BUILDING LEGISLATION AMENDMENT (CONSUMER PROTECTION) ACT 2016 (NO. 15 OF 2016) - SECT 6 Part 3A repealed and Part 4 substituted

BUILDING LEGISLATION AMENDMENT (CONSUMER PROTECTION) ACT 2016 (NO. 15 OF 2016) - SECT 6

Part 3A repealed and Part 4 substituted

For Parts 3A and 4 of the Domestic Building Contracts Act 1995 substitute —

" Part 4—Domestic building work disputes

Division 1—Preliminary

44 What is a domestic building work dispute?

(1) In this Part, a domestic building work dispute is a domestic building dispute arising between a building owner and—

(a) a builder; or

(b) a building practitioner (as defined in the Building Act 1993 ); or

(d) an architect—

in relation to a domestic building work matter.

(2) In this Part, "domestic building work matter" means any matter relating to a domestic building contract or the carrying out of domestic building work, including any of the following—

(a) an alleged breach of a warranty set out in section 8;

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

(d) an alleged failure to complete the domestic building work required by a domestic building contract within the times specified in the contract;

(e) an alleged failure to pay money for domestic building work performed under the contract.

(3) A reference to a building owner in this section includes a reference to any person who is the owner for the time being of the building or land in respect of which a domestic building contract was made or domestic building work was carried out.

Division 2—Referral of domestic building work disputes

45 Referral of domestic building work dispute to chief dispute resolution officer

(1) A party to a domestic building work dispute (the referring party ) may refer the dispute to the chief dispute resolution officer.

(2) A referral of a domestic building work dispute must—

(a) be in writing in a form (if any) approved by the Director; and

(b) be signed by the referring party or the referring party's representative; and

(d) identify the relevant domestic building contract; and

(e) specify the particulars of the dispute.

(3) A domestic building work dispute must be referred to the chief dispute resolution officer within—

(a) 10 years after the date of issue under the Building Act 1993 of the occupancy permit in relation to the domestic building work (whether or not the occupancy permit is subsequently cancelled or varied); or

(b) if an occupancy permit is not issued, 10 years after the date of issue under Part 4 of the Building Act 1993 of the certificate of final inspection for the domestic building work; or

(c) if neither an occupancy permit nor a certificate of final inspection is issued or required in relation to the domestic building work, 10 years after the date of practical completion of the domestic building work; or

(d) if neither an occupancy permit nor a certificate of final inspection is issued or required in relation to the domestic building work and a date of practical completion cannot be ascertained, 10 years after the domestic building contract was entered into.

(4) It is to be presumed (unless an earlier date of practical completion can be ascertained) that the date of practical completion of domestic building work was the earlier of the following dates that can be ascertained for the work—

(a) the date on which the builder handed over possession of the work to the building owner;

(b) the date on which the builder last attended the building site to carry out work (other than work to remedy any defect that does not affect practical completion).

(5) A party may not refer a domestic building work dispute under this section if proceedings in relation to the matter in dispute have commenced in VCAT or in a court.

(6) In this section—

"date of practical completion", in relation to domestic building work, means the date when the domestic building work is completed except for any omissions or defects that do not prevent the domestic building work from being reasonably capable of being used for its intended purpose.

45A Initial assessment of referral

On a referral being made under section 45, a conciliation officer nominated by the chief dispute resolution officer must make an initial assessment to determine whether—

(a) the dispute referred is a domestic building work dispute; and

(b) the referral was made within the required time; and

(d) proceedings in relation to the matter in dispute have commenced in VCAT or in a court.

45B Powers of conciliation officer in making assessment

(1) For the purpose of making an initial assessment of a referral, a conciliation officer may—

(a) make any inquiries or obtain any information the conciliation officer considers necessary; and

(b) ask the referring party to provide further information or documents relating to the dispute; and

(c) require the referring party to provide evidence that the referring party has taken reasonable steps to resolve the dispute with the other parties to the dispute.

(2) A conciliation officer may fix a time for compliance with a request or requirement under subsection (1) and may extend that time at the request of the referring party.

(3) A conciliation officer may ask any other party to the domestic building work dispute to participate in a conciliation of the dispute if the conciliation officer considers it appropriate to do so.

45C Acceptance or rejection of referral

(1) After making an initial assessment of a referral under section 45A, the conciliation officer must recommend to the chief dispute resolution officer to accept or reject the referral.

(2) After considering the recommendation made by the conciliation officer, the chief dispute resolution officer may—

(a) accept the referral; or

(b) reject the referral if the chief dispute resolution officer assesses that the dispute is not suitable for conciliation.

(3) The chief dispute resolution officer may assess a referred dispute as not suitable for conciliation if—

(a) the referral does not comply with section 45(2); or

(b) the referral was not made within the required time; or

(c) the referring party has not provided any information, documents or evidence requested or required under section 45B or has not provided them within the time required by the conciliation officer; or

(d) the referring party has failed without reasonable excuse to take reasonable steps to resolve the dispute before the referral; or

(e) all issues arising out of the dispute have been or are the subject of proceedings before VCAT or a court; or

(f) there is no reasonable likelihood of the dispute being settled by conciliation for any reason other than because no other party is willing to engage in the conciliation; or

(g) the referral—

(i) is frivolous or otherwise lacking in substance; or

(ii) is vexatious; or

(iii) was not made in good faith; or

(h) the dispute has been resolved.

45D Where more than one matter referred

(1) If more than one matter in dispute is referred, the chief dispute resolution officer may sever from the referral any matter that the chief dispute resolution officer would reject under section 45C if it were the only matter referred.

(2) If a referral relates to more than one matter or the matter referred relates to more than one circumstance, the chief dispute resolution officer may separate the referral into 2 or more referrals if—

(a) a conciliation officer's inquiries into some of the matters have not been completed and it is convenient to separate them; or

(b) it is in the public interest to do so.

(3) If the chief dispute resolution officer accepts more than one referral in relation to the same or related domestic building work, the chief dispute resolution officer may decide to deal with the referrals together as if they were one referral.

