Home Building Contracts Act 1991

CrestWestern Australia

Home Building Contracts Act 1991

Western Australia

Home Building Contracts Act 1991

Contents

Part 1 — Preliminary

1. Short title 2

2. Commencement 2

3. Terms used 2

Part 2 — Home building work contracts

4. Contracts to be in writing; prescribed explanatory notice to be given 6

5. Owner to be given copy of contract 6

6. Receipt of documents by owner, proof of 7

7. Variation of contract to be in writing and given to owner 7

8. Exceptions to s. 7 and related provisions 8

9. Building permit etc., implied conditions and terms as to 9

10. Deposits and progress payments, limits on terms as to 11

11. Defects, implied condition as to liability for 12

12. Understatement of prime cost items etc. by builder, offence 13

13. Rise‑and‑fall clause prohibited 13

14. Cost plus contracts, requirements as to 15

15. Unconscionable etc. conduct by builder as to contract etc. 15

15A. Misleading or deceptive conduct by builder or owner as to contract 17

Part 3 — Remedies

17. Breach of contract or Part 2, or entitlement to compensation, procedure in case of 18

18. How contract terminated 18

19. Adjustment of rights in certain cases 19

Part 3A — Home indemnity insurance and corresponding cover

Division 1 — Introduction

25A. Terms used 20

Division 2 — Builders

25B. Application of this Division 24

25C. Builder doing residential building work without insurance or corresponding cover, offence 25

25D. Insurance policy for this Division, terms of 26

25DA. Corresponding cover by an approved fund for builders 29

Division 3 — Owner‑builders

25E. Application of this Division 30

25F. Sale by owner‑builder, restrictions on 30

25FA. Sale by certain owner-builders, further restrictions on 31

25G. Insurance policy for this Division, terms of 32

25GA. Corresponding cover by an approved fund for owner‑builders 33

Division 3A — Approved funds

25GB. Approval of fund by Minister 34

25GC. Certain changes to approved fund require Minister’s consent 35

25GD. Approval of fund, revoking 35

Division 4 — Review

25H. Review of this Part by Minister 35

Division 5 — Provisions about non‑application of sections 25C(1) and (2) and 25F(1)

25I. Periods for s. 25C(3) and 25F(2), Minister may specify 36

25J. Contracts with builders, builders to give prescribed notice to other party 36

25K. Sale contract with owner-builder, owner-builder to give prescribed notice to other party 38

25L. Subsequent purchaser to be given notice given under s. 25J in some cases 38

Part 4 — General

26. Inspection by owner etc. of building work, prevention of etc. 39

27. Breach of Act, effect of on contract 39

28. Contracting out prohibited 40

29. Other laws not affected 40

30. Liability of officers for offence by body corporate 40

31. Prosecutions 41

31B. Infringement notices 41

32. Regulations 43

33. Retrospectivity of Act 44

34. Review of Act 44

Schedule 1 — Consequences of non‑fulfilment of conditions

1. Condition in s. 9(1), non-fulfilment of by builder 46

2. Condition in s. 9(1), non-fulfilment of by owner 46

3. Condition in s. 9(1), non-fulfilment of by builder and owner 46

4. Rights of builder and owner if cl. 2 or 3 or s. 13(4)(c) applies 46

5. Price increase, review of 47

Notes

Compilation table 48

Other notes 50

Defined terms

Western Australia

Home Building Contracts Act 1991

An Act for the regulation of contracts between consumers and builders for the performance of certain home building work, to make provision for home indemnity insurance and funds providing corresponding cover, and for connected purposes.

[Long title amended: No. 72 of 1996 s. 4; No. 37 of 2002 s. 4; No. 59 of 2004 s. 141.]

Part 1 — Preliminary

1. Short title

This Act may be cited as the Home Building Contracts Act 1991.

2. Commencement

The provisions of this Act shall come into operation on such day as is, or days as are respectively, fixed by proclamation.

3. Terms used

(1) In this Act unless the contrary intention appears —

associated work includes site works, swimming pools, spas, pergolas, carports, garages, sheds, fencing, retaining walls, paving, driveways, landscaping and other like works;

builder means a person who carries on, or 2 or more persons who together carry on, a business which consists of or includes the performing of home building work for others;

Builders’ Registration Board means the Builders’ Registration Board constituted under the repealed Act;

Building Commissioner means the officer referred to in the Building Services (Complaint Resolution and Administration) Act 2011 section 85;

building licence means building licence issued under the Local Government (Miscellaneous Provisions) Act 1960 section 374 before that provision was deleted by the Building Act 2011 section 153(2);

building permit means building permit as defined in the Building Act 2011 section 3;

construct in relation to a dwelling means perform any work commencing with the preparation of the site and ending with the completion of the dwelling (including any associated work) and includes —

(a) painting where that is part of the work included in a contract; and

(b) the provision of lighting, heating, water supply, drainage, sewerage, gas and other like services;

contract means a home building work contract;

cost plus contract means a contract under which a builder is entitled to recover an amount excluding prime cost items and provisional sums that is not determined at the time when the contract is entered into, being an amount that includes the actual cost to be incurred in —

(a) acquiring materials; and

(b) performing work,

specified in the contract, together with an additional amount that comprises either —

(c) a sum calculated as a percentage of that cost; or

(d) a specified sum,

or both;

date of the contract or date of the variation means the day on which the contract or variation was signed by the last party to sign it;

dwelling means a building occupied or intended for occupation solely or mainly as a place of residence;

home building work means the whole or part of the work of —

(a) constructing or re‑constructing a dwelling including an existing dwelling and/or strata/community title dwelling; or

(b) placing a dwelling on land; or

(c) altering, improving or repairing a dwelling, including a strata/community title dwelling; or

(d) constructing or carrying out any associated work in connection with —

(i) any work referred to in paragraph (a) or (b); or

(ii) an existing dwelling, including a strata/community title dwelling;

home building work contract means a contract between a builder and an owner for the performance by the builder of home building work, but does not include —

(a) a cost plus contract;

(b) a contract for the performance of home building work —

(i) for a builder who is in turn obliged to perform the work under another contract; or

(ii) if the amount stated in the contract as being payable under the contract for the work is $6 000, or such other amount as is prescribed, or less; or

(iii) if the amount stated in the contract as being payable under the contract for the work is $200 000, or such other amount as is prescribed, or more;

owner in relation to a contract means the person for whom or which home building work is to be performed under the contract;

perform in relation to home building work includes —

(a) causing the work to be performed; and

(b) organizing or arranging for the performance of the work;

prescribed means prescribed by regulations;

repealed Act means the Builders’ Registration Act 1939;

strata/community title dwelling means a building or part of a building, occupied or intended for occupation solely or mainly as a place of residence, that is erected on a lot within the meaning of the Community Titles Act 2018 or the Strata Titles Act 1985;

working days means Monday to Friday but excluding in respect of home building work to be carried out in any area a day that is a public holiday in that area or throughout the State.

(2) It is immaterial, for the purposes of the definition of home building work contract, that a contract between a builder and an owner for the performance of home building work also includes work that is not home building work.

