) the building owner receives either-- 1
(i) an imprinted copy of the contract under section 36 or 37;14 2
or 3
(ii) an imprinted copy of a contract summary schedule for the 4
contract under section 37. 5
(2) The building contractor who holds the contractor's licence to which 6
the imprint on the contract or contract summary schedule relates is taken to 7
be a party to the contract. 8
(3) Subsection (2) applies even if the building contractor does not comply 9
with a requirement of this division or division 4. 10
(4) In a prosecution of a building contractor for an offence against this 11
Act arising because of the operation of this section, it is a defence for the 12
building contractor to prove-- 13
(a) the building contractor's licence card was imprinted on the 14
contract or contract summary schedule without the building 15
contractor's authority; and 16
(b) the building contractor took all reasonable steps to try to ensure 17
the licence card was imprinted on contracts or contract summary 18
schedules only with the building contractor's authority. 19
of contract 20
Forms
32. The authority may prepare and publish suggested forms of domestic 21
building contracts. 22
2--Details in contracts about delays affecting time estimates 23
Division
delays 24
Calculable
33.(1) This section applies to the building contractor under a regulated 25
contract in calculating, for section 28(2)(g)-- 26
14 Section 36 (Copy of contract for building owner) or section 37 (Imprinted copy of
contract or schedule for building owner)
s 34 26 s 34
Domestic Building Contracts
(a) the date the subject work is to be finished; or 1
(b) if the starting date for the work is not known--the number of 2
days that will be required to finish the work once it is started. 3
(2) The building contractor must make the following allowances-- 4
(a) an allowance for the effect of inclement weather that is reasonable, 5
having regard to the time of the year when the subject work is 6
likely to be carried out; 7
(b) a reasonable allowance for days that are non-working days for the 8
subject work; 9
(c) for any other matter that is reasonably likely to delay the carrying 10
out of the subject work--an allowance that is reasonable, having 11
regard to the nature of the contract. 12
Maximum penalty--20 penalty units. 13
(3) However, the building contractor is required to comply with 14
subsection (2) only if-- 15
(a) for an allowance mentioned in subsection (2)(a)--there is a 16
reasonable likelihood the time required to carry out the subject 17
work will be affected by inclement weather; or 18
(b) for an allowance mentioned in subsection (2)(b)--there is a 19
reasonable likelihood the time required to carry out the subject 20
work will be affected by the occurrence of non-working days; or 21
(c) for an allowance mentioned in subsection (2)(c)--it is possible 22
for the building contractor to adequately estimate the period of 23
likely delay. 24
(4) For each type of allowance required to be made by the building 25
contractor under this section, the building contractor must ensure the 26
contract states the number of days allowed by the building contractor. 27
Maximum penalty for subsection (4)--20 penalty units. 28
delays 29
Incalculable
34.(1) This section applies if-- 30
(a) the building contractor under a regulated contract reasonably 31
s 35 27 s 35
Domestic Building Contracts
believes-- 1
(i) the carrying out of the subject work will be delayed; and 2
(ii) that there is, or will be, a specific reason for the delay 3
attributable to specific circumstances the building contractor 4
reasonably believes exist, or will exist; and 5
(b) it is not possible for the building contractor to adequately estimate 6
the period of likely delay. 7
(2) The building contractor must ensure the contract states-- 8
(a) the likely cause of the delay; and 9
(b) that it is not possible for the building contractor to adequately 10
estimate the period of likely delay; and 11
(c) the general effect the delay is likely to have on the carrying out of 12
the subject work. 13
Maximum penalty--40 penalty units. 14
(3) Subsection (1) does not apply for a delay caused by-- 15
(a) inclement weather; or 16
(b) the occurrence of non-working days. 17
Division 3--Contract price 18
of fixtures and fittings in contract price 19
Inclusion
35.(1) The cost of any fixture or fitting shown in plans and specifications 20
forming part of a regulated contract is taken to be included in the contract 21
price. 22
(2) However, subsection (1) does not apply to a fixture or fitting if-- 23
(a) the contract states the cost of the fixture or fitting is not included 24
in the contract price; and 25
(b) the building owner places the owner's signature or initials, or seal, 26
next to the statement. 27
s 36 28 s 38
Domestic Building Contracts
Division 4--Handling of contracts and related documents 1
of contract for building owner 2
Copy
36. As soon as practicable (but within 5 business days) after entering into 3
a regulated contract, the building contractor must give the building owner a 4
readily legible signed copy of the contract. 5
Maximum penalty--20 penalty units. 6
copy of contract or schedule for building owner 7
Imprinted
37.(1) This section applies if-- 8
(a) the subject work for a regulated contract is residential construction 9
work; and 10
(b) the building contractor does not give the building owner an 11
imprinted copy of the contract under section 36. 12
(2) Before a start is made in carrying out the subject work, the building 13
contractor must give the building owner-- 14
(a) an imprinted copy of the contract; or 15
(b) if the contract has a contract summary schedule--an imprinted 16
copy of the schedule. 17
Maximum penalty--20 penalty units. 18
copy of contract or schedule for authority 19
Imprinted
38.(1) If the subject work for a regulated contract is residential 20
construction work, the building contractor must, before a start is made in 21
carrying out the work, give the authority, or a designated entity-- 22
(a) an imprinted copy of the contract; or 23
(b) if the contract has a contract summary schedule--an imprinted 24
copy of the schedule. 25
Maximum penalty--40 penalty units. 26
(2) In this section-- 27
s 39 29 s 40
Domestic Building Contracts
"designated entity" means an entity designated in the board's policies as 1
an entity authorised to receive, for the authority, documents to which 2
subsection (1) applies. 3
of contract related documents 4
Copies
39.(1) This section applies if the building contractor under a regulated 5
contract receives a contract related document for the contract. 6
(2) If the contract related document is given or issued by an assessment 7
manager, the building contractor must give a copy of the document to the 8
building owner as soon as practicable after receiving the document. 9
Maximum penalty--20 penalty units. 10
(3) If the contract related document is given or issued by an entity other 11
than an assessment manager, the building contractor must give a copy of the 12
document to the building owner as soon as practicable after the completion 13
of the subject work. 14
Maximum penalty--20 penalty units. 15
(4) Subsection (1) or (2) does not apply to a building contractor if the 16
building contractor reasonably believes the building owner already has a 17
copy of the contract related document. 18
(5) In this section-- 19
"contract related document", for a regulated contract, means a report, 20
notice, order or other document about the subject work given or issued 21
by-- 22
(a) an assessment manager; or 23
(b) a supplier of services, including, for example, electricity, gas, 24
telephone, water or sewerage. 25
of contract information statement 26
Copy
40.(1) The building contractor under a regulated contract must, as 27
required under this section, give the building owner a copy of the 28
appropriate contract information statement for the contract. 29
Maximum penalty--20 penalty units. 30
s 41 30 s 42
Domestic Building Contracts
(2) Subsection (1) does not apply to a building contractor if the building 1
contractor gave a copy of the statement to the building owner before the 2
contract was entered into. 3
(3) The statement must be given to the building owner-- 4
(a) when the contract is entered into; or 5
(b) as soon as practicable (but within 5 business days) after the 6
contract is entered into. 7
(4) The statement may be given to the building owner separate from, or 8
attached to, the contract. 9
PART 4--WARRANTIES 10
1--Incorporation of warranties 11
Division
warranties 12
Implied
41.(1) The warranties mentioned in division 2 are part of every regulated 13
contract. 14
(2) A warranty mentioned in a section of division 3 is part of each 15
regulated contract that is a contract of the type to which the section applies. 16
2--Implied warranties for all contracts 17
Division
of materials 18
Suitability
42.(1) The building contractor warrants that all materials to be supplied 19
for use in the subject work-- 20
(a) will be good and, having regard to the relevant criteria, suitable for 21
the purpose for which they are used; and 22
(b) unless otherwise stated in the contract, will be new. 23
(2) Subsection (1) applies to the building contractor for materials only if 24
s 42 31 s 42
Domestic Building Contracts
the materials are supplied by the responsible person for the contract. 1
(3) Despite subsection (2), if the contract is being administered by an 2
architect engaged by the building owner, subsection (1) does not apply to 3
the building owner for materials if the responsible person is subject to the 4
direction of the architect for supplying the materials. 5
(4) Also, despite subsection (2), subsection (1) does not apply to the 6
building contactor for materials if-- 7
(a) the building owner is responsible for nominating the materials for 8
use in the subject work; and 9
(b) either-- 10
(i) there are no reasonable grounds for not using the materials; 11
or 12
(ii) if there are reasonable grounds for not using the 13
materials--the building owner insists on the materials being 14
used despite written advice to the contrary given to the 15
building owner by the building contractor. 16
(5) A building owner is responsible for nominating materials for use in 17
the subject work only if-- 18
(a) the building owner nominates the materials specifically; and 19
