New South Wales Consolidated Acts

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HOME BUILDING ACT 1989 - As at 12 October 2023 - Act 147 of 1989

- As at 12 October 2023 - Act 147 of 1989

Table of Provisions

Long Title

PART 1 - PRELIMINARY

1 Name of Act

2 Commencement

3 Interpretation

3A Application of provisions to developers

3B Date of completion of residential building work

3C Date of completion of new buildings in strata schemes

3D Application of provisions to specialist work

PART 2 - REGULATION OF RESIDENTIAL BUILDING WORK AND SPECIALIST WORK

Division 1 - Contracting for work

4 Unlicensed contracting

5 Seeking work by or for unlicensed person

6 Application of requirements for contracts

7 Form of contracts (other than small jobs)

7AAA Form of contracts (small jobs)

7AA Consumer information

7A Offence

7B Copy of contract

7BA Cooling-off period: person may rescind a contract for residential building work within 5 days without penalty

7BB Person may rescind a residential building work contract if cooling-off warning not given

7C Arbitration clause prohibited

7D Interests in land under contract

7E Terms of contracts

8 Maximum deposit for residential building work

8A Maximum progress payments (other than small jobs)

9 Exhibition homes

10 Enforceability of contracts and other rights

11 Other rights not affected

Division 1A - Additional requirements for certain contracts if certifier required

11A Application of Division

11B Consumer information--certifiers

11C Undue influence relating to appointment of certifiers

11D Terms of contract

11E Provisions not to apply where health or safety or property at risk

Division 2 - Restrictions on who may do certain work

12 Unlicensed work

13 Unqualified residential building work

14 Unqualified electrical wiring work

15 Unqualified refrigeration or air-conditioning work

15A Unqualified mechanical services and medical gas work

15B Unqualified medical gasfitting work

15C Unqualified medical gas technician work

16 Obligations of holders of contractor licences

PART 2A - REGULATION OF SUPPLY OF KIT HOMES

16A, 16B. (Repealed)

16C Application of requirements for contracts

16D Form of contracts for kit homes

16DAA Consumer information

16DA Offence

16DB Copy of contract

16DBA Cooling-off period: person may rescind kit home contract within 5 days without penalty

16DBB Person may rescind kit home contract if cooling-off warning not given

16DC Arbitration clause prohibited

16DD Interests in land under contract

16DE Terms of contracts

16E Maximum deposit for kit home supply

16F Exhibition homes

16G Enforceability of contracts

16H Application of this Part

PART 2B - REPRESENTATIONS CONCERNING CONTRACTOR LICENCES OR CERTIFICATES

17 Misrepresentations about contractor licences or certificates

18 Representations, generally

PART 2C - STATUTORY WARRANTIES

18A Time from when Part applies

18B Warranties as to residential building work

18BA Duties of person having benefit of statutory warranty

18C Warranties as to work by others

18D Extension of statutory warranties

18E Proceedings for breach of warranty

18F Defences

18G Warranties may not be excluded

PART 2D - (Repealed)

None

PART 3 - LICENCES AND CERTIFICATES

Division 1 - Contractor licences

19 Application to contractor licences of Licensing and Registration (Uniform Procedures) Act 2002

20 Issue of contractor licences

21 Authority conferred by contractor licences

22 Cancellation of contractor licences

22A Suspension of contractor licences--failure to insure

22B Suspension of contractor licences--appointment of controller or administrator

23 Warning notices

Division 2 - Supervision and tradesperson certificates

24 Application to tradesperson and supervisor certificates of Licensing and Registration (Uniform Procedures) Act 2002

25 Issue of certificates

26 Issue of endorsed contractor licences

27 Authority conferred by certificates

28 Authority conferred by endorsed contractor licences

Division 3 - Owner-builder permits

29 Definitions

30 Application to owner-builder permits of Licensing and Registration (Uniform Procedures) Act 2002

31 Issue of owner-builder permits

32 Authority conferred by owner-builder permits

32AA Unlicensed contracting

Division 3A - (Repealed)

None

Division 4 - Provisions relating to contractor licences, certificates and owner-builder permits

33. (Repealed)

33A Disqualification from holding authorities

33B General requirements for issue of certain authorities

33C Additional requirements for obtaining contractor licences

33D Additional requirements for obtaining supervisor and tradesperson certificates

33E Additional requirements for obtaining endorsed contractor licenses and supervisor and tradesperson certificates relating to mechanical services and medical gas work

33F Additional requirements for obtaining endorsed contractor licenses and supervisor and tradesperson certificates relating to medical gasfitting work

33G Additional requirements for obtaining endorsed contractor licenses and supervisor and tradesperson certificates relating to medical gas technician work

