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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Home Building Amendment Bill 2014
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The object of this Bill is to amend the Home Building Act 1989, in connection with the statutory
review of that Act, to deal with the following matters:
(a) penalties for unlicensed work--by increasing the maximum penalty for a second or
subsequent offence by an unlicensed individual who does, or offers to do, residential
building work or specialist work, or a licensee or developer who hires unlicensed persons
(including imprisonment as a sentencing option),
(b) contracts to do residential building work or specialist work--including by extending the
matters for which contracts must provide, regulating progress payments and increasing the
cap on deposits,
(c) contracts to supply kit homes--including by extending the matters for which contracts must
provide and increasing the cap on deposits,
(d) statutory warranties implied into contracts--including by requiring work to be done with
due care and skill (rather than in a proper and workmanlike manner, as at present),
clarifying the responsibilities of subcontractors for breaches of the warranties, imposing
duties on consumers to mitigate loss and notify defects, clarifying the test of which home
building defects require a greater warranty period and providing a defence for builders who
rely on the instructions of a professional acting for the consumer,
(e) contractor licences, supervisor certificates and tradesperson certificates--including by
broadening the grounds on which a person is disqualified from holding a licence or
certificate, providing for consistent consideration for all licensing and certification
b2013-045-20.d15
Home Building Amendment Bill 2014 [NSW]
Explanatory note
decisions and consolidating licensing and certification provisions currently spread across
the Act and regulations,
(f) notification of insolvency, winding up or deregistration of licence holders--by requiring
the holders of contractor licences to notify their insolvency, winding up or deregistration
and making a breach of that obligation an executive liability offence,
(g) owner-building--including by requiring special circumstances before an owner-builder
permit can authorise work that relates to dual occupancy, requiring all owner-builder
applicants to undertake safety training or other training, prohibiting joint owners of
property upon which owner-builder works are being carried out from carrying out
owner-building work on other properties within 5 years, broadening the grounds on which
a person is disqualified from holding an owner-builder permit and consolidating permit
provisions currently spread across the Act and regulations,
(h) resolution of building disputes--including by making further provision for the issue of
rectification orders (which are used to resolve disputes), by allowing for orders to set out
stages for rectification work, by clarifying that they can require the payment of money by
a consumer only when the money is due under a home building contract, by making it a
breach of a licence to fail to comply with a rectification order and requiring a court or
tribunal, when determining a building claim, to have regard to the principle that
rectification of the defective work by the responsible party is the preferred option,
(i) disciplinary proceedings--including by changing the meaning of improper conduct, and the
grounds for disciplinary action, to cover work done otherwise than with due care and skill
(rather than otherwise than in a good and workmanlike manner, as at present),
(j) home warranty insurance--including by clarifying when a contractor is taken to have
disappeared, requiring residential building work done under a contract to be insured in the
name under which the person contracted to do the work, providing that a contract of
insurance extends to the rectification of the original residential building work, preventing
owner-builders from obtaining home warranty insurance, providing an increased maximum
penalty for a second or subsequent offence by an individual of uninsured contracting to do
residential building work or specialist work or seeking that work by or for an uninsured
person, improving access to insurance in cases of insolvency and renaming home warranty
insurance as insurance under the Home Building Compensation Fund,
(k) other minor, consequential or ancillary matters--including by moving definitions, and
exclusions from certain definitions, from the regulations to the Act and dealing with savings
and transitional matters.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or days to be appointed
by proclamation.
Schedule 1 Amendment of Home Building Act 1989 No 147
Preliminary and interpretation
Schedule 1 amends Part 1 of the Act (dealing with interpretation and other preliminary matters)
as follows:
(a) by moving definitions in the Act to a Schedule and by moving from the regulations to the
Act provisions about matters or work that are included or excluded from the definitions of
dwelling and residential building work,
(b) by providing that, for the purposes of the Act and regulations and a contract of insurance
under the Act, the date of completion of a new building in a strata scheme occurs on the
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Home Building Amendment Bill 2014 [NSW]
Explanatory note
issue of an occupation certificate for the building or on the occurrence of some other event
that is prescribed by the regulations,
(c) by making it clear that the application of the Act to specialist work is not limited to
specialist work that is residential building work and extends to commercial, industrial and
other specialist work that is not residential building work,
(d) by excluding from the definition of residential building work, and thus from the operation
of the Act's requirements about contracts and licensing:
(i) work comprising the construction of concrete tennis courts (and the like), ornamental
ponds and water features and other structural ornamentation, if the work is
undertaken as a stand-alone project, and
(ii) internal paintwork, if undertaken as a stand-alone project, and
(iii) off-site work to fabricate a manufactured home,
(e) by making consequential amendments.
