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PARLIAMENT OF VICTORIA
House Contracts Guarantee (Amendment) Act 2005
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 2
1. Purposes 2
2. Commencement 2
3. Principal Act 3
PART 2--AMENDMENTS TO HOUSE CONTRACTS
GUARANTEE ACT 1987 4
4. Definitions 4
5. New sections 11A and 11B inserted 5
11A. State to become liable for guarantees 5
11B. VMIA to be responsible for the Housing Guarantee
Claims Fund and claims 5
6. Liability in legal proceedings 6
7. New section 13 substituted 7
13. Procedure for resolving claims 7
8. Claims 9
9. Costs 9
10. Appeals 10
11. Discretionary payments 11
12. Application of payments 11
13. New Part 2A inserted 12
PART 2A--HOUSING GUARANTEE CLAIMS FUND 12
17B. Housing Guarantee Claims Fund 12
17C. What comprises the Housing Guarantee Claims Fund? 12
17D. Payments out of the Housing Guarantee Claims Fund 13
17E. Powers of VMIA in relation to the Housing Guarantee
Claims Fund 14
17F. Report to Minister 14
17G. Auditor-General to audit financial staements of
Housing Guarantee Claims Fund 15
17H. Annual report 15
17I. Remaining funds to be paid into Domestic Builders
Fund 16
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551274B.I1-3/5/2005 BILL LA INTRODUCTION 3/5/2005
Clause Page
14. Part 4 heading substituted 16
15. Sections 22 to 24 repealed 16
16. References to the approved guarantor substituted 16
17. Section 25A repealed 18
18. False representations 18
19. Definition repealed 18
20. References to HGFL substituted 18
21. Procedure for claims 19
22. Further references to HGFL substituted 19
23. New section 49 substituted 20
49. Remaining funds to be paid into Consolidated Fund 20
24. New section 50 substituted 20
50. Report to Minister 20
25. Audit of financial statements 20
26. New section 52 substituted 21
52. Annual report 21
27. Entering into arrangements and agreements with liquidator of
HIH 21
28. New Part 7 inserted 21
PART 7--TRANSITIONAL 21
Division 1--Transfer of Property, Rights and Liabilities of
HGFL 21
57. Definitions 21
58. State to take over responsibility for guarantees 22
59. VMIA to be substituted as party to proceedings 23
60. Construction of instruments 23
61. Taxes 24
62. Transfer of staff 24
63. Evidence 25
64. Validity of things done under this Division 25
65. Operation of provisions not subject to review 26
Division 2--Role of VMIA in relation to guarantees 26
66. Actions of continuing nature in relation to guarantees 26
Division 3--Role of VMIA in relation to indemnities 27
67. Actions of continuing nature in relation to indemnities 27
68. References to HGFL in any arrangement or agreement
under section 53 27
Division 4--Reporting by HGFL 28
69. Final annual report by HGFL 28
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551274B.I1-3/5/2005 BILL LA INTRODUCTION 3/5/2005
Clause Page
PART 3--AMENDMENTS TO OTHER ACTS 29
29. Amendment to Building Act 1993 29
30. Amendment to Domestic Building Contracts Act 1995 29
31. Amendments to Victorian Managed Insurance Authority
Act 1996 30
ENDNOTES 31
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551274B.I1-3/5/2005 BILL LA INTRODUCTION 3/5/2005
PARLIAMENT OF VICTORIA
A BILL
to amend the House Contracts Guarantee Act 1987 to establish the
Housing Guarantee Claims Fund, to confer responsibility on the
Victorian Managed Insurance Authority for the administration of that
Fund and the Domestic Building (HIH) Indemnity Fund and claims on
those Funds, to provide for the transfer of the property, rights and
liabilities of Housing Guarantee Fund Limited to the State, to amend
the Victorian Managed Insurance Authority Act 1996 and other
Acts and for other purposes.
House Contracts Guarantee
(Amendment) Act 2005
The Parliament of Victoria enacts as follows:
1
551274B.I1-3/5/2005 BILL LA INTRODUCTION 3/5/2005
House Contracts Guarantee (Amendment) Act 2005
Act No.