[Section 3 amended: No. 58 of 1995 s. 97; No. 76 of 2000 s. 44; No. 37 of 2002 s. 5; No. 16 of 2011 s. 113; No. 19 of 2011 s. 148; No. 32 of 2018 s. 214.]

Part 2 — Home building work contracts

4. Contracts to be in writing; prescribed explanatory notice to be given

(1) A contract —

(a) must be in writing —

(i) setting out all of the terms, conditions and provisions of the contract; and

(ii) showing the date of the contract;

and

(b) must be signed by the builder and the owner or their respective agents.

(2) A notice containing an explanation of the relevant provisions of this Act is to be prescribed.

(3) The owner must be given a notice referred to in subsection (2) before the owner signs a contract.

(4) A builder who is a party to a contract must ensure that the requirements of subsections (1) and (3) are complied with in respect of that contract.

Penalty: $2 000.

(5) If any requirement of subsection (1) is not complied with by the builder the contract may be terminated by the owner in accordance with section 19.

5. Owner to be given copy of contract

(1) The owner must be given a copy of the signed contract —

(a) as soon as is reasonably practicable after a contract has been signed by both parties; and

(b) before the home building work is commenced.

(2) A builder who is a party to a contract must ensure that the requirements of subsection (1) are complied with in respect of that contract.

Penalty: $500.

(3) If —

(a) subsection (1) is not complied with by a builder in respect of a signed contract; and

(b) the owner in writing requests the builder to give to the owner a copy of the contract,

the builder must comply with that request within 10 working days of receiving it.

Penalty: $10 000.

[Section 5 amended: No. 76 of 2000 s. 45.]

6. Receipt of documents by owner, proof of

A document signed by the owner acknowledging receipt of a notice referred to in section 4(2) or of a copy of a signed contract, or both, and showing the date of receipt is evidence that the notice or copy of the contract was received by the owner on that day.

7. Variation of contract to be in writing and given to owner

(1) A variation of a contract —

(a) must be in writing —

(i) setting out all of the terms of, and the cost of, the variation;

(ii) showing the date of the variation;

and

(b) must be signed by the builder and the owner or their respective agents.

(2) The owner or his agent must be given a copy of the signed variation —

(a) as soon as is reasonably practicable after it has been signed by both parties; and

(b) before the work to which the variation relates is commenced.

(3) A builder who is a party to a variation of a contract must ensure that the requirements of subsections (1) and (2) are complied with in respect of that variation.

Penalty: $500.

(4) This section has effect subject to sections 8 and 13(4) and clause 5 of Schedule 1.

(5) In this section and in section 8 contract includes any previous variation of the contract.

8. Exceptions to s. 7 and related provisions

(1) Section 7(1) and (2) does not apply to a variation of a contract that is made necessary by —

(a) any written direction lawfully given by a person acting under a written law; or

(b) circumstances that could not reasonably have been foreseen by the builder at the time when the contract was entered into,

if the builder gives to the owner, within the time allowed by subsection (2), a statement setting out the reason for, and the cost to be incurred on account of, the variation and a copy of any direction referred to in paragraph (a).

(2) A statement under subsection (1) must be given within 10 working days after the builder —

(a) received notice of the direction under paragraph (a); or

(b) became aware, or should reasonably have become aware, of the circumstances referred to in paragraph (b),

of that subsection, as the case may be.

(3) Where —

(a) a statement is given to the owner by the builder for the purposes of subsection (1)(b); and

(b) the owner considers that the variation is not one to which subsection (1) applies,

the owner cannot make a complaint as provided in section 17 unless the owner makes the complaint within 10 working days after the statement was given to the owner.

(4) Subsection (1)(b) does not enable a builder to vary a contract, except in accordance with section 7(1) and (2) or 13(4) or clause 4 of Schedule 1, by reason only of an increase in the costs of labour (including related overhead expenses) or materials, or both, to be incurred by the builder.

[Section 8 amended: No. 14 of 1996 s. 4; No. 76 of 2000 s. 46; No. 16 of 2011 s. 114; No. 24 of 2011 s. 163(2) and (3).]

9. Building permit etc., implied conditions and terms as to

(1) Subject to subsection (5) every contract is conditional upon —

(a) a building permit being granted, in respect of the home building work included in the contract, within 45 working days from the date of the contract; and

(b) where a condition is attached to the permit which will result in a variation of the contract, the owner and the builder acknowledging in writing within that period that each of them accepts that condition; and

(c) it becoming lawful under the Water Services Act 2012 section 82, within 45 working days from the date of the contract, for the home building work to be commenced; and

(d) where a direction is given by a licensee under the Water Services Act 2012 section 82 in connection with the carrying out of the work which will result in a variation of the contract, the owner and the builder acknowledging in writing within that period that each of them accepts that direction.

(2) It is a term of every contract that —

(a) the builder will —

(i) do all things that are reasonably necessary to be done to ensure that any condition referred to in subsection (1)(a) and (c) applicable to the contract is fulfilled; and

(ii) not unreasonably decline to accept a condition or direction referred to in subsection (1)(b) or (d) that applies to the contract;

(b) the owner will —

(i) do all such things as may be required to be done by the owner to ensure that any condition referred to in subsection (1)(a) and (c) applicable to the contract is fulfilled; and

(ii) not unreasonably decline to accept a condition or direction referred to in subsection (1)(b) or (d) that applies to the contract.

(3) If a builder properly submits to the relevant authorities within 20 working days after the date of the contract all necessary applications required for the purpose of having conditions referred to in subsection (1)(a) and (c) fulfilled, the builder is to be taken to have complied with the builder’s obligations under subsection (2)(a)(i).

(4) If a condition implied by subsection (1) is not fulfilled the consequences to, and the rights and remedies of, the parties are as set out in Schedule 1.

(5) A condition referred to in a paragraph of subsection (1) does not apply to a contract —

(a) to the extent that the subject matter of the condition was completed before the contract was entered into; or

(b) where the only work to be performed under the contract is the construction or carrying out of associated work; or

(c) for any other prescribed home building work.

[(6) Deleted.]

[Section 9 amended: No. 73 of 1995 s. 188; No. 14 of 1996 s. 4; No. 76 of 2000 s. 47; No. 37 of 2002 s. 6; No. 24 of 2011 s. 163(4) and (5); No. 25 of 2012 s. 217.]

10. Deposits and progress payments, limits on terms as to

(1) A builder must not enter into a contract which provides that the builder is entitled to demand or receive from the owner any payment —

(a) before the commencement of the home building work to which the contract relates unless the payment is —

(i) a deposit of not more than 6.5% of the total amount payable to the builder under the contract for the home building work; or

(ii) of a prescribed kind;

(b) after the commencement of the home building work unless the payment is —

(i) a genuine progress payment for work already performed or materials or services already supplied; or

(ii) is of a prescribed kind.

Penalty: $10 000.

(2) Where a contract provides for the purchase by the owner of materials for a dwelling in a prefabricated form or of a dwelling that is transportable or for a similar arrangement, a payment for the materials or dwelling and associated work is a genuine progress payment for the purposes of subsection (1)(b)(i) —

(a) if property in the materials or dwelling passes absolutely to the owner on the payment being made; and

(b) notwithstanding that the materials or dwelling are not placed on or affixed to the land of the owner.

