Victorian Consolidated Legislation

Domestic Building Contracts Act 1995 - SECT 3

Definitions

3. Definitions



(1) In this Act-

architect means a person who is registered as an architect under the
Architects Act 1991;

builder means a person who, or a partnership which-

   (a)  carries out domestic building work; or

   (b)  manages or arranges the carrying out of domestic building work; or

   (c)  intends to carry out, or to manage or arrange the carrying out of,
        domestic building work;

building includes any structure, temporary building or temporary structure and
also includes any part of a building or structure;

building owner means the person for whom domestic building work is being, or
is about to be, carried out;

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

business day means a day that is not-

   (a)  a Saturday or a Sunday; or

   (b)  a day that is wholly or partly observed as a public holiday throughout
        Victoria;

Commission means the Building Commission established under the
Building Act 1993;



contract price means the total amount payable under a domestic building
contract and includes-

   (a)  the amount the builder is to receive and retain under the contract;
        and

   (b)  the amount the builder is to receive under the contract for payment to
        any other person; and

   (c)  the amount any third person is to receive (or it is reasonably
        estimated will receive) directly from the building owner in relation
        to the domestic building work to be carried out under the contract-

   (i)  for conveying to the building site or connecting or installing
        services such as gas, electricity, telephone, water and sewerage; or

   (ii) for the issue of planning or building permits-
but does not include any amount that the builder excludes in accordance with
section 24;

cost plus contract means a domestic building contract under which the amount
the builder is to receive under the contract cannot be determined at the time
the contract is made, even if prime cost items and provisional sums are
ignored;

default penalty has the meaning set out in section 128;



defective, in relation to domestic building work, includes-

   (a)  a breach of any warranty listed in section 8;

   (b)  a failure to maintain a standard or quality of building work specified
        in the contract;

determination means the orders and findings the Tribunal makes to conclude a
proceeding;

Director means the Director within the meaning of the Fair Trading Act 1999;

domestic building contract means a contract to carry out, or to arrange or
manage the carrying out of, domestic building work other than a contract
between a builder and a sub-contractor;

domestic building dispute has the meaning set out in section 54;

domestic building work means any work referred to in section 5 that is not
excluded from the operation of this Act by section 6;

home means any residential premises and includes any part of a commercial or
industrial premises that is used as a residential premises but does not
include-

   (a)  a caravan within the meaning of the Residential Tenancies Act 1997 or
        any vehicle used as a residence; or

   (b)  any residence that is not intended for permanent habitation; or

   (c)  a rooming house within the meaning of the
        Residential Tenancies Act 1997; or

   (d)  a motel, residential club, residential hotel or residential part of
        licensed premises under the Liquor Control Reform Act 1998; or

   (e)  a nursing home, hospital or accommodation associated with a hospital;
        or

   (f)  any residence that the regulations state is not a home for the
        purposes of this definition;

insurer means-

   (a)  any person providing any required insurance under the
        Building Act 1993 (whether or not that person has a direct contractual
        relationship with a builder); and

   (aa) any person providing any required insurance under the
        Architects Act 1991 (whether or not that person has a direct
        contractual relationship with an architect); and

   (b)  in relation to any domestic building work or domestic building
        contract that is subject to a guarantee under the
        House Contracts Guarantee Act 1987 or to which Part 6 of that Act
        applies, the Victorian Managed Insurance Authority established by the
        Victorian Managed Insurance Authority Act 1996.



major domestic building contract means a domestic building contract in which
the contract price for the carrying out of domestic building work is more than
$5000 (or any higher amount fixed by the regulations);

prime cost item means an item (for example, a fixture or fitting) that either
has not been selected, or whose price is not known, at the time a domestic
building contract is entered into and for the cost of supply and delivery of
which the builder must make a reasonable allowance in the contract;

proceeding includes any application for the review of a determination;

provisional sum is an estimate of the cost of carrying out particular work
(including the cost of supplying any materials needed for the work) under a
domestic building contract for which a builder, after making all reasonable
inquiries, cannot give a definite amount at the time the contract is entered
into;

sub-contractor means a person who enters into a contract with a builder to
carry out part of the work that is to be carried out under a domestic building
contract;

Tribunal means Victorian Civil and Administrative Tribunal established by the
Victorian Civil and Administrative Tribunal Act 1998.

(2) If a builder and a building owner agree that domestic building work is to
be carried out on a home in stages by the builder under a series of separate
contracts that are to be entered into after the initial agreement, then for
the purposes of this Act the initial agreement and the subsequent contracts
are to be considered to be a single contract.

(3) If a provision of this Act requires or enables the giving of a document to
a specified person, the provision is satisfied if the document is given to an
authorised agent of that person.

(4) A contract for the sale of land on which a home is being constructed or is
to be constructed that provides or contemplates that the construction of the
home will be completed before the completion of the contract is not, and is
not to be taken to form part of, a domestic building contract within the
meaning of this Act if-

   (a)  the home is being constructed under a separate contract that is a
        major domestic building contract; or

   (b)  the contract of sale provides that the home is to be constructed under
        a separate contract that is a major domestic building contract.

(5) Subsection (4) does not apply to a contract for the sale of land that is
the subject of proceedings commenced in a court or tribunal before 16 March
2004 but not completed before that date in which it was alleged, before that
date, that the contract was, or formed part of, a domestic building contract.