Part 1--Preliminary
s. 1
PART 1--PRELIMINARY
1. Purposes
The purposes of this Act are--
(a) to amend the House Contracts Guarantee
Act 1987--
5
(i) to establish the Housing Guarantee
Claims Fund; and
(ii) to confer on the Victorian Managed
Insurance Authority responsibility for
the administration of the Housing
10
Guarantee Claims Fund and the
Domestic Building (HIH) Indemnity
Fund and claims on those Funds; and
(iii) to provide for the transfer of the
property, rights and liabilities of
15
Housing Guarantee Fund Limited to the
State; and
(b) to make consequential amendments to--
(i) the Victorian Managed Insurance
Authority Act 1996; and
20
(ii) the Building Act 1993; and
(iii) the Domestic Building Contracts Act
1995.
2. Commencement
(1) Subject to sub-section (2), this Act comes into
25
operation on a day to be proclaimed.
(2) If this Act does not come into operation before
1 July 2007, it comes into operation on that day.
2
551274B.I1-3/5/2005 BILL LA INTRODUCTION 3/5/2005
House Contracts Guarantee (Amendment) Act 2005
Act No.
Part 1--Preliminary
s. 3
3. Principal Act
See:
In this Act the House Contracts Guarantee Act Act No.
1987 is called the Principal Act. 44/1987.
Reprint No. 4
as at
8 June 2001
and
amending
Act Nos
44/2001,
9/2002,
11/2002,
25/2002 and
108/2004.
LawToday:
www.dms.
dpc.vic.
gov.au
__________________
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House Contracts Guarantee (Amendment) Act 2005
Act No.
Part 2--Amendments to House Contracts Guarantee Act 1987
s. 4
PART 2--AMENDMENTS TO HOUSE CONTRACTS
GUARANTEE ACT 1987
4. Definitions
(1) In section 3(1) of the Principal Act, insert the
following definitions--
5
' "appointed day" means the date of
commencement of the House Contracts
Guarantee (Amendment) Act 2005;
"HGFL" means Housing Guarantee Fund
Limited A.C.N. 006 258 233;
10
"VMIA" means the Victorian Managed Insurance
Authority established by the Victorian
Managed Insurance Authority Act 1996.'.
(2) In section 3(1) of the Principal Act for the
definition of "approved guarantor" substitute--
15
' "approved guarantor" means HGFL;'.
(3) In section 3(1) of the Principal Act for the
definition of "claimant" substitute--
' "claimant" means--
(a) except in Part 6, a person who has
20
made a claim to HGFL or VMIA under
this Act; and
(b) in Part 6, a person who has lodged a
claim with HGFL or VMIA under that
Part;'.
25
(4) After section 3(4) of the Principal Act insert--
"(5) A reference in this Act to a guarantee given
under this Act does not include a reference to
an indemnity given under Part 6.".
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Act No.
Part 2--Amendments to House Contracts Guarantee Act 1987
s. 5
5. New sections 11A and 11B inserted
After section 11 of the Principal Act insert--
"11A. State to become liable for guarantees
Despite anything to the contrary in this Part,
on the appointed day--
5
(a) the State becomes liable under any
guarantee given by HGFL under this
Act to the extent of HGFL's liability
under that guarantee; and
(b) HGFL ceases to be liable under that
10
guarantee.
11B. VMIA to be responsible for the Housing
Guarantee Claims Fund and claims
(1) VMIA is responsible on and after the
appointed day for the administration of--
15
(a) claims on guarantees given by HGFL or
the State under this Act; and
(b) the Housing Guarantee Claims Fund.
(2) VMIA has any other functions conferred on
it under this Part, Part 2A, Part 4 and Part 7.
20
(3) Without limiting its other powers, VMIA has
any powers necessary to carry out its
functions under this Part, Part 2A, Part 4 and
Part 7.
(4) VMIA acts on behalf of the State in carrying
25
out its functions and exercising its powers
under or for the purposes of this Part,
Part 2A, Part 4 and Part 7.
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Act No.
Part 2--Amendments to House Contracts Guarantee Act 1987
s. 6
(5) No claim on a guarantee given by HGFL or
the State under this Act can be made on the
assets of VMIA and the assets of VMIA are
not available for the payment of any amount
of claim, costs or expenses under such a
5
guarantee.".
6. Liability in legal proceedings
(1) Insert the following heading to section 12 of the
Principal Act--
"Liability in legal proceedings".
10
(2) In section 12(1) of the Principal Act for "the
approved guarantor" substitute "the State".