45E Notice of decision

(1) The chief dispute resolution officer must give written notice of a decision under section 45C or 45D to each party to a referred dispute within 10 business days after making the decision.

(2) If the chief dispute resolution officer decides to accept a referral, the notice must—

(a) include an outline of the referring party's stated reasons for the dispute; and

(b) state that the dispute has been referred to a conciliation officer.

(3) If the chief dispute resolution officer decides to reject the referral or any matter referred, the notice must include the reasons for the decision.

(4) If the chief dispute resolution officer decides to sever any matter from a referral or to separate or combine referrals, the notice must include the reasons for the decision.

45F Certificate of conciliation—dispute not suitable for conciliation

(1) If the chief dispute resolution officer assesses a domestic building work dispute or a matter as not suitable for conciliation, the officer must issue a certificate of conciliation certifying that—

(a) the dispute or matter was referred under section 45; and

(b) the chief dispute resolution officer has assessed the dispute or matter as not suitable for conciliation.

(2) The certificate of conciliation must be issued within 10 business days after written notice of the decision to reject the referral is given to each party under section 45E.

(3) The certificate of conciliation must specify the chief dispute resolution officer's reasons for assessing the domestic building work dispute or matter as not suitable for conciliation.

(4) The chief dispute resolution officer must give a copy of the certificate of conciliation as soon as practicable to each party to the dispute.

(5) A party to a domestic building work dispute may apply to VCAT for review of a failure by the chief dispute resolution officer to issue a certificate of conciliation under this section.

45G Withdrawal of referral or matter referred

(1) A party who referred a domestic building work dispute to the chief dispute resolution officer may seek to withdraw the referral or any matter referred by giving notice to the chief dispute resolution officer before the dispute is finally dealt with under this Part.

(2) The chief dispute resolution officer may—

(a) accept the withdrawal; or

(b) refuse to accept the withdrawal.

(3) Without limiting subsection (2), the chief dispute resolution officer may refuse to accept a withdrawal if the chief dispute resolution officer considers that the dispute has disclosed evidence of a contravention of—

(a) this Act or the regulations; or

(b) the Building Act 1993 or the regulations under that Act.

(4) The chief dispute resolution officer must give written notice to each party to a referred dispute of a decision accepting or refusing a withdrawal under this section within 10 business days after receiving the notice under subsection (1).

(5) A certificate of conciliation cannot be issued in respect of a dispute or matter if the chief dispute resolution officer has accepted the withdrawal of the referral of that dispute or matter under this section.

Division 3—Conciliation of domestic building work disputes

46 Referral of dispute to conciliation officer

If the chief dispute resolution officer accepts a domestic building work dispute for conciliation, the chief dispute resolution officer must refer the dispute to a conciliation officer for conciliation under this Division.

46A How may conciliation be conducted?

(1) This section applies if a conciliation officer decides to conduct a conciliation conference.

(2) The conciliation conference may be conducted—

(a) by attendance of the parties in person at a place that is reasonably convenient for the parties, which may be the building site at which the domestic building work that is the subject of the dispute is being or was carried out or elsewhere; or

(b) by post or by teleconference or other electronic communication; or

(3) The conciliation officer must give written notice of the conciliation conference to each party to the dispute.

(4) The notice must specify—

(a) the date and time of the conference; and

(b) if the conference is to be conducted at a particular place, that place; and

(c) if the conference is to be held by post, the address or addresses to which written communications are to be sent; and

(d) if the conference is to be held by electronic communication, the method by which participation in the conference is to be effected.

(5) The notice must also include a statement advising the parties to the dispute that the chief dispute resolution officer may take the actions set out in sections 46E, 48B and 49 (and specified in the statement) if—

(a) the parties do not participate in the conciliation at the date, time and place and in the manner specified in the notice; and

(b) the matter in dispute concerns defective building work or an alleged failure to complete domestic building work.

46B Conciliation rules

(1) A conciliation officer must conduct a conciliation in accordance with the conciliation rules.

(2) A conciliation officer may issue directions to the parties to a dispute in accordance with the conciliation rules.

(3) The Director may approve conciliation rules for the conduct of conciliations under this Part.

(4) The Director must publish approved conciliation rules on the Consumer Affairs Victoria website.

46C Statements made during conciliation

(1) Evidence of anything said or done by the parties or the conciliation officer during conciliation under this Division is not admissible in any proceeding before VCAT under Part 5 or in any other legal proceeding unless all the parties to the dispute agree in writing to the giving of the evidence.

(2) Subsection (1) does not apply to—

(a) any written communication from the conciliation officer to any of the parties to the dispute; or

(b) anything said or done by an assessor appointed under Division 5; or

(3) Nothing in this section prevents the use of any information or document disclosed in a conciliation for the purposes of—

(a) determining whether to make a dispute resolution order under this Part; or

(b) any disciplinary proceedings under Part 11 of the Building Act 1993 in relation to a contravention of—

(i) this Act or the regulations; or

(ii) the Building Act 1993 or the regulations under that Act.

Note

Clause 12A(3) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 places limits on the power of VCAT to request information that is inadmissible because of section 46C.

46D Notice if dispute not resolved by conciliation

(1) This section applies if the chief dispute resolution officer has accepted a domestic building work dispute for conciliation and the dispute is not resolved.

(2) The chief dispute resolution officer must give each party to the dispute written notice that the chief dispute resolution officer proposes to issue a certificate of conciliation in relation to the dispute.

(3) The notice must include a copy of the proposed certificate of conciliation that must state—

(a) that the dispute was not resolved by conciliation; and

(b) the reasons why the dispute was not resolved.

(4) The notice must state that each party may make submissions to the chief dispute resolution officer in relation to the contents of the proposed certificate within the period (not being less than 10 business days) specified in the notice.

46E Certificate of conciliation—dispute accepted for conciliation

(1) The chief dispute resolution officer must issue a certificate of conciliation in relation to the domestic building work dispute after considering any submissions received within the time required under section 46D if the chief dispute resolution officer is satisfied that the dispute has not been resolved.

