Domestic Building Contracts Regulations 2017

The Regs operate as rule-level detail that defines thresholds, carve-outs, process forms and fees to be applied under the Act. Core concepts to keep in mind are threshold-setting, exclusion by class, permitted contract forms, procedural safeguards for consumer waiver, and targeted exemptions for public construction.

Threshold-setting: reg 6 fixes the monetary amount used in the Act’s definition of a major domestic building contract at $10,000. That number is decisive because the Act’s regime and many of its protections flow from whether a contract is a "major domestic building contract". The date the threshold took effect is 1 August 2017 (reg 4(3)).

Exclusion by class and place: reg 7 lists types of single-trade contracts that, if the contract covers only that trade, are not building work to which the Act applies. These are largely discrete trades such as electrical work, glazing, insulating, painting, plastering, tiling, plumbing work as defined in s 221C of the Building Act 1993, and some fixture and fencing work. Reg 8 lists categories of premises and institutional accommodation for which associated work is not within the Act. Reg 9 lists works associated with subdivision development that are excluded, such as internal roads, services connecting the subdivision to external systems, engineering/fencing/landscaping required by planning permits, and works needed for environmental audit certification.

Permitted contract form: reg 10 addresses "cost plus" contracts under s 13(1)(a) of the Act by specifying three classes that are allowed: pre-1 August 2017 large contracts (reasonably estimated at $500,000+), post-1 August 2017 very large contracts (reasonably estimated at $1,000,000+), and domestic building contracts for public construction where the Crown or a public entity is a party. The qualifying language is "reasonably estimated," making the threshold assessment an ex ante estimation exercise.

Procedural safeguard for waiver of statutory progress payment limits: reg 13 prescribes that to lawfully agree that section 40(2) and (3) of the Act do not apply to a major domestic building contract, the contract must include a Form 1 warning signed by the building owner before the owner signs the contract, and a Form 2 clause signed by both owner and builder before they sign the major domestic building contract. Schedule 1 contains the wording of Form 1 (an explicit warning about changing legal rights and examples when variations may be justified) and Form 2 (a template clause for specifying alternative stages, percentages and amounts).

Targeted exemptions: regs 11 and 12 remove application of specified sections of the Act in relation to "public construction" (a defined term pulled from the Project Development and Construction Management Act 1994) and for builders entering into major domestic building contracts for public construction. Reg 12(3) defines "management condition" and "relevant building practitioner" for the transitional practitioner exemption. Reg 12(2) provides a time-limited exemption from specified subsections of s 29 for relevant building practitioners during 1 July to 30 September 2021.

Fee mechanism: reg 14 prescribes a fee of 77 fee units for a request under s 48C(3) of the Act. The Endnotes explain fee units are valued annually under the Monetary Units Act 2004, and for the financial year commencing 1 July 2021 a fee unit was $15.03; the explanatory details also note rounding rules and the requirement for the Treasurer to publish fee unit value.

Structural rules: reg 2 identifies the authorising provision (s 135 of the Act). Reg 3 revokes the 2007 Regulations. Reg 4 stages commencement. Reg 5 contains cross-referential definitions to other statutes, so the Regs are deliberately interlinked with a suite of other Victorian Acts for meaning and scope.

The Regulations affect multiple groups and decisions about who pays, who decides, and how contractual behaviour will change. The primary affected groups are building owners (consumers), builders and contractors, public entities and the Crown when party to contracts, registered building practitioners, and dispute-resolution participants (including assessors and the chief dispute resolution officer).

Building owners: Owners entering a major domestic building contract are affected by the $10,000 threshold in reg 6; more contracts will fall within the Act where the contract price reaches that threshold. If parties want to contract out of the Act’s default progress payment stages under s 40(2) and (3), owners must read and sign the Form 1 warning before signing the contract, and sign Form 2 (progress payment clause) before the contract is signed (reg 13 and Schedule 1). That creates an explicit pre-contract procedural protection for owners when they agree to alternative progress payment arrangements.