(b) the nomination is made without any recommendation, 20
representation, suggestion or other approach being made to the 21
building owner by the building contractor-- 22
(i) supporting, or approving, the use of the materials; or 23
(ii) criticising, or disapproving the use of, other materials that 24
could be considered to be appropriate for use for the purpose 25
for which the materials nominated by the building owner are 26
to be used. 27
(6) In this section-- 28
"relevant criteria", for materials, means-- 29
(a) generally accepted practices or standards applied in the building 30
industry for the materials; or 31
(b) specifications, instructions or recommendations of manufacturers 32
s 43 32 s 46
Domestic Building Contracts
or suppliers of the materials. 1
"responsible person", for a regulated contract, means-- 2
(a) if the contract is a contract for carrying out the subject work--the 3
building contractor; or 4
(b) if the contract is a contract for managing the carrying out of the 5
subject work--the person responsible for carrying out the work. 6
with legal requirements 7
Compliance
43. The building contractor warrants the subject work will be carried out 8
in accordance with all relevant laws and legal requirements, including, for 9
example, the Building Act 1975. 10
of work and exercise of care and skill 11
Standard
44. The building contractor warrants the subject work will be carried 12
out-- 13
(a) in an appropriate and skilful way; and 14
(b) with reasonable care and skill. 15
Division 3--Implied warranties for particular contracts 16
to plans and specifications 17
Adherence
45.(1) This section applies to a regulated contract if plans and 18
specifications form part of the contract. 19
(2) The building contractor warrants the subject work will be carried out 20
in accordance with the plans and specifications. 21
of premises for occupation 22
Suitability
46.(1) This section applies to a regulated contract if the subject work-- 23
(a) consists of the erection or construction of a detached dwelling to a 24
stage suitable for occupation; or 25
s 47 33 s 49
Domestic Building Contracts
(b) is work intended to renovate, alter, extend, improve or repair a 1
home to a stage suitable for occupation. 2
(2) The building contractor warrants the detached dwelling or home will 3
be suitable for occupation when the work is finished. 4
out work with reasonable diligence 5
Carrying
47.(1) This section applies to a regulated contract if-- 6
(a) the contract is a cost plus contract; and 7
(b) the contract does not have a stated completion date or period. 8
(2) The building contractor warrants the subject work will be carried out 9
with reasonable diligence. 10
of provisional sums 11
Calculation
48.(1) This section applies to a regulated contract providing for a 12
provisional sum. 13
(2) The building contractor warrants the provisional sum has been 14
calculated with reasonable care and skill, having regard to all the information 15
reasonably available when the contract is entered into (including information 16
about the nature and location of the building site). 17
Division 4--General 18
run with building 19
Warranties
49.(1) An associated person for a regulated contract has the same rights 20
for a breach of a warranty mentioned in division 2 or section 45 or 46 as if 21
the person were the building owner. 22
(2) However, subsection (1) applies to the associated person-- 23
(a) only if, at the relevant time, the person did not know, and could 24
not reasonably have known, of the existence of the breach; and 25
(b) only to the extent the rights are rights that, immediately before the 26
person became an associated person for the contract, were held 27
s 50 34 s 51
Domestic Building Contracts
by-- 1
(i) the building owner; or 2
(ii) another associated person for the contract. 3
(3) In this section-- 4
"associated person", for a regulated contract, means a person, other than 5
the building owner, who is the owner for the time being of the building 6
in relation to which, or land on which, the subject work was carried 7
out. 8
"relevant time", for an associated person, for a regulated contract, means 9
the time the person entered into the agreement under which the person 10
became an associated person for the contract. 11
of rights given by warranties 12
Protection
50. A provision of an agreement or other document that purports to 13
restrict or take away the rights of a person for a breach of a warranty 14
mentioned in this part is void. 15
for breach of warranties 16
Proceedings
51.(1) A proceeding for a breach of a warranty under this part for a 17
regulated contract must be started within 6 years and 6 months after-- 18
(a) the subject work is finished; or 19
(b) if the subject work is not finished--the stated completion date or 20
period. 21
(2) In a proceeding for a breach of a warranty mentioned in this part, it is 22
a defence for the defendant to prove that the deficiencies of which the 23
plaintiff complains arise from instructions given by the building owner 24
contrary to the defendant's written advice. 25
s 52 35 s 53
Domestic Building Contracts
ART 5--RESTRICTIONS RELATING TO 1
P
CONTRACTS 2
Division 1--Entering into contracts 3
requirement for building contractors 4
Licensing
52.(1) This section applies if-- 5
(a) under the QBSA Act, a building contractor is required to hold a 6
contractor's licence for carrying out a particular kind of domestic 7
building work; or 8
(b) under another law of the State, including, for example, the 9
Electricity Act 1994, a building contractor is required to hold a 10
licence, permit or other authorisation for carrying out a particular 11
kind of domestic building work. 12
(2) The building contractor must not enter into a regulated contract to 13
carry out, or manage the carrying out of, domestic building work of the 14
particular kind, unless the building contractor is appropriately licensed for 15
that kind of domestic building work. 16
Maximum penalty--80 penalty units. 17
(3) A building contractor is appropriately licensed for a particular kind of 18
domestic building work if the building contractor-- 19
(a) holds a contractor's licence authorising the building contractor to 20
carry out that kind of domestic building work; or 21
(b) holds a licence, permit or other authorisation under a law of the 22
State, other than the QBSA Act, authorising the building 23
contractor to carry out that kind of domestic building work. 24
oundations data 25
F
53.(1) This section applies if the subject work proposed for a regulated 26
contract-- 27
(a) requires the construction or alteration of footings, or a concrete 28
slab, for a building; or 29
s 53 36 s 53
Domestic Building Contracts
(b) may adversely affect the footings of a building or a concrete slab 1
forming part of a building. 2
(2) Before entering into the contract, the building contractor must obtain 3
the foundations data that is appropriate for the building site, having regard to 4
the following-- 5
(a) the Building Code of Australia; 6
(b) the need for a drainage plan; 7
(c) the need for engineer's drawings and computations; 8
(d) the need for information on the fall of the land at the building site. 9
Maximum penalty--100 penalty units. 10
(3) Nothing in subsection (2) requires a building contractor to 11
commission the preparation of foundations data to the extent the data 12
already exists and it is reasonable for the building contractor to rely on the 13
data. 14
(4) The building contractor must give a copy of any foundations data 15
obtained by the building contractor for this section to the building owner on 16
payment by the building owner of the costs incurred by the building 17
contractor in obtaining the data. 18
Maximum penalty--10 penalty units. 19
(5) Subsection (4) does not apply to a building contractor for foundations 20
data if-- 21
(a) the data is given to the building contractor by the building owner; 22
or 23
(b) the building contractor reasonably believes the building owner 24
already has a copy of the data. 25
(6) The building contractor under a regulated contract can not seek from 26
the building owner an amount not already provided for in the contract if-- 27
(a) the building contractor entered into the contract before obtaining 28
the foundations data under subsection (2); and 29
(b) the need for the additional amount could reasonably have been 30
established, and the amount calculated, had the building contractor 31
complied with the subsection. 32
s 54 37 s 55
Domestic Building Contracts
(7) Nothing in this section prevents the building contractor from claiming 1
an amount not provided for in the contract if-- 2
(a) the building contractor has complied with subsection (2); and 3
(b) the need for the additional amount can not be established from the 4
foundations data obtained by the building contractor. 5
contracts 6
Mixed-purpose
54. A building contractor must not enter into a mixed-purpose contract 7
that would be a regulated contract unless the contract-- 8
(a) clearly describes the contracted services; and 9
(b) clearly distinguishes the contracted services from the additional 10
element; and 11
(c) states the amount referable to the contracted services. 12
Maximum penalty--20 penalty units. 13
plus contracts 14
Cost
55.(1) A building contractor must not enter into a cost plus contract that 15
would be a regulated contract unless-- 16
(a) the contract is included in a class of contracts prescribed under a 17
regulation; or 18
(b) the cost of a substantial part of the subject work can not 19
reasonably be calculated without some of the work being carried 20
out. 21
Maximum penalty--100 penalty units. 22
(2) A building contractor must not enter into a cost plus contract that 23
would be a regulated contract unless the contract contains a fair and 24
reasonable estimate by the building contractor of the total amount the 25
building contractor is likely to receive under the contract. 26
Maximum penalty--100 penalty units. 27
(3) If a building contractor enters into a cost plus contract in 28
contravention of this section, the building contractor can not enforce the 29
s 56 38 s 56
Domestic Building Contracts
contract against the building owner. 1
(4) However, the tribunal may, on an application made to the tribunal by 2
the building contractor, award the building contractor the cost of providing 3