(3) Where —

(a) a contract sets out a schedule of payments due at specified stages of the home building work; and

(b) a payment is demanded or required in accordance with that schedule,

the payment is to be taken to be a genuine progress payment for the purposes of subsection (1)(b)(i) until the contrary is shown.

(4) If a builder enters into a contract in breach of subsection (1), the contract may be terminated by the owner in accordance with section 19.

(5) A builder under a contract must not demand or receive from the owner any payment after the commencement of the home building work unless the payment is a genuine progress payment for the purposes of subsection (1)(b)(i) or of a prescribed kind under subsection (1)(b)(ii).

Penalty: $10 000.

[Section 10 amended: No. 76 of 2000 s. 48.]

11. Defects, implied condition as to liability for

(1) It is a term of every contract that the builder is liable to make good at the cost of the builder defects in the home building work notified in writing to the builder within the period of 4 months commencing on the day of practical completion.

(1a) Nothing in subsection (1) prevents a contract from providing for a period greater than 4 months as the period within which the notification referred to in that subsection must be given.

(2) In subsection (1) —

defect means a failure —

(a) to perform the home building work in a proper and workmanlike manner and in accordance with the contract; or

(b) to supply materials that are of merchantable quality and reasonably fit for the purpose for which the owner required the home building work to be performed,

not being a failure for which the builder is specifically declared by the contract to be not liable;

practical completion means brought to the stage where the home building work is completed except for any omissions or defects which do not prevent the home building work from being reasonably capable of being used for its intended purpose.

(3) The regulations may provide for exemptions from the requirements of this section.

[Section 11 amended: No. 76 of 2000 s. 49.]

12. Understatement of prime cost items etc. by builder, offence

(1) A builder must not enter into a contract that contains an amount or an estimated amount for a prime cost item or a provisional sum if the amount or estimated amount is misstated by being less than the least amount that it could reasonably cost to supply the item or perform the work to which the amount relates.

Penalty: $10 000.

(2) In determining whether an amount is misstated for the purposes of subsection (1) regard is to be had to the matters or contingencies that were known (which may be set out on the contract), or ought reasonably to have been known, to the builder at the date of the contract.

13. Rise‑and‑fall clause prohibited

(1) A builder must not enter into a contract that contains a rise‑and‑fall clause.

Penalty: $10 000.

(2) A rise‑and‑fall clause in a contract is void.

(3) In this section rise‑and‑fall clause means, subject to subsection (4), a provision under which a price stipulated for the performance of home building work may change to reflect changes in the costs of labour (including related overhead expenses) or materials, or both, to be incurred by the builder.

(4) A provision of a contract is not within the definition in subsection (3) by reason only that it allows a builder to increase the stipulated price to reflect further costs actually imposed on or incurred by the builder —

(a) as a direct consequence of a written law of the State or the Commonwealth; or

(b) on account of an increase in any tax, duty or other charge imposed under any such law after the date of the contract; or

(c) by reason of a delay in the commencement of home building work beyond 45 working days after the date of the contract being a delay —

(i) that is caused solely by the failure of the owner to comply with a condition imposed on the owner by the contract, including a condition to the effect that the owner produce satisfactory evidence of the owner’s ability to pay the contract price or of the owner’s title to the land on which the work is to be performed; or

(ii) that occurs without any failure on the part of either the owner or the builder to comply with his or her obligations under the contract.

(5) Where subsection (4)(c) applies the consequences to, and the rights and remedies of, the parties are as set out in clauses 4 and 5 of Schedule 1.

14. Cost plus contracts, requirements as to

(1) A builder must not enter into a cost plus contract with an owner for the performance of home building work unless the contract is in writing and the written contract —

(a) has a heading at the beginning that includes the words “cost plus contract”; and

(b) contains an acknowledgment by the parties that the contract is a cost plus contract and that this Act, apart from this section and Part 3A, does not apply to the contract.

Penalty: $10 000.

(2) Subsection (1) does not apply to a cost plus contract that comes within paragraph (b) of the definition of home building work contract in section 3.

(3) If a builder enters into a cost plus contract in breach of subsection (1), the contract may be terminated by the owner in accordance with section 19.

[Section 14 amended: No. 37 of 2002 s. 7.]

15. Unconscionable etc. conduct by builder as to contract etc.

(1) A builder must not —

(a) in connection with the formation or execution of a contract or negotiations to vary a contract after execution, or the circumstances in which the contract or variation of contract is entered into, engage in conduct that is unconscionable, harsh or oppressive; or

(b) enter into a contract that contains any provision that is unconscionable, harsh or oppressive.

(2) Without limiting the generality of subsection (1) regard may be had to the following for the purposes of that subsection —

(a) the relative strengths of the bargaining positions of the builder and the owner; and

(b) whether, as a result of conduct engaged in by the builder, the owner was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the builder; and

(c) whether the owner was able to understand the contract; and

(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the owner or a person acting on behalf of the owner by the builder or a person acting on behalf of the builder.

(3) A provision of a contract must not be called in question under subsection (1)(b) by reason only that it entitles the builder —

(a) by notice in writing given at any time before the commencement of the home building work to require the owner to satisfy the builder —

(i) that the owner has title to the land on which the work is to be performed; and

(ii) by production of evidence in writing, that the owner is able to pay the contract price;

(b) by notice in writing given at any time before the commencement of home building work that is to be performed by way of a variation of a contract to require the owner to satisfy the builder, by the production of evidence in writing, that the owner is able to pay the price agreed for that work;

(c) if the owner fails to satisfy the builder as mentioned in paragraph (a) or (b) within 10 working days of receipt of a notice under that paragraph, to terminate the contract or the variation, as the case may be, by notice in writing given to the owner within a further 10 working days.

(4) The State Administrative Tribunal may approve a form of contract submitted to the Building Commissioner for an opinion on whether any provision is in breach of subsection (1)(b) and a provision in a form so approved must not be called in question under that subsection.

(5) Forms of contract for various kinds of home building work may be prescribed which are to be taken to comply with all the requirements of this Act.

(6) This section is enforceable as referred to in section 17 and not otherwise.

[Section 15 amended: No. 76 of 2000 s. 50 and 57; No. 37 of 2002 s. 20; No. 16 of 2011 s. 115.]

15A. Misleading or deceptive conduct by builder or owner as to contract

A person who is a builder or an owner must not, in connection with —

(a) the formation or execution of a contract; or

(b) negotiations to vary a contract after execution; or

(c) the circumstances in which a contract or variation of contract is entered into,

engage in conduct that is misleading or deceptive.

[Section 15A inserted: No. 76 of 2000 s. 51.]

Part 3 — Remedies

[16. Deleted: No. 16 of 2011 s. 116]

17. Breach of contract or Part 2, or entitlement to compensation, procedure in case of

If an owner or builder under a contract claims that —

(a) there has been a breach of —

(i) the contract, not being a breach in respect of which a building remedy order may be made under the Building Services (Complaint Resolution and Administration) Act 2011; or

(ii) a provision in Part 2;

or

(b) the owner or builder is entitled to compensation under Schedule 1,

then, subject to the Building Services (Complaint Resolution and Administration) Act 2011, the owner or builder may make a complaint under section 5(2) of that Act.