Contracting to do residential building work or specialist work
Schedule 1 amends Part 2 of the Act (dealing with the regulation of residential building work and
specialist work) as follows:
(a) by increasing the maximum penalty (and to include the option of imprisonment as a
penalty) for a second or subsequent offence committed by an individual against provisions
that prohibit unlicensed contracting and seeking work by or for an unlicensed person,
(b) by including in the Act provisions currently in the regulations that provide for the terms that
must be included in contracts and that create exceptions to requirements as to the form and
content of contracts, cooling-off periods for contracts and the duty to provide copies of
contracts,
(c) by requiring contracts to do residential building work to include details of any progress
payments payable under the contract and a statement about how the contract can be
terminated,
(d) by extending an existing offence about compliance with contract requirements to cover
non-compliance with requirements of the regulations as to the terms and other matter that
must or must not be included in contracts,
(e) by providing that the maximum deposit for residential building work is 10% of the contract
price, regardless of the contract price (up from 5% when the contract price is more than
$20,000),
(f) by imposing restrictions on the progress payments that can be required under a contract to
do residential building work with a value more than a prescribed amount (currently
$20,000),
(g) by inserting notes as aids to interpretation of provisions relating to exemptions.
Contracts to supply kit homes
Schedule 1 amends Part 2A of the Act (dealing with the regulation of the supply of kit homes) as
follows:
(a) by transferring from the regulations to the Act the terms that a contract for the supply of a
kit home must include,
(b) by extending an existing offence about compliance with contract requirements to cover
non-compliance with requirements of the regulations as to the terms and other matter that
must or must not be included in contracts,
(c) by providing that the maximum amount of a deposit for the supply of a kit home is 10% of
the contract price (up from 5% where the contract price is $20,000 or less).
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Home Building Amendment Bill 2014 [NSW]
Explanatory note
Statutory warranties
Schedule 1 amends Part 2C of the Act (dealing with statutory warranties) to clarify the rights and
obligations of licensees and consumers under the statutory warranties (which imply minimum
standards of work into a contract to do residential building work), as follows:
(a) by providing for a warranty to be implied into every contract to do residential building work
that the work will be done with due care and skill (rather than in a proper and workmanlike
manner, as at present), so as to modernise the Act's terminology and make it more
consistent with the Australian Consumer Law (NSW),
(b) by providing that, although the principal contractor is primarily responsible to the consumer
for a breach of a statutory warranty (even when the breach relates to work undertaken by a
subcontractor) subcontractors are also responsible for statutory warranties,
(c) by setting out the duties of a person who has the benefit of a statutory warranty (a
consumer), as follows:
(i) by imposing a duty on the consumer to mitigate loss arising from a breach of the
warranty,
(ii) by introducing a defect notification period, requiring the consumer to notify the
licensee of a defect in the residential building work within 6 months of when the
consumer became aware or ought reasonably to have become aware of the defect,
(iii) by requiring consumers to allow the licensee reasonable access to the site, so that the
licensee can rectify the work,
(iv) by allowing a court or tribunal to take any failure to mitigate loss or give notice of a
defect into account in proceedings concerning a breach of statutory warranty and by
providing that a court or tribunal must take into account any failure to comply with
the duty to allow reasonable access,
(d) by changing the kind of defect that attracts a 6-year statutory warranty period from
structural defect (as defined in the regulations) to a major defect in a major element of the
building,
(e) by providing for a defence in proceedings for a breach of a statutory warranty for licensed
builders who rely on the instructions of a professional acting for the person for whom the
work was contracted (and who is independent of the builder).