33H Approved foreign qualifications

34 Updating of applications

35 Secretary may obtain information from third parties

36 Conditions of authorities

37 Restrictions on certain authorities

38 Provisional authorities

39 Time period for restoration of authorities

40 Renewal of authorities

42 Term of duration of authority

42A Automatic suspension of licence for failure to comply with order to pay money in relation to building claim

43 Cancellation because of fraud etc

44 Return of cancelled or varied authority

46 Transfer prohibited

46A Lending of authority prohibited

47 Production of authority

47A Appointment of person to co-ordinate or supervise work if authority suspended, cancelled or surrendered

48 Other laws not affected

PART 3A - RESOLVING BUILDING DISPUTES AND BUILDING CLAIMS

Division 1 - Definitions

48A Definitions

Division 2 - Dealing with a building dispute

48B Definitions

48C Notification of building dispute

48D Investigation of dispute

48E Inspector may make rectification order

48F Effect of rectification order

Division 3 - Making an application for determination of a building claim

48I Application for determination of building claim

48J Certain applications to be rejected

Division 4 - Jurisdiction in relation to building claims

48K Jurisdiction of Tribunal in relation to building claims

48L Tribunal to be chiefly responsible for resolving building claims

48M Jurisdiction in relation to actions against refusal of insurance claims

48MA Rectification of defective work is preferred outcome in proceedings

Division 5 - Powers of Tribunal

48N Tribunal may have regard to certain building reports

48O Powers of Tribunal

48P Power to adjourn proceedings where insurable event arises

48R Order must include warning regarding non-compliance

48S Tribunal must inform Secretary of any order made

48T Secretary to be informed of compliance with order

48U Failure to inform of compliance

Division 6 - Miscellaneous

48V Requirement to notify Secretary of court order to pay money in relation to building claim

PART 4 - DISCIPLINARY PROCEEDINGS

Division 1 - Interpretation

49. (Repealed)

50 Application of Part to former holders and others

51 Improper conduct: generally

52 Improper conduct: assisting others

53 Improper conduct: nominated supervisors

54 Improper conduct: members of partnerships or officers of corporations

Division 2 - Disciplinary action

55 Definition of "authority"

56 Grounds for taking disciplinary action against holder of a contractor licence

57 Grounds for taking disciplinary action against holder of a supervisor or tradesperson certificate

58 Complaints about holders of authorities

59 Dealing with complaints

60 Investigation by Secretary

61 Notice to show cause

61A Power to suspend authority when show cause notice served

62 Disciplinary action that may be taken by Secretary

63 Double jeopardy

64 Notice of decision

65 When disciplinary action becomes effective

66 Return of cancelled, suspended or varied authority

67 Enforcement of monetary penalties and payment of costs

68 Liability for offences not affected

69 Protection if complaint lodged

PART 4A - ADMINISTRATIVE REVIEWS BY TRIBUNAL

83A Definition

83B Administrative reviews by Tribunal

PART 5 - JURISDICTION OF TRIBUNAL REGARDING APPEALS AND UNJUST CONTRACTS

Division 1 - Appeals

84. (Repealed)

85 Appeal to Tribunal

86 Time limits for appeals

Division 2 - (Repealed)

None

Division 3 - Unjust contracts

89D Jurisdiction relating to unjust contracts

PART 6 - INSURANCE

Division 1 - Preliminary

89E-89G. (Repealed)

90 Definitions

91 When Part applies

Division 2 - Insurance requirements

91A. (Repealed)

92 Contract work must be insured

92A Notification of insurer

92C Operation of contract of insurance in relation to non-contracting owners

94 Effect of failure to insure residential building work

95 No insurance for owner-builder work

96 Insurance in relation to residential building work not carried out under contract

96A Obligations of developers in relation to insurance

96B Obligations of sellers of excluded dwellings (houses and units used for commercial purposes)