(2) The certificate of conciliation must state that—

(a) the chief dispute resolution officer had received a referral of a domestic building work dispute; and

(b) the chief dispute resolution officer had accepted the dispute for conciliation; and

(3) The certificate of conciliation must include a statement of the reasons why the dispute was not resolved which may include a statement by the chief dispute resolution officer that in the chief dispute resolution officer's opinion an identified party did not participate in the conciliation or did not participate in good faith.

(4) The chief dispute resolution officer must give a copy of the certificate of conciliation as soon as practicable to each party to the domestic building work dispute.

(5) A party to a domestic building work dispute may apply to VCAT for review of a failure by the chief dispute resolution officer to issue a certificate of conciliation under this section if a certificate of conciliation is not issued within the period of 20 business days after the end of the period specified in the notice under section 46D(4).

46F Record of agreement if dispute resolved by conciliation

(1) This section applies if the domestic building work dispute is resolved by conciliation under this Division.

(2) The conciliation officer must prepare a written record of agreement setting out the terms of the agreement for the resolution of the dispute, including—

(a) the action, if any, to be taken by each party to the dispute, which may include the making of a payment; and

(b) the time within which the action is to be taken.

(3) The chief dispute resolution officer must—

(a) keep the record of agreement; and

(b) give a copy of the record of agreement to each party to the dispute.

(4) A party to the dispute may give written notice to the chief dispute resolution officer of any error or omission at any time before the end of the time specified in the record of agreement for taking action.

(5) The chief dispute resolution officer—

(a) may make any corrections to the record of agreement the chief dispute resolution officer considers appropriate to rectify an error or omission; and

(b) must give written notice to each party to the dispute of each correction made under paragraph (a).

(6) A record of agreement is evidence of the terms of the agreement for the resolution of the domestic building work dispute to which it relates.

46G Notice of failure to comply with conciliated agreement

(1) A party to a domestic building work dispute may give written notice to the chief dispute resolution officer if an action recorded in a record of agreement for the dispute has not been taken within the time specified in the record of agreement.

(2) The notice must state the extent of any partial compliance with the required action.

46H Notice of non-compliance with conciliated agreement

(1) If, on receiving a notice under section 46G, the chief dispute resolution officer determines that the action was not taken within the specified time—

(a) the record of agreement ceases to have effect; and

(b) the chief dispute resolution officer must give written notice of that non-compliance to each party to the domestic building work dispute.

(2) The notice must state the extent of any partial compliance with the required action.

Division 4—Requirement to stop domestic building work

47 Application of Division

This Division applies if a domestic building work dispute is referred to the chief dispute resolution officer under Division 2.

47A Requirement to stop domestic building work

(1) At any time after the referral, the chief dispute resolution officer may, by written notice given to the builder, require the builder to stop—

(a) all domestic building work under the domestic building contract; or

(b) the domestic building work under the domestic building contract that is specified in the notice.

(2) The notice (a stop work notice ) may be given if the chief dispute resolution officer considers that—

(a) there is a reasonable possibility that evidence relevant to the matters in dispute may be lost or become impractical to obtain if the domestic building work were to continue; or

(b) it is appropriate for any other reason to give the notice.

(3) A stop work notice has effect for the period, not exceeding 30 days, specified in the notice.

47B Extension or cancellation of stop work notice

(1) If the chief dispute resolution officer considers that it is appropriate to do so, the chief dispute resolution officer may, by written notice given to the builder, extend the period that a stop work notice has effect for a further period not exceeding 30 days.

(2) A notice under subsection (1) may vary the requirements in the stop work notice.

(3) The chief dispute resolution officer may cancel a stop work notice at any time by written notice given to the builder.

47C Effect of stop work notice

(1) The chief dispute resolution officer must give a copy of each stop work notice to all parties to the domestic building work dispute.

(2) A stop work notice takes effect on the notice being given to the builder.

(3) The stop work notice ceases to have effect on the issuing of a certificate of conciliation under section 45F in relation to the domestic building work dispute.

(4) If a stop work notice is given in relation to domestic building work, the period during which the notice is in effect is not to be counted in any period within which the domestic building work must be completed under the domestic building contract.

47D Builder must comply with stop work notice

(1) A builder must comply with a stop work notice given to the builder under this Division.

Penalty: 60 penalty units.

(2) Subsection (1) does not apply if the building work carried out after the receipt of the stop work notice was reasonably necessary to protect the safety of any person or property.

Division 5—Assessment of domestic building work

48 Who may be appointed as an assessor?

(1) The Director, on the recommendation of the chief dispute resolution officer, may appoint as an assessor—

(a) an architect registered under the Architects Act 1991 ;

(b) a building practitioner registered under the Building Act 1993 in a prescribed category or class;

(2) A person appointed under subsection (1) may be—

(a) a person employed under Part 3 of the Public Administration Act 2004 ; or

(b) a person engaged for that purpose by the Director.

48A Functions of assessor

An assessor has the following functions—

(a) to assess whether domestic building work is defective or incomplete where required under this Act;

(b) to carry out any other function conferred on an assessor under this Act or the regulations or any other Act or the regulations under that Act.

48B Directions to assessor

(1) The chief dispute resolution officer may direct an assessor to inquire into a domestic building work dispute.

(2) The direction must be in writing and may require the assessor—

(a) to examine the domestic building work to determine whether the domestic building work performed by the builder is defective or incomplete; and

(b) if the assessor believes that the domestic building work is defective or incomplete, to estimate the number of business days required to rectify or complete the work.

48C Request to chief dispute resolution officer for assessor

(1) This section applies if a dispute was referred to the chief dispute resolution officer under Division 2 and—

(a) the referral was rejected by the chief dispute resolution officer; or

(b) the referral was accepted for conciliation but was not resolved by conciliation and an assessor has not already been directed by the chief dispute resolution officer to inquire into the dispute.

(2) A party to the domestic building contract may ask the chief dispute resolution officer to direct an assessor to inquire into whether work performed under the contract is defective or incomplete.