[Section 17 inserted: No. 16 of 2011 s. 117.]

[18. Deleted: No. 16 of 2011 s. 118]

19. How contract terminated

(1) Where under section 4(5), 10(4) or 14(3) or Schedule 1 a party to a contract may terminate the contract the party may give notice of termination to the other party and the contract is terminated at the time when the notice is given.

(2) A notice given by a party under subsection (1) must be in writing signed by the party and must be given to the other party before the completion of the home building work under the contract.

20. Adjustment of rights in certain cases

If a contract is terminated under section 4(5), 10(4) or 14(3) or Schedule 1, the owner or builder may make a complaint under the Building Services (Complaint Resolution and Administration) Act 2011 section 5(2) claiming that the owner or builder is entitled to —

(a) the return or repayment of the whole or part of any consideration, or the value of any consideration, given by the owner under or in relation to the contract; or

(b) payment to the builder in respect of —

(i) any materials supplied by the builder; or

(ii) any home building work or other services performed by the builder; or

(iii) costs, including overhead expenses and loss of profit, incurred by the builder,

under or in relation to the contract.

[Section 20 inserted: No. 16 of 2011 s. 119.]

[21‑24. Deleted: No. 16 of 2011 s. 120]

[25. Deleted: No. 76 of 2000 s. 55.]

Part 3A — Home indemnity insurance and corresponding cover

[Heading inserted: No. 72 of 1996 s. 5; amended: No. 37 of 2002 s. 8.]

Division 1 — Introduction

[Heading inserted: No. 72 of 1996 s. 5.]

25A. Terms used

In this Part —

approved fund means a fund that is approved under section 25GB;

builder includes, in addition to the meaning given by the definition in section 3(1), a person who —

(a) was registered under the repealed Act; or

(b) is a building service contractor in a class of building service contractor prescribed by the regulations,

whether or not the person carries on a business referred to in that definition;

building contract means —

(a) a residential building work contract; or

(b) a cost plus contract between a builder and another person for the performance by the builder of residential building work but does not include a contract for the performance by a builder of residential building work for another builder who is in turn obliged to perform the work under another contract;

building service contractor has the meaning given in the Building Services (Registration) Act 2011 section 3;

corresponding cover —

(a) in relation to residential building work performed by a builder, means the cover referred to in section 25DA; and

(b) in relation to residential building work performed by an owner‑builder, means the cover referred to in section 25GA;

cost of the building work means —

(a) in relation to residential building work performed by a builder under a residential building work contract, the amount payable under the contract; or

(b) in relation to residential building work performed —

(i) by a builder on behalf of another person where the work is not performed under a residential building work contract; or

(ii) by a builder on the builder’s own behalf; or

(iii) by an owner‑builder,

the estimated cost of construction specified in the application for a building permit;

developer means a person for whom residential building work is performed under a building contract in relation to 4 or more dwellings;

insolvency means —

(a) in relation to a natural person, insolvent under administration as that expression is defined in the Corporations Act 2001 of the Commonwealth;

(b) in relation to a body corporate, subject to external administration under the Corporations Act 2001 of the Commonwealth;

minimum amount means $10 000 or such other amount as is prescribed to be the minimum amount for the purposes of this section;

owner-builder, in relation to a dwelling, means —

(a) a person who constructs the dwelling under a building licence issued to that person in accordance with section 4A(1)(c) of the repealed Act; or

(b) a person who —

(i) was registered under the repealed Act; and

(ii) constructs the dwelling for himself or herself as his or her principal place of residence and not for immediate sale; and

(iii) was issued a building licence for the residential building work for the dwelling when no policy of insurance that complies with Division 2 was in force, or no corresponding cover (of the type referred to in section 25DA) was provided by an approved fund, in relation to the residential building work;

or

(c) a person who —

(i) has owner‑builder approval under the Building Services (Registration) Act 2011 section 45 to carry out residential building work for the dwelling; and

(ii) is issued a building licence or granted a building permit for the residential building work;

or

(d) a person who —

(i) is a building service contractor in a class of building service contractor prescribed by the regulations for the purpose of this definition; and

(ii) constructs the dwelling for himself or herself as his or her principal place of residence and not for immediate sale; and

(iii) was issued a building licence or granted a building permit for the residential building work for the dwelling when no policy of insurance that complies with Division 2 was in force, or no corresponding cover (of the type referred to in section 25DA) was provided by an approved fund in relation to the residential building work;

rescind, in relation to a contract, means to avoid the contract as from its beginning;

residential building work means home building work that is —

(a) home building work described in paragraph (a), (b) or (c) of the definition of that term in section 3; or

(b) home building work described in paragraph (d) of the definition of that term in section 3, when —

(i) it is to be performed under a contract which also includes the performance of home building work described in paragraph (a), (b) or (c) of that definition; or

(ii) it is associated work of a prescribed kind,

but does not include home building work where the cost of the building work is the minimum amount or less;

residential building work contract means a contract, other than a cost plus contract, between a builder and another person for the performance by the builder of residential building work but does not include a contract for the performance by a builder of residential building work for another builder who is in turn obliged to perform the work under another contract;

sale contract, in respect of residential building work performed by a builder or owner‑builder, means a contract to sell or otherwise dispose of —

(a) a dwelling constructed by the builder or the owner‑builder; or

(b) the land on which the building is constructed;

settlement means the time at which the obligations under a sale contract are completed to the extent that the purchaser under the contract is entitled to be registered as the proprietor of the dwelling or land.

[Section 25A inserted: No. 72 of 1996 s. 5; amended: No. 10 of 2001 s. 220; No. 37 of 2002 s. 9; No. 19 of 2011 s. 149; No. 24 of 2011 s. 163(6); No. 47 of 2011 s. 22.]

Division 2 — Builders

[Heading inserted: No. 72 of 1996 s. 5.]

25B. Application of this Division

(1) Subject to this section, this Division applies to residential building work that is, or is to be, performed by a builder on behalf of another person or on the builder’s own behalf.

(2) This Division does not apply to residential building work for which a building licence was issued before the commencement of the Home Building Contracts Amendment Act 1996.

(3) This Division does not apply to residential building work that is, or is to be, performed by a builder who is a natural person, if —

(a) the residential building work is to construct a dwelling for the builder as his or her principal place of residence and not for immediate sale; and

(b) the builder —

(i) had given to the Builders’ Registration Board a statutory declaration verifying that he or she had not, within the last 6 years, obtained a building licence for residential building work; or

(ii) has given to the Building Commissioner a statutory declaration verifying that he or she has not, within the last 6 years, obtained a building licence or a building permit for residential building work,

in respect of which no insurance was required because of this subsection.

(4) The Minister may order that subsection (3)(b) has effect in relation to particular residential building work as if the 6 year period referred to were reduced to the lesser period specified in the order, if the Minister is satisfied that —

(a) the application for the order arises from a change in the circumstances of the person; and

(b) the person would suffer hardship if the application were refused.

(4A) This Division does not apply to residential building work if —

(a) a building permit under the Building Act 2011 is not required for the work; or

(b) if a building permit is required for the work — the work is not, or is not part of, a prescribed building service under the Building Services (Registration) Act 2011 section 3.