the contracted services plus a reasonable profit if the tribunal considers it 4
would not be unfair to the building owner to make the award. 5
escalation clauses 6
Cost
56.(1) A cost escalation clause in a regulated contract is void unless-- 7
(a) the building owner's signature or initials, or seal, is placed next to 8
the clause; and 9
(b) either-- 10
(i) the contract satisfies a cost escalation requirement; or 11
(ii) the clause satisfies the cost escalation requirements. 12
(2) For subsection (1)(b)(i), a regulated contract containing a cost 13
escalation clause satisfies a cost escalation requirement if-- 14
(a) the contract price is more than the set amount; or 15
(b) the contract is to be administered by an architect engaged by the 16
building owner. 17
(3) For subsection (1)(b)(ii), a cost escalation clause in a regulated 18
contract satisfies the cost escalation requirements if the clause-- 19
(a) is a cost escalation clause because of the operation of 20
section 11(1)(b);15 and 21
(b) is limited by condition to cases of delay satisfying the 22
requirements of this section; and 23
(c) provides for an increase of the contract price under this section. 24
(4) For subsection (3)(b), the delay must be a delay-- 25
(a) for a delay happening before the subject work is started-- 26
(i) that is longer than 4 weeks; and 27
(ii) for which the building contractor is not responsible; or 28
15 Section 11 (Meaning of "cost escalation clause")
s 57 39 s 57
Domestic Building Contracts
(b) for a delay happening after the subject work is started-- 1
(i) for which the building owner is responsible; or 2
(ii) if the contract is being administered by an architect engaged 3
by the building owner--for which the architect is 4
responsible. 5
(5) For subsection (3)(c), the increase must not be more than the lesser of 6
the following amounts-- 7
(a) the amount of the costs incurred by the building contractor 8
because of the delay; 9
(b) the formula amount for the delay. 10
(6) In this section-- 11
"formula amount", for a delay, means-- 12
(a) if the delay happens before the subject work is started--the 13
amount representing 0.125% of the contract price for each week, 14
or part of a week, of the delay after the first 4 weeks of the delay; 15
or 16
(b) if the delay happens after the subject work is started--the amount 17
representing 0.05% of the contract price for each day of the delay. 18
"set amount" means-- 19
(a) the amount, above $200 000, prescribed under a regulation as the 20
set amount; or 21
(b) if an amount is not prescribed for paragraph (a)--$200 000. 22
change clauses 23
Price
57.(1) A building contractor must not enter into a regulated contract 24
containing a price change clause unless the contract contains a warning 25
complying with this section. 26
Maximum penalty--20 penalty units. 27
(2) The warning must-- 28
(a) state the contract price is subject to change; and 29
s 58 40 s 59
Domestic Building Contracts
(b) state the provisions of the contract that allow for the contract price 1
to be changed; and 2
(c) appear as near as practicable to the first reference in the contract to 3
the contract price. 4
(3) If a warning is not included in a regulated contract as required under 5
this section, any price change clause included in the contract has effect only 6
to the extent it allows the contract price to decrease. 7
(4) In this section-- 8
"price change clause" means a provision of a domestic building contract 9
allowing for a change to be made to the contract price, but does not 10
include a cost escalation clause. 11
clauses 12
Arbitration
58.(1) A provision of a regulated contract, or other agreement, requiring 13
that a dispute under the contract be referred to arbitration is void. 14
(2) Subsection (1) does not apply to a provision of an agreement, other 15
than a regulated contract, if the agreement is entered into after a dispute 16
under the contract arises. 17
Division 2--Prime cost items and provisional sums 18
amounts 19
Stating
59.(1) A building contractor must not enter into a regulated contract 20
stating-- 21
(a) an amount for a prime cost item that is less than the reasonable 22
cost of supplying and delivering the item; or 23
(b) a provisional sum that is less than the reasonable cost of 24
providing the contracted services to which the sum relates. 25
Maximum penalty--50 penalty units. 26
(2) Subsection (1) does not apply to a building contractor for an item to 27
be supplied, or a sum stated, by the building owner. 28
s 60 41 s 61
Domestic Building Contracts
(3) In deciding, for subsection (1), what is a reasonable cost, regard must 1
be had to-- 2
(a) the information the building contractor had, or reasonably should 3
have had, when the contract was entered into; and 4
(b) the nature and location of the building site. 5
of improper statements 6
Effect
60.(1) This section applies if a building contractor enters into a regulated 7
contract in contravention of section 59(1). 8
(2) The contravention does not make any provision of the contract illegal 9
or void. 10
(3) However, the tribunal may, on an application made to the tribunal by 11
the building owner, reduce the building owner's liability, for the item or 12
contracted services to which the stated amount or sum relates, to the extent 13
the tribunal considers appropriate. 14
of details 15
Schedule
61.(1) A building contractor must not enter into a regulated contract 16
providing for prime cost items or provisional sums unless the contract 17
contains a separate schedule stating the required details for each item or 18
sum. 19
Maximum penalty--50 penalty units. 20
(2) For subsection (1), the required details for a prime cost item are as 21
follows-- 22
(a) a detailed description of the item; 23
(b) a breakdown of cost estimates provided for in the allowance for 24
the item; 25
(c) if the building contractor proposes to charge an amount (the 26
"excess amount") above the actual amount of any increase in the 27
cost of the item--how the excess amount is to be calculated. 28
(3) For subsection (1), the required details for a provisional sum are as 29
follows-- 30
s 62 42 s 62
Domestic Building Contracts
(a) a detailed description of the contracted services to which the sum 1
relates; 2
(b) a breakdown of cost estimates provided for in the sum; 3
(c) if the building contractor proposes to charge an amount (the 4
"excess amount") above the actual amount of any increase in the 5
sum--how the excess amount is to be calculated. 6
(4) For subsection (2)(b) or (3)(b), the breakdown must, if appropriate, 7
show, at least, the estimated quantities of materials involved and the unit 8
cost to the building contractor. 9
of cost 10
Evidence
62.(1) This section applies if-- 11
(a) a regulated contract provides for a prime cost item or provisional 12
sum; and 13
(b) the building contractor receives a supporting document for the 14
item or sum. 15
(2) The building contractor must give a copy of the supporting document 16
to the building owner before, or when, seeking payment under the contract 17
of-- 18
(a) if the contract provides for progress payments--the related 19
progress payment; or 20
(b) if the contract does not provide for progress payments--the 21
amount of the contract price. 22
Maximum penalty--20 penalty units. 23
(3) In this section-- 24
"supporting document", for a prime cost item or provisional sum 25
included in a regulated contract, means an invoice, receipt or other 26
document showing the cost to the building contractor of the item, or 27
relating to the sum. 28
s 63 43 s 64
Domestic Building Contracts
djustments 1
A
63.(1) A building contractor must not enter into a regulated contract 2
providing for a prime cost item or provisional sum unless the contract 3
complies with subsection (2). 4
Maximum penalty--20 penalty units. 5
(2) The contract must be to the effect that any prime cost or provisional 6
sum adjustment is to be allowed for in an increase or decrease in-- 7
(a) if the contract provides for progress payments--the related 8
progress payment; or 9
(b) if the contract does not provide for progress payments--the 10
payment of the amount of the contract price. 11
Division 3--Payments relating to contracts 12
13
Deposits
64.(1) The building contractor under a regulated contract must not, before 14
starting to provide the contracted services, demand or receive a deposit 15
under the contract of more than-- 16
(a) if the contract price is equal to or more than the set amount--5% 17
of the contract price; or 18
(b) if the contract price is less than the set amount--10% of the 19
contract price. 20
Maximum penalty--100 penalty units. 21
(2) In this section, a reference to the contract price for a contract includes, 22
for a cost plus contract, a reference to the contract estimated amount for the 23
contract. 24
(3) In this section-- 25
"set amount" means-- 26
(a) the amount, above $20 000, prescribed under a regulation as the 27
set amount; or 28
(b) if an amount is not prescribed for paragraph (a)--$20 000. 29
s 65 44 s 66
Domestic Building Contracts
payments for contracts other than designated stages 1
Progress
contracts 2
65.(1) This section does not apply to a designated stages contract. 3
(2) The building contractor under a regulated contract must not demand 4
or receive an amount under the contract, other than a deposit, unless the 5
amount is directly related to the progress of the subject work. 6
Maximum penalty--50 penalty units. 7
(3) Subsection (2) does not apply to a building contractor if-- 8
(a) the parties to the contract agree the subsection is not to apply; and 9
(b) the agreement is made in the way, and satisfies any requirements, 10
prescribed under a regulation. 11
payments for designated stages contracts 12
Progress
66.(1) This section only applies to designated stages contracts. 13
(2) This section has effect for a contract's original contract price. 14
(3) For a contract to build only to the enclosed stage, the building 15
contractor must not demand or receive, at the completion of a stage 16
specified in column 1 of the following table, an amount that is more than the 17
percentage of the original contract price specified in column 2 of the table 18
opposite the stage-- 19
20
Table--Contracts to build to enclosed stage
Column 1 Column 2
Stage Percentage of original