Builders and contractors: Builders gain or lose obligations depending on contract type and whether work falls inside the Act. Builders who enter major domestic building contracts for public construction are exempt from multiple provisions of the Act, as set out in reg 12(1), which relieves them from specified sections (15(2), 31(1), 32 and 33(2)). Builders may also rely on permitted cost plus classes in reg 10, but only where the contract meets the date and value criteria or is public-construction related. Builders must include the prescribed forms and ensure authorities around signatures are complied with when parties intend to vary progress-payment rules.

Public entities and the Crown: The Regs create favourable treatment for public construction. Reg 10(c) permits cost plus contracts for domestic building contracts for public construction where the Crown or public entity is a party. Reg 11(1) expressly provides that sections 15(3), 31(2), 33(3), 34 and 35 of the Act do not apply in relation to a major domestic building contract for public construction. Reg 12(1) exempts builders who enter into such public construction contracts from other specified sections (15(2), 31(1), 32 and 33(2)). The Regs therefore allocate different rights and duties where a public entity is involved; public entities and the Crown will decide contract forms and have a different compliance footprint.

Registered building practitioners: Reg 12(2) establishes a time-limited exemption for "relevant building practitioners" from specified subsections of s 29 during the transition period 1 July to 30 September 2021. Reg 12(3) defines "relevant building practitioner" and "management condition" by reference to Part 11 of the Building Act 1993 and section 171H(1)(a) of the Building Act 1993.

Dispute-resolution participants: Reg 14 requires payment of 77 fee units to accompany a request to the chief dispute resolution officer to direct an assessor under s 48C(3) of the Act. That imposes a fee burden on the party making that request; the Endnotes indicate the calculation and publication method for fee units.

Third parties and market participants: Tradespeople working under single-trade contracts listed in reg 7 will not be covered by the Act where the contract is solely for that trade. Developers and civil contractors working on subdivision infrastructure described in reg 9 will not be covered by the domestic building contract regime for those works. Architects, certifiers and consultants should note that the Regs exclude some subdivision and institutional works from the Act, which may affect contract form and risk-allocation.

Who pays: owners pay progress payments, and must sign Form 1 to accept contract variations to statutory stages; the party requesting an assessor direction pays the fee in reg 14 (77 fee units). Public entities and the Crown may avoid some Act obligations and hence impose different commercial terms on contractors.

Who decides: parties can decide to use permitted cost-plus forms only where conditions in reg 10 are met; parties can decide to contract out of s 40(2) and (3) only by complying with reg 13 and signing Forms 1 and 2 as required. Public entities and the Crown will decide contract terms in public construction contexts; the Authority under the Building Act 1993 can impose "management conditions" that interact with the transitional exemptions in reg 12(3).

Behaviour changes: more small-value contracts may fall within the Act because of the $10,000 threshold; some single-trade contractors will be removed from the Act’s coverage when contracting for only that trade; parties will adopt the prescribed forms if they intend to alter statutory progress-payment rules; parties to public-construction contracts will be able to use cost-plus forms and face fewer statutory constraints under specified sections of the Act.

The Regulations do not by themselves recite primary duties and penalties in detail; rather they fix thresholds, create carve-outs and prescribe procedural steps that change who has duties under the Act and how rights can be altered contractually. Key operative duties and rights created or modified by the Regulations are the following.

1. Major-contract threshold duty: Reg 6 fixes the contract-price amount for the definition of a "major domestic building contract" at $10,000. The immediate legal consequence is that the Act’s regime, which attaches rights and duties to "major domestic building contracts", will apply to contracts with a contract price at or above $10,000. Practitioners must therefore treat contracts meeting that monetary threshold as potentially bringing the full Act framework into play from 1 August 2017 (reg 4(3)).

2. Exclusion duties and rights by work-type: Reg 7 prescribes that specified single-trade works, if the contract is only for that trade, are not building work to which the Act applies. Practitioners must therefore determine the scope of the contract at the procurement or drafting stage; if it is a single-type contract for one of the listed trades, the Act’s statutory duties and rights will not apply by operation of reg 7.