(5) In subsection (3) —

insurance means a policy of insurance that complies with Division 2, or corresponding cover provided by an approved fund.

[Section 25B inserted: No. 72 of 1996 s. 5; amended: No. 37 of 2002 s. 10; No. 19 of 2011 s. 150; No. 25 of 2019 s. 31.]

25C. Builder doing residential building work without insurance or corresponding cover, offence

(1) A builder must not perform residential building work to which this Division applies unless —

(a) a policy of insurance that complies with this Division is in force in relation to the residential building work; or

(b) corresponding cover is provided by an approved fund in relation to the residential building work.

Penalty: $10 000.

(2) A builder must not perform residential building work to which this Division applies under a residential building work contract unless the owner has been furnished, prior to a demand from the builder for any payment in relation to the residential building work including any deposit payable under the residential building work contract, with a certificate in a form approved by the Minister, that evidences the taking out of the policy referred to in subsection (1)(a) or the provision of the cover referred to in subsection (1)(b).

Penalty: $10 000.

(3) Subsections (1) and (2) do not apply to a builder who performs residential building work to which this Division applies if —

(a) the builder performs the residential building work during a period specified in an order made under section 25I for the purposes of this subsection; or

(b) the builder performs the residential building work —

(i) after the end of a period specified in an order made under section 25I for the purposes of this subsection; and

(ii) under a building permit granted before or during that period.

(4) A builder is not entitled to cancel a policy of insurance that complies with this Division, or corresponding cover provided by an approved fund, in relation to residential building work solely on the basis that subsections (1) and (2) do not apply, because of subsection (3), to the builder in relation to the residential building work.

[Section 25C inserted: No. 72 of 1996 s. 5; amended: No. 37 of 2002 s. 11 and 20; No. 24 of 2011 s. 163(7).]

25D. Insurance policy for this Division, terms of

(1A) In this section —

relevant circumstance, in relation to a builder, means —

(a) if the builder is an individual — the builder —

(i) has died; or

(ii) after due search and enquiry, cannot be found in Australia;

or

(b) if the builder is not an individual — the builder ceased to exist; or

(c) the builder is insolvent; or

(d) if the builder is a building service contractor under the Building Services (Registration) Act 2011 — the builder’s registration as a building service contractor was cancelled or not renewed because the builder did not satisfy the financial requirements (if any) prescribed by the regulations under section 18(1)(b) of that Act.

(1) A policy of insurance complies with this Division if —

(a) in the case of residential building work to be performed by a builder on behalf of another person, other than a developer, under a residential building work contract, it insures that person and that person’s successors in title against the following losses occurring because a relevant circumstance exists in relation to the builder —

(i) loss of an amount paid by way of deposit under the residential building work contract, up to a limit of $20 000 or another prescribed limit;

(ii) loss, other than indirect, incidental or consequential loss, resulting from non‑completion of the residential building work;

and

(b) in the case of residential building work to be performed by a builder on behalf of another person (whether under a residential building work contract or not), it insures that person and that person’s successors in title against the risk of being unable to take advantage of an entitlement to, or to enforce or recover under, a building remedy order under the Building Services (Complaint Resolution and Administration) Act 2011 because a relevant circumstance exists in relation to the builder; and

(c) in the case of residential building work to be performed by a builder on the builder’s own behalf, it insures the builder’s successors in title against the risk referred to in paragraph (b); and

(d) it provides that claims may be made under it at any time before the expiration of a period of 6 years from the day of practical completion within the meaning of that term in section 11; and

(e) it provides for insurance cover of —

(i) at least $100 000 or such other amount as is prescribed; or

(ii) the cost of the building work,

whichever is the lesser; and

(f) it is issued by or on behalf of an insurer who is —

(i) authorised under the Insurance Act 1973 of the Commonwealth to carry on insurance business; and

(ii) approved in writing by the Minister;

and

(g) it complies with any other prescribed requirements.

(2) Subject to subsection (3), where the policy of insurance relates to work described in paragraph (b) of the definition of home building work in section 3, the cost of the residential building work for the purposes of subsection (1)(e) is only the cost of —

(a) placing the dwelling on the land including siting, stumping and any other work in connection with that placement; and

(b) any building work to the dwelling after placement.

(3) Where the policy of insurance relates to the placement of a transportable dwelling on land for the first time after its construction, the cost of the residential building work for the purposes of subsection (1)(e) is the cost of —

(a) the dwelling; and

(b) placing the dwelling on the land including siting, stumping and any other work in connection with that placement; and

(c) any building work to the dwelling after placement.

(4) An insurer is not entitled to avoid liability under a policy of insurance on the ground that the policy was obtained by misrepresentation or non‑disclosure —

(a) by the builder; or

(b) in the case of a claim by a successor in title to the person on whose behalf the residential building work was performed, by that person.

[Section 25D inserted: No. 72 of 1996 s. 5; amended: No. 37 of 2002 s. 12; No. 16 of 2011 s. 121; No. 25 of 2019 s. 32.]

25DA. Corresponding cover by an approved fund for builders

(1) Corresponding cover is provided by an approved fund in relation to residential building work performed by a builder if the person for whom the residential building work is performed, and that person’s successors in title, are in the same position that they would be if a policy of insurance that complies with this Division were in force in relation to the residential building work.

(2) Any discretion that a person has to approve a claim on the fund is to be disregarded for the purposes of subsection (1).

[Section 25DA inserted: No. 37 of 2002 s. 13.]

Division 3 — Owner‑builders

[Heading inserted: No. 72 of 1996 s. 5.]

25E. Application of this Division

(1) Subject to subsection (2), this Division applies to residential building work that is performed by an owner‑builder.

(2) This Division does not apply to residential building work for which a building licence under Part XV of the Local Government (Miscellaneous Provisions) Act 1960 was issued before the commencement of the Home Building Contracts Amendment Act 1996.

[Section 25E inserted: No. 72 of 1996 s. 5; amended: No. 74 of 2003 s. 66; No. 8 of 2009 s. 75.]

25F. Sale by owner‑builder, restrictions on

(1) An owner‑builder must not, within 7 years of the date of issue of the relevant building licence, or the date of grant of the relevant building permit, to the owner‑builder, enter into a sale contract unless —

(a) either —

(i) a policy of insurance that complies with this Division is in force in relation to the residential building work; or

(ii) corresponding cover is provided by an approved fund in relation to the residential building work;

and

(b) the purchaser has been given a certificate, in a form approved by the Minister, that evidences the taking out of the policy referred to in paragraph (a)(i) or the provision of the cover referred to in paragraph (a)(ii).

Penalty: $10 000.

(2) Subsection (1) does not apply to an owner‑builder if the owner‑builder enters into a sale contract during a period specified in an order made under section 25I for the purposes of this subsection.

[Section 25F inserted: No. 37 of 2002 s. 14; amended: No. 19 of 2011 s. 151.]

25FA. Sale by certain owner-builders, further restrictions on

(1) A person to whom paragraph (b) of the definition of owner‑builder applies in relation to a dwelling must not, within 3 years of the date of issue of the building licence to the person for the dwelling, sell or otherwise dispose of the land on which the dwelling was constructed unless the Minister by order otherwise consents.