(3) For sections 12(2) and 12(3) of the Principal Act
substitute--
"(2) Sub-section (1) applies only if--
15
(a) the person who makes the claim--
(i) notified the approved guarantor of
the legal proceedings before the
appointed day and within
3 months of the proceedings being
20
commenced; or
(ii) notified VMIA of the legal
proceedings on or after the
appointed day and within
3 months of the proceedings being
25
commenced; or
(b) VMIA is not prejudiced in dealing with
the claim by the failure of the claimant
to give the required notice under
paragraph (a).
30
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(3) Without limiting sub-section (2)(b), VMIA
can establish prejudice for the purposes of
that sub-section by establishing that--
(a) the State could have recovered any sum
payable by it in discharge of its liability
5
had VMIA or the approved guarantor
been notified of the proceedings within
the required time but that it cannot
make that recovery because of the
failure to give that notice within the
10
required time; or
(b) the approved guarantor could have
recovered any sum payable by it in
discharge of its liability under this
section as in force before the appointed
15
day had the approved guarantor been
notified of the proceedings within the
required time but that it could not make
that recovery because of the failure to
give that notice within the required
20
time.".
7. New section 13 substituted
For section 13 of the Principal Act substitute--
"13. Procedure for resolving claims
(1) Subject to this section, the procedures
25
approved under this section as in force
immediately before the appointed day for the
handling and resolution of claims apply
(with any necessary modifications) to the
handling and resolution of claims by VMIA
30
under this Part.
(2) If--
(a) a claim has been made to the approved
guarantor before the appointed day or
to VMIA on or after the appointed day
35
for loss or damage; and
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Act No.
Part 2--Amendments to House Contracts Guarantee Act 1987
s. 7
(b) the claimant has also brought legal
proceedings against the builder or
supervisor involved in the claim--
VMIA must proceed to make a decision in
respect of the claim if the matters in dispute
5
in the legal proceedings do not include any
matter to which the claim relates.
(3) If--
(a) the approved guarantor, before the
appointed day, or VMIA on or after the
10
appointed day has made an offer in
respect of a claim by a person for loss
or damage; and
(b) within 6 months after the offer was
made the offer has not been accepted or
15
rejected--
VMIA may refer the matter to the Tribunal
and the Tribunal must treat the matter as if
the claimant had not been satisfied with the
offer and had appealed to it under section 16.
20
(4) VMIA may from time to time submit to the
Minister for approval the procedures it
proposes to adopt in the handling and
resolution of claims under this Part.
(5) VMIA may propose to adopt as part of its
25
procedures--
(a) the requirement that a claim be made in
a particular way; and
(b) the requirement that a claimant supply
to it a statutory declaration made by the
30
claimant verifying any information
supplied to VMIA by the claimant in
respect of a claim.
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Act No.
Part 2--Amendments to House Contracts Guarantee Act 1987
s. 8
(6) The Minister must consult with the Minister
administering the Victorian Managed
Insurance Authority Act 1996 before
approving the procedures.
(7) The Minister may approve the procedures
5
with or without amendment.
(8) VMIA must adopt the procedures approved
by the Minister.
(9) A procedure does not take effect unless it has
been approved by the Minister.".
10
8. Claims
(1) In sections 14(1), 14(1A) and 14(2) of the
Principal Act, after "the approved guarantor"
insert "or VMIA".
(2) For section 14(3) of the Principal Act
15
substitute--
"(3) Sub-section (2) has no effect unless in a
particular case VMIA can establish that the
failure to notify the defect in accordance
with that sub-section prejudiced VMIA in
20
dealing with the claim.".
(3) In section 14(4) of the Principal Act for "the
approved guarantor" substitute "VMIA".
9. Costs
(1) In section 15 of the Principal Act--
25
(a) for "The approved guarantor" substitute
"VMIA"; and
(b) in paragraph (b) after "approved guarantor"
insert "or VMIA".
9
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Act No.
Part 2--Amendments to House Contracts Guarantee Act 1987
s. 10
(2) At the end of section 15 of the Principal Act
insert--
"(2) This section does not apply if the costs
referred to in sub-section (1) were
reimbursed before the appointed day.".