Contractor licences, supervisor certificates, tradesperson certificates and owner-builder
permits
Schedule 1 amends Part 3 of the Act (dealing with the issue, cancellation and suspension of
contractor licences, supervisor certificates, tradesperson certificates and owner-builder permits)
as follows:
(a) by transferring from the regulations to the Act provisions dealing with the grounds on which
a person is disqualified from applying for or holding a contractor licence, supervisor
certificate and tradesperson certificate and amending those provisions as follows:
(i) by providing that a provision that currently prevents a licence or certificate from
being issued to a person who is or was a director or a person involved in the
management of a corporation that is under external administration at the time of
making the decision extends to disqualify those with such involvement in
corporations that have already been wound up,
(ii) by amending the exemptions from the grounds on which a licence or certificate can
be refused relating to an applicant who is or was a director or concerned in the
management of an externally-administered body corporate, to provide for a
members' voluntary winding up only to be exempt and for any other voluntary
winding up (such as by creditors) to be a ground to refuse a licence or a certificate,
(iii) by preventing the issue of a licence or certificate to a person involved in a home
building entity that has been the subject of an unreasonably large number of
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Home Building Amendment Bill 2014 [NSW]
Explanatory note
complaints, cautions, penalty notices or home warranty insurance claims under the
Act, the Australian Consumer Law (NSW) or other relevant legislation,
(iv) by making the fit and proper person test mandatory, so that an application must be
refused if it is considered that the applicant, or a close associate of the applicant who
exercises a significant influence over the applicant or the operation and management
of the applicant's business, would not be a fit and proper person to hold an authority
(whereas this is currently merely an optional consideration),
(b) by providing for consistent considerations for all licensing and certification decisions (that
is, for their issue, renewal, restoration and cancellation), including by requiring the
cancellation of a contractor licence if an application for a licence by the person would be
required to be refused and making similar provision relating to renewal,
(c) by requiring cancelled contractor licences, supervisor certificates and tradesperson
certificates, or statements about them, to be lodged with the head of the government agency
that administers the Act (the Chief Executive) rather than at an office of that agency, and
also requiring such lodgment when licences or certificates are suspended because of failure
to insure or the appointment of a controller or administrator,
(d) by requiring the holder of a contractor licence to notify certain events or circumstances
(including insolvency, winding up or deregistration), which would allow reliance on an
existing power to suspend the licence if there was a risk to the public that the licensee would
be unable to complete building contracts,
(e) by providing that an offence involving failure to notify issues relating to the solvency and
registration of the holder of a contractor licence is an executive liability offence, for which
a director of the corporation or an individual who is involved in the management of the
corporation, and who is in a position to influence the conduct of the corporation in relation
to the commission of the offence, may be liable,
(f) by specifying the matters that must be considered before a provisional supervisor certificate
can be issued,
(g) by broadening the definition of owner-builder work to include residential building work on
a secondary dwelling on land,
(h) by providing that an owner-builder permit must not authorise its holder to do residential
building work that relates to a dual occupancy unless there are special circumstances,
(i) by requiring all applicants for owner-builder permits to undertake education or training, or
hold qualifications, required by the Chief Executive or the regulations (which are intended
to include a requirement to obtain a construction induction card (a "white card") under the
Work Health and Safety Act 2011),
(j) by extending the 5-year limitation that currently applies to the holder of an owner-builder
permit carrying out owner-builder work on other properties, so that the limitation applies to
all persons with a registered interest in land upon which owner-builder work was
undertaken, rather than just the person to whom the owner-builder permit was issued,
(k) by setting out in a Schedule to the Act some of the conditions of authorities presently in the
regulations,
(l) by requiring cancelled authorities or statements about them to be lodged with the Chief
Executive rather than at an office of the relevant government agency.
Resolving building disputes
Schedule 1 amends Part 3A of the Act (relating to the current powers of inspectors to make
rectification orders after completing an investigation of a building dispute) as follows:
(a) by making it clear that a condition of a rectification order requiring the payment of money
by the complainant under a building claim relates only to money payable under the contract,
(b) by allowing for staged rectification orders, so that a rectification order may set out stages
for compliance with the requirements of the order,
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Home Building Amendment Bill 2014 [NSW]
Explanatory note
(c) by providing that a rectification order may be amended by a further order,
(d) by making it a condition of every contractor licence that the contractor must comply with
the requirements of a rectification order (which will make a builder's non-compliance with
a rectification order grounds for the taking of disciplinary action),
(e) by requiring a court or tribunal, when determining a building claim involving an allegation
of defective residential building work or specialist work, to have regard to the principle that
rectification of the defective work by the responsible party is the preferred option,
(f) by providing that the Tribunal can make an order to resolve a building dispute even if it is
not the order that the applicant asked for.
