Victorian Consolidated Legislation

House Contracts Guarantee Act 1987 - SECT 3

Definitions

3. Definitions



(1) In this Act1-

appointed day means the date of commencement of the House Contracts Guarantee
(Amendment) Act 2005;

approved builder means a builder approved by the approved guarantor under its
rules; approved guarantor means HGFL;



approved supervisor means a supervisor approved by the approved guarantor
under its rules;

builder means a person who performs, or two or more persons who together
perform, domestic building work;

building approval means building permit within the meaning of the
Building Act 1993;



building owner-

   (i)  in relation to a domestic building work contract, means the person for
        whom domestic building work is, or is to be, performed under the
        contract; and

   (ii) in relation to a supervision contract, means the person for whom the
        managing or supervision of domestic building work is, or is to be,
        performed under a supervision contract;

building surveyor means relevant building surveyor within the meaning of the
Building Act 1993;



chief administrator means the Department Head within the meaning of the
Public Administration Act 2004 of the Department;



claimant means-

   (a)  except in Part 6, a person who has 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;

construct, in relation to a dwelling-house, includes-

   (a)  to build, re-build, erect or re-erect the dwelling-house up to or
        beyond lock-up stage (within the meaning of section 21) whether or not
        any part of the work had been carried out by another builder; and

   (b)  in the case of a dwelling-house that has never been occupied, to place
        the dwelling-house on land; and

   (c)  to convert an existing building into a dwelling-house;

contract price, in relation to a domestic building work contract or a
supervision contract, means the total amount payable to the builder or
supervisor under the terms of the contract;

cost plus contract means a domestic building work contract under which the
total amount payable to the builder (exclusive of prime cost items and
provisional sums) cannot be determined at the time the contract is entered
into;

Department means the Department of Justice;



domestic building work means-

   (a)  the work of constructing a dwelling-house; or

   (b)  the work of improving a dwelling-house; or

   (c)  the work of improving a residence that is excluded from the definition
        of dwelling-house in this subsection by paragraph (a) or (c) of that
        definition if the work is carried out wholly or substantially within
        the space bounded by the floor, external walls and roof of the
        residence; or

   (d)  in connection with the moving from one site to another of a building
        that has been occupied and that is not a dwelling-house by reason only
        of the operation of paragraph (b) of the definition of that term in
        this subsection, the work of-

   (i)  preparing the site and laying the foundations and placing the building
        on the site; and

* * * * *

   (iii) carrying out any other work required to be carried out to the
        building in consequence of any work referred to in subparagraph (i);
        or

   (e)  work of a prescribed class;

domestic building work contract means a contract between a builder and another
person for the performance by the builder of domestic building work (including
any variation of such a contract) but does not include-

   (a)  a contract for the performance of domestic building work for a builder
        who is in turn obliged to perform the work under another contract; or

   (b)  a contract for the performance of domestic building work of the class
        referred to in paragraph (b) or (c) of the definition of domestic
        building work in this subsection unless the amount payable under the
        contract in respect of that work (or, in the case of a cost plus
        contract, the amount set out in the contract as a fair and reasonable
        estimate of the amount payable under the contract in respect of that
        work) is more than $3000 or any larger amount that is prescribed for
        the purposes of this paragraph;

dwelling-house means a building (whether temporary or permanent) that is used,
or is intended, adapted or designed for use, as a separate residence for an
occupier who has a right to the exclusive use of it but does not include-

   (a)  a separate residence that is a portion of a building containing two or
        more separate residences if any part of a separate residence is above
        or below any part of the first-mentioned residence; or

   (b)  a building that has been moved from one site to another; or

   (c)  a building that is attached to a shop, office, warehouse or factory
        and is used, or is intended, adapted or designed for use, as a
        residence for an occupier or caretaker of the shop, office, warehouse
        or factory; or

   (d)  a building that is used, or is intended, adapted or designed for use,
        as-

   (i)  a building in which there is or are available, upon payment of rent,
        any room or rooms for residential use by an occupier or occupiers
        (other than members of the family or employees of the owner of the
        building) who has or have a right to-

                (A)  use of that room or rooms; and

                (B)  in common with others, use of any kitchen, lounge,
                     bathroom, laundry, garden, toilet, car parking area,
                     storage area and other like facilities in the building-
                     if the total number of people who may use the room or
                     rooms is not less than four; or