5
10. Appeals
(1) In section 16(1) of the Principal Act--
(a) in paragraphs (a), (b), (ba), (c) and (f) after
"the approved guarantor" (wherever
occurring) insert "or VMIA"; and
10
(b) after "the approved guarantor" (where last
occurring) insert "or VMIA".
(2) For section 16(2) of the Principal Act
substitute--
"(2) If, within 3 months after making a claim for
15
loss or damage, a claimant has not received
notice from the approved guarantor or VMIA
of its decision on the claim--
(a) if that period ended before the
appointed day, the approved guarantor
20
is to be treated as having made, on the
last day of that period, a decision to
accept liability for the claim; and
(b) if the period ended on or after the
appointed day, VMIA is to be treated as
25
having made, on the last day of that
period, a decision to accept liability for
the claim.".
(3) For section 16(4) of the Principal Act
substitute--
30
"(4) VMIA may make an offer in respect of a
claim if--
(a) it has decided to accept a claim; or
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Act No.
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s. 11
(b) before the appointed day, the approved
guarantor had decided to accept the
claim.
(4A) Sub-section (4) applies whether or not a
builder has appealed under sub-section
5
(1)(ba) or (c) or a supervisor has appealed
under sub-section (1)(f) in respect of the
decision.".
(4) In section 16(5) of the Principal Act after "the
approved guarantor" insert "or VMIA".
10
(5) In section 16(6) of the Principal Act for "the
approved guarantor" substitute "VMIA".
11. Discretionary payments
(1) In section 17(1) of the Principal Act--
(a) for "the approved guarantor" substitute
15
"VMIA"; and
(b) after "in respect of a claim made to it" insert
"or the approved guarantor".
(2) Section 17(2) of the Principal Act is repealed.
12. Application of payments
20
(1) For section 17A(1) of the Principal Act
substitute--
"(1) If a claim relates to a failure to complete
building work or a defect in building work
and that claim was accepted by the approved
25
guarantor before the appointed day or is
accepted by VMIA on or after the appointed
day, or is upheld on appeal, any payment
made by VMIA in respect of that claim may
be made on the condition that it is applied for
30
the purpose of completion of that work or the
rectification of that defect.".
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Act No.
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s. 13
(2) In sections 17A(2) and 17A(3) of the Principal
Act for "The approved guarantor" substitute
"VMIA".
(3) In section 17A(4) for "the approved guarantor"
(where twice occurring) substitute "VMIA".
5
13. New Part 2A inserted
After Part 2 of the Principal Act insert--
"PART 2A--HOUSING GUARANTEE CLAIMS
FUND
17B. Housing Guarantee Claims Fund
10
There is to be established a Fund to be called
the Housing Guarantee Claims Fund.
17C. What comprises the Housing Guarantee
Claims Fund?
(1) All property vested in the State under
15
section 58 forms part of the Housing
Guarantee Claims Fund.
(2) There must be paid into the Housing
Guarantee Claims Fund--
(a) all money received from the disposal of
20
any property in the Fund under section
17E(4); and
(b) any money appropriated by Parliament
for the purposes of the Fund; and
(c) income from the investment of the
25
Fund; and
(d) all fees received by VMIA under
section 25; and
(e) all other money authorised or required
to be paid to the Fund by any person or
30
body.
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Part 2--Amendments to House Contracts Guarantee Act 1987
s. 13
17D. Payments out of the Housing Guarantee
Claims Fund
(1) There may be paid out of the Housing
Guarantee Claims Fund at the direction of
VMIA--
5
(a) any amount payable on a claim on a
guarantee given under this Act; and
(b) any amount payable in respect of any
liability that becomes a liability of the
State under section 58; and
10
(c) any amount paid by the State in respect
of any liability that becomes a liability
of the State under section 58; and
(d) the costs and expenses incurred in the
administration of the Fund and any
15
claim on a guarantee given under this
Act; and
(e) any amount determined by the Auditor-
General to defray the reasonable costs
and expenses of an audit of the
20
accounts of the Fund; and
(f) with the consent of the Minister, any
amount required to meet the costs and
expenses of and any liabilities arising
on the winding up of HGFL; and
25
(g) any other amount authorised by or
under this or any other Act to be paid
out of the Fund.
(2) All amounts paid out of the Fund under sub-
section (1)(c) or (1)(e) must be paid into the
30
Consolidated Fund.
