39 Liabilities, &c., in respect of certain contracts
(1) In this section –
building includes a part of a building;
building contract means a contract, made between the Crown and one or more other persons, pursuant to which one or more of the other persons has carried out, has agreed to carry out, or is carrying out, any building work that relates to a building that is –
(a) used, or occupied, wholly or in part, by the THS; or
(b) intended by the THS to be used or occupied wholly or in part by the THS –
but does not include a procurement contract;
building work means –
(a) erecting, re-erecting, constructing, altering, repairing, underpinning, demolishing or removing a building; and
(b) adding to a building; and
(c) excavating or filling incidental to an activity referred to in paragraph (a) or (b) ; and
(d) all work carried out in conjunction with work referred to in paragraph (a) , (b) or (c) , including but not limited to –
(i) work in relation to any system or service in or for a building; and
(ii) the preparation of plans and specifications; and
(iii) work carried out by an architect, engineer or building designer; and
(e) work carried out in the vicinity of a building for a purpose related to the use or occupation of that building; and
(f) any work for the maintenance of the essential building services of a building;
commencement day means the day on which this section commences;
contract includes a contract, agreement, arrangement and undertaking;
contractor means –
(a) in relation to a building contract, a person who, as a party to the contract, has carried out, or has agreed to carry out, any building work to which the contract relates; and
(b) in relation to a procurement contract, a person who, as a party to the contract, supplies, agrees to supply, or has supplied, goods, substances or services;
Crown means the Crown in right of Tasmania;
essential building services has the same meaning as it has in the Building Act 2016 ;
procurement contract means a contract, made between the Crown and one or more other persons, pursuant to which one of the other persons supplies, agrees to supply, or has supplied, to the Crown, goods, substances, or services, that are –
(a) used, wholly or in part, by the THS; or
(b) intended by the THS to be used wholly or in part by the THS –
but does not include a building contract;
relevant contract means –
(a) a building contract; or
(b) a procurement contract.
(2) This section applies to a relevant contract whether the contract is made before or after the commencement day or the day on which any other provision of this Act commences.
(3) This section does not apply to a relevant contract to which the THS is a party.
(4) Subject to subsection (7) , any loss or damage incurred or suffered by the THS arising out of –
(a) any breach or repudiation of a relevant contract by the contractor; or
(b) the termination of a relevant contract by the Crown because of the repudiation of the contract by the contractor; or
(c) the termination of a relevant contract by the Crown pursuant to the exercise of a right to terminate the contract set out in the contract; or
(d) the termination of a relevant contract pursuant to the exercise, by any other person, of a statutory power in connection with the bankruptcy or insolvency of the contractor –
is taken to be loss or damage incurred or suffered by the Crown.
(5) For the avoidance of doubt, subsection (4) applies to a breach, repudiation, or termination, of a relevant contract whether the breach, repudiation or termination occurred before or after the commencement day or the day on which any other provision of this Act commences.
(6) Without limiting subsection (4) , the Crown may exercise the same rights in relation to loss or damage referred to in that section as it may have exercised if the Crown had incurred or suffered that loss or damage instead of the THS.
(7) Subsections (4) and (6) do not apply to loss or damage, referred to in subsection (4) , arising in relation to a relevant contract, that is incurred or suffered by the THS on or after the date on which the relevant contract was transferred under the Tasmanian Health Organisations Act 2011 by the Crown to a Tasmanian Health Organisation within the meaning of that Act.
(8) A reference to the Crown in any indemnity or release given by a contractor to the Crown in a procurement contract is taken to also be a reference to the THS if the THS uses, or intends to use, any of the goods, substances or services that are supplied, or have been agreed to be supplied, by the contractor under the contract.
(9) A reference to the Crown, in any indemnity or release given by a contractor to the Crown in a building contract, is taken to also be a reference to the THS if the THS uses or occupies, or intends to use or occupy, any building in respect of which the contractor has carried out, or has agreed to carry out, any building work.