Penalty: a fine of $10 000.

(2A) A person to whom paragraph (d) of the definition of owner‑builder applies in relation to a dwelling must not, within 3 years of the date the building licence is issued, or the building permit is granted, to the person for the dwelling, sell or otherwise dispose of the land on which the dwelling was constructed unless the Minister by order otherwise consents.

Penalty: a fine of $10 000.

(2) Before making an order under subsection (1) or (2A), the Minister is to be satisfied that —

(a) the application for the order arises from a change in the circumstances of the person; and

(b) the person would suffer hardship if the application were refused.

(3) Subsection (1) does not apply to a person in relation to a dwelling if the building licence for the dwelling was issued to the person during a period specified in an order made under section 25I for the purposes of section 25C(3).

(4) Subsection (2A) does not apply to a person in relation to a dwelling if the building permit for the dwelling was granted to the person during a period specified in an order made under section 25I for the purposes of section 25C(3).

[Section 25FA inserted: No. 37 of 2002 s. 14; amended: No. 19 of 2011 s. 152.]

25G. Insurance policy for this Division, terms of

(1) A policy of insurance complies with this Division if —

(a) it insures the purchaser and the purchaser’s successors in title against the risk of being unable to take advantage of an entitlement to, or to enforce or recover under, a building remedy order under the Building Services (Complaint Resolution and Administration) Act 2011 by reason of the insolvency or death of the owner‑builder or by reason of the fact that, after due search and enquiry, the owner‑builder cannot be found; and

(b) it provides that claims may be made under it at any time before the expiration of a period of 7 years from —

(i) the date of issue to the owner‑builder of the relevant building licence for the building work; or

(ii) the date of grant to the owner‑builder of the relevant building permit for the building work;

and

(c) it provides for insurance cover of —

(i) at least $100 000 or such other amount as is prescribed; or

(ii) the cost of the building work,

whichever is the lesser; and

(d) it is issued by or on behalf of an insurer who is —

(i) authorised under the Insurance Act 1973 of the Commonwealth to carry on insurance business; and

(ii) approved in writing by the Minister;

and

(e) it complies with any other prescribed requirements.

(2) Where the policy of insurance relates to work described in paragraph (b) of the definition of home building work in section 3, the cost of the building work for the purposes of subsection (1)(c) is only the cost of —

(a) placing the dwelling on the land including siting, stumping and any other work in connection with that placement; and

(b) any building work to the dwelling after placement.

(3) An insurer is not entitled to avoid liability under a policy of insurance on the ground that the policy was obtained by misrepresentation or non‑disclosure by the owner‑builder.

[Section 25G inserted: No. 72 of 1996 s. 5; amended: No. 16 of 2011 s. 122; No. 19 of 2011 s. 153.]

25GA. Corresponding cover by an approved fund for owner‑builders

(1) Corresponding cover is provided by an approved fund in relation to residential building work performed by an owner‑builder if the purchaser, and the purchaser’s successors in title, are in the same position that they would be if a policy of insurance that complies with this Division were in force in relation to the residential building work.

(2) Any discretion that a person has to approve a claim on the fund is to be disregarded for the purposes of subsection (1).

[Section 25GA inserted: No. 37 of 2002 s. 15.]

Division 3A — Approved funds

[Heading inserted: No. 37 of 2002 s. 16.]

25GB. Approval of fund by Minister

(1) The Minister may, by order published in the Gazette, approve a fund for the purposes of this Part.

(2) The Minister is not to approve a fund unless —

(a) the fund is, or is similar to, a mutual fund; and

(b) the rules of the fund (however described) are approved by the Minister; and

(c) each person responsible for the management of the fund is approved by the Minister in relation to the fund; and

(d) the Minister is satisfied that there is, or will be, adequate insurance or other provision for excess losses of the fund; and

(e) each insurer providing the insurance referred to in paragraph (d) is authorised under the Insurance Act 1973 of the Commonwealth to carry on insurance business, and is approved by the Minister in relation to the fund.

(3) In deciding whether to approve a fund, the Minister may take into account —

(a) the independence of the persons involved in, or responsible for, the management, provision for excess losses and auditing of the fund; and

(b) matters that do not necessarily relate to the particular fund but which relate to the building or insurance industries generally; and

(c) any other relevant matter.

(4) The Minister may impose conditions on the approval and vary those conditions at any time.

[Section 25GB inserted: No. 37 of 2002 s. 16.]

25GC. Certain changes to approved fund require Minister’s consent

The matters set out in section 25GB(2)(a), (b) and (c), as they apply to an approved fund, must not change in respect of the fund without the Minister’s written consent.

[Section 25GC inserted: No. 37 of 2002 s. 16.]

25GD. Approval of fund, revoking

The Minister may, by order published in the Gazette, revoke the Minister’s approval of a fund if —

(a) a matter, as it applies to an approved fund, has changed in contravention of section 25GC; or

(b) the Minister is no longer satisfied that there is adequate insurance or other provision for excess losses of the fund as referred to in section 25GB(2)(d); or

(c) an insurer referred to in section 25GB(2)(e) —

(i) is not, or is no longer, authorised; or

(ii) is not, or is no longer, approved,

as required by that provision.

[Section 25GD inserted: No. 37 of 2002 s. 16.]

Division 4 — Review

[Heading inserted: No. 72 of 1996 s. 5.]

25H. Review of this Part by Minister

(1) The Minister must carry out a review of the operation and effectiveness of this Part as soon as is practicable after the expiration of 2 years from the commencement of the Home Building Contracts Amendment Act 1996, and in the course of that review must consider and have regard to —

(a) the effectiveness of the scheme of insurance under this Part; and

(b) such other matters as appear to the Minister to be relevant to the operation and effectiveness of this Part.

(2) The Minister must prepare a report based on the review made under subsection (1) and must, as soon as is practicable after the preparation thereof, cause the report to be laid before each House of Parliament.

[Section 25H inserted: No. 72 of 1996 s. 5; amended: No. 37 of 2002 s. 20.]

Division 5 — Provisions about non‑application of sections 25C(1) and (2) and 25F(1)

[Heading inserted: No. 37 of 2002 s. 17.]

25I. Periods for s. 25C(3) and 25F(2), Minister may specify

(1) For the purposes of section 25C(3) or section 25F(2), or both, the Minister may, by order published in the Gazette, specify a period of up to 6 months, which is not to commence before the day on which the order is published.

(2) The Minister may make no more than 4 orders for the purposes of section 25C(3) and no more than 4 orders for the purposes of section 25F(2).

[Section 25I inserted: No. 37 of 2002 s. 17.]

25J. Contracts with builders, builders to give prescribed notice to other party

(1) In this section —

specified period means a period specified in an order made under section 25I for the purposes of section 25C(3).

(2) A builder must not, during a specified period, enter into a building contract or sale contract in respect of residential building work unless the builder has given the other party to the contract a notice in the form prescribed by the regulations.

Penalty: $10 000.

(3) A builder must not, after the end of a specified period, enter into a building contract or sale contract in respect of residential building work performed by the builder under a building permit granted before or during that specified period unless the builder has given the other party to the contract a notice in the form prescribed by the regulations.

Penalty: $10 000.

