BUILDING WORK CONTRACTORS ACT 1995 - SECT 29
BUILDING WORK CONTRACTORS ACT 1995 - SECT 29
29—Price and domestic building work contracts
(1) Subject to this
Division, a domestic building work contract must stipulate a specific price
for the performance of the building work specified in the contract, being a
price that is fixed and not subject to change, and the terms of payment.
(2) If a
domestic building work contract stipulates that building work is to be
completed within a specified period, it is lawful to include a
rise-and-fall clause in the contract.
(3) A
building work contractor is not entitled to the benefit of a
rise-and-fall clause in relation to any part of the building work performed
after the end of the period stipulated for completion of the building work.
(4) However, a
building work contractor is entitled to the benefit of a rise-and-fall clause
in respect of a part of the building work performed after the end of the
period stipulated for completion of the building work if—
(a) the
contract provides for extension of the stipulated period; and
(b) the
delay in completing the building work was the fault of the building owner or
due to some cause beyond the control of the contractor that the contractor
could not reasonably be expected to have foreseen at the time the contract was
made; and
(c) the
contractor, as soon as reasonably practicable after becoming aware of the
likelihood of delay in the completion of the building work, gave notice in
writing to the building owner or an agent authorised to act on behalf of the
building owner extending the period for completion and specifying the cause of
the delay; and
(d) the
building work was completed as soon as reasonably practicable in the
circumstances.
(5) Despite the
preceding provisions of this section, it is lawful to include in a domestic
building work contract a provision entitling the building work contractor to
recover—
(a) the
actual cost to be incurred—
(i)
in acquiring materials specified in the contract;
(ii)
in performing work specified in the contract,
together with an additional amount not exceeding 10 per cent, or such other
percentage as may be prescribed, of that cost; and
(b)
other amounts, unliquidated at the time of the contract, of a kind stipulated
by the regulations.
(a) a
domestic building work contract includes a rise-and-fall clause or a provision
referred to in subsection (5); and
(b) as a
result the price specified in the contract for the building work or part of
the building work or for any labour or materials may change or is an
estimate only,
the contract must contain the statement "This Price May Change" or
"Estimate Only" (as the case may require) set out in the contract immediately
alongside or below the price to which it relates.
(7) If more than one
price of a kind referred to in subsection (6) is specified in a
domestic building work contract, the prices must be set out in a single list
in the contract.
(8) A price specified
in a domestic building work contract that is an estimate only must be a fair
and reasonable estimate.
(8a) Despite the
preceding provisions of this section (but subject to any other relevant law),
it is lawful to include in a domestic building work contract (other than a
fixed price contract made on or after 1 July 2000) a provision (a "GST clause
) entitling the building work contractor to recover the GST paid or payable by
the contractor on the supply of goods and services under the contract.
(8b) If a
domestic building work contract contains a GST clause, the contract must
contain a statement in prominent type or handwriting as follows:
(a) if,
at the date of the contract, it is possible but not likely that goods or
services will be supplied under the contract after 1 July 2000—a
statement to the effect that the contract price of the building work may
increase to cover GST;
(b) if
the contract is made on or after 1 July 2000 or, at the date of the contract,
it is likely that goods or services will be supplied under the contract after
1 July 2000—a statement to the effect that the contract price for the
building work will increase to cover GST.
(8c) A
domestic building work contract (other than a fixed price contract made on or
after 1 July 2000) may contain both a cost-plus clause and a GST clause.
(9) If any of the
requirements of this section is not complied with, the
building work contractor is guilty of an offence.
Maximum penalty: $5 000.
(10) In this
section—
"cost-plus clause" means a contractual provision of the kind described in
subsection (5);
"fixed price contract" means a domestic building work contract that contains
neither a cost-plus clause nor a rise-and-fall clause;
"GST clause" means a contractual provision of the kind described in
subsection (8a);
"rise-and-fall clause" means a contractual provision under which a price
stipulated for performance of domestic building work may change to reflect
changes in the costs of labour (including related overhead expenses) and
materials to be incurred by the building work contractor.