3. Exclusion by premises and project-type: Regs 8 and 9 remove certain premises and subdivision infrastructure from the Act’s operation. That means rights and duties the Act would otherwise create do not apply to those works. For example, civil infrastructure inside subdivisions and connections serving the subdivision as a whole are explicitly outside the Act (reg 9).

4. Cost-plus contract permissions: Reg 10 gives parties the right to enter specified categories of cost plus contracts for the purposes of s 13(1)(a) of the Act. Practitioners must assess the date of contract and reasonable cost estimate to determine whether a cost plus form is permitted. For public construction contracts the permission is automatic if the Crown or public entity is a party, enabling a different allocation of cost risk in those contracts.

5. Exemptions from specified Act provisions: Reg 11(1) lists sections of the Act (15(3), 31(2), 33(3), 34, 35) that do not apply in relation to a major domestic building contract for public construction. Reg 11(2) exempts s 31(1)(d) in the context of contracts that relate solely or partly to preparation of plans and specifications. Reg 12(1) exempts builders entering into major domestic building contracts for public construction from sections 15(2), 31(1), 32 and 33(2). Those exemptions materially remove certain statutory duties or obligations from the parties in public-construction contexts; to understand the exact duty removed the text of the Act must be consulted since the Regulations only list section numbers.

6. Transitional exemptions for building practitioners: Reg 12(2) provides a time-limited exemption that relieves a "relevant building practitioner" from specified subsections of s 29 during the transition period 1 July 2021 to 30 September 2021. Reg 12(3) defines the class of practitioners covered. The effect is to temporarily modify a practitioner’s statutory obligations under the Act for that period.

7. Rights to alter progress-payment structure subject to procedural protections: Reg 13 requires a signed Form 1 warning by the building owner before the owner signs the major domestic building contract, and a signed Form 2 clause by both owner and builder before they sign the contract, in order to lawfully agree that s 40(2) and (3) of the Act do not apply. This creates a procedural duty on builders to ensure the owner received and signed the warning in advance, and a right for owners to be warned and consider independent advice before agreeing to altered progress-payment terms.

8. Fee obligation for dispute-resolution request: Reg 14 prescribes the fee amount of 77 fee units to accompany a request to the chief dispute resolution officer to direct an assessor under s 48C(3) of the Act. The party making that request must pay that fee, and the monetary value will vary year to year in accordance with the Monetary Units Act 2004 and the Treasurer’s published fee unit (Explanatory details).

9. Signature timing duty: The specific wording in reg 13 places a duty on both builder and owner to sign Forms 1 and 2 before signing the main contract. Failure to follow that sequence could leave the purported contractual variation to statutory progress-payment stages inoperative because the procedural requirements in the Regs are not met.

10. Revocation and commencement: Reg 3 revokes the 2007 Regulations; reg 4 stages commencement such that certain provisions operate from different dates. Practitioners must track which provisions were in force at the time of a contract or dispute to determine which rules applied.

In short, the Regulations change who has what duty principally by drawing lines around which contracts and works are captured by the Act, by creating permitted exceptions for cost-plus forms, by imposing a procedural gate for owners to contract out of default progress-payment rules, and by exempting public-construction contracts from a range of the Act’s sections. To know the precise rights and remedies available in any dispute, one must read the Act provisions that the Regulations reference, and then map which of those provisions are excluded or preserved for the contract in question.

The Regulations themselves do not create new penalty offences or express enforcement mechanisms beyond prescribing administrative process and fees. Their enforcement effect is achieved by (a) altering which provisions of the Act apply to certain contracts and persons, and (b) prescribing procedural prerequisites and an administrative fee for a dispute-resolution request. To understand enforcement consequences and penalties in practice, the corresponding provisions of the Act must be consulted because the Regs operate by varying the Act’s application.