contract price
Base stage 20%
Frame stage 25%
21
Maximum penalty--50 penalty units. 22
(4) For a contract to build only to the fixing stage, the building contractor 23
must not demand or receive, at the completion of a stage specified in 24
column 1 of the following table, an amount that is more than the percentage 25
s 66 45 s 66
Domestic Building Contracts
of the original contract price specified in column 2 of the table opposite the 1
stage-- 2
Table--Contracts to build to fixing stage
Column 1 Column 2
Stage Percentage of original
contract price
Base stage 12%
Frame stage 18%
Enclosed stage 40%
3
Maximum penalty--50 penalty units. 4
(5) For a contract to build all the stages mentioned in this section, the 5
building contractor must not demand or receive, at the completion of a stage 6
specified in column 1 of the following table, an amount that is more than the 7
percentage of the original contract price specified in column 2 of the table 8
opposite the stage-- 9
Table--Contracts to build to all stages
Column 1 Column 2
Stage Percentage of original
contract price
Base stage 10%
Frame stage 15%
Enclosed stage 35%
Fixing stage 20%
10
Maximum penalty--50 penalty units. 11
(6) Subsection (3), (4) or (5) does not apply to a building contractor if-- 12
(a) the parties to the contract agree the subsection is not to apply; and 13
(b) the agreement is made in the way, and satisfies any requirements, 14
prescribed under a regulation. 15
(7) In this section-- 16
"original contract price", for a regulated contract, means the contract price 17
for the contract before any adjustment of the price is made because 18
s 67 46 s 67
Domestic Building Contracts
of-- 1
(a) a prime cost, or provisional sum, adjustment; or 2
(b) a variation of the contract. 3
payments 4
Completion
67.(1) This section only applies to a regulated contract for which the 5
subject work consists of-- 6
(a) the erection or construction of a detached dwelling to a stage 7
suitable for occupation; or 8
(b) the renovation, alteration, extension, improvement or repair of a 9
home to a stage suitable for occupation. 10
(2) The building contractor under a regulated contract must not demand 11
or receive all or part of the completion payment unless-- 12
(a) the practical completion stage has been reached; and 13
(b) if the stage has been reached with minor omissions or minor 14
defects--a reasonable amount is deducted from the payment to 15
cover the costs of carrying out work, or doing something else, to 16
eliminate the omissions or rectify the defects. 17
Maximum penalty--100 penalty units. 18
(3) In this section-- 19
"completion payment", for a regulated contract, means a payment required 20
to be made under the contract by the building owner to the building 21
contractor for the practical completion stage. 22
"practical completion stage", for a regulated contract, means the stage 23
when-- 24
(a) the subject work has been completed in accordance with the 25
contract and all relevant statutory requirements, either-- 26
(i) without any omissions or defects; or 27
(ii) apart from minor omissions or minor defects; and 28
(b) the detached dwelling or home is reasonably suitable for 29
habitation. 30
s 68 47 s 69
Domestic Building Contracts
third party amounts 1
Associated
68.(1) A building contractor must not enter into a regulated contract for 2
which there is an associated third party amount unless-- 3
(a) the contract states that the cost of the work or thing to which the 4
amount relates is not included in the contract price; and 5
(b) the statement appears as near as practicable to the first reference in 6
the contract to the contract price. 7
Maximum penalty--40 penalty units. 8
(2) In this section, a reference to the contract price for a contract includes, 9
for a cost plus contract, a reference to the contract estimated amount for the 10
contract. 11
Division 4--Consequences of contravening requirements relating to 12
payments 13
to refund overpaid amounts 14
Order
69.(1) This section applies if-- 15
(a) a court finds a charge against a building contractor for an offence 16
against a payment section proven; and 17
(b) the offence involves the receipt of an amount by the building 18
contractor. 19
(2) The court may order the building contractor-- 20
(a) to refund to the building owner-- 21
(i) the amount paid to the building contractor that the building 22
contractor was not, under the payment section, entitled to 23
receive; or 24
(ii) a part of the amount mentioned in paragraph (a); and 25
(b) if the building contractor contravenes the order--to pay the 26
building owner interest on the amount to which the contravention 27
relates, calculated at the rate, and on the basis, the court considers 28
appropriate. 29
s 70 48 s 70
Domestic Building Contracts
(3) The power of the court under subsection (2) is additional to any other 1
power the court has to impose a penalty. 2
(4) The refund of an amount by the building contractor to the building 3
owner under an order mentioned in subsection (2) does not stop the 4
building contractor from later demanding and receiving payment of the 5
amount under the contract as part of-- 6
(a) for a fixed price contract--the contract price; or 7
(b) for a cost plus contract--the total amount the building contractor 8
is entitled to receive. 9
of contract for contravention of order 10
Ending
70.(1) The building owner under a regulated contract may end the 11
contract if the building contractor contravenes a payment order. 12
(2) To end the contract, the building owner must give the building 13
contractor a notice under this section. 14
(3) The notice must-- 15
(a) be in writing; and 16
(b) be signed by the building owner; and 17
(c) state the building owner is ending the contract under this section; 18
and 19
(d) state the ground on which the building owner is ending the 20
contract; and 21
(e) give details of the ground. 22
(4) In this section-- 23
"payment order" means an order made by a court or the tribunal requiring 24
the building contractor under a regulated contract-- 25
(a) to refund to the building owner an amount paid to the building 26
contractor by the building owner that the building contractor was 27
not, under a payment section, entitled to receive; or 28
(b) to pay to the building owner interest on the amount, or a part of 29
the amount, mentioned in paragraph (a). 30
s 71 49 s 72
Domestic Building Contracts
of building contractor if contract ended 1
Rights
71.(1) This section applies if a building owner ends a regulated contract 2
under section 70. 3
(2) The building contractor is entitled to receive a reasonable amount for 4
the contracted services provided to the time the contract is ended. 5
(3) However, the building contractor is not entitled to receive an amount 6
that is more than the amount the building contractor would have been 7
entitled to receive under the contract. 8
PART 6--COOLINGOFF PERIOD 9
of building owner to withdraw from contract in cooling-off 10
Right
period 11
72.(1) The building owner under a regulated contract may withdraw from 12
the contract under this section. 13
(2) The building owner may withdraw from the contract within 14
5 business days after the receipt day for the contract. 15
(3) If 5 business days have elapsed since the contract was entered into 16
and there is no receipt day for the contract, the building owner may 17
withdraw from the contract. 18
(4) Nothing in subsection (3) affects the right of the building owner to 19
withdraw from the contract under subsection (2) if a receipt day 20
subsequently applies to the contract. 21
(5) In this section-- 22
"receipt day", for a regulated contract, means-- 23
(a) the day on which the building owner receives the following 24
documents from the building contractor-- 25
(i) a copy of the signed contract; 26
(ii) a copy of the appropriate contract information statement for 27
the contract; or 28
s 73 50 s 73
Domestic Building Contracts
(b) if the documents mentioned in paragraph (a) are received by the 1
building owner from the building contractor on different 2
days--the later of the days. 3
affecting right of withdrawal in cooling-off period 4
Restrictions
73.(1) This section applies despite section 72. 5
(2) A building owner may not withdraw from a regulated contract 6
(the "current contract") under section 72 if-- 7
(a) the building owner and building contractor previously entered into 8
a regulated contract (the "previous contract"); and 9
(b) the terms of the previous contract and current contract are 10
substantially the same; and 11
(c) the contracted services for the previous contract and current 12
contract-- 13
(i) are substantially the same; and 14
(ii) relate to the same detached dwelling, home or land. 15
(3) Also, a building owner may not withdraw from a regulated contract 16
under section 72 if-- 17
(a) before entering into the contract, the building owner received 18
formal legal advice about the contract; or 19
(b) when, or after, the contract is entered into, the building owner tells 20
the building contractor that the building owner received formal 21
legal advice about the contract before entering into the contract. 22
(4) In this section-- 23
"formal legal advice" means independent advice-- 24
(a) given by a practising legal practitioner; and 25
(b) for the giving of which an amount is paid, or is payable, to the 26
legal practitioner by the person to whom the advice is given. 27
"practising legal practitioner" means a lawyer authorised under a law of 28
the State to practise as a lawyer for purposes including the giving, for 29
reward, of advice, including, for example, advice about domestic 30
building contracts. 31
s 74 51 s 76
Domestic Building Contracts
of building owner to withdraw from contract if cooling-off 1
Right
warning not given 2
74.(1) This section applies if a regulated contract does not contain a 3
notice, as required under section 29(2),16 advising the building owner of the 4
right the owner may have to withdraw from the contract under section 72. 5
(2) The building owner may withdraw from the contract within 7 days of 6
becoming aware that the contract should have contained the notice. 7
procedure 8
Withdrawal
75.(1) To withdraw from a regulated contract under section 72 or 74, the 9
building owner must, within the time allowed under the section for the 10
withdrawal-- 11