(3) All money and other property in the Fund is
an asset of the State.
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s. 13
17E. Powers of VMIA in relation to the
Housing Guarantee Claims Fund
(1) VMIA may invest any part of the Housing
Guarantee Claims Fund that is not
immediately required for the purposes of the
5
Fund in any manner approved by the
Treasurer.
(2) Despite sub-section (1), VMIA may continue
any investment of funds of HGFL existing
immediately before the appointed day and
10
forming part of the Housing Guarantee
Claims Fund as if the investment had been
made by VMIA.
(3) VMIA may use any property in the Fund for
any purpose related to the administration of
15
the Fund.
(4) VMIA may dispose of any property (other
than money) in the Fund.
(5) VMIA may enter into any agreement with
any person in relation to the settlement of
20
any liability of the State or to the State
transferred under section 58.
17F. Report to Minister
VMIA must from time to time at the
direction of the Minister report to the
25
Minister in the manner required by the
Minister on its administration of--
(a) claims on guarantees given by HGFL or
the State under this Act; and
(b) the Housing Guarantee Claims Fund.
30
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s. 13
17G. Auditor-General to audit financial
staements of Housing Guarantee Claims
Fund
(1) The financial statements of the Housing
Guarantee Claims Fund must be audited
5
annually by the Auditor-General.
(2) The Auditor-General has in respect of the
audit all the powers conferred on the
Auditor-General by any law relating to the
audit of the Public Account.
10
(3) The Auditor-General must submit a report of
the audit to the Minister.
(4) The Minister must cause a copy of any audit
report to be laid before each House of
Parliament within 7 sitting days of that
15
House after it is received by the Minister
under sub-section (3).
17H. Annual report
VMIA must include in its annual report for a
financial year under Part 7 of the Financial
20
Management Act 1994--
(a) details of its administration of--
(i) claims on guarantees given by
HGFL or the State under this Act;
and
25
(ii) the Housing Guarantee Claims
Fund; and
(b) the audited financial statements of the
Housing Guarantee Claims Fund.
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s. 14
17I. Remaining funds to be paid into Domestic
Builders Fund
(1) If the Minister is satisfied that all claims on a
guarantee given under this Act have been
dealt with and that no further claim can be
5
made on a guarantee given under this Act,
the Minister may by notice published in the
Government Gazette, close the Housing
Guarantee Claims Fund.
(2) On the publication of the notice under sub-
10
section (1) all money standing to the credit
of the Housing Guarantee Claims Fund must
be paid into the Domestic Builders Fund
established under the Domestic Building
Contracts Act 1995.".
15
14. Part 4 heading substituted
For the heading to Part 4 of the Principal Act
substitute--
"PART 4--THE REGISTER".
15. Sections 22 to 24 repealed
20
Sections 22, 22A, 23 and 24 of the Principal Act
are repealed.
16. References to the approved guarantor substituted
(1) Insert the following heading to section 25 of the
Principal Act--
25
"Registers to be kept by VMIA".
(2) For section 25(1) of the Principal Act
substitute--
"(1) VMIA must, in the form required by the
Minister, keep--
30
(a) a register of builders and supervisors
approved by the approved guarantor;
and
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(b) a register of work in relation to which a
guarantee given by the approved
guarantor under this Act is in force and
of which the approved guarantor has
received notice under section 24 of this
5
Act or section 27(3) of the Building
Act 1993 or of which the approved
guarantor otherwise had actual notice
before the appointed day.".
(3) For section 25(2) of the Principal Act
10
substitute--
"(2) VMIA must permit a person to inspect a
register required to be kept by it under sub-
section (1) at any time during ordinary office
hours at its offices.".
15
(4) In section 25(3) of the Principal Act--
(a) for "The approved guarantor" substitute
"VMIA"; and
(b) omit "signed by a person authorised by the
approved guarantor in that behalf"; and
20
(c) in paragraph (c) after "approved guarantor"
insert "or the State".
(5) For sections 25(4), 25(5) and 25(6) of the
Principal Act substitute--
"(4) VMIA must, at the request of the applicant
25
for the certificate, include in a certificate
issued under sub-section (3) a statement as to
whether or not the approved guarantor or
VMIA has received a claim under a
guarantee in force in relation to the building
30
to which the certificate relates.
