DOMESTIC BUILDING CONTRACTS ACT 1995 - SECT 37 Variation of plans or specifications—by builder

DOMESTIC BUILDING CONTRACTS ACT 1995 - SECT 37

    (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

S. 37(3)(b) amended by No. 15/2016 s. 10(1).

        (b)     VCAT 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.