(a) give a withdrawal notice to the building contractor; or 12
(b) leave a withdrawal notice at the address shown as the building 13
contractor's address in the contract; or 14
(c) serve a withdrawal notice on the building contractor in accordance 15
with any provision in the contract providing for service of notices 16
on the building contractor by the building owner. 17
(2) In this section-- 18
"withdrawal notice" means a written notice signed by the building owner 19
under a regulated contract stating-- 20
(a) that the building owner withdraws from the contract; and 21
(b) the section of this Act under which the withdrawal is made. 22
and obligations of parties following withdrawal in cooling-off 23
Rights
period 24
76.(1) This section applies if a building owner withdraws from a 25
regulated contract under section 72. 26
(2) If there is a pre-paid amount for the contract that is not less than the 27
retainable amount, the building contractor-- 28
16 Section 29 (General contents--required things)
s 77 52 s 77
Domestic Building Contracts
(a) may keep an amount equal to the retainable amount out of the 1
prepaid amount; and 2
(b) must refund any balance of the prepaid amount to the building 3
owner. 4
(3) If there is a pre-paid amount for the contract that is less than the 5
retainable amount, the building owner must pay the building contractor an 6
amount equal to the difference between the retainable amount and the 7
prepaid amount. 8
(4) If there is no pre-paid amount for the contract, the building owner 9
must pay the building contractor an amount equal to the retainable amount. 10
(5) If an amount is not paid by a person as required under this section, 11
the person to whom it is payable may recover the amount from the other 12
person as a debt. 13
(6) Except as provided under subsection (3) or (4), the building owner is 14
not liable to the building contractor in any way for withdrawing from the 15
contract. 16
(7) In this section, a reference to the pre-paid amount for the contract is a 17
reference to the amount paid to the building contractor under the contract by 18
the building owner before the building owner withdrew from the contract. 19
(8) Also, in this section, a reference to the retainable amount for the 20
contract is a reference to the sum of-- 21
(a) $100; and 22
(b) an amount equal to any out-of-pocket expenses reasonably 23
incurred by the building contractor before the building owner 24
withdrew from the contract. 25
of building contractor following withdrawal for failure to give 26
Rights
warning 27
77.(1) This section applies if a building owner withdraws from a 28
regulated contract under section 74. 29
(2) The building contractor is entitled to receive a reasonable amount for 30
the contracted services provided to the time of withdrawal. 31
(3) However, the building contractor is not entitled to receive an amount 32
s 78 53 s 79
Domestic Building Contracts
that is more than the amount the building contractor would have been 1
entitled to receive under the contract. 2
right of withdrawal 3
Waiving
78.(1) The building owner under a repair contract may waive the building 4
owner's right to withdraw from the contract. 5
(2) To waive the right, the building owner must-- 6
(a) give a waiver notice to the building contractor; or 7
(b) leave a waiver notice at the address shown as the building 8
contractor's address in the contract; or 9
(c) serve a waiver notice on the building contractor in accordance 10
with any provision in the contract providing for service of notices 11
on the building contractor by the building owner. 12
(3) This section has effect despite section 93.17 13
(4) In this section-- 14
"waiver notice" means a written notice signed by the building owner under 15
a repair contract stating that the building owner waives the building 16
owner's right to withdraw from the contract. 17
ART 7--VARIATIONS OF CONTRACTS 18
P
must be in writing 19
Variations
79.(1) The building contractor under a regulated contract must ensure any 20
variation of the contract agreed to between the building contractor and 21
building owner is put into written form-- 22
(a) within the shortest practicable time; and 23
(b) for a variation consisting of an addition to the subject 24
17 Section 93 (Contracting out prohibited)
s 80 54 s 80
Domestic Building Contracts
work--before any domestic building work the subject of the 1
variation is carried out. 2
Maximum penalty--20 penalty units. 3
(2) Subsection (1) does not apply to a building contractor for a variation 4
of a contract if-- 5
(a) the variation is for domestic building work that is required to be 6
carried out urgently; and 7
(b) it is not reasonably practicable, in the particular circumstances, to 8
produce a variation document before carrying out the work. 9
contents of variation document 10
General
80.(1) The building contractor under a regulated contract must ensure a 11
variation document for the contract complies with the formal requirements 12
for a variation document. 13
Maximum penalty--20 penalty units. 14
(2) A variation document complies with the formal requirements for a 15
variation document if the document-- 16
(a) is in English and is readily legible; and 17
(b) describes the variation; and 18
(c) if the variation was sought by the building contractor--states the 19
reason for the variation; and 20
(d) states the effect the variation will have on the subject work as a 21
whole; and 22
(e) if the variation will result in a delay affecting the subject 23
work--states the building contractor's reasonable estimate for the 24
period of delay; and 25
(f) for a fixed price contract--states the change of the contract price 26
because of the variation, or how the change of the contract price is 27
to be worked out; and 28
(g) for a cost plus contract--states a fair and reasonable estimate of 29
the costs associated with the addition or omission the subject of 30
the variation; and 31
s 81 55 s 81
Domestic Building Contracts
(h) if the contract provides for progress payments--makes 1
appropriate provision for payments under the contract to reflect 2
any change of the contract price caused by the variation. 3
contents--appropriate provision for payments to reflect 4
General
contract price changes 5
81.(1) This section sets out how a variation document complies with the 6
requirement mentioned in section 80(2)(g) (the "payment requirement"). 7
(2) For this section, a variation is classified as being either a type 1, 2, 3 8
or 4 variation. 9
(3) A type 1 or 2 variation may also be a major variation. 10
(4) A type 1 variation is a variation consisting of an addition to the 11
subject work the whole of which is carried out-- 12
(a) before any progress payment is to be made; or 13
(b) after a progress payment is made and before the next progress 14
payment is to be made. 15
(5) A type 2 variation is a variation-- 16
(a) consisting of an addition to the subject work different parts of 17
which are carried out at different times; and 18
(b) that satisfies the progress payment test mentioned in 19
subsection (13). 20
(6) A type 3 variation is a variation consisting of an omission, from the 21
subject work, of work the whole of which would, if it had been carried out, 22
reasonably have been expected to have been carried out-- 23
(a) before any progress payment was made; or 24
(b) after a progress payment was made and before the next progress 25
payment was to have been made. 26
(7) A type 4 variation is a variation-- 27
(a) consisting of an omission, from the subject work, of work 28
different parts of which would, if it had been carried out, 29
reasonably have been expected to have been carried out at 30
different times; and 31
s 81 56 s 81
Domestic Building Contracts
(b) that satisfies the progress payment test mentioned in 1
subsection (14). 2
(8) For a type 1 variation, a variation document complies with the 3
payment requirement if the document is to the effect that the addition to 4
which the variation relates must be allowed for in an increase in the relevant 5
progress payment. 6
(9) For a type 2 variation, a variation document complies with the 7
payment requirement if the document is to the effect that a part of the 8
addition to which the variation relates must be allowed for in an increase in 9
the relevant progress payment. 10
(10) For a major variation, a variation document complies with the 11
payment requirement if the document, instead of being to the effect 12
mentioned in subsection (8) or (9), states other terms for payment of the 13
amount of the increase. 14
(11) For a type 3 variation, a variation document complies with the 15
payment requirement if the document is to the effect that the omission to 16
which the variation relates must be allowed for in a decrease in the relevant 17
progress payment. 18
(12) For a type 4 variation, a variation document complies with the 19
payment requirement if the document is to the effect that work forming a 20
part of the omission to which the variation relates must be allowed for in a 21
decrease in the relevant progress payment. 22
(13) A variation mentioned in subsection (5)(a) satisfies the progress 23
payment test if the first progress payment to be made after the different 24
parts of the addition are carried out is not the same in each case. 25
(14) A variation mentioned in subsection (7)(a) satisfies the progress 26
payment test if, had the work been carried out, the first progress payment to 27
be made after the different parts of the work had been carried out would not 28
reasonably have been expected to have been the same in each case. 29
(15) In this section-- 30
"major variation", for a regulated contract, means a variation consisting of 31
an addition to the subject work that results in an increase in the contract 32
price of more than the larger of the following-- 33
(a) the set amount; 34
s 82 57 s 83
Domestic Building Contracts
(b) the amount represented by the percentage prescribed under a 1
regulation of the contract price. 2
"relevant progress payment" means-- 3
(a) for subsection (8)--the first progress payment to be made after 4
the addition is carried out; or 5
(b) for subsection (9)--the first progress payment to be made after 6
the part of the addition is carried out; or 7
(c) for subsection (11)--the first progress payment to be made after 8