(3) A request under subsection (2) must be accompanied by the prescribed fee (if any).

(4) On receiving that request and any prescribed fee, the chief dispute resolution officer may direct an assessor to inquire into the domestic building work.

48D Assessor may enter building site

(1) An assessor who is directed under section 48B to inquire into a domestic building work dispute may at any reasonable time enter and examine any relevant part of the building site at which the work that is the subject of the dispute is being, or has been, carried out.

(2) However, if the relevant part of the building site where the work is being carried out is being used as a residence, an assessor may only enter and examine that part of the building site with the consent of the occupier.

(3) An assessor who is seeking to enter a part of a building site that is being used as a residence must inform the occupier—

(a) that the consent of the occupier is required before the assessor may enter that part of the site; and

(b) that the failure of the occupier to provide the consent may be a ground for the issue of a certificate of conciliation that the dispute was not resolved by conciliation; and

(c) if the occupier is the owner, that the certificate of conciliation referred to in paragraph (b) may include a statement that the owner did not participate in the conciliation in good faith.

(4) A failure by the occupier of a residence on a building site to provide consent under this section is a ground for—

(a) the issue of a certificate of conciliation stating that the dispute was not resolved by conciliation; and

(b) if the occupier is also the owner, the inclusion in the certificate of conciliation of a statement that the owner did not participate in the conciliation in good faith.

48E Powers in relation to examination of work

(1) An assessor may cause any domestic building work to be demolished, opened or cut into if this is reasonably required to facilitate an examination of the work.

(2) An assessor may take photographs (including video recordings) or make sketches of the building site or the domestic building work being examined.

48F Power to require production of documents

(1) An assessor who enters a building site under section 48D may, to the extent that it is reasonably necessary to determine whether domestic building work is defective or incomplete, require a person at the building site—

(a) to give information to the assessor, orally or in writing; and

(b) to produce documents to the assessor; and

(2) If a person produces a document to an assessor in accordance with a requirement under this section, the assessor may make copies of, or take extracts from, the document.

48G Refusal or failure to comply with requirement

A person must not, without reasonable excuse, refuse or fail to comply with a requirement of an assessor under this Division.

Penalty: 60 penalty units.

48H Protection against self-incrimination

(1) It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under this Division, if the giving of the information or the doing of that other thing would tend to incriminate the person.

(2) Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this Division, if the production of the document would tend to incriminate the person.

48I Offence to hinder or obstruct assessor

A person must not, without reasonable excuse, hinder or obstruct an assessor exercising any power conferred by this Division.

Penalty: 60 penalty units.

48J Assessor may conduct tests and obtain expert advice

(1) This section is subject to sections 48K and 48M.

(2) In carrying out an examination of domestic building work, the assessor may—

(a) conduct any test authorised by the regulations; and

(b) obtain expert advice.

(3) No costs are payable by a party for the conduct of a test or for obtaining expert advice.

48K Costs to be paid by non-participating party

The costs of the preparation of a report (including any examination, test or advice obtained) by an assessor in relation to domestic building work are payable by a party to a domestic building work dispute that was subject to conciliation if—

(a) written notice of a conciliation conference was given to the party; and

(b) the party, without reasonable excuse, failed to participate in the conciliation conference; and

48L Agreement of requesting party required for test or expert advice

(1) This section applies if an assessor is directed to inquire into domestic building work at the request of a party to a domestic building contract under section 48C.

(2) The assessor must give written notice to the party if the assessor considers a test or expert advice is needed for the purpose of an examination of domestic building work, and ask the party to agree to the conduct of the test or the obtaining of the expert advice.

(3) The assessor may discontinue the examination if the party does not agree to the conduct of the test or the obtaining of the expert advice.

48M Requesting party liable for costs

The requesting party referred to in section 48L is liable for the costs of—

(a) any tests conducted, or the obtaining of any expert advice, under section 48J that are agreed to by the party; and

(b) making good any damage caused by any tests conducted under section 48J that are agreed to by the party.

48N Recovery of costs

(1) The Director may recover any costs payable by a party under this Division in any court of competent jurisdiction as a debt due to the State.

(2) The Director must pay any costs recovered under this section into the Domestic Builders Fund.

48O Reporting the results of an examination

(1) After conducting an examination of domestic building work, the assessor must give a report of the results of the examination to—

(a) each party to the dispute; and

(b) the chief dispute resolution officer.

(2) The report must be in writing in a form approved by the Director.

(3) Subject to subsection (4), the assessor is not required to give a report under this section if—

(a) the examination was for the purposes of a conciliation conference; and

(b) a record of agreement was made as a result of the conciliation conference.

(4) The chief dispute resolution officer may direct an assessor to prepare a report under this section if the chief dispute resolution officer has been given notice under section 46G of non-compliance with an action required in a record of agreement.

(5) On being given a direction under subsection (4), the assessor must—

(a) prepare the report within the time required in the direction; and

(b) give a copy of the report, without delay, to—

(i) each party to the dispute; and

(ii) the chief dispute resolution officer.

(6) A party to a dispute may make a written submission to the chief dispute resolution officer in relation to a report within the prescribed period after the report is given to the party under this section.

(7) In this section—

"prescribed period" means the longer of—

(a) the period prescribed by the regulations (if any); or

(b) 5 business days.

48P Report if building work not defective or incomplete

If, as a result of an examination, the assessor considers that the domestic building work examined is not defective or incomplete, the report under section 48O must include a statement to that effect.

48Q Report if building work defective or incomplete

(1) This section applies if, as a result of an examination, the assessor considers that the domestic building work examined is defective or incomplete.

(2) The report under section 48O must—

(a) specify the building work that is defective or incomplete, including—

(i) any defects that may adversely affect—

(A) the health or safety of people who may use the building to which the work relates; or

(B) the amenity of the building; and

(ii) any other defects in the building work that are incidental to, but not the subject of, the dispute; and

(b) if required by the chief dispute resolution officer under section 48B, include an estimate of the number of business days required to rectify or complete the building work.