Key enforcement-relevant points in the Regulations are:

• Disapplication of Act provisions for public construction: Reg 11(1) and reg 12(1) list sections of the Act that do not apply in relation to major domestic building contracts for public construction, and that do not apply to builders entering such contracts. Because those sections of the Act are not applied, any regulatory or enforcement consequences that flow from them will not be available for those contracts. The Regulations do not themselves state the sanctions that would have applied under the Act; one must examine the Act’s sections listed to establish the enforcement or penalty consequences that will be removed.

• Fee for dispute-resolution process: Reg 14 prescribes a fee of 77 fee units for a request to the chief dispute resolution officer to direct an assessor under s 48C(3) of the Act. Payment of that fee is a precondition to triggering that particular administrative pathway; failure to pay may mean the request is not accepted. The Endnotes show that fee units are valued under the Monetary Units Act 2004 and are published annually; for the financial year commencing 1 July 2021 a fee unit was $15.03 (Explanatory details). The Regs therefore create an economic gate for that aspect of dispute resolution.

• Procedural compliance as a condition of valid waiver: Reg 13 requires Forms 1 and 2 to be completed and signed in the specified sequence to validly agree that s 40(2) and (3) do not apply. If the required signatures or the timing is not observed, a party might claim the variation is invalid and that the statutory stages and percentage limits in s 40 remain binding. The Regulations therefore create a compliance requirement whose breach could have contractual and enforcement consequences in litigation or dispute resolution under the Act. The Regulations themselves do not state the remedy for non-compliance, but the practical effect is that the statutory default will be argued to remain in force.

• Interaction with other enforcement regimes: The Regulations frequently define terms by reference to other Acts (reg 5). Enforcement and penalties relevant to some excluded works may instead fall under other Acts and regulatory frameworks (for example, plumbing work as defined in s 221C of the Building Act 1993). The Regs thus partially shift enforcement to other legislative regimes by exclusion.

• No new penalty schedule: The text does not contain fines, pecuniary penalties or criminal offences. It prescribes process and exemptions. Any penalties relevant to domestic building contracts therefore remain located in the Act and related statutes, except where the regs explicitly remove the application of specified Act sections for certain contracts.

Practitioners should therefore map the Act’s enforcement provisions against the Regs’ exemptions. For a major domestic building contract for public construction, statutory duties and sanctions in the specified sections of the Act will not be available because the Regulations disapply those sections. For progress-payment disputes, failure to comply with the forms and signature timing in reg 13 may alter the enforceability of agreed progress-payment schedules, which will surface in contract disputes and adjudication under the Act. For dispute-resolution access that requires a request under s 48C(3), a fee of 77 fee units must accompany the request pursuant to reg 14; the administrative practice of the chief dispute resolution officer will treat that fee as a condition for processing.

The Regulations are heavily cross-referenced to other Victorian statutes. Reg 5 defines a number of terms by reference to other Acts, and the substantive carve-outs map the domestic building statutory regime into existing institutional and planning frameworks. The result is a network effect where the scope and meaning of the Regulations depend on the content and definitions in other pieces of legislation.

Key statutory cross-links are:

• Project Development and Construction Management Act 1994: Reg 5 imports the meaning of "public construction" from s 3(1). That term is central to many exemptions and permissions in regs 10-12 and 11. The practical effect is that the treatment under the Regulations for contracts that are public construction will follow the definition in that Act.

• Public Administration Act 2004: Reg 5 imports the meaning of "public entity" from s 4(1). That impacts who qualifies for the public construction exceptions.

• Education and Training Reform Act 2006: Reg 5 imports the definition of "school" and "university" by reference to that Act. Reg 8 then excludes certain accommodation premises used or intended for students or staff at those institutions from the Act’s operation.

• Building Act 1993: Reg 7 excludes "plumbing work as defined in section 221C" of the Building Act 1993. Reg 12(3) also refers to Part 11 of the Building Act 1993 and to s 171H(1)(a) to define management conditions on registration. Practitioners must therefore consult the Building Act for the statutory meaning of plumbing work and for the regulatory framework for practitioner registration and conditions.

