Victorian Consolidated Legislation

Domestic Building Contracts Act 1995 - SECT 37

Variation of plans or specifications-by builder

37. Variation of plans or specifications-by builder



(1) A builder who wishes to vary the plans or specifications set out in a
major domestic building contract must give the building owner a notice that-

   (a)  describes the variation the builder wishes to make; and

   (b)  states why the builder wishes to make the variation; and

   (c)  states what effect the variation will have on the work as a whole
        being carried out under the contract and whether a variation to any
        permit will be required; and

   (d)  if the variation will result in any delays, states the builder's
        reasonable estimate as to how long those delays will be; and

   (e)  states the cost of the variation and the effect it will have on the
        contract price.

(2) A builder must not give effect to any variation unless-

   (a)  the building owner gives the builder a signed consent to the variation
        attached to a copy of the notice required by subsection (1); or

   (b)  the following circumstances apply-

   (i)  a building surveyor or other authorised person under the
        Building Act 1993 requires in a building notice or building order
        under that Act that the variation be made; and

   (ii) the requirement arose as a result of circumstances beyond the
        builder's control; and

   (iii) the builder included a copy of the building notice or building order
        in the notice required by subsection (1); and

   (iv) the building owner does not advise the builder in writing within 5
        business days of receiving the notice required by subsection (1) that
        the building owner wishes to dispute the building notice or building
        order.



(3) A builder is not entitled to recover any money in respect of a variation
unless-

   (a)  the builder-

   (i)  has complied with this section; and

   (ii) can establish that the variation is made necessary by circumstances
        that could not have been reasonably foreseen by the builder at the
        time the contract was entered into; or

   (b)  the Tribunal is satisfied-

   (i)  that there are exceptional circumstances or that the builder would
        suffer a significant or exceptional hardship by the operation of
        paragraph (a); and

   (ii) that it would not be unfair to the building owner for the builder to
        recover the money.

(4) If subsection (3) applies, the builder is entitled to recover the cost of
carrying out the variation plus a reasonable profit.

(5) This section does not apply to contractual terms dealing with prime cost
items or provisional sums.