97 Exemptions from insurance requirements

98 Employees and others not required to insure

Division 3 - Insurance contracts and premiums

99 Requirements for insurance for residential building work done under contract

100 Requirements for insurance of work not done under contract

101 Deemed insolvency of contractor for insurance purposes

101A Claim form

102 General requirements for insurance

102A Register of insurance and other particulars

103 Requirements for professional indemnity and other insurance

103B Period of cover

103BA Time limits for policies issued between 1.5.1997 and 30.6.2002

103BB Time limits for policies issued from 1.7.2002

103BC Limits on claims

103BD Insurance Guidelines for the determination of premiums

103BE Premiums

103BF Filing of premiums

103BG Rejection of premiums by Authority

103C Regulations

103D Part may not be excluded

103E Exemption for work done for public sector agencies

103EA False or misleading applications for insurance

103EB False or misleading conduct by insurers and insurance intermediaries

Division 4 - Insurance Guidelines

103EC State Insurance Regulatory Authority may issue guidelines

103ED Insurance Guidelines--general provisions

103EE Regulations relating to Guidelines

Division 5 - Home Building Operational Fund

103EF Home Building Operational Fund

103EG Payment of contributions by licensed insurers

PART 6A - INSOLVENT INSURERS

Division 1 - Preliminary

103F Interpretation

103G Insolvent insurers

103H Transitional--payments made by State before commencement of this Part

Division 2 - Insurance claims indemnified by State

103I Indemnity

103J Enforcement of indemnity provided by State

103K Making claim under indemnity

103L Payment of claims

103M Assignment of rights

103N Claims administrator may require builder to make payments or rectification

103O Indemnity payments after insolvent insurer dissolved

103OA Home Building Insurers Guarantee Fund

103OB Contributions to Home Building Insurers Guarantee Fund

Division 3 - Administrative and financial matters relating to former approved insurers

103P Building Insurers' Guarantee Fund

103Q Constitution of Guarantee Corporation

103R Chief executive to manage affairs of Guarantee Corporation

Division 4 - Miscellaneous

103S Functions of claims administrators

103U Claims administrator may enter into agreements and arrangements with liquidator of an insolvent insurer

103V Recovery of amounts under contracts or arrangements for re-insurance or co-insurance

103W Liquidator to notify claims administrator of claims

103X Delivery of documents to claims administrator

103Y Inspection of documents by person authorised by Minister

103Z Claims administrator may take certain legal proceedings

103ZA Disputes regarding decisions of Guarantee Corporation

103ZB Recovery of amounts under guarantees or indemnities

103ZC Delegation

PART 6B - ALTERNATIVE INDEMNITY PRODUCTS

104 Alternative indemnity products

104A Approval of alternative indemnity products

104B Alternative indemnity product may be used instead of insurance

104C Regulation of alternative indemnity cover

104D Insolvent providers

104E Insurance Guidelines relating to alternative indemnity products

PART 6C - INSURERS AND PROVIDERS

Division 1 - Licences

105 Definition

105A Offence--unlicensed insurers and providers

105B Self Insurance Corporation taken to be licensed insurer

105C Applications for insurer licences

105D Applications for provider licences

105E Application requirements

105F Determination of application for licence

105G Duration of licences

105H Conditions of licences

105I Matters that may be regulated by conditions of licences

105J Matters not subject to conditions of licences

105K Assignment of licences

105L Suspension of licences

105M Imposition of civil penalty on or censure of licence holder

105N Cancellation of licences

105O Assignment of contracts of insurance following cancellation of licence and in other cases

105P Records and evidence relating to licences

105Q Administrative reviews of licensing decisions by Civil and Administrative Tribunal

105R Publication of information about licence holders

Division 2 - Supervision of licence holders

105S Business plans of licence holders

105T Re-insurance arrangements of licensed insurers

105U Investment of funds of licence holder

105V Accounts, returns and other records of licence holder

105W Audit of accounting and other records and performance audit

105X Information and documents to be supplied to Authority by licence holders and former holders

105Y Reports about licence holders

105Z Power of Supreme Court to deal with licence holders unable to meet liabilities

105ZA Notification to Authority of certain defaults in relation to licence holders

105ZB Proceedings for failure to comply with licence

PART 7 - ADDITIONAL FUNCTIONS OF SECRETARY

106 Functions of Secretary under Act

114 Home Building Administration Fund

115 Secretary may make payments

115A Undertakings

PART 8 - GENERAL

Division 1 - Inspections and reports

116 Inspections of and reports on dwellings

117 Applications

118 Rejection of applications

119 Liability for report

Division 1A - Premises affected by loose-fill asbestos insulation

119A Definitions

119B Register

119C Warning signs

Division 2 - Miscellaneous

120 Register

121 Disclosure of information

121A Secrecy of information obtained from or relating to insurers or proposed insurers

121B Information sharing

121C Data required to be supplied to Authority by licence holders

122 Delegation

123 Service of notices or other documents

123A Service of documents on Authority or claims administrator

124 Order for substituted service

126 Power of entry

126A Search warrants

127 Power to obtain information

127A Power to request name and address of persons undertaking residential building work or specialist work

128 Obstruction of employees and others

131 Certificate evidence

132 State of mind of and conduct by directors, employees or agents

133 Evidence of publication

134 Aiding and abetting etc

135 Proceedings for certain offences under other Acts

136 Offence by employee--liability of employer

137 Offence by body corporate--general liability of directors etc

137A Liability of directors etc for specified offences by corporation--offences attracting executive liability

138 Supreme Court injunction

138A Penalty notices

139 Proceedings for offences

140 Regulations

142 Savings and transitional provisions

144 Exclusion of personal liability

145 Review of Act

SCHEDULE 1

SCHEDULE 2

SCHEDULE 3

SCHEDULE 4

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