• Subdivision Act 1988 and Planning and Environment Act 1987: Reg 5 imports the definition of "subdivision" from the Subdivision Act, and reg 9 excludes works required under a planning scheme or permit made under the Planning and Environment Act 1987. This means subdivision infrastructure is excluded from the domestic building regime and may be regulated under planning and subdivision law.

• Children, Youth and Families Act 2005, Corrections Act 1986, Disability Act 2006, Parliamentary Precincts Act 2001, Housing Act 1983, Environment Protection Act 1970: Reg 8 and reg 9 cross-reference these Acts to identify particular institutional premises and works that the Regs exclude from the Act. The upshot is that some institutional accommodation and correctional or youth services premises have separate regulatory treatment.

• Monetary Units Act 2004: The fee in reg 14 is expressed in "fee units", and the explanatory details explain that the fee is to be calculated by multiplying the number of fee units by the value of a fee unit under the Monetary Units Act 2004. The Endnotes state that for the financial year commencing 1 July 2021 the fee unit was $15.03 and that the calculation may be rounded to the nearest 10 cents. Therefore the monetary cost of the 77 fee units will vary annually following the Treasurer’s published fee unit value.

Consequences of these interactions:

• Carve-out and regulatory overlap: By excluding certain types of works and premises from the Act, the Regulations shift regulatory coverage to other legislative regimes. For example, plumbing work is not covered under the Act (reg 7(h)) and will instead be regulated under the Building Act and relevant plumbing laws. Subdivision works excluded by reg 9 will be subject to planning and subdivision statutory regimes.

• Differentiated treatment for public entities: Because "public construction" and "public entity" are defined in other Acts, the extent of exemptions and permissions in regs 10-12 depends on those definitions. Changes to those source Acts could alter which projects qualify for the public-construction regime under these Regulations.

• Administrative fees and indexing: The fee for assessor requests is indexed indirectly via the fee unit mechanism under the Monetary Units Act. Practitioners must account for changes each financial year.

• Transitional complexity: Reg 13 contains a transitional rule that for the period 22 April 2017 to 31 July 2017 compliance with the old forms in the revoked 2007 Regulations sufficed. That transitional overlap matters for contracts executed in that narrow window.

In short, the Regulations make their operative meanings contingent on a suite of other Acts. When advising clients one must consult those other statutes to determine whether a contract is public construction, whether a venue qualifies as excluded premises, whether a trade is captured by a Building Act definition, and what enforcement and licensing regimes apply instead of the Act.

The body text contains a table of amendments and explanatory details which record the Regulations’ amendment history up to 1 July 2021. The key amendment information in the source is:

• Original making and commencement: The Domestic Building Contracts Regulations 2017 were made on 12 April 2017 by the Lieutenant-Governor with Executive Council advice under s 135 of the Act. Commencement was staged: regs 1-5 and 7-13 commenced on 22 April 2017; reg 14 commenced on 26 April 2017; reg 6 commenced on 1 August 2017. See Endnotes section 1 and reg 4.

• Revocation of earlier instrument: Reg 3 expressly revokes the Domestic Building Contracts Regulations 2007, S.R. No. 25/2007.

• Published version incorporates amendments as at 1 July 2021: The front matter records the version incorporates amendments as at 1 July 2021.

• Domestic Building Contracts Amendment Regulations 2021, S.R. No. 63/2021: The Table of Amendments in the Endnotes lists S.R. No. 63/2021, made 29 June 2021 and commencing 1 July 2021 (reg 3 of that Statutory Rule). The text notes that Regulation 12 was amended by S.R. No. 63/2021 reg 5 (ILA s. 39B(2)), and that reg 12(2) and reg 12(3) were inserted by S.R. No. 63/2021 reg 5. The amendments added transitional exemptions for certain registered building practitioners and defined "management condition" and "relevant building practitioner" for the transition period.

• No further amendments are recorded in this version as outstanding; the Endnotes list "Amendments Not in Operation" and the "Table of Amendments" for historical changes.