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(5) A document purporting to be a register or
part of a register required to be kept by
VMIA under sub-section (1) and purporting
to be certified by VMIA as that register or
part of that register is admissible in evidence
5
in any proceedings for an offence against this
Act and, in the absence of evidence to the
contrary, is proof of the facts and matters
contained in it.
(6) A certificate purporting to be issued by
10
VMIA under sub-section (3) or by the
approved guarantor under sub-section (3) as
in force immediately before the appointed
day, is admissible in evidence in any
proceedings for an offence against this Act
15
and, in the absence of evidence to the
contrary, is proof of the facts and matters
contained in it.".
17. Section 25A repealed
Section 25A of the Principal Act is repealed.
20
18. False representations
In section 27(1)(d) of the Principal Act for
"approved guarantor" substitute "VMIA".
19. Definition repealed
In section 35(1) of the Principal Act, the definition
25
of "HGFL" is repealed.
20. References to HGFL substituted
(1) In the heading to section 39 of the Principal Act,
for "HGFL" substitute "VMIA".
(2) In sections 39 and 40 of the Principal Act, for
30
"HGFL" (wherever occurring) substitute
"VMIA".
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s. 21
21. Procedure for claims
(1) In section 41(1) of the Principal Act, for "HGFL"
substitute "VMIA".
(2) Sections 41(2) and 41(7) of the Principal Act are
repealed.
5
(3) In sections 41(3) and 41(5) of the Principal Act,
for "HGFL" (wherever occurring) substitute
"VMIA".
(4) After section 41(3) of the Principal Act insert--
"(3A) The Minister must consult with the Minister
10
administering the Victorian Managed
Insurance Authority Act 1996 before
approving the procedures.".
22. Further references to HGFL substituted
(1) In section 42 of the Principal Act, for "HGFL"
15
(wherever occurring) substitute "VMIA".
(2) In section 43(1) of the Principal Act for "HGFL"
(wherever occurring) substitute "VMIA".
(3) In section 43(2) of the Principal Act for "HGFL"
substitute "the State".
20
(4) In the heading to section 44 of the Principal Act,
for "HGFL" substitute "VMIA".
(5) In sections 44, 47 and 48 of the Principal Act, for
"HGFL" (wherever occurring) substitute
"VMIA".
25
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23. New section 49 substituted
For section 49 of the Principal Act substitute--
"49. Remaining funds to be paid into
Consolidated Fund
(1) If the Minister is satisfied that all claims
5
against the Domestic Building (HIH)
Indemnity Fund have been dealt with and
that no further claim can be made under this
Part, the Minister may, by notice published
in the Government Gazette, close the Fund.
10
(2) On the publication of the notice under sub-
section (1), all money standing to the credit
of the Domestic Building (HIH) Indemnity
Fund must be paid into the Consolidated
Fund.".
15
24. New section 50 substituted
For section 50 of the Principal Act substitute--
"50. Report to Minister
VMIA must from time to time at the
direction of the Minister report to the
20
Minister in the manner required by the
Minister on its administration of--
(a) the indemnity scheme established under
this Part; and
(b) the Domestic Building (HIH)
25
Indemnity Fund.".
25. Audit of financial statements
(1) In the heading to section 51 of the Principal Act
for "accounts" substitute "financial
statements".
30
(2) In section 51(1) of the Principal Act for
"accounts" substitute "financial statements".
(3) Section 51 (2) of the Principal Act is repealed.
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26. New section 52 substituted
For section 52 of the Principal Act substitute--
"52. Annual report
VMIA must include in its annual report for a
financial year under Part 7 of the Financial
5
Management Act 1994--
(a) details of its administration of--
(i) the indemnity scheme established
under this Part; and
(ii) the Domestic Building (HIH)
10
Indemnity Fund; and
(b) the audited financial statements of the
Domestic Building (HIH) Indemnity
Fund.".
27. Entering into arrangements and agreements with
15
liquidator of HIH
(1) In the heading to section 53 of the Principal Act,
for "HGFL" substitute "VMIA".
(2) In section 53 of the Principal Act for "HGFL"
substitute "VMIA".