* * * * *

   (iii) a motel, residential club, residential hotel or residential part of
        licensed premises under the Liquor Control Act 1987; or

   (iv) a prescribed class of building;

guarantee period, in relation to domestic building work, means the period of 7
years from the time when the contract for the performance or the management or
supervision of the performance of that work was entered into or building
approval was granted for that work, whichever occurred first; HGFL means
Housing Guarantee Fund Limited A.C.N. 006 258 233;

improve, in relation to a building, means-

   (a)  to make additions to the floor area of the building; or

   (b)  to make alterations to the structural design of the building; or

   (c)  to replace load-bearing fixtures that are part of the structural
        design of the building and are integral to its functioning; or

   (d)  to replace or install attached or fixed mechanical components that are
        integral to the functioning of the building; or

   (e)  to replace or install non-load-bearing rigid fixtures (other than
        machinery) that are integral to the functioning of the building; or

   (f)  to replace or install structures that are attached to the exterior of
        the building and are integral to its functioning; or

   (g)  to perform any other work required to be performed in consequence of
        any work referred to in paragraphs (a) to (f);

industry association means Housing Industry Association or The Master
Builders' Association of Victoria;

officer, in relation to a corporation, has the same meaning as in section 9 of
the Corporations Act but does not include an employee of the corporation;

owner builder means a person who otherwise than in the course of carrying on a
business of constructing dwelling-houses-

   (a)  constructs a dwelling-house that is intended to be used as a residence
        (whether or not as a principal place of residence) by-

   (i)  that person; or

   (ii) in the case of a corporation, one or more directors of that
        corporation; or

   (b)  constructs two dwelling-houses on a two lot subdivision if-

   (i)  that person resides or intends; or

   (ii) in the case of a corporation, one or more directors of that
        corporation resides or reside or intends or intend-
to reside in one of the dwelling-houses;

recognised person means2-

   (a)  a person or body recognised by the Minister by order made under
        section 28 as in force immediately before the commencement of section
        166 of the Domestic Building Contracts and Tribunal Act 1995; or

   (b)  an architect registered under the Architects Act 1991; or

   (c)  a building surveyor, building inspector or engineer registered under
        Part 11 of the Building Act 1993;

supervision contract means a contract between two persons under which one of
those persons is to manage or supervise the performance of domestic building
work for another person who is not an approved builder if-

   (a)  the total cost of the work managed or supervised is more than $3000 or
        any larger amount that is prescribed for the purposes of this
        definition; and

   (b)  the supervisor substantially controls-

   (i)  the whole of the undertaking of which the work managed or supervised
        forms a part; and

   (ii) the engagement of tradespersons to perform the work managed or
        supervised;

supervisor in relation to a supervision contract, means the person who is to
manage or supervise the performance of domestic building work;

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

VMIA means the Victorian Managed Insurance Authority established by the
Victorian Managed Insurance Authority Act 1996.

(2) If under the Public Administration Act 2004 the name of the Department is
changed, the reference in the definition of Department in subsection (1) to
the "Department of Justice" is from the date when the name is changed to be
taken to be a reference to the Department by its new name.

(3) A reference in this Act to obligations under a domestic building work
contract, or to workmanship in relation to domestic building work, includes a
reference to obligations or workmanship in relation to-

   (a)  outbuildings; and

   (b)  retaining walls the construction of which is required by or under any
        Act or enactment; and

   (c)  provision for lighting, heating, water supply, drainage, sewerage and
        other like services in respect of the building.

(4) A reference in this Act to a successor in title of a building owner or
purchaser includes-

   (a)  a reference to an owner for the time being of the building; and

   (b)  if there is in force a licence granted under section 138 of the
        Land Act 1958 to occupy for residence purposes the land on which the
        building is constructed-a reference to a person who is for the time
        being the holder of the licence or of a lien by way of security on the
        improvements on the land; and

   (c)  if the land on which the building is constructed is a residence area
        within the meaning of Division 11 of Part I of the Land Act 1958-a
        reference to a person who is for the time being the holder of a right
        to occupy the residence area or of an encumbrance by way of security
        of the right to occupy the residence area.

(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.