(3) In the report the assessor may—

(a) specify the cause of the defective or incomplete building work; and

(b) recommend a preferred method by which the defective or incomplete work may be rectified or completed.

(4) In making a recommendation under subsection (3), the assessor must have regard to—

(a) the relevant domestic building contract, including the plans and specifications set out in that contract; and

(b) any other matters the assessor considers relevant.

(5) If the assessor is of the opinion that the building work is so defective that it would not be appropriate to allow the builder to rectify or complete the work, the report may include a statement to that effect.

48R Report of non-compliance with building legislation

(1) If, as a result of an examination, the assessor is of the opinion that there has been a contravention of the Building Act 1993 or any regulations made under that Act in relation to any domestic building work, the assessor must—

(a) state that opinion in a written report; and

(b) provide a copy of the report to the Authority within 5 business days after preparing that report.

(2) The Authority may refer details of the alleged contravention to—

(a) the relevant council; and

(b) the relevant building surveyor in relation to the building work.

48S Effect of complying with assessor's recommendations

The carrying out by a builder of the recommendations contained in a report pursuant to section 48Q(3) does not absolve the builder from completing the domestic building contract in accordance with the plans and specifications set out in the contract.

48T Assessor's report admissible in evidence

A report of an assessor under section 48O is admissible in evidence in proceedings before VCAT or any other legal proceedings.

Division 6—Dispute resolution orders

Subdivision 1—Issue of dispute resolution orders

49 When can a dispute resolution order be issued?

(1) The chief dispute resolution officer may issue a dispute resolution order to a builder or building owner who is a party to a domestic building work dispute if—

(a) the dispute was referred to the chief dispute resolution officer under Division 2 for conciliation; and

(b) the chief dispute resolution officer is satisfied that the parties have not resolved the dispute; and

(i) an alleged breach of a warranty set out in section 8;

(ii) an alleged failure to maintain the standard or quality of building work specified in a domestic building contract;

(iii) an alleged failure to complete the domestic building work required by a domestic building contract;

(iv) an alleged failure to complete the domestic building work required by a domestic building contract within the times specified in the contract;

(v) an alleged failure to pay money for domestic building work performed under the contract;

(vi) any other prescribed matter.

(2) If the chief dispute resolution officer receives a copy of an assessor's report under Division 5 in relation to a domestic building work dispute, the chief dispute resolution officer must not issue a dispute resolution order earlier than 10 business days after the last of the parties to the dispute is given a copy of the assessor's report in relation to that dispute.

(3) Despite subsection (1), the chief dispute resolution officer may issue a dispute resolution order even if a record of agreement exists in relation to the domestic building work dispute if the assessor's report states that there has been a contravention of—

(a) this Act or the regulations; or

(b) the Building Act 1993 or the regulations under that Act.

(4) Subject to subsections (5) and (6), a dispute resolution order takes effect immediately on being served on the person to whom it is issued.

(5) Subsection (4) does not apply to a dispute resolution order referred to in section 49D.

(6) If an application for review is made under section 63 within the period set out in that section, the dispute resolution order is stayed pending the outcome of the review.

49A Matters to be considered by chief dispute resolution officer before issuing dispute resolution order

(1) In determining whether to issue a dispute resolution order, the chief dispute resolution officer may consider the following matters—

(a) any change in the nature of the domestic building work dispute or the circumstances of the parties since the copy of the assessor's report was given to the chief dispute resolution officer under Division 5, including the extent of any partial performance of an action specified in a record of agreement;

(b) the conduct of the parties during the conciliation (if applicable);

(c) any direction to fix building work given under Division 2 of Part 4 of the Building Act 1993 in relation to the building work that is the subject of the dispute;

(d) any other matter the chief dispute resolution officer considers relevant.

(2) In addition to the matters in subsection (1), the chief dispute resolution officer may consider whether the issuing of a dispute resolution order to a person would be unfair or unreasonable in the circumstances.

49B What can a dispute resolution order require?

(1) A dispute resolution order may require a builder to whom it is issued to take any action or the action specified in the order to do one or more of the following—

(a) rectify any defective domestic building work;

(b) rectify any damage caused in the carrying out of the domestic building work or by the defective domestic building work;

(2) A dispute resolution order may require a building owner to whom it is issued to comply with specified conditions if the builder is required to comply with a dispute resolution order.

(3) Without limiting subsection (2), the conditions may include the following—

(a) a condition to refrain from doing anything that would prevent or restrict the builder from satisfying a term or condition of the domestic building contract or carrying out domestic building work to meet the requirements of a warranty set out in section 8;

(b) a condition requiring a building owner to pay money into the Domestic Building Dispute Resolution Victoria Trust Fund.

(4) A dispute resolution order under subsection (1) must specify a reasonable period within which the requirements for the rectification or completion of work must be complied with.

(5) A person required to comply with a dispute resolution order issued under subsection (1) must—

(a) carry out the work, if the person is a registered building practitioner under the Building Act 1993 whose registration authorises the person to carry out that work; or

(b) cause the work to be carried out by a person who is a registered building practitioner under the Building Act 1993 whose registration authorises the person to carry out that work.

49C Requirements for the payment of money

(1) A dispute resolution order may require—

(a) a building owner to pay an amount to the builder for completion of the domestic building work under the contract or any part of the contract; or

(b) a building owner to pay an amount of money into the Domestic Building Dispute Resolution Victoria Trust Fund to be paid to the builder on completion of the domestic building work under the contract or any part of the contract; or

(c) the builder to pay the reasonable cost of domestic building work to be carried out by another builder appointed by the building owner if a dispute resolution order—

(i) requires a builder to rectify or complete the domestic building work; and

(ii) includes a finding that the domestic building work carried out by the builder is so defective that it would not be appropriate to allow the builder to rectify or complete the work.

(2) A dispute resolution order issued under this section may impose conditions that must be met by another party to the domestic building work dispute before the requirement to pay money takes effect.

49D Dispute resolution order may include findings

(1) A dispute resolution order may include a finding by the chief dispute resolution officer that the domestic building work that is the subject of the domestic building work dispute is not incomplete or defective.