the work to which the omission relates would, apart from the 9
omission, reasonably have been expected to have been carried out; 10
or 11
(d) for subsection (12)--the first progress payment to be made after 12
the work would, apart from the omission, reasonably have been 13
expected to have been carried out. 14
"set amount" means-- 15
(a) the amount, above $10 000 prescribed under a regulation; or 16
(b) if an amount is not prescribed for paragraph (a)--$10 000. 17
document must be signed 18
Variation
82. As soon as practicable after an appropriate variation document is 19
made, the building contractor must-- 20
(a) sign the document; and 21
(b) take all reasonable steps to try to ensure the document is signed 22
by the building owner. 23
Maximum penalty--20 penalty units. 24
of variation document for building owner 25
Copy
83.(1) As soon as practicable (but within 5 business days) after a 26
variation of a regulated contract is agreed to between the building contractor 27
and building owner, the building contractor must give the building owner-- 28
s 84 58 s 84
Domestic Building Contracts
(a) a readily legible signed copy of an appropriate variation document 1
for the variation; or 2
(b) if acceptable circumstances apply to the building contractor--a 3
readily legible copy of an appropriate variation document for the 4
variation, signed by the building contractor. 5
Maximum penalty--20 penalty units. 6
(2) For subsection (1)(b), acceptable circumstances apply to the building 7
contractor if the building contractor has taken all reasonable steps to try to 8
ensure an appropriate variation document for the variation is signed by the 9
building owner, but the building owner has not signed the document. 10
of building contractor to recover amount for variation 11
Right
84.(1) This section applies if-- 12
(a) the building contractor under a regulated contract gives effect to a 13
variation of the contract; and 14
(b) the variation consists of-- 15
(i) an addition to the subject work; or 16
(ii) an omission from the subject work that results in the 17
building contractor incurring additional costs. 18
(2) If the variation was originally sought by the building owner, the 19
building contractor may recover an amount for the variation-- 20
(a) only if the building contractor has complied with sections 79, 80, 21
82 and 83; or 22
(b) only with the tribunal's approval given on an application made to 23
the tribunal by the building contractor. 24
(3) If the variation is not a variation that was originally sought by the 25
building owner, the building contractor may recover an amount for the 26
variation-- 27
(a) only if-- 28
(i) the building contractor has complied with sections 79, 80, 82 29
and 83; and 30
(ii) the ground of unforeseen circumstances applies; or 31
s 84 59 s 84
Domestic Building Contracts
(b) only with the tribunal's approval given on an application made to 1
the tribunal by the building contractor. 2
(4) The tribunal may approve the recovery of an amount by a building 3
contractor for a variation only if the tribunal is satisfied that-- 4
(a) either of the following applies-- 5
(i) there are exceptional circumstances to warrant the conferring 6
of an entitlement on the building contractor for recovery of 7
an amount for the variation; 8
(ii) the building contractor would suffer unreasonable hardship 9
by the operation of subsection (2)(a) or (3)(a); and 10
(b) it would not be unfair to the building owner for the building 11
contractor to recover an amount. 12
(5) For subsection (3)(a)(ii), the ground of unforeseen circumstances 13
applies if the variation became necessary because of circumstances that 14
could not have been reasonably foreseen by the building contractor when the 15
contract was entered into. 16
(6) If the building contractor is entitled to recover an amount for the 17
variation of a fixed price contract, the amount is-- 18
(a) the increase in the contract price stated, or worked out in the way 19
stated, in the appropriate variation document for the variation; or 20
(b) if paragraph (a) does not apply--the cost of carrying out the 21
variation plus a reasonable profit. 22
(7) If the building contractor is entitled to recover an amount for the 23
variation of a cost plus contract, the amount is the amount worked out in the 24
way stated in the contract. 25
s 85 60 s 87
Domestic Building Contracts
PART 8--BUILDING SITES 1
contractor does not acquire interest in land 2
Building
85. A domestic building contract does not give the building contractor an 3
interest in land for the Land Title Act 1994, section 122.18 4
of building sites 5
Control
86. A domestic building contract does not give the building contractor a 6
greater right to occupy a building site than that of a contractual licensee. 7
to building sites 8
Access
87.(1) The building contractor under a regulated contract must permit the 9
building owner, or a person authorised by the building owner (the 10
"building owner's representative")-- 11
(a) to have reasonable access to the building site under the building 12
contractor's supervision; and 13
(b) to view any part of the subject work. 14
Maximum penalty--20 penalty units. 15
(2) A building owner or building owner's representative exercising a 16
right of access under subsection (1) must not interfere with the subject 17
work. 18
(3) If additional costs are incurred, or a delay happens, in carrying out the 19
subject work because the building owner or building owner's representative 20
contravenes subsection (2), the building owner is liable for the costs or 21
delay. 22
(4) However, the building owner is liable for the costs or delay only if, 23
within 5 days after the contravention comes to the building contractor's 24
knowledge, the building contractor gives the building owner written notice 25
of the costs or delay. 26
18 Land Title Act 1994, section 122 (Lodging a caveat)
s 88 61 s 89
Domestic Building Contracts
ART 9--OTHER MATTERS RELATING TO 1
P
CONTRACTS 2
of documents at display homes 3
Display
88. A person who makes a display home available for inspection must 4
ensure the following documents are prominently displayed in the home-- 5
(a) a copy of the plans and specifications used for the home's 6
construction; 7
(b) a draft copy of the domestic building contract that the building 8
contractor by or for whom the display home is made available for 9
inspection would be prepared to enter into to construct a similar 10
home. 11
Maximum penalty--100 penalty units. 12
of home based on display home 13
Construction
89.(1) This section applies if-- 14
(a) a display home is made available for inspection by or for a 15
building contractor; and 16
(b) a building owner enters into a regulated contract with the building 17
contractor for the construction of a similar home (the "contract 18
home"). 19
(2) In constructing the contract home, the building contractor must-- 20
(a) carry out the construction in accordance with the same plans and 21
specifications as were used for the construction of the display 22
home; and 23
(b) carry out the construction to at least the same standards of work 24
quality as the display home; and 25
(c) use materials that are at least the same quality as the materials 26
used in the construction of the display home. 27
Maximum penalty--100 penalty units. 28
s 90 62 s 90
Domestic Building Contracts
(3) Subsection (2) does not apply to a building contractor to the extent the 1
contract-- 2
(a) provides for the construction of the contract home to differ from 3
the display home; and 4
(b) specifically identifies the differences. 5
contract if completion time extended or contract price 6
Ending
increased 7
90.(1) The building owner under a regulated contract may end the 8
contract if-- 9
(a) the contract price rises by 15% or more after the contract is 10
entered into because of the operation of a cost escalation clause 11
contained in the contract; or 12
(b) the subject work is not finished within a period that is 1.5 times-- 13
(i) if the contract has an effective completion date--the period 14
starting on the starting date for the contract and ending on the 15
effective completion date; or 16
(ii) if the contract has an effective completion period--the 17
period. 18
(2) However, the building owner may end the contract only if-- 19
(a) the reason for the rise in price, or increase in time, could 20
reasonably have been foreseen by the building contractor when 21
the contract was entered into; and 22
(b) for a rise in price--the rise is not caused by a delay for which the 23
building owner is responsible. 24
(3) To end the contract, the building owner must give the building 25
contractor a notice under this section. 26
(4) The notice mentioned in subsection (3) must-- 27
(a) be in writing; and 28
(b) be signed by the building owner; and 29
(c) state the building owner is ending the contract under this section; 30
and 31
s 91 63 s 93
Domestic Building Contracts
(d) state the ground on which the building owner is ending the 1
contract; and 2
(e) give details of the ground. 3
(5) In this section-- 4
"starting date", for a regulated contract, means the date stated in the 5
contract as the date the subject work is to start. 6
of building contractor if contract ended 7
Rights
91.(1) This section applies if a building owner ends a regulated contract 8
under section 90. 9
(2) The building contractor is entitled to receive a reasonable amount for 10
the contracted services provided to the time the contract is ended. 11
(3) However, the building contractor is not entitled to receive an amount 12
that is more than the amount the building contractor would have been 13
entitled to receive under the contract. 14
of failure by building contractor to comply with requirement 15
Effect
92. Unless the contrary intention appears in this Act, a failure by a 16
building contractor to comply with a requirement under this Act in relation 17
to a domestic building contract does not make the contract illegal, void or 18
unenforceable. 19
out prohibited 20
Contracting
93.(1) A domestic building contract is void to the extent to which it-- 21
(a) is contrary to this Act; or 22
(b) purports to annul, exclude or change a provision of this Act. 23
(2) An agreement (other than a domestic building contract) is void to the 24
extent to which it seeks to exclude, change or restrict a right conferred under 25