• Sunset provision: The Endnotes explain that the Regulations will sunset ten years after the day of making, that is 12 April 2027, under the Subordinate Legislation Act 1994. Practitioners should track whether the Regulations are remade, repealed or extended before that date.

• Fee units: Explanatory details in the Endnotes indicate fee units are governed by the Monetary Units Act 2004; the value for FY 2021 was published as $15.03 per fee unit and the methodology for future years is set out in that Act. The Explanatory details note rounding rules.

Practical consequences for practitioners: The 2021 amendment inserted reg 12(2) and reg 12(3), which provided a short transition period relief for certain registered building practitioners. That is a targeted, time-limited change. The larger structural elements , the $10,000 threshold (reg 6), the list of excluded works (regs 7-9), the permitted cost-plus classes (reg 10), the forms and signature timing for progress payments (reg 13), and the fee unit amount (reg 14) , have remained in place since the 2017 enactment, with reg 6 commencing on 1 August 2017.

To keep advice current practitioners must monitor statutory rules for further amendments, and the Treasurer’s annual publication of fee units which affects the monetary value of the reg 14 fee.

The Regulations as published do not record, name or describe any litigation. The statutory text, Table of Provisions and Endnotes contain no references to judicial decisions, disputes or case law interpreting the Regulations. The instrument revokes the 2007 Regulations and replaces them with the 2017 instrument plus the 2021 amendment; no litigation history is included in the document.

What that means for practitioners:

• Absence of recorded litigation in the instrument should not be taken to mean the Regulations have not been litigated in courts or tribunals, only that the Regulations themselves do not list or summarise litigation. The Regulations are subordinate legislation and are likely to be invoked in disputes that also raise questions under the Act; however, the source text here contains no case references.

• Points likely to generate litigation or adjudication, based on the text of the Regulations, include the validity of contractual attempts to contract out of s 40(2) and (3) when Forms 1 and 2 were not signed in the prescribed sequence; the validity of cost plus arrangements where the "reasonable estimate" test is contested under reg 10; and the legal consequences of the exemptions for public construction where parties dispute whether a project is "public construction" within the meaning imported from the Project Development and Construction Management Act 1994.

• For fee-related disputes, reg 14 prescribes 77 fee units for requests to the chief dispute resolution officer for an assessor under s 48C(3) of the Act. The Endnotes show that the monetary value varies with the fee unit; disputes might arise if a party claims that the published fee unit for a financial year was not correctly applied, but the Regulations themselves defer the valuation to the Monetary Units Act 2004 and Treasurer’s notice as per the Explanatory details.

• Practitioners seeking precedents must consult court and tribunal databases to locate judicial interpretations of the Act and the Regulations. The Regulations alone do not supply a litigation history.

In short, the Regulations contain content that is likely to be litigated in discrete factual contexts, but the instrument itself contains no litigation history; counsel and advisers should research case law on the Act and on any subsequent disputes involving these Regulations.

The Regulations contain several procedural and substantive traps for the unwary that can materially affect contractual rights and dispute outcomes. Highlighted operational "gotchas" grounded in the text are:

1. Signature sequencing for progress-payment waiver (reg 13 and Schedule 1): The Regulation requires the building owner to sign Form 1 before the owner signs the major domestic building contract, and requires both owner and builder to sign Form 2 before they sign the major domestic building contract. The temporal requirement is strict in the text. If Forms 1 and 2 are signed only at the time the parties sign the main contract, or after signature, the statutory preconditions for contracting out of s 40(2) and (3) may not be met. That can render the alternative progress-payment schedule unenforceable and expose the builder to claims that statutory progress-payment limits apply.

2. Form content matters (Schedule 1): Form 1 is a warning to the owner about legal rights and provides examples of exceptional cases where different progress-payment stages may be appropriate. The warning must be signed and is part of the compliance mechanism. Slight variations in the wording or omission of the warning could create compliance risk. The Regulation prescribes the form to be included and signed; practitioners should not substitute materially different warnings.

