38Variation of plans or specifications—by building owner

38 Variation of plans or specifications—by building owner (1) A building owner who wishes to vary the plans or specifications set out in a major domestic building contract must give the builder a notice outlining the variation the building owner wishes to make. (2) If the builder reasonably believes the variation will not require a variation to any permit and will not cause any delay and will not add more than 2% to the original contract price stated in the contract, the builder may carry out the variation. (3) In any other case, the builder must give the building owner either— (a) a notice that— (i) states what effect the variation will have on the work as a whole being carried out under the contract and whether a variation to any permit will be required; and (ii) if the variation will result in any delays, states the builder's reasonable estimate as to how long those delays will be; and (iii) states the cost of the variation and the effect it will have on the contract price; or (b) a notice that states that the builder refuses, or is unable, to carry out the variation and that states the reason for the refusal or inability. (4) The builder must comply with subsection (3) within a reasonable time of receiving a notice under subsection (1). (5) A builder must not give effect to any variation asked for by a building owner unless— (a) the building owner gives the builder a signed request for the variation attached to a copy of the notice required by subsection (3)(a); or (b) subsection (2) applies. (6) A builder is not entitled to recover any money in respect of a variation asked for by a building owner unless— (a) the builder has complied with this section; or S. 38(6)(b) amended by No. 15/2016 s. 10(1). (b) VCAT is satisfied— (i) that there are exceptional circumstances or that the builder would suffer a significant or exceptional hardship by the operation of paragraph (a); and (ii) that it would not be unfair to the building owner for the builder to recover the money. (7) If subsection (6) applies, the builder is entitled to recover the cost of carrying out the variation plus a reasonable profit. (8) This section does not apply to contractual terms dealing with prime cost items or provisional sums.