Disciplinary proceedings
Schedule 1 amends Part 4 of the Act (relating to provisions about improper conduct and
disciplinary proceeding) as follows:
(a) by changing one of the grounds for a finding of improper conduct by or for disciplinary
action against a licence or certificate holder so that references to work having to be done in
a good and workmanlike manner will become references to work having to be done with
due care and skill (for consistency with changes to the statutory warranty changes as to
standard of work),
(b) by requiring the return of an authority that is suspended, varied or cancelled as a result of
disciplinary proceedings to the Chief Executive rather than at an office of the relevant
government agency.
Insurance
Schedule 1 amends Part 6 of the Act (relating to insurance of residential building work), as
follows:
(a) by clarifying that a reference to the disappearance of a contractor, supplier or owner-builder
is a reference to disappearance from Australia,
(b) by requiring that residential building work done under a contract must be insured in the
name under which the person contracted to do the work (rather than in the name of the
person who contracted to do the work),
(c) by providing an increased maximum penalty for a second or subsequent offence by an
individual of uninsured contracting for residential building work or specialist work,
(d) by providing that a contract of insurance in relation to residential building work done by a
person (whether or not under contract) extends to any residential building work done by the
same person by way of rectification of the same original work (and thus that a separate
contract of insurance is not required in relation to the rectification work),
(e) by omitting a provision that provides that if the holder of a contractor licence enters into a
contract to do residential building work and a contract of insurance is in force in relation to
the work, the contract of insurance is taken to extend to any residential building work under
the contract at the address stated in the certificate of insurance,
(f) by making it clear that the requirement for contract work to be insured extends to residential
building work that is owner-builder work when the work is done under a contract between
the person who contracts to do the work and the owner-builder,
(g) by removing the current requirement for an owner-builder to take out home warranty
insurance for owner-builder work and preventing home warranty insurance from being
taken out by an owner-builder in future (without affecting the current requirement that work
done by a contractor to an owner-builder must have home warranty insurance),
(h) by requiring contracts for the sale of land on which owner-builder work has been carried
out to contain a consumer warning stating that work done under an owner-builder permit is
not required to be insured under the Act unless done by a contractor to the owner-builder,
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Home Building Amendment Bill 2014 [NSW]
Explanatory note
(i) by imposing obligations on sellers of houses and units used for commercial purposes
(which are excluded from the definition of dwelling in the Act) to include a warning in a
contract for the sale of the relevant land that the property does not have the protection of the
Act,
(j) by improving access to home warranty insurance in cases of insolvency to ensure that
consumers can make claims for work done by a partnership where one member is insolvent
and the licence has been cancelled,
(k) by clarifying the meaning of building claim order in a provision providing that a contract
of insurance in relation to residential building work must include provision that deems the
suspension of a contractor's licence to constitute the insolvency of the contractor for the
purposes of the application of the policy to any loss that is the subject of a building claim
order made against the contractor that remains unsatisfied, so that an insurance policy must
cover loss that is the subject of an outstanding order by a court or the Tribunal in relation
to a building claim,
(l) by providing for the keeping of a register of insurance particulars that can be accessed by
beneficiaries or potential purchasers of property (including details of the builder, the site
and any successful claims on the insurance and the amount of those claims),
(m) by providing for the period of cover of an insurance contract to be referable to the
occurrence of a major defect (as defined in the statutory warranty provisions of the Act) in
residential building work, rather than a structural defect, after completion of work,
(n) by renaming home warranty insurance as insurance under the Home Building
Compensation Fund,
(o) by renaming the Home Warranty Insurance Scheme Board as the Home Building
Compensation Fund Board,
(p) by providing that a claim for non-completion of work can be made as a delayed claim to
allow beneficiaries to continue to pursue a contractor for breach of statutory warranties that
involve a claim for defective work as well as a non-completion claim beyond 12 months
after the work ceased.
Miscellaneous matters
Schedule 1 also makes amendments dealing with miscellaneous matters, as follows:
(a) by including an executive liability provision in the Act for directors and persons involved
in the management of a corporation that commits the offence of failing to notify the
occurrence of an insolvency event that provides grounds for the cancellation of a licence,
(b) by extending a provision about the limitation of personal liability that currently applies to
the Chief Executive so that it also applies to members of the Home Building Compensation
Fund Board and the Home Building Advisory Council,
(c) by clarifying the obligation of the Chief Executive to keep a register of particulars of
licences, certificates and owner-builder permits and other matters,
(d) by providing for service of notices and documents under the Act by email and fax,
(e) by updating references to the government agency that administers the Act and the head of
that agency and by requiring lodgment of certain documents with the Chief Executive rather
than at an office of that agency,
(f) by providing for the making of savings and transitional regulations,
(g) by inserting savings and transitional provisions,
(h) by renumbering existing Schedules about the membership of the Home Building
Compensation Fund Board and the Home Building Advisory Council.