3. "Reasonably estimated" threshold for cost-plus contracts (reg 10): Reg 10 uses the language "that it is reasonably estimated will cost" when setting pre- and post-1 August 2017 thresholds ($500,000 and $1,000,000 respectively). That introduces an objective, ex ante assessment that can be contested. Parties acting on optimistic estimates may later face disputes about whether the contract actually met the permitted class at the time it was entered into.

4. Public construction carve-outs (regs 10-12 and reg 11 exemptions): The Regulations create significant differences in obligations and applicable Act provisions where the Crown or a public entity is a party. Determining whether a contract is "public construction" is therefore critical. The definition is imported from the Project Development and Construction Management Act 1994 (reg 5). Misclassifying a contract as public construction to rely on exemptions could backfire if a tribunal later finds the project did not meet that definition.

5. Work-type and premises exclusions (regs 7-9): The text excludes several discrete trades and certain institutional and subdivision works from the Act's scope. That can affect warranty regimes, statutory protections and dispute processes. A contract that looks like a domestic building contract can be outside the Act if it is solely for an excluded trade or is for excluded premises. Drafting must precisely state the scope of the work to ensure intended coverage.

6. Transitional windows (reg 13(2), reg 4): There are narrow transitional provisions that allowed compliance with the old Forms 1 and 2 for the period 22 April 2017 to 31 July 2017. For contracts executed in that window the older forms may control. Reg 6 only commenced on 1 August 2017, so the $10,000 threshold did not apply before then. Checking the date of contract execution against reg 4 is therefore essential.

7. Fee volatility (reg 14 and Explanatory details): The fee in reg 14 is denominated in fee units. The monetary value changes annually with the Treasurer’s published fee unit. For the FY 2021 year the explanatory details show a fee unit value of $15.03 which produces a fee of 77 × $15.03 = $1,157.31 rounded to nearest 10 cents under the explanation. Practitioners must check the current fee unit before lodging a request under s 48C(3).

8. No penalty provisions in the Regs: Because the Regulations do not themselves state penalties, guesswork about enforcement should be avoided. The practical enforcement consequences depend on which provisions of the Act are in force or are disapplied by the Regulations for the contract in question. Advisers must map the Act’s enforcement regime to the specific contract to identify exposures.

9. Definitions by reference to other Acts (reg 5): The Regs use definitions from other Acts such as the Building Act 1993, Planning and Environment Act 1987 and Project Development and Construction Management Act 1994. Amendments in those source statutes or differing definitions can change the coverage of these Regulations. Practitioners must cross-reference the current versions of those Acts when advising.

10. Sunset date (Endnotes): The Regulations will sunset on 12 April 2027 unless remade. That creates a legislative expiry risk for longer-running policy or contractual expectations; parties and advisers should factor in the possibility of repeal or replacement when forming long-term arrangements.

Each of the above points is rooted in the Regulation text and explanatory Endnotes. Practitioners must ensure client instructions and contract drafting evidence compliance with the precise procedural forms and dates in the Regulations.

Compliance under these Regulations is a mixture of threshold assessment, careful contract drafting, procedural steps and administrative payments. Below are concrete steps and checklist items that counsel, builders and owners should follow to align with the Regs.

1. Establish contract type and value threshold:

   • Determine whether the contract is a "major domestic building contract" by reference to the contract price and the fixed amount in reg 6 ($10,000 with effect from 1 August 2017). If the contract price equals or exceeds $10,000 on or after 1 August 2017, treat it as a major domestic building contract for purposes of the Act.
   • For contracts executed before 1 August 2017, check the threshold that applied at that time because reg 6 did not commence until that date (reg 4(3)).

2. Check whether the work is excluded by reg 7 (single-trade contracts):

   • If the contract is solely for one of the listed works (for example electrical work, glazing, painting, installing floor coverings), the Act will not apply under reg 7. Ensure the contract scope is drafted unambiguously to avoid inadvertent wider coverage; if the contract includes additional works not listed, the exclusion will not apply.