20
28. New Part 7 inserted
After Part 6 of the Principal Act insert--
'PART 7--TRANSITIONAL
Division 1--Transfer of Property, Rights and
Liabilities of HGFL
25
57. Definitions
In this Division--
"instrument" includes a document and an
oral agreement;
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"liabilities" includes all liabilities, duties
and obligations, whether actual,
contingent or prospective;
"property" means a legal or equitable estate
or interest (whether present or future
5
and whether vested or contingent) in
real or personal property of any
description;
"rights" means all rights, powers, privileges
and immunities, whether actual,
10
contingent or prospective;
"transferred HGFL employee" means a
person who is to be taken under this
Division to be employed by VMIA on
the appointed day.
15
58. State to take over responsibility for
guarantees
(1) On the appointed day--
(a) all property and rights of HGFL vest in
the State; and
20
(b) all liabilities of HGFL become
liabilities of the State; and
(c) the State becomes the successor in law
of HGFL in relation to that property
and those rights and liabilities.
25
(2) For the purposes of this Division, the
property of HGFL includes--
(a) all assets of HGFL; and
(b) any register kept by the approved
guarantor under section 25 as in force
30
immediately before the appointed day.
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59. VMIA to be substituted as party to
proceedings
If, immediately before the appointed day,
proceedings to which HGFL was a party
were pending or existing in any court or
5
tribunal, then, on and after the appointed
day, VMIA, on behalf of the State, is
substituted as a party to the proceedings and
has the same rights in the proceedings as
HGFL had.
10
60. Construction of instruments
(1) Each existing instrument that relates to the
property, rights or liabilities of HGFL has
effect and continues to have effect according
to its tenor on and after the appointed day as
15
if a reference in the instrument to HGFL
were a reference to the State.
(2) In this section "existing instrument" means
an instrument existing immediately before
the appointed day--
20
(a) to which HGFL was a party; or
(b) that was given to or in favour of HGFL;
or
(c) that refers to HGFL; or
(d) under which--
25
(i) money is, or may become, payable
to or by HGFL; or
(ii) other property is to be, or may
become liable to be, transferred to
or by HGFL.
30
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61. Taxes
No stamp duty or other tax is chargeable
under any Act in respect of anything done
under this Division or in respect of any act or
transaction connected with or necessary to be
5
done because of this Division, including a
transaction entered into or an instrument
made, executed or lodged.
62. Transfer of staff
(1) A person who immediately before the
10
appointed day was employed by HGFL
must, on the appointed day, be taken to be
employed by VMIA on the same terms and
conditions and with the same accrued and
accruing entitlements as those that applied to
15
that person as an employee of HGFL
immediately before the appointed day.
(2) The service of a transferred HGFL employee
as an employee of VMIA is to be taken for
all purposes to be continuous with the
20
service of that person, immediately before
the appointed day, with HGFL.
(3) A transferred HGFL employee is not entitled
to receive any payment or other benefit by
reason of having ceased to be an employee
25
of HGFL because of this Division.
(4) Nothing in this section prevents--
(a) any of the terms and conditions of
employment of a transferred HGFL
employee from being altered by or
30
under any law, award or agreement
with effect from any time after the
appointed day; or
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(b) a transferred HGFL employee from
resigning, or the termination of a
person's employment, at any time after
the appointed day in accordance with
the then existing terms and conditions
5
of his or her employment by VMIA.
63. Evidence
(1) Documentary or other evidence that would
have been admissible for or against the
interests of HGFL before the appointed day
10
is admissible for or against the interests of
the State on or after the appointed day.
(2) Division 3A of Part III of the Evidence Act
1958 continues to apply with respect to the
books of account of HGFL and to entries
15
made in those books of account before the
appointed day whether or not they relate to
property, rights or liabilities of HGFL vested
in the State under this Division.
64. Validity of things done under this Division
20
Nothing effected by this Division or suffered
under this Division--
(a) is to be regarded as placing any person
in breach of contract or confidence or
as otherwise making any of them guilty
25
of a civil offence; or
(b) is subject to compliance with or is to be
regarded as placing any person in
breach of or as constituting a default
under any Act or other law or any
30
provision in any agreement,
arrangement or understanding
including, without limiting the
generality of the foregoing, any
provision prohibiting, restricting or
35
regulating the assignment or transfer of
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s. 28
any property or right or the disclosure
of any information; or
(c) is to be regarded as fulfilling any
condition which allows a person to
exercise a power, right or remedy in
5
respect of or to terminate any
agreement or obligation; or
(d) is to be regarded as giving rise to any
remedy for a party to a contract or an
instrument or as causing or permitting
10
the termination of any contract or
instrument because of a change in the
beneficial or legal ownership of any
property, right or liability; or
(e) is to be regarded as causing any
15
contract or instrument to be void or
otherwise unenforceable; or
(f) is to be regarded as frustrating any
contract; or
(g) releases any surety or other obligor
20
wholly or in part from any obligation.