(4) A failure to provide a notice in accordance with subsection (2) or (3) does not, of itself, invalidate a contract.

(5) If —

(a) at a time that is not during a specified period, a builder enters into a building contract or sale contract in respect of residential building work; and

(b) a specified period commences before a building permit for the residential building work is granted,

the builder must give the other party to the contract a notice in the form prescribed by the regulations as soon as practicable after the specified period commences.

Penalty: $10 000.

(6) If the party to whom a notice must be given under subsection (5) is not a developer, the party may rescind the contract.

(7) To rescind the contract, the party must give notice of the exercise of the right to rescind to the builder before the earlier of —

(a) the expiration of one month after the day on which the notice referred to in subsection (5) is received by the party; or

(b) settlement (in the case of a sale contract) or practical completion (in all other cases).

[Section 25J inserted: No. 37 of 2002 s. 17; amended: No. 24 of 2011 s. 163(8) and (9).]

25K. Sale contract with owner-builder, owner-builder to give prescribed notice to other party

(1) In this section —

specified period means a period specified in an order made under section 25I for the purposes of section 25F(2).

(2) An owner‑builder must not, during a specified period, enter into a sale contract in respect of residential building work unless the owner‑builder has given the purchaser a notice in the form prescribed by the regulations.

Penalty: $10 000.

(3) A failure to provide a notice in accordance with subsection (2) does not, of itself, invalidate a contract.

[Section 25K inserted: No. 37 of 2002 s. 17.]

25L. Subsequent purchaser to be given notice given under s. 25J in some cases

(1) If a person to whom a notice is given under section 25J is a developer in respect of the residential building work, the person (the developer) must, before entering into a sale contract in respect of the residential building work, give a copy of the notice to the other party to the sale contract (the purchaser) if settlement for the sale contract is, or is likely, to occur within 6 years of practical completion of the residential building work.

Penalty: $10 000.

(2) A failure to provide a notice in accordance with subsection (1) does not, of itself, invalidate a contract.

[Section 25L inserted: No. 37 of 2002 s. 17.]

Part 4 — General

26. Inspection by owner etc. of building work, prevention of etc.

(1) A builder under a contract or a person acting on behalf of the builder must not prevent the owner or an authorised person from inspecting the home building work to which the contract relates if the owner or authorised person is acting in accordance with —

(a) the contract; and

(b) such provisions as are prescribed.

Penalty: $1 000.

(2) A provision in a contract that prohibits or restricts inspection of home building work is void except to the extent that it —

(a) restricts inspection to the builder’s normal working hours; or

(b) precludes inspection that would unreasonably impede or interfere with the building work.

(3) In subsection (1) authorised person means —

(a) a person acting on behalf of the owner under an authority in writing; and

(b) a person who is providing finance for the home building work or a person acting on behalf of such a person.

27. Breach of Act, effect of on contract

(1) Except as provided in section 13(2), or 26(2) or by an order referred to in the Building Services (Complaint Resolution and Administration) Act 2011 section 41(3)(a), a contract or a provision of a contract is not illegal, void or unenforceable only because a requirement of this Act is not complied with.

(2) Nothing in subsection (1) affects the operation of section 28.

[Section 27 amended: No. 16 of 2011 s. 123.]

28. Contracting out prohibited

(1) An agreement or arrangement that purports to exclude or restrict the operation of any provision of this Act or to modify any such provision to the disadvantage of an owner is to that extent void.

(2) A purported waiver of a right conferred by or under this Act is void.

(3) A person must not enter into any agreement or arrangement with intent either directly or indirectly to defeat, evade or prevent the operation of this Act.

Penalty: $10 000.

29. Other laws not affected

(1) The provisions of this Act are in addition to and do not derogate from the provisions of any other written law.

(2) This Act does not limit or derogate from any civil remedy at law or in equity.

30. Liability of officers for offence by body corporate

	*The Criminal Code* section 39 (which provides for the criminal liability of officers of a body corporate) applies to an offence under a provision of this Act listed in the Table.

Table

[Section 30 inserted: No. 9 of 2023 s. 89.]

31. Prosecutions

(1) A prosecution for an offence against this Act can only be commenced by the Building Commissioner or a person authorised to do so by the Building Commissioner.

(2) Subsection (1) does not limit the functions of the Director of Public Prosecutions under the Director of Public Prosecutions Act 1991 section 11.

(3) A prosecution for an offence against this Act may be commenced within 3 years after the date on which the offence was allegedly committed, but not later.

(4) All prosecutions for offences against this Act are to be heard by a court of summary jurisdiction constituted by a magistrate.

(5) In the absence of evidence to the contrary, proof is not required in any proceeding for an offence against this Act —

(a) of the authority of a person to take the proceeding; or

(b) that a signature on a prosecution notice alleging the offence is the signature of a person authorised to take the proceeding.

[Section 31 inserted: No. 16 of 2011 s. 124.]

[31A. Deleted: No. 16 of 2011 s. 125]

31B. Infringement notices

(1) A reference in subsection (2), (3), (5) or (7) to an authorised person is a reference to a person appointed under subsection (10) to be an authorised person for the purposes of the subsection in which the term is used.

(2) An authorised person who has reason to believe that a person has committed a prescribed offence against this Act may, within 21 days after the alleged offence is believed to have been committed, give an infringement notice to the alleged offender.

(3) An infringement notice is to be in the prescribed form and is to —

(a) contain a description of the alleged offence; and

(b) advise that if the alleged offender does not wish to be prosecuted for the alleged offence in a court, the amount of money specified in the notice as being the modified penalty for the offence may be paid to an authorised person within a period of 28 days after the giving of the notice; and

(c) inform the alleged offender as to who are authorised persons for the purposes of receiving payment of modified penalties.

(4) In an infringement notice the amount specified as being the modified penalty for the offence referred to in the notice must be the amount that was the prescribed modified penalty at the time the alleged offence is believed to have been committed.

(4a) The modified penalty that regulations may prescribe for an offence is not to exceed 20% of the maximum penalty for that offence.

(5) An authorised person may, in a particular case, extend the period of 28 days within which the modified penalty may be paid and the extension may be allowed whether or not the period of 28 days has elapsed.

(6) Where the modified penalty specified in an infringement notice has been paid within 28 days or such further time as is allowed and the notice has not been withdrawn, the bringing of proceedings and the imposition of penalties are prevented to the same extent as they would be if the alleged offender had been convicted by a court of, and punished for, the alleged offence.

(7) An authorised person may, whether or not the modified penalty has been paid, withdraw an infringement notice by sending to the alleged offender a notice in the prescribed form stating that the infringement notice has been withdrawn.

(8) If an infringement notice is withdrawn after the modified penalty has been paid, the amount is to be refunded.

(9) Payment of a modified penalty is not to be regarded as an admission for the purposes of any proceedings, whether civil or criminal.

(10) The Building Commissioner may, in writing, appoint persons or classes of persons to be authorised persons for the purposes of subsection (2), (3), (5) or (7) but a person who is authorised to give infringement notices under subsection (2) is not eligible to be an authorised person for the purposes of any of the other subsections.