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Home Building Amendment Bill 2014 [NSW]
Explanatory note
Schedule 2 Amendment of NSW Self Insurance Corporation
Act 2004 No 106
Schedule 2 amends the NSW Self Insurance Corporation Act 2004 as a consequence of the change
of terminology from "home warranty insurance" to "insurance under the Home Building
Compensation Fund".
Schedule 3 Repeals
Schedule 3 repeals Acts that contain only uncommenced provisions that amend the Home
Building Act 1989.
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First print
New South Wales
Home Building Amendment Bill 2014
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Home Building Act 1989 No 147 3
Schedule 2 Amendment of NSW Self Insurance Corporation Act 2004 No 106 48
Schedule 3 Repeals 50
b2013-045-20.d15
New South Wales
Home Building Amendment Bill 2014
No , 2014
A Bill for
An Act to amend the Home Building Act 1989 in connection with the statutory review of that Act;
and for other purposes.
Home Building Amendment Bill 2014 [NSW]
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Home Building Amendment Act 2014. 3
2 Commencement 4
This Act commences on a day or days to be appointed by proclamation. 5
Page 2
Home Building Amendment Bill 2014 [NSW]
Schedule 1 Amendment of Home Building Act 1989 No 147
Schedule 1 Amendment of Home Building Act 1989 No 147 1
[1] Section 3 2
Omit the section. Insert instead: 3
3 Interpretation 4
Schedule 1 provides for the interpretation of expressions used in this Act. 5
[2] Section 3AA Meaning of "close associate" of applicant for, or holder of, licence 6
Omit the section. 7
[3] Section 3B Date of completion of residential building work 8
Insert before section 3B (1): 9
(1A) This section does not apply to residential building work to which section 3C 10
applies. 11
Note. Section 3C provides for the date of completion of new buildings in strata 12
schemes. 13
[4] Section 3B (5) 14
Omit "home warranty insurance". 15
Insert instead "insurance under the Home Building Compensation Fund". 16
[5] Section 3C 17
Insert as section 3C: 18
3C Date of completion of new buildings in strata schemes 19
(1) This section applies to residential building work comprising the construction 20
of a new building in a strata scheme (within the meaning of the Strata Schemes 21
Management Act 1996) where the issue of an occupation certificate is required 22
to authorise commencement of the use or occupation of the building. 23
Note. Section 3B provides for the date of completion of other residential building work. 24
(2) The completion of residential building work to which this section applies 25
occurs on: 26
(a) the date of issue of an occupation certificate that authorises the 27
occupation and use of the whole of the building, unless paragraph (b) 28
applies, or 29
(b) the occurrence of some other event that is prescribed by the regulations 30
as constituting completion of the work. 31
(3) If a contract to do residential building work (the primary contract) comprises 32
the construction of 2 or more separate buildings, the date of completion of that 33
work is to be determined as if there were a separate contract for each separate 34
building (with each contract on the same terms as the primary contract) so that 35
the work for each building will have a separate completion date. For the 36
purposes of this section, a building is separate if it is reasonably capable of 37
being used and occupied separately from any other building. 38
Note. Separate buildings can still have the same completion date if they are completed 39
at the same time. 40
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Home Building Amendment Bill 2014 [NSW]
Schedule 1 Amendment of Home Building Act 1989 No 147
(4) This section applies for the purpose of determining when completion of 1
residential building work occurs for the purposes of any provision of this Act, 2
the regulations or a contract of insurance under the Home Building 3
Compensation Fund. 4
(5) In this section: 5
building means any structure that, as a new building, requires the issue of an 6
occupation certificate to authorise its use and occupation. 7
occupation certificate means an occupation certificate under the 8
Environmental Planning and Assessment Act 1979. 9
Note. A swimming pool, tennis court or detached garage can be a building for the 10
purposes of this section if an occupation certificate is required to authorise its use and 11
occupation. If a structure in a strata scheme does not require an occupation certificate, 12
section 3B will apply to it instead of section 3C. 13
[6] Section 3D 14
Insert as section 3D: 15
3D Application of provisions to specialist work 16
In its application to specialist work, this Act is not limited to specialist work 17
that is residential building work and extends to specialist work that is not 18
residential building work (for example, commercial and industrial specialist 19
work). 20
[7] Section 4 Unlicensed contracting 21
Insert after section 4 (5): 22
(6) An individual who is convicted of a second or subsequent offence under a 23