this Act in relation to a domestic building contract. 26
(3) Nothing in this section prevents the parties to a domestic building 27
contract from including provisions in the contract that impose greater or 28
more onerous obligations on a building contractor than are imposed under 29
s 94 64 s 94
Domestic Building Contracts
this Act. 1
(4) Subsections (1) and (2) apply subject to any contrary intention in this 2
Act. 3
ART 10--MISCELLANEOUS 4
P
for acts or omissions of representatives 5
Responsibility
94.(1) This section applies for a proceeding for an offence against this 6
Act. 7
(2) If it is relevant to prove a person's state of mind about a particular act 8
or omission, it is enough to show-- 9
(a) the act was done or omitted to be done by a representative of the 10
person within the scope of the representative's actual or apparent 11
authority; and 12
(b) the representative had the state of mind. 13
(3) An act done or omitted to be done for a person by a representative of 14
the person within the scope of the representative's actual or apparent 15
authority is taken to have been done or omitted to be done also by the 16
person. 17
(4) However, subsection (3) does not apply to the person if the person 18
proves the person could not, by the exercise of reasonable diligence, have 19
prevented the act or omission. 20
(5) In this section-- 21
"representative" means-- 22
(a) of a corporation--an executive officer, employee or agent of the 23
corporation; or 24
(b) of an individual--an employee or agent of the individual. 25
"state of mind", of a person, includes-- 26
(a) the person's knowledge, intention, opinion, belief or purpose; and 27
(b) the person's reasons for the intention, opinion, belief or purpose. 28
s 95 65 s 96
Domestic Building Contracts
officers must ensure corporation complies with Act 1
Executive
95.(1) The executive officers of a corporation must ensure the 2
corporation complies with this Act. 3
(2) If a corporation commits an offence against a provision of this Act, 4
each of the corporation's executive officers also commits an offence, 5
namely, the offence of failing to ensure that the corporation complies with 6
the provision. 7
Maximum penalty for subsection (2)--the penalty for the contravention of 8
the provision by an individual. 9
(3) Evidence that the corporation has been convicted of an offence against 10
a provision of this Act is evidence that each of the executive officers 11
committed the offence of failing to ensure that the corporation complies 12
with the provision. 13
(4) However, it is a defence for an executive officer to prove-- 14
(a) if the officer was in a position to influence the conduct of the 15
corporation in relation to the offence--the officer exercised 16
reasonable diligence to ensure the corporation complied with the 17
provision; or 18
(b) the officer was not in a position to influence the conduct of the 19
corporation in relation to the offence. 20
of partnerships 21
Treatment
96.(1) Subject to this section, this Act applies to a partnership as if the 22
partnership were a person. 23
(2) An obligation or liability that, apart from this subsection, would be 24
imposed by this Act on a person that is a partnership is imposed on each 25
partner, but may be discharged by any of the partners. 26
(3) An amount that, apart from this subsection, would be payable under 27
this Act by a person that is a partnership is jointly and severally payable by 28
the partners. 29
(4) If, because of the operation of subsection (1), an offence against a 30
provision of this Act is taken to have been committed by a partnership, the 31
offence is taken to have been committed by each of the partners. 32
s 97 66 s 99
Domestic Building Contracts
(5) However, it is a defence for a partner to prove-- 1
(a) if the partner was in a position to influence the conduct of the 2
partnership in relation to the offence--the partner exercised 3
reasonable diligence to ensure the partnership complied with the 4
provision; or 5
(b) the partner was not in a position to influence the conduct of the 6
partnership in relation to the offence. 7
payable to authority 8
Fines
97.(1) This section applies if, in a proceeding for an offence against this 9
Act, a court imposes a fine for the offence. 10
(2) The fine must be paid to the authority. 11
(3) However, if a person other than the authority prosecutes the offence, 12
subsection (2) does not apply to any part of the fine the court orders be paid 13
to the person prosecuting. 14
with other Acts 15
Relationship
98.(1) The Commercial Arbitration Act 1990 does not apply to domestic 16
building work unless the relevant arbitration agreement under that Act-- 17
(a) is an agreement other than a domestic building contract; and 18
(b) is entered into after the dispute to which it relates arises. 19
(2) The Subcontractors' Charges Act 1974 does not apply to domestic 20
building work relating to a detached dwelling if the work-- 21
(a) is carried out by a building contractor for an individual; and 22
(b) is not for a business carried on by the individual, either alone or as 23
a member of a partnership. 24
of information statements 25
Approval
99.(1) The authority must approve a statement containing general 26
information about regulated contracts for the benefit of building owners. 27
s 100 67 s 101
Domestic Building Contracts
(2) Without limiting subsection (1), the statement may contain 1
information about the following-- 2
(a) the rights and duties of building owners and building contractors 3
under regulated contracts; 4
(b) the procedures for resolving disputes under regulated contracts. 5
(3) The authority may approve different statements for different classes 6
of contracts. 7
of copies of information statements 8
Supply
100.(1) The chief executive must keep copies of the contract information 9
statements available for supply to persons and permit a person to obtain a 10
copy of the statements on payment of the fee prescribed under a regulation. 11
(2) For subsection (1)-- 12
(a) copies of the contract information statements-- 13
(i) must be kept at the head office and any regional office of the 14
department; and 15
(ii) must be kept at the head office and any regional office of the 16
authority; and 17
(iii) may be kept at any other place the chief executive considers 18
appropriate; and 19
(b) the copies of the statements kept at a place must be available for 20
supply during office hours on business days for the place. 21
power 22
Regulation-making
101. The Governor in Council may make regulations under this Act. 23
s 102 68 s 104
Domestic Building Contracts
ART 12--TRANSITIONAL PROVISIONS 1
P
of Act to contracts 2
Application
102. This Act only applies to domestic building contracts entered into 3
after the commencement of this section. 4
of QBSA Act to contracts 5
Application
103. The QBSA Act, as in force immediately before the commencement 6
of this section, continues to apply to domestic building contracts entered into 7
before the commencement. 8
PART 13--CONSEQUENTIAL AND OTHER 9
AMENDMENTS 10
amended--sch 1 11
Acts
104. Schedule 1 amends the Acts it mentions. 12
13
69
Domestic Building Contracts
SCHEDULE 1 1
ˇ
CONSEQUENTIAL AND OTHER AMENDMENTS 2
section 104 3
OMMERCIAL ARBITRATION ACT 1990 4
´C
1. Section 3(1)-- 5
omit, insert-- 6
`3.(1) This Act does not apply to domestic building work unless the 7
relevant arbitration agreement-- 8
(a) is an agreement other than a domestic building contract under the 9
Domestic Building Contracts Act 1999; and 10
(b) is entered into after the dispute to which it relates arises.19 11
2. Section 4, definition "domestic building work"-- 12
omit, insert-- 13
` "domestic building work" means domestic building work under the 14
Domestic Building Contracts Act 1999.'. 15
UEENSLAND BUILDING SERVICES AUTHORITY 16
´Q
ACT 1991 17
1. Part 4-- 18
omit. 19
19 This subsection mirrors the effect of the Domestic Building Contracts Act 1999,
section 98 (Relationship with other Acts).
70
Domestic Building Contracts
SCHEDULE 1 (continued)
2. Section 72(5)-- 1
insert-- 2
`(e) a person who, under the Domestic Building Contracts Act 1999, 3
is a building contractor under a domestic building contract who 4
managed the carrying out of the building work.'. 5
3. Section 72-- 6
insert-- 7
`(5A) In subsection (2), a reference to a contract for carrying out building 8
work includes a reference to a domestic building contract for managing the 9
carrying out of building work.'. 10
4. Section 110-- 11
omit. 12
5. Schedule 2, definitions "cost escalation clause", "display home", 13
"domestic building contract", "domestic building work", "home", 14
"home-building contract" and "major domestic building work"-- 15
omit. 16
6. Schedule 2-- 17
insert-- 18
` "domestic building contract" means a domestic building contract under 19
the Domestic Building Contracts Act 1999.'. 20
7. Schedule 2, definition "building work", paragraph (d)-- 21
omit. 22
71
Domestic Building Contracts
SCHEDULE 2 1
ˇ
DICTIONARY 2
section 5 3
"additional element", for a mixed-purpose contract, means the matter for 4
which the building contractor is entitled to be paid under the contract, 5
excluding-- 6
(a) the carrying out of domestic building work; and 7
(b) the managing of the carrying out of domestic building work. 8
"amount referable to the contracted services", for a mixed-purpose 9
contract, see section 19. 10
"appropriate contract information statement", for a regulated contract, 11
means-- 12
(a) if there is only 1 contract information statement--the statement; 13
or 14
(b) if there is more than 1 contract information statement--the 15
contract information statement that relates to the class of regulated 16
contracts in which the particular contract is included. 17
"appropriate variation document" means a variation document 18
complying with the formal requirements for a variation document.20 19
"architect" means an architect under the Architects Act 1985. 20
"assessment manager" means an assessment manager under the 21
Integrated Planning Act 1997, and includes a private certifier under 22
that Act acting as an assessment manager. 23
"associated third party amount", for a domestic building contract, see 24
section 10. 25
20 Section 80 (General contents of variation document) deals with the formal
requirements for a variation document.