3. Check premises and project-type exclusions in regs 8 and 9:

   • Confirm whether the works are on excluded premises such as those listed in reg 8 (school accommodation, certain youth and correctional facilities, the Governor’s residence, specified disability institutions, etc.) or involve excluded subdivision works in reg 9. If so, the Act does not apply to those works and different statutory regimes and contractual templates should be used.

4. For cost-plus arrangements, apply reg 10 thresholds:

   • If parties intend a cost-plus contract, verify the date of the agreement and the "reasonable estimate" of final cost. For contracts entered into on or after 1 August 2017, the reg explicitly allows cost-plus contracts only where the reasonable estimate is $1,000,000 or more. For pre-1 August 2017 contracts the threshold was $500,000. For domestic building contracts for public construction where the Crown or a public entity is a party, cost-plus is permitted irrespective of these monetary thresholds.

5. Public construction and exemptions:

   • If a contract is public construction as defined in the Project Development and Construction Management Act 1994, the exemptions in regs 11 and 12 will apply. Confirm whether the client is a "public entity" under the Public Administration Act 2004 and whether the contract meets the imported definition of "public construction". If relying on exemptions, document the factual basis for classification.

6. Progress payments and Forms 1 and 2 (mandatory sequence):

   • If parties want to agree that s 40(2) and (3) of the Act do not apply, include Schedule 1 Form 1 (warning to owner) and Form 2 (progress payments clause) in the major domestic building contract.
   • Ensure Form 1 is signed by the building owner before the owner signs the main contract. Ensure Form 2 is signed by both builder and owner before either signs the main contract. Maintain dated evidence (separate signature pages or initialled forms) to prove the required sequence.
   • Use the exact wording of Form 1 and Form 2 as prescribed, or if using an adapted form, confirm that the adaptation still meets the procedural and substantive requirements of reg 13. To avoid risk, use the prescribed forms without material modification.

7. Fee payment for assessor requests:

   • If lodging a request to the chief dispute resolution officer to direct an assessor under s 48C(3), include the fee of 77 fee units as required by reg 14. Check the current fee unit value under the Monetary Units Act 2004 and the Treasurer’s published notice for the financial year in which the request is made to calculate the correct monetary amount. Apply rounding rules as explained in the Explanatory details.

8. Transitional and timing checks:

   • For contracts executed during the transitional window around April to August 2017, verify which form versions and thresholds apply. Reg 13(2) allows compliance with the 2007 Forms for 22 April 2017 to 31 July 2017. Reg 6 commenced 1 August 2017, so contracts signed before then may not have been subject to the $10,000 threshold.

9. Record-keeping and documentation:

   • Keep contemporaneous records showing when Forms 1 and 2 were provided, read and signed, and when the main contract was executed. Keep evidence of any reasonable cost estimate relied on for a cost-plus contract and documentation concerning classification as public construction if relying on those exemptions.

10. Cross-check other regulatory obligations:

• Because the Regulations reference other Acts for definitions and carve-outs, ensure compliance with Building Act 1993 obligations, planning and subdivision permit conditions under the Planning and Environment Act 1987, plumbing licensing under the Building Act, and any public procurement rules applicable to public entities.

11. Update templates and training:

• Contract templates should be updated to include the prescribed Forms 1 and 2 where relevant, and staff and contractors trained on the timing and signature requirements. For public-construction contracts, ensure templates reflect the exemptions so that obligations and risk allocation are correctly stated.

12. Monitor fee-unit changes and legislative amendments:

• Set up a process to check the Treasurer’s fee unit value each year for the correct value to apply to reg 14 fees. Monitor statutory rule amendments and the scheduled sunset on 12 April 2027.

Following the above checklist aligns parties with the procedural and substantive requirements created or modified by the Regulations. Where there is doubt about whether a contract is covered or excluded, or whether a cost-plus threshold is met, obtain specific advice and document the factual basis for the position taken.