(2) A dispute resolution order may include a finding that the domestic building work is so defective that it would not be appropriate to allow the builder to rectify or complete the work.

(3) A finding referred to in subsection (1) or (2) in a dispute resolution order—

(a) is evidence in any proceedings by the builder for the recovery of money from a party to the domestic building work dispute; and

(b) may be taken into account in any proceedings in VCAT or a court in determining costs or damages.

49E Effect of complying with dispute resolution order

The rectification or completion of domestic building work in compliance with a dispute resolution order does not absolve the builder from completing the domestic building contract in accordance with the plans and specifications set out in the contract.

49F Notice to insurer

(1) If a dispute resolution order is issued to a builder, the chief dispute resolution officer must notify the insurer who provided the builder with the required insurance under the Building Act 1993 of—

(a) the dispute resolution order; and

(b) the builder's compliance with or failure to comply with the dispute resolution order.

(2) The notice must be given after the time for the builder to comply with the dispute resolution order has expired.

49G Payment out of Domestic Building Dispute Resolution Victoria Trust Fund

(1) The Director may pay out of the Domestic Building Dispute Resolution Victoria Trust Fund an amount paid into the Fund in compliance with a dispute resolution order.

(2) In determining whether a dispute resolution order or part of an order has been complied with, the Director may rely on a statement by the party who paid the amount into the Fund that the dispute resolution order or the part of the order has been complied with.

(3) If the Director proposes to pay an amount out of the Fund in accordance with subsection (1), the Director must give written notice to the parties to the domestic building work dispute of the intention to pay the amount out of the Fund.

(4) The notice must state that a party to the domestic building work dispute may apply to VCAT within 10 business days after receiving the notice for review of the decision to pay the amount out of the Fund.

(5) The party to the dispute who paid the money into the Fund may give written consent to the payment of the amount out of the Fund to the other party to the dispute or a person authorised by the other party.

(6) The Director must pay the amount out of the Fund on the first of the following to occur—

(a) the receipt by the Director of the written consent under subsection (5);

(b) the end of the prescribed period.

(7) In this section—

"prescribed period" means the later of—

(a) the period for making an application for review of the decision to pay the amount from the Fund; or

(b) if an application for review is made, the period until a determination is made affirming that decision.

Subdivision 2—Amendment or cancellation of dispute resolution order

49H Decision by chief dispute resolution officer on own volition

(1) The chief dispute resolution officer may at any time, of the chief dispute resolution officer's own volition, amend or cancel a dispute resolution order.

(2) In making a decision under subsection (1), the chief dispute resolution officer may consider any of the following—

(a) any change in the nature of the dispute or the circumstances of the parties since the dispute was referred under Division 2;

(b) the conduct of the parties;

49I Cancellation of dispute resolution order on failure to comply with order

The chief dispute resolution officer may cancel a dispute resolution order if a condition of that order is not complied with.

49J Request to amend or cancel dispute resolution order

(1) A party to a domestic building work dispute may, in writing, ask the chief dispute resolution officer to amend or cancel a dispute resolution order relating to the domestic building work that is the subject of the dispute.

(2) A request may only be made on the ground that there has been a substantial change in the nature of the dispute or the circumstances of the parties since the assessor gave a copy of the assessor's report to the chief dispute resolution officer under Division 5.

(3) A request must be made within 10 business days after the dispute resolution order is served on the party.

(4) The party making the request must give written notice of the request to each other party to the dispute within 2 business days after making the request.

49K Powers of chief dispute resolution officer in considering amending or cancelling dispute resolution order

(1) For the purpose of deciding whether to amend or cancel a dispute resolution order, the chief dispute resolution officer may—

(a) make any inquiries or obtain any information the chief dispute resolution officer considers necessary; and

(b) ask any party to the dispute to provide any information or documents the chief dispute resolution officer considers necessary.

(2) The chief dispute resolution officer may fix a period for compliance with a request or requirement under subsection (1) and may extend that period at the request of any party.

(3) Any period fixed under section 49L for determining a request under section 49J ceases to run during the period for compliance fixed under this section.

49L Decision of chief dispute resolution officer on request

(1) The chief dispute resolution officer must consider a request under section 49J and, within 5 business days after receiving the request, decide—

(a) to amend or cancel the dispute resolution order; or

(b) to refuse to amend or cancel the dispute resolution order.

(2) The chief dispute resolution officer is taken to have refused the request if the chief dispute resolution officer does not make a decision within 5 business days after the request.

49M Matters to be considered in deciding on request

(1) In making a decision on a request under section 49J, the chief dispute resolution officer—

(a) must consider—

(i) the extent to which any defective or incomplete domestic building work specified in the dispute resolution order has been rectified or completed; and

(ii) any change in the nature of the dispute or the circumstances of the parties since the assessor gave a copy of the assessor's report to the chief dispute resolution officer under Division 5; and

(b) may consider—

(i) the conduct of the parties; and

(ii) any other matter the chief dispute resolution officer considers relevant.

49N Amendment or cancellation of other relevant dispute resolution orders

(1) This section applies if the chief dispute resolution officer decides to amend or cancel a dispute resolution order under section 49L.

(2) The chief dispute resolution officer may also amend or cancel a dispute resolution order issued to any other party to the domestic building work dispute after giving 5 business days notice to the parties to the dispute.

49O Notice of decision of chief dispute resolution officer

(1) The chief dispute resolution officer must give written notice of a decision under section 49L or 49N to the parties to the domestic building work dispute within 2 business days after making the decision.

(2) If the chief dispute resolution officer amends a dispute resolution order under section 49L, 49N, or 49T, the chief dispute resolution officer must give a copy of the amended order to each party to the domestic building work dispute without delay.

Subdivision 3—Compliance with a dispute resolution order

49P Notice of compliance with work under dispute resolution order

(1) A builder who has rectified or completed domestic building work in accordance with a dispute resolution order must give written notice to—

(a) the chief dispute resolution officer; and

(b) the building owner.

(2) The notice must be given within 2 business days after the domestic building work is carried out.

