Div 5Powers of court in relation to domestic building work

Division 5—Powers of court in relation to domestic building work 37—Powers of court in relation to domestic building work (1) This section applies to— (a) a domestic building work contract or subcontract for the performance of domestic building work (whether entered into before or after the commencement of this section); and (b) domestic building work (whether commenced before or after the commencement of this section). (2) A party to a domestic building work contract or a person entitled to the benefit of a statutory warranty may apply to the Magistrates Court for the determination of a dispute arising out of the contract or the performance of the building work to which the warranty relates. (3) An application may not be made under subsection (2) in respect of a dispute arising out of a domestic building work contract unless the dispute involves some question of whether building work has been performed in accordance with the contract. (4) If an application is made under subsection (2) in respect of a dispute arising out of a domestic building work contract, application may be made to the Magistrates Court for the determination of a dispute arising out of a subcontract for the performance of any of the building work, but only if it involves some question of whether building work has been performed in accordance with the subcontract. (5) If the Magistrates Court joins proceedings on an application under subsection (4) with proceedings relating to the domestic building work contract, it must ensure that the hearing and determination of any question as to the performance of work under the domestic building work contract is not unduly delayed. (6) If, on an application under this section, the Magistrates Court is satisfied that there has been any breach of, or failure to perform or fulfil, a contract or warranty to which the proceedings relate, the Court may, subject to this section, make one or more of the following orders: (a) to the extent to which it is satisfied that it is practicable for the breach or failure to be remedied by the performance of building work—an order requiring the performance of remedial work; (b) an order requiring the payment of an amount due under the contract or an order requiring the payment of an amount by way of compensation for the breach. (7) An order made against a person under subsection (6)(a) may— (a) require the person to perform remedial work specified in the order within the time specified; or (b) if the Magistrates Court is of the opinion that the person is not likely to perform the remedial work properly—require the person to employ at the person's own expense a licensed building work contractor to perform remedial work specified in the order within the time specified. (8) If the Magistrates Court orders a person to perform remedial work, or to cause remedial work to be performed, it may further order the person to provide to the Court, within a specified time after completion of the work, a certificate of a person holding qualifications specified in the order certifying that the remedial work has been performed properly in accordance with the order. (9) If a person fails to perform remedial work, or to cause remedial work to be performed, in accordance with an order of the Magistrates Court (or an order of the Commercial Tribunal under Part 5 of the repealed Act)— (a) the person is guilty of an offence and liable to a penalty not exceeding a fine of— (i) in the case of an offence committed by a natural person—$50 000; (ii) in the case of an offence committed by a body corporate—$250 000; and (b) the Court may, on application, order the person to pay to the applicant such amount by way of compensation as the Court thinks just. (10) In this section— statutory warranty means— (a) a warranty arising under this Act; or (b) a warranty arising under Part 3C of the repealed Builders Licensing Act 1967.