46Financial loss not required to be covered under certificate

46 Financial loss not required to be covered under certificate (1) The scheme's trust deed need not require a certificate to cover financial loss incurred in relation to any of the following: (a) the payment of a deposit or progress payment above the amount specified in the contract relating to the guaranteed work; (b) if the beneficiary is a subsequent purchaser of the residential building – defects that are readily apparent at the time of purchase; (c) damage that could reasonably be expected to result from fair wear and tear or from the current owner of the building failing to maintain the work; (d) damage caused by a person or made worse by the failure of the current owner to take reasonable and timely action to minimise the damage; (e) legal liability resulting from any event that is not expressly insured under the certificate; (f) a defect that is due to residential building work (including design work) or materials not specified in the contract relating to the guaranteed work (for example, materials supplied by the contracting owner); (g) a person's injury or impairment (including injury or impairment of the person's mental condition), death, disease or illness; (h) loss of rent, income, value or opportunity; (i) inconvenience or distress; (j) the unreasonable refusal of the beneficiary to allow access to the trustees, or the trustees' agent, for the purpose of assessing the beneficiary's claim; (k) the failure of the beneficiary to maintain adequate protection against pests;

Chapter 3 Fidelity fund schemes and approved schemes Part 3.2 Approval criteria Division 5 Fidelity certificate and losses covered Building (RBI and Fidelity Fund Schemes) Regulations 2012 27 (l) the malfunction of any mechanical or electrical equipment if the trustees can prove the malfunction was not attributable to the workmanship of, or installation by, the builder; (m) fraud or dishonest conduct of any kind by the builder; (n) an appliance; (o) asbestos contamination or removal; (p) war, civil unrest, a nuclear event or an act of nature. Notes for subregulation (1)(m) 1 Regulation 67 creates offences relating to a builder giving the trustees misleading information. 2 Regulation 68 prevents the scheme from avoiding liability under a certificate if the builder has given the trustees misleading information. (2) In addition, the trust deed need not provide for the payment of an amount in damages or liquidated damages for delay in completing the guaranteed work. (3) Despite this regulation, a provision of the trust deed does not contravene, and is not inconsistent with, the Act or these Regulations if the provision provides greater cover than is required by regulation 45.