(3) The chief dispute resolution officer may direct an assessor to examine the domestic building work for which notice has been given under this section to confirm whether it complies with the dispute resolution order.

49Q Notice of compliance with payment under dispute resolution order

(1) A person who has paid money in accordance with a dispute resolution order must give written notice to the chief dispute resolution officer and the builder or the building owner (as the case requires).

(2) The notice must be given within 2 business days after the payment is made.

49R Notice of failure to rectify or complete work

(1) A building owner may give written notice to the chief dispute resolution officer that the builder has failed to rectify defective domestic building work or complete domestic building work in accordance with a dispute resolution order.

(2) A notice under subsection (1) must be given—

(a) within 5 business days after the building owner is given notice under section 49P in relation to the domestic building work; or

(b) if no notice is received under section 49P, within 5 business days after the end of the period specified in the dispute resolution order for the carrying out of the rectification or completion work.

49S Chief dispute resolution officer to direct assessor to examine work

(1) If a building owner gives notice to the chief dispute resolution officer under section 49R, the chief dispute resolution officer must direct an assessor to examine the work required to be carried out under the dispute resolution order.

(2) The assessor must prepare a written report stating whether or not the dispute resolution order has been complied with.

(3) The assessor must give a copy of the written report to the chief dispute resolution officer and each party to the domestic building work dispute.

49T Chief dispute resolution officer may extend period for compliance

On receiving a report under section 49S, the chief dispute resolution officer may amend the dispute resolution order to extend the period for compliance with the order if the chief dispute resolution officer is satisfied that the failure to comply with the dispute resolution order was due to factors outside the control of the party required to comply with the order.

49U Breach of dispute resolution order notice

(1) Subject to section 49T, the chief dispute resolution officer must issue a breach of dispute resolution order notice if the chief dispute resolution officer receives an assessor's report under section 49S that states that the builder has failed to comply with a dispute resolution order.

(2) The chief dispute resolution officer must serve a copy of the notice on each party to the domestic building work dispute without delay after it is issued.

(3) A breach of dispute resolution order notice must state that the builder may apply to VCAT for a review of the decision to issue the notice and the time within which the application may be made.

(4) A breach of dispute resolution order notice takes effect in relation to the builder immediately on being served on the builder.

(5) The chief dispute resolution officer must given written notice to the Authority of the issue of a breach of dispute resolution order notice at the end of the prescribed period.

(6) The chief dispute resolution officer may recover the costs of an examination and report by an assessor under section 49S from the builder in any court of competent jurisdiction as a debt due to the State.

(7) Any amount recovered under subsection (6) must be paid into the Domestic Builders Fund.

(8) In this section—

"prescribed period" means the later of—

(a) the period for making an application for review of the decision to issue the breach of dispute resolution order notice; or

(b) if an application for review is made, the period until a determination is made affirming that decision.

49V Cancellation of breach of dispute resolution order notice

(1) The chief dispute resolution officer may cancel a breach of dispute resolution order notice if the parties to the domestic building work dispute to which the dispute resolution order applies have notified the officer of the settlement of the dispute.

(2) The notice to the chief dispute resolution officer must be signed by each party to the dispute.

(3) The chief dispute resolution officer must give each party to the domestic building work dispute written notice of the cancellation of the breach of dispute resolution order notice.

49W Right of building owner to end domestic building contract

(1) A building owner may, by written notice to the chief dispute resolution officer and the builder, end a domestic building contract for domestic building work that is the subject of a dispute resolution order if—

(a) a copy of a breach of dispute resolution order notice has been served on the building owner and the builder in relation to a failure by the builder; and

(b) either—

(i) the period within which the builder could apply to VCAT for review of the decision to issue the notice has ended and an application for review has not been made; or

(ii) the builder has applied to VCAT for review of the decision to issue the notice and the decision has been affirmed; and

(c) the building owner has complied with any dispute resolution order issued to the building owner in relation to the domestic building work dispute; and

(d) the building owner has complied with any conditions required to be complied with by the building owner before the builder is required to comply with the dispute resolution order.

(2) If a building owner ends a domestic building contract under this section, the building owner is released from any further performance of the contract.

(3) If a contract is ended under this section, the builder is entitled to a reasonable price for the work carried out under the contract to the date the contract is ended.

(4) However, a builder may not recover under subsection (3) more than the builder would have been entitled to recover under the contract.

49X Right of builder to end domestic building contract

(1) A builder may, by written notice to the chief dispute resolution officer and the building owner, end a domestic building contract for domestic building work that is the subject of a dispute resolution order issued to the building owner if—

(a) the period within which the building owner could apply to VCAT for a review of the decision to issue the dispute resolution order has ended without an application for review being made; and

(b) the date by which the dispute resolution order was required to be complied with has passed and the building owner has failed to comply with the order; and

(c) the builder has complied with any conditions required to be complied with by the builder before the building owner is required to comply with the order; and

(d) the dispute resolution order included a finding that the building work was not defective or incomplete; and

(e) the builder has complied with any dispute resolution order issued to the builder in relation to the domestic building work dispute.

(2) If a builder ends a domestic building contract under this section, the builder is released from any further performance of the contract.

Division 7—Powers of Director in relation to domestic building work dispute proceedings

50 Powers of Director to institute and defend proceedings

(1) If a building owner is involved in a domestic building work dispute, the Director may institute proceedings on behalf of, or defend proceedings brought against the building owner if the Director is satisfied—

(a) that the building owner has a good cause of action or a good defence to an action relating to the dispute; and

(b) that it is in the public interest to institute or defend proceedings on behalf of the building owner.

(2) The Director must not institute or defend proceedings on behalf of a building owner unless that building owner has given written consent.

(3) After consent has been given under subsection (2), the Director may institute or continue with a proceeding or defence on behalf of a building owner even if the building owner revokes the consent.