provision of this section is liable to a penalty not exceeding 500 penalty units 24
or imprisonment for a term not exceeding 12 months, or both. 25
[8] Section 5 Seeking work by or for unlicensed person 26
Insert after section 5 (2): 27
(3) An individual who is convicted of a second or subsequent offence under this 28
section is liable to a penalty not exceeding 500 penalty units or imprisonment 29
for a term not exceeding 12 months, or both. 30
[9] Section 6 Application of requirements for contracts 31
Omit "sections 7, 7AAA, 7A and 7B" wherever occurring in section 6 (2). 32
Insert instead "sections 7, 7AAA, 7AA, 7B and 7BA". 33
[10] Section 7 Form of contracts (other than small jobs) 34
Insert before section 7 (1A): 35
Note. Section 7AAA applies to contracts for small jobs. 36
[11] Section 7 (2) (h)-(j) 37
Insert at the end of section 7 (2) (g): 38
, and 39
(h) in the case of a contract to do residential building work (other than a 40
construction contract to which the Building and Construction Industry 41
Security of Payment Act 1999 applies)--details of any progress 42
payments payable under the contract, and 43
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Home Building Amendment Bill 2014 [NSW]
Schedule 1 Amendment of Home Building Act 1989 No 147
(i) in the case of a contract to do residential building work--a statement 1
that the contract may be terminated in the circumstances provided by 2
the general law and that this does not prevent the parties agreeing to 3
additional circumstances in which the contract may be terminated, and 4
(j) any other matter prescribed by the regulations for inclusion in the 5
contract. 6
[12] Section 7 (8) 7
Insert after section 7 (7): 8
(8) This section does not apply to: 9
(a) a contract that is made between parties who each hold a contractor 10
licence and is for work that each party's contractor licence authorises 11
the party to contract to do, or 12
(b) a contract to do specialist work that is not also residential building work. 13
Note. The exception in paragraph (a) applies to a subcontracting arrangement 14
between licensees, and to a contract between licensees for work to be done on 15
premises that one of the licensees owns. 16
[13] Section 7AAA Form of contracts (small jobs) 17
Insert after section 7AAA (4): 18
(5) This section does not apply to: 19
(a) a contract that is made between parties who each hold a contractor 20
licence and is for work that each party's contractor licence authorises 21
the party to contract to do, or 22
(b) a contract to do specialist work that is not also residential building work. 23
Note. The exception in paragraph (a) applies to a subcontracting arrangement 24
between licensees, and to a contract between licensees for work to be done on 25
premises that one of the licensees owns. 26
[14] Section 7AA Consumer information 27
Omit section 7AA (1A). Insert instead: 28
(1A) This section applies only to contracts to which section 7 applies but does not 29
apply to any of the following contracts: 30
(a) a contract to do residential building work entered into between the 31
holder of a contractor licence and a developer in relation to the work, 32
(b) a contract of a class prescribed by the regulations. 33
[15] Section 7AA (2) 34
Omit the subsection. 35
[16] Section 7A Offence 36
Omit "section 7 or 7AAA". Insert instead "sections 7, 7AAA and 7E". 37
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Home Building Amendment Bill 2014 [NSW]
Schedule 1 Amendment of Home Building Act 1989 No 147
[17] Section 7BA Cooling-off period: person may rescind a contract for residential 1
building work within 5 days without penalty 2
Omit section 7BA (8). Insert instead: 3
(8) This section does not apply to any of the following contracts: 4
(a) a contract that is made between parties who each hold a contractor 5
licence and is for work that each party's contractor licence authorises 6
the party to contract to do, 7
Note. The exception in paragraph (a) applies to a subcontracting arrangement 8
between licensees, and to a contract between licensees for work to be done on 9
premises that one of the licensees owns. 10
(b) a contract entered into between the holder of a contractor licence and a 11
developer in relation to the work, 12
(c) a contract that is supplied and fully prepared by or on behalf of the 13
person who contracts with the holder of the contractor licence and no 14
part of which is supplied or prepared by or on behalf of the holder of the 15
contractor licence, 16
Note. The exception in paragraph (c) does not apply to a contract supplied and 17
prepared by the person who contracts with the holder of a contractor licence if 18
any terms or conditions are added to the contract by the holder of the contractor 19
licence or his or her representative. 20
(d) a contract of a class prescribed by the regulations. 21
[18] Section 7E 22
Omit the section. Insert instead: 23
7E Terms of contracts 24
(1) A contract must include (and is taken to include) each of the terms set out in 25