(11) The Building Commissioner must issue to each person who is authorised to give infringement notices under this section a certificate stating that the person is so authorised, and the authorised person is to produce the certificate whenever required to do so by a person to whom he or she has given or is about to give an infringement notice.

[Section 31B inserted: No. 76 of 2000 s. 56; amended: No. 37 of 2002 s. 20; No. 84 of 2004 s. 80; No. 19 of 2011 s. 154.]

32. Regulations

(1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed, for giving effect to the purposes of this Act.

(2) Without limiting the generality of subsection (1), regulations made for the purposes of Part 3A may provide for home indemnity insurance or corresponding cover generally and in particular may —

(a) exempt any specified home building work or any specified class of home building work from the requirements of that Part, either unconditionally or subject to such conditions as are specified in the regulations; and

(b) exempt any person or builder or any specified class of persons or builders from the requirements of that Part, either unconditionally or subject to such conditions as are specified in the regulations; and

(c) require the provision of information about home indemnity insurance or corresponding cover in the circumstances and manner set forth in the regulations.

(3) The regulations may provide that a contravention of a regulation or a provision of a regulation constitutes an offence and provide for penalties not exceeding a fine of $5 000.

[Section 32 amended: No. 72 of 1996 s. 6; No. 37 of 2002 s. 18.]

33. Retrospectivity of Act

A provision of this Act (other than section 25J(5), (6) and (7)) does not apply to any contract entered into before the commencement of that provision.

[Section 33 amended: No. 37 of 2002 s. 19.]

34. Review of Act

(1) The Minister must carry out a review of the operation and effectiveness of this Act as soon as is practicable after the expiration of 2 years from its commencement.

(2) Without limiting subsection (1), in carrying out a review under that subsection, the Minister must consult with and have regard to the views of the Housing Industry Association Western Australian Division, the Master Builders Association of Western Australia, the Institute of Arbitrators Australia (WA Chapter) and the Royal Australian Institute of Architects (WA Chapter), and persons who are representative of owners.

(3) The Minister must prepare a report based on the review made under subsection (1) and must, as soon as is practicable after the preparation thereof, cause the report to be laid before each House of Parliament.

[Section 34 amended: No. 37 of 2002 s. 20.]

[35. Omitted under the Reprints Act 1984 s. 7(4)(e).]

Schedule 1 — Consequences of non‑fulfilment of conditions

[s. 7(4), 8(4), 9(4), 13(5), 19 and 20]

[Heading amended: No. 19 of 2010 s. 4.]

1. Condition in s. 9(1), non-fulfilment of by builder

If any condition set out in subsection (1) of section 9 is not fulfilled solely because the builder has failed to comply with the builder’s obligations under subsection (2) of that section, the contract is not affected but remains in force on the same terms and conditions except as otherwise agreed between the parties.

[Clause 1 amended: No. 19 of 2010 s. 51.]

2. Condition in s. 9(1), non-fulfilment of by owner

If any condition set out in subsection (1) of section 9 is not fulfilled solely because the owner has failed to comply with the owner’s obligations under subsection (2) of that section, the contract remains in force on the same terms and conditions until the parties agree otherwise, but subject to the provisions of clause 4.

[Clause 2 amended: No. 76 of 2000 s. 58(a); No. 19 of 2010 s. 51.]

3. Condition in s. 9(1), non-fulfilment of by builder and owner

If any condition set out in subsection (1) of section 9 is not fulfilled and both the owner and the builder have, or neither the owner nor the builder has, failed to comply with their respective obligations under subsection (2) of that section, the contract remains in force on the same terms and conditions until the parties agree otherwise, but subject to the provisions of clause 4.

[Clause 3 amended: No. 76 of 2000 s. 58(b); No. 19 of 2010 s. 51.]

4. Rights of builder and owner if cl. 2 or 3 or s. 13(4)(c) applies

Where clause 2 or 3 or section 13(4)(c) applies —

(a) the builder may by notice in writing to the owner —

(i) increase the price stipulated in the contract by an amount set out in the notice; and

(ii) specify when any increased amount is payable, which must be either —

(A) not later than 10 working days after the notice is given; or

(B) at the time of a progress payment;

and

(b) if the amount of an increase exceeds 5% of the price stipulated in the contract, the owner may terminate the contract in accordance with section 19 within 10 working days after receipt of notice under paragraph (a); and

(c) if the owner so terminates the contract, the owner is liable to compensate the builder for the reasonable costs incurred by the builder up to the date of termination.

[Clause 4 amended: No. 57 of 1997 s. 73; No. 19 of 2010 s. 51.]

5. Price increase, review of

(1) If the owner considers that the amount of a price increase notified under clause 4(a) is excessive or unjustified, the owner may make a complaint under the Building Services (Complaint Resolution and Administration) Act 2011 section 5(2).

(2) On a complaint referred to in subclause (1) the builder is required to show that the price has been increased to reflect actual increases in costs between the date of the contract and the date of the notice under clause 4(a).

[Clause 5 amended: No. 76 of 2000 s. 57 and 58(c); No. 37 of 2002 s. 20; No. 19 of 2010 s. 51; No. 16 of 2011 s. 126.]

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Notes

This is a compilation of the Home Building Contracts Act 1991 and includes amendments made by other written laws 1. For provisions that have come into operation, and for information about any reprints, see the compilation table.

Compilation table

Other notes

1 The amendment in the Caravan Parks and Camping Grounds Act 1995 Sch. 2 it. 3 had not come into operation when it was deleted by the Statutes (Repeals and Miscellaneous Amendments) Act 2009 s. 26(3).

2 The Building Legislation Amendment Act 2000 s. 59 and 62 read as follows:

59. References to Committee in other written laws

A reference in any written law to the Building Disputes Committee constituted under the Builders’ Registration Act 1939 is to be read and construed as a reference to the Building Disputes Tribunal under that Act as amended by this Act.

62. Review

(1) The Minister is to carry out a review of the operation and effectiveness of the amendments made by this Act as soon as is practicable after the expiration of 3 years from the commencement of section 1 of this Act.

(2) The Minister is to prepare a report based on the review made under subsection (1) and, as soon as is practicable after the report is prepared, is to cause it to be laid before each House of Parliament.

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

approved fund 25A

associated work 3(1)

authorised person 26(3), 31B(1)

builder 3(1), 25A

Builders’ Registration Board 3(1)

Building Commissioner 3(1)

building contract 25A

building licence 3(1)

building permit 3(1)

building service contractor 25A

construct 3(1)

contract 3(1), 7(5)

corresponding cover 25A

cost of the building work 25A

cost plus contract 3(1)

date of the contract 3(1)

date of the variation 3(1)

defect 11(2)

developer 25A, 25L(1)

dwelling 3(1)

home building work 3(1)

home building work contract 3(1)

insolvency 25A

insurance 25B.(5)

minimum amount 25A

owner 3(1)

owner-builder 25A

perform 3(1)

practical completion 11(2)

prescribed 3(1)

purchaser 25L(1)

relevant circumstance 25D(1A)

repealed Act 3(1)

rescind 25A

residential building work 25A

residential building work contract 25A

rise-and-fall clause 13(3)

sale contract 25A

settlement 25A

specified period 25J(1), 25K(1)

strata/community title dwelling 3(1)

working days 3(1)