72
Domestic Building Contracts
SCHEDULE 2 (continued)
"authority" means the Queensland Building Services Authority under the 1
QBSA Act. 2
"base stage" means-- 3
(a) for a building with a timber floor with base brickwork--the stage 4
when-- 5
(i) the concrete footings for the building's floor are poured; and 6
(ii) the building's base brickwork is built to floor level; and 7
(iii) the bearers and joists for the building are installed; or 8
(b) for a building with a timber floor without base brickwork--the 9
stage when-- 10
(i) the building's stumps, piers or columns are finished; and 11
(ii) the bearers and joists for the building are installed; or 12
(c) for a building with a suspended concrete slab floor--the stage 13
when-- 14
(i) the building's concrete footings are poured; and 15
(ii) the formwork and reinforcing for the suspended slab are 16
installed; or 17
(d) for a building with a concrete floor, other than a suspended 18
concrete slab floor--the stage when the building's floor is 19
finished. 20
"board's policies" means board's policies under the QBSA Act. 21
"brickwork" includes blockwork. 22
"building" includes-- 23
(a) a structure, including a temporary building and other temporary 24
structure; and 25
(b) a part of a structure. 26
"Building Code of Australia" means the Building Code of Australia 27
within the meaning of the Building Act 1975. 28
"building contractor" means a person who-- 29
73
Domestic Building Contracts
SCHEDULE 2 (continued)
(a) carries out domestic building work; or 1
(b) manages the carrying out of domestic building work; or 2
(c) has carried out, or managed the carrying out of, domestic building 3
work; or 4
(d) intends to carry out, or to manage the carrying out of, domestic 5
building work. 6
"building owner" means the person for whom domestic building work 7
has been, is being, or is to be, carried out. 8
"building site" means a place where domestic building work has been, is 9
being, or is to be, carried out. 10
"contracted services", for a domestic building contract, means the thing 11
done, being done or to be done by the building contractor under the 12
contract in relation to domestic building work, being either-- 13
(a) the carrying out of the work; or 14
(b) the managing of the carrying out of the work. 15
"contract estimated amount", for a regulated contract that is a cost plus 16
contract, means the amount stated in the contract as the building 17
contractor's fair and reasonable estimate of the total amount the 18
building contractor is likely to receive under the contract. 19
"contract information statement" means a statement approved by the 20
authority under section 99. 21
"contractor's licence" means a contractor's licence under the QBSA Act. 22
"contract price", for a domestic building contract, see section 6. 23
"contract summary schedule", for a domestic building contract, means a 24
separate schedule in the contract that-- 25
(a) states the matters mentioned in section 28(2)(a), (c), (d), (e) 26
and (h);21 and 27
(b) contains a general description of the subject work; and 28
21 Section 28 (General contents--required matters)
74
Domestic Building Contracts
SCHEDULE 2 (continued)
(c) is signed by the building contractor and building owner (or their 1
authorised agents). 2
"cost escalation clause" see section 11. 3
"cost plus contract" means a domestic building contract under which the 4
amount the building contractor is to receive under the contract can not 5
be calculated when the contract is entered into, even if prime cost items 6
and provisional sums are ignored. 7
"designated stages contract" means a regulated contract that is-- 8
(a) a contract to build only to the enclosed stage; or 9
(b) a contract to build only to the fixing stage; or 10
(c) a contract to build all stages, including the base, frame, enclosed 11
and fixing stages. 12
"detached dwelling" means-- 13
(a) a single detached dwelling; or 14
(b) a duplex. 15
"development approval" means a development approval under the 16
Integrated Planning Act 1997. 17
"display home" means a home (including a building suitable for use as a 18
home, regardless of whether it is being used as a home) available for 19
inspection to encourage persons to enter into contracts for the 20
construction of similar homes. 21
"domestic building contract" see section 7. 22
"domestic building work" see section 8. 23
"draftsperson" means a person who holds a contractor's licence 24
authorising the person to prepare plans and specifications for domestic 25
building work. 26
"effective completion date", for a regulated contract, see section 18. 27
"effective completion period", for a regulated contract, see section 18. 28
"enclosed stage", for a building, means the stage when-- 29
75
Domestic Building Contracts
SCHEDULE 2 (continued)
(a) the external wall cladding is fixed; and 1
(b) the roof covering is fixed, but without-- 2
(i) soffit linings necessarily having been fixed; or 3
(ii) for a tile roof--pointing necessarily having been done; or 4
(iii) for a metal roof--scribing and final screwing off necessarily 5
having been done; and 6
(c) the structural flooring is laid; and 7
(d) the external doors are fixed (even if only temporarily), but, if a 8
lockable door separating the garage from the rest of the building 9
has been fixed, without the garage doors necessarily having been 10
fixed; and 11
(e) the external windows are fixed (even if only temporarily). 12
"engineer" means a registered professional engineer under the Professional 13
Engineers Act 1988. 14
"excluded building work" means any of the following work-- 15
(a) work relating to any of the following buildings-- 16
(i) a farm building, or proposed farm building, that is not a 17
home; 18
(ii) a building intended to be used only for business purposes; 19
(iii) a building intended to be used only to accommodate animals; 20
(b) design work carried out by an architect, engineer or draftsperson; 21
(c) the preparation of plans, specifications or bills of quantity for the 22
carrying out of domestic building work; 23
(d) work involved in obtaining foundations data about a building site; 24
(e) transporting a building; 25
(f) work declared under a regulation to be excluded building work if 26
there are reasonable grounds for considering the work to be 27
excluded building work. 28
"executive officer", of a corporation, means a person who-- 29
76
Domestic Building Contracts
SCHEDULE 2 (continued)
(a) is a director or the secretary of the corporation; or 1
(b) is concerned with, or takes part in, the corporation's management, 2
whether or not-- 3
(i) the person is a director or the secretary of the corporation; or 4
(ii) the person's position is given the name of executive officer. 5
"farm building" means a building that-- 6
(a) is constructed on land used entirely or mainly for agricultural or 7
pastoral purposes; and 8
(b) is used, or intended to be used, for agricultural or pastoral 9
purposes. 10
"fixed price contract" means a domestic building contract that is not a cost 11
plus contract. 12
"fixing stage" means the stage when all internal lining, architraves, cornice, 13
skirting, doors to rooms, baths, shower trays, wet area tiling, built-in 14
shelves, built-in cabinets and built-in cupboards of a building are fitted 15
and fixed in position. 16
"foundations data" see section 12. 17
"frame stage" means the stage when a building's frame is finished. 18
"home" see section 13. 19
"imprinted copy", of a contract summary schedule, for a regulated 20
contract, means a copy of the schedule bearing an imprint of the licence 21
card for the contractor's licence held by the building contractor. 22
"imprinted copy", of a regulated contract, means a copy of the contract 23
bearing an imprint of the licence card for the contractor's licence held 24
by the building contractor. 25
"manage", the carrying out of domestic building work, includes provide 26
supervisory, advisory or administrative services for carrying out the 27
work. 28
"mixed-purpose contract" means a contract entered into between a 29
building contractor and building owner that entitles the building 30
contractor to be paid both for carrying out, or managing the carrying 31
77
Domestic Building Contracts
SCHEDULE 2 (continued)
out of, domestic building work and for 1 or more of the following-- 1
(a) carrying out work that is not domestic building work; 2
(b) managing the carrying out of work that is not domestic building 3
work; 4
(c) another matter. 5
"non-working days", for carrying out domestic building work, means-- 6
(a) weekend days; or 7
(b) public holidays; or 8
(c) rostered days off; or 9
(d) other days not generally available for carrying out the work. 10
"payment section" means section 64, 65, 66 or 67.22 11
"prime cost adjustment", for a prime cost item in a regulated contract, 12
means an adjustment for the item to reflect a difference in the 13
following-- 14
(a) the amount payable under the contract for the item; 15
(b) the amount provided for in the allowance stated in the contract for 16
the item. 17
"prime cost item", for a domestic building contract, means an item, 18
including, for example, a fixture or fitting-- 19
(a) that has not been selected, or the price of which is not known, 20
when the contract is entered into; and 21
(b) for the cost of supply and delivery of which a reasonable 22
allowance is, or is to be, made in the contract by the building 23
contractor. 24
"progress payment", for a domestic building contract, means a payment 25
of an amount that is a part of the contract price for the contract, but 26
22 Sections 64 (Deposits), 65 (Progress payments for contracts other than
designated stages contracts), 66 (Progress payments for designated stages
contracts) and 67 (Completion payments)
78
Domestic Building Contracts
SCHEDULE 2 (continued)
does not include a payment of an amount that is, or is in the nature of, 1
a deposit under the contract. 2
"provisional sum", for a domestic building contract, see section 14. 3
"provisional sum adjustment", for a provisional sum in a regulated 4
contract, means an adjustment for the provisional sum to reflect a 5
difference in the following-- 6
(a) the amount payable under the contract for providing the contracted 7
services to which the sum relates; 8
(b) the provisional sum. 9
"QBSA Act" means the Queensland Building Services Authority Act 1991. 10
"reasonably believes" means believes on grounds that are reasonable in all 11
the circumstances. 12
"regulated amount" means-- 13
(a) the amount, above $3 000, prescribed under a regulation; or 14
(b) if an amount is not prescribed for paragraph (a)--$3 000. 15
"regulated contract" see section 9. 16
"related progress payment" means-- 17
(a) for a prime cost item in a regulated contract--the progress 18
payment in which an amount for the prime cost item is included; 19
or 20
(b) for a provisional sum in a regulated contract--the progress 21
payment in which an amount for the contracted services to which 22
the sum relates is included. 23
"repair contract" see section 15. 24
"residential construction work" means residential construction work 25
under the QBSA Act. 26
"stated completion date", for a regulated contract, means, if applicable, the 27
date stated in the contract as the date by which the subject work is to be 28
finished. 29
"stated completion period", for a regulated contract, means, if applicable, 30
79
Domestic Building Contracts
SCHEDULE 2 (continued)
the number of days stated in the contract as the number of days that 1
will be required to finish the subject work once it is started. 2
"subcontractor" means a person who enters into a contract with a building 3
contractor to carry out domestic building work to be carried out under a 4
domestic building contract. 5
"subject work", for a domestic building contract, means-- 6
(a) the domestic building work carried out, being carried out or to be 7
carried out under the contract; or 8
(b) the domestic building work the carrying out of which has been, is 9
being or is to be managed under the contract. 10
"tribunal" means the Queensland Building Tribunal established under the 11
Queensland Building Tribunal Act 1999. 12
"variation", of a domestic building contract, see section 16. 13
"variation document" means the written form into which a variation of a 14
regulated contract is put. 15
"written form", for a regulated contract, or a variation of a regulated 16
contract, means-- 17
(a) in handwritten or typewritten form; or 18
(b) in a combination of handwritten and typewritten forms. 19
20
© State of Queensland 1999
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