Part 1 of Schedule 2. A contract that contains a term that is inconsistent with 26
a term set out in Part 1 of Schedule 2 is unenforceable to the extent of the 27
inconsistency. 28
(2) The regulations may make provision for or with respect to: 29
(a) terms or other matter that must be included in a contract or a class of 30
contracts, or 31
(b) terms or other matter that must not be included in a contract or a class 32
of contracts. 33
(3) If the regulations require a contract or class of contracts to contain a specified 34
term (a prescribed term), a contract of the kind concerned is taken to include 35
the term. A contract that contains a term that is inconsistent with a prescribed 36
term is unenforceable to the extent of the inconsistency. 37
(4) If the regulations provide that any term or other matter must not be included 38
in a contract or a class of contracts, any contract that contains that term or other 39
matter is unenforceable to the extent that it includes or applies to that term or 40
other matter. 41
(5) Any regulation made under this section does not apply to a contract in force at 42
the time that the regulation commences. 43
(6) This section does not limit section 7 (3). 44
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[19] Sections 8 and 8A 1
Omit section 8. Insert instead: 2
8 Maximum deposit for residential building work 3
(1) The maximum amount of a deposit for residential building work is 10% of the 4
contract price. A deposit for residential building work is a payment on account 5
before work is commenced under a contract to do residential building work. 6
(2) A person must not: 7
(a) demand or receive payment of a deposit for residential building work if 8
the amount of the payment exceeds the maximum imposed by this 9
section, or 10
(b) enter into a contract under which the person is entitled to demand or 11
receive payment of a deposit for residential building work if the amount 12
of the payment exceeds the maximum imposed by this section. 13
Maximum penalty: 1,000 penalty units in the case of a corporation and 14
200 penalty units in any other case. 15
(3) The regulations may make provision concerning how a contract price is to be 16
determined for the purposes of this section. 17
(4) This section does not apply to residential building work done under: 18
(a) a contract that is made between parties who each hold a contractor 19
licence and is for work that each party's contractor licence authorises 20
the party to contract to do, or 21
(b) a contract to do specialist work that is not also residential building work. 22
Note. The exception in paragraph (a) applies to a subcontracting arrangement 23
between licensees, and to a contract between licensees for work to be done on 24
premises that one of the licensees owns. 25
8A Maximum progress payments (other than small jobs) 26
(1) This section applies to a contract to do residential building work when the 27
contract price exceeds the prescribed amount or (if the contract price is not 28
known) the reasonable market cost of the labour and materials involved 29
exceeds the prescribed amount. The prescribed amount is the amount 30
prescribed by the regulations for the purposes of this section and is inclusive 31
of GST. 32
(2) A progress payment for residential building work under a contract to which 33
this section applies is authorised only if it is one of the following kinds of 34
authorised progress payments: 35
(a) a progress payment of a specified amount or specified percentage of the 36
contract price that is payable following completion of a specified stage 37
of the work, with the work that comprises that stage described in clear 38
and plain language, 39
(b) a progress payment for labour and materials in respect of work already 40
performed or costs already incurred (and which may include the 41
addition of a margin), with provision for a claim for payment to be 42
supported by such invoices, receipts or other documents as may be 43
reasonably necessary to support the claim and with payment intervals 44
fixed by the contract or on an "as invoiced" basis, 45
(c) a progress payment authorised by the regulations. 46
Note. Progress payments can extend to variations to the work to be done under the 47
contract. 48
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(3) A contract can provide for more than one kind of authorised progress payment. 1
(4) A person must not: 2
(a) demand or receive payment of a progress payment under a contract to 3
which this section applies unless the progress payment is authorised 4
under this section, or 5
(b) enter into a contract to which this section applies under which the 6
person is entitled to demand or receive payment of a progress payment 7
unless the progress payment is authorised under this section. 8
Maximum penalty: 1,000 penalty units in the case of a corporation and 9
200 penalty units in any other case. 10
(5) This section does not apply to a progress payment for residential building 11
work under a construction contract to which the Building and Construction 12
