Western Australian Consolidated Acts Western Australian Consolidated Acts(Sections 7(4), 8(4), 9(4), 13(5), 19 and 20)
Consequences of non-fulfilment of conditions
1. If any condition set out in subsection (1)
of section 9 is not fulfilled solely because the builder has failed to
comply with the builder’s obligations under subsection (2) of that
section, the contract is not affected but remains in force on the same terms
and conditions except as otherwise agreed between the parties.
2. If any condition set out in subsection (1)
of section 9 is not fulfilled solely because the owner has failed to
comply with the owner’s obligations under subsection (2) of that
section, the contract remains in force on the same terms and conditions until
the parties agree otherwise, but subject to the provisions of clause 4.
3. If any condition set out in subsection (1)
of section 9 is not fulfilled and both the owner and the builder have, or
neither the owner nor the builder has, failed to comply with their respective
obligations under subsection (2) of that section, the contract remains in
force on the same terms and conditions until the parties agree otherwise, but
subject to the provisions of clause 4.
4. Where clause 2 or 3 or
section 13(4)(c) applies —
(a) the
builder may by notice in writing to the owner —
(i)
increase the price stipulated in the contract by an
amount set out in the notice; and
(ii)
specify when any increased amount is payable, which must
be either —
(A) not later than 10 working days after
the notice is given; or
(B) at the time of a progress payment;
(b) if
the amount of an increase exceeds 5% of the price stipulated in the contract,
the owner may terminate the contract in accordance with section 19 within
10 working days after receipt of notice under paragraph (a); and
(c) if
the owner so terminates the contract, the owner is liable to compensate the
builder for the reasonable costs incurred by the builder up to the date of
termination.
5. (1) If the owner
considers that the amount of a price increase notified under
subclause (a) of clause 4 is excessive or unjustified the owner may
apply to the Disputes Tribunal, within 10 working days after receipt of a
notice under that subclause, for a review of that amount.
(2) On a review under
this clause the builder is required to show that the price has been increased
to reflect actual increases in costs between the date of the contract and the
date of the notice under clause 4(a).
(3) On a review under
this clause the Disputes Tribunal may confirm, vary or disallow the amount of
the price increase, and the contract must have effect in accordance with the
Disputes Tribunal’s decision.
[Schedule 1 amended by No. 57 of 1997
s. 73; No. 76 of 2000 s. 57 and 58; No. 37 of 2002 s. 20.]