65. Operation of provisions not subject to
review
Nothing done under this Division gives rise
to any cause or right of action or application
25
before any court or tribunal.
Division 2--Role of VMIA in relation to
guarantees
66. Actions of continuing nature in relation to
guarantees
30
(1) Any act, matter or thing of a continuing
nature commenced before the appointed day
by HGFL in respect of a guarantee, or a
claim on a guarantee, given under this Act
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may be continued and completed on and
after the appointed day by VMIA.
(2) For the purposes of sub-section (1), any act
or decision of HGFL before the appointed
day in relation to a guarantee or claim on a
5
guarantee is to be taken to be an act or
decision of VMIA in respect of any period
on and after the appointed day.
Division 3--Role of VMIA in relation to
indemnities
10
67. Actions of continuing nature in relation to
indemnities
(1) Any act, matter or thing of a continuing
nature commenced before the appointed day
by HGFL under Part 6 may be continued and
15
completed on and after the appointed day by
VMIA.
(2) For the purposes of sub-section (1), any act
or decision of HGFL before the appointed
day in relation to any matter under Part 6 is
20
to be taken to be an act or decision of VMIA
in respect of any period on and after the
appointed day.
68. References to HGFL in any arrangement
or agreement under section 53
25
Without limiting section 67, any reference to
HGFL in any agreement, arrangement or
assignment under section 53, must be taken
on or after the appointed day, to be a
reference to VMIA.
30
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Division 4--Reporting by HGFL
69. Final annual report by HGFL
Despite the repeal of section 25A and the
substitution of section 52, those sections, as
in force immediately before the appointed
5
day, continue to apply to HGFL until it is
wound up.'.
_________________
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Part 3--Amendments to other Acts
s. 29
PART 3--AMENDMENTS TO OTHER ACTS
See:
29. Amendment to Building Act 1993 Act No.
126/1993.
In section 3(1) of the Building Act 1993 for the Reprint No. 5
definition of "insurer" substitute-- as at
31 May 2003
' "insurer" includes the Victorian Managed
5 and
amending
Insurance Authority established by the Act Nos
Victorian Managed Insurance Authority 26/2001,
60/2003,
Act 1996;'. 102/2003,
35/2004,
66/2004,
96/2004,
101/2004 and
108/2004.
LawToday:
www.dms.
dpc.vic.
gov.au
See:
30. Amendment to Domestic Building Contracts Act No.
Act 1995
10 91/1995.
Reprint No. 5
In section 3(1) of the Domestic Building as at
1 July 2002
Contracts Act 1995, in the definition of "insurer" and
for paragraphs (b) and (c) substitute-- amending
Act Nos
"(b) in relation to any domestic building work or 30/2003,
35/2004,
domestic building contract that is subject to a
15 37/2004,
guarantee under the House Contracts 103/2004 and
108/2004.
Guarantee Act 1987 or to which Part 6 of LawToday:
that Act applies, the Victorian Managed www.dms.
dpc.vic.
Insurance Authority established by the gov.au
Victorian Managed Insurance Authority
20
Act 1996.".
29
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Part 3--Amendments to other Acts
s. 31
31. Amendments to Victorian Managed Insurance
See:
Authority Act 1996
Act No.
11/1996.
Reprint No. 2 (1) After section 6(e) of the Victorian Managed
as at
Insurance Authority Act 1996 insert--
20 September
2001 and
"(ea) to carry out any functions conferred on it by
5 amending
Act Nos
the House Contracts Guarantee Act
102/2003,
1987;".
40/2004 and
108/2004.
(2) After section 8(4) of the Victorian Managed
LawToday:
www.dms.
Insurance Authority Act 1996 insert--
dpc.vic.
gov.au
"(4A) The Minister must consult with the Minister
10
administering the House Contracts
Guarantee Act 1987 before giving a
direction under this section that relates to the
functions of the Authority under that Act.".
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Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
31
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