50A Proceedings and costs

(1) If the Director institutes or defends proceedings on behalf of a building owner under section 50—

(a) the Director may settle the proceedings either with or without obtaining judgment in the proceedings; and

(b) if a judgment is obtained in the proceedings in favour of the building owner, the Director may take any steps that are necessary to enforce the judgment; and

(c) subject to subsections (2) and (3), an amount (other than an amount in respect of costs) recovered in the proceedings is payable to the building owner; and

(d) an amount in respect of costs recovered in the proceedings is payable to the Director; and

(e) subject to subsection (2), the building owner is liable to pay an amount (not being an amount of costs) awarded against the building owner in the proceedings; and

(f) the Director is liable to pay the costs of, or incidental to, the proceedings that are payable by the building owner.

(2) If the Director institutes, defends or continues proceedings on behalf of a building owner after the building owner withdraws the consent to the proceedings—

(a) the Director must compensate the building owner for—

(i) any loss suffered as the result of the loss of any settlement offer made to the building owner; and

(ii) out-of-pocket expenses incurred by the building owner during the proceedings after the withdrawal of consent; and

(b) the Director is liable to pay any amount awarded against the building owner in the proceedings.

(3) If the Director institutes, defends or continues proceedings on behalf of a building owner after the building owner withdraws the consent to the proceedings or defence, any amount recovered in the proceedings (including any amount for costs) that exceeds the amount payable to the building owner under subsection (2) may be applied to the payment of the costs of and incidental to the proceedings for which the Director is liable or that are incurred by the Director in relation to the proceedings.

(4) If, in proceedings instituted or defended on behalf of a building owner under section 50—

(a) a party to the proceedings files a counterclaim; or

(b) the building owner is entitled to file a counterclaim—

and the counterclaim is not or would not be related to the proceedings and to the interests of the building owner in the dispute, the Director may apply to the court hearing the proceedings or to VCAT for an order that the counterclaim not be heard in the course of those proceedings.

(5) If the court or VCAT makes an order under subsection (4), the court or VCAT may make any ancillary or consequential orders that it considers fair.

Division 8—Domestic Building Dispute Resolution Victoria Trust Fund

51 Establishment of Domestic Building Dispute Resolution Victoria Trust Fund

(1) The Director must establish and maintain a trust fund to be called the Domestic Building Dispute Resolution Victoria Trust Fund.

(2) The Director must establish an account with an ADI for the investment of the Fund.

(3) There may be paid into the Fund all amounts required or permitted to be paid into the Fund under this Act.

(4) There may be paid out of the Fund all amounts required or permitted to be paid from the Fund under this Act.

(5) The proceeds of the investment of the Fund are to be paid into the Domestic Builders Fund.

51A Parties may agree to pay amounts into and out of Domestic Building Dispute Resolution Victoria Trust Fund

(1) The parties to a domestic building work dispute may agree that a party is to pay an amount into the Domestic Building Dispute Resolution Victoria Trust Fund.

(2) The agreement must—

(a) be in writing; and

(b) set out the conditions for payment of the amount into and out of the Fund.

(3) The agreement must not—

(a) be inconsistent with any dispute resolution order issued in relation to the work that is the subject of the dispute; or

(b) relate to money paid into the Fund in compliance with a dispute resolution order.

(4) If a party to a domestic building work dispute has paid money into the Fund under this section, the parties to the dispute may by agreement give written notice to the Director to pay some or all of that money out of the Fund.

(5) The Director may pay money out of the Fund in accordance with the directions in the notice.

Division 9—Domestic Building Dispute Resolution Victoria

52 Domestic Building Dispute Resolution Victoria

Domestic Building Dispute Resolution Victoria is established.

52A Composition

Domestic Building Dispute Resolution Victoria consists of—

(a) the chief dispute resolution officer appointed under section 52C; and

(b) the conciliation officers appointed under section 52E; and

52B Functions of Domestic Building Dispute Resolution Victoria

The functions of Domestic Building Dispute Resolution Victoria are—

(a) to administer the scheme under this Part for the resolution of domestic building work disputes; and

(b) any other functions conferred on Domestic Building Dispute Resolution Victoria by or under this Act.

52C Appointment of chief dispute resolution officer

The Director must appoint a person employed under Part 3 of the Public Administration Act 2004 as the chief dispute resolution officer.

52D Functions of chief dispute resolution officer

The functions of the chief dispute resolution officer are—

(a) to perform the functions of Domestic Building Dispute Resolution Victoria; and

(b) to assess referrals of domestic building work disputes for conciliation; and

(d) to conduct the conciliation of domestic building work disputes; and

(e) to issue dispute resolution orders; and

(f) any other function conferred on the chief dispute resolution officer by or under this Act.

52E Appointment of conciliation officers

The Director may appoint as a conciliation officer—

(a) any person employed under Part 3 of the Public Administration Act 2004 ; or

(b) any other person.

52F Delegation

The chief dispute resolution officer may by instrument delegate any of the chief dispute resolution officer's powers and functions under this Act to another conciliation officer.

52G Conciliation officers not subject to direction of Director

A conciliation officer is not subject to the direction of the Director in relation to any decision that may be made or discretion that may be exercised by the conciliation officer in relation to a particular domestic building work dispute.

52H Protection against liability for conciliation officers

(1) A conciliation officer is not personally liable for anything done or omitted to be done in good f aith—

(a) in the exercise of a power or the discharge of a duty under this Act; or

(b) in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under this Act.

(2) Any liability resulting from an act or omission that, but for subsection (1), would attach to a conciliation officer attaches instead to the State.

52I Confidentiality

(1) Subject to this Part, a conciliation officer or an assessor must not disclose to any person any information obtained in the course of carrying out any function under this Part.

Penalty: 60 penalty units.

(2) A conciliation officer may disclose information obtained in the course of carrying out a function under this Part if the disclosure is made—

(a) for the purpose of carrying out that function; or

(b) to the Director; or

(d) to the Victorian Managed Insurance Authority; or

(e) with the written consent of each person to whom the information relates.".

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BUILDING LEGISLATION AMENDMENT (CONSUMER PROTECTION) ACT 2016 (NO. 15 OF 2016) - SECT 6 Part 3A repealed and Part 4 substituted