Industry Security of Payment Act 1999 applies. 13
(6) This section does not apply to: 14
(a) a contract that is made between parties who each hold a contractor 15
licence and is for work that each party's contractor licence authorises 16
the party to contract to do, or 17
(b) a contract to do specialist work that is not also residential building work. 18
Note. The exception in paragraph (a) applies to a subcontracting arrangement 19
between licensees, and to a contract between licensees for work to be done on 20
premises that one of the licensees owns. 21
[20] Section 14 Unqualified electrical wiring work 22
Omit section 14 (1) (a). Insert instead: 23
(a) as a qualified supervisor in respect of that work, or 24
[21] Section 14 (6) 25
Insert after section 14 (5): 26
(6) In this section, qualified supervisor in respect of electrical wiring work means 27
the holder of an endorsed contractor licence, or a supervisor certificate, 28
authorising its holder to do that work. 29
[22] Section 16DA Offence 30
Omit "section 16D". Insert instead "sections 16D and 16DE". 31
[23] Section 16DE 32
Omit the section. Insert instead: 33
16DE Terms of contracts 34
(1) A contract must include (and is taken to include) each of the terms set out in 35
Part 2 of Schedule 2. A contract that contains a term that is inconsistent with 36
a term set out in Part 2 of Schedule 2 is unenforceable to the extent of the 37
inconsistency. 38
(2) The regulations may make provision for or with respect to: 39
(a) terms or other matter that must be included in a contract or a class of 40
contracts, or 41
(b) terms or other matter that must not be included in a contract or a class 42
of contracts. 43
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(3) If the regulations require a contract or class of contracts to contain a specified 1
term (a prescribed term), a contract of the kind concerned is taken to include 2
the term. A contract that contains a term that is inconsistent with a prescribed 3
term is unenforceable to the extent of the inconsistency. 4
(4) If the regulations provide that any term or other matter must not be included 5
in a contract or a class of contracts, any contract that contains that term or other 6
matter is unenforceable to the extent that it includes or applies to that term or 7
other matter. 8
(5) Any regulation made under this section does not apply to a contract in force at 9
the time that the regulation commences. 10
(6) A requirement imposed by or under this section that a contract must include a 11
particular term is a requirement that the contract expressly include the term 12
and is not complied with merely because this section provides that the contract 13
is taken to include the term. 14
(7) This section does not limit section 16D (3). 15
[24] Section 16E 16
Omit the section. Insert instead: 17
16E Maximum deposit for kit home supply 18
(1) The maximum amount of a deposit for the supply of a kit home is 10% of the 19
contract price. A deposit for the supply of a kit home is a payment on account 20
before delivery of part of the kit home is made under a contract to supply a kit 21
home. 22
(2) A person must not: 23
(a) demand or receive payment of a deposit for the supply of a kit home if 24
the amount of the deposit exceeds the maximum imposed by this 25
section, or 26
(b) enter into a contract under which the person is entitled to demand or 27
receive payment of a deposit for the supply of a kit home if the amount 28
of the deposit exceeds the maximum imposed by this section. 29
Maximum penalty: 1,000 penalty units in the case of a corporation and 30
200 penalty units in any other case. 31
(3) The regulations may make provision concerning how a contract price is to be 32
determined for the purposes of this section. 33
[25] Section 18B Warranties as to residential building work 34
Omit "performed in a proper and workmanlike manner" from section 18B (a). 35
Insert instead "done with due care and skill". 36
[26] Section 18B (2) 37
Insert at the end of section 18B: 38
(2) The statutory warranties implied by this section are not limited to a contract to 39
do residential building work for an owner of land and are also implied in a 40
contract under which a person (the principal contractor) who has contracted 41
to do residential building work contracts with another person (a subcontractor 42
to the principal contractor) for the subcontractor to do the work (or any part of 43
the work) for the principal contractor. 44
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[27] Section 18BA 1
Insert after section 18B: 2
18BA Duties of person having benefit of statutory warranty 3
(1) Breach of a statutory warranty implied in a contract constitutes a breach of the 4
contract and accordingly: 5
(a) a party to the contract who suffers loss arising from the breach has a 6
duty to mitigate their loss, and 7
(b) the onus of establishing a failure to mitigate loss is on the party alleging 8
the failure. 9
(2) The duty of a party to a contract to mitigate loss in respect of a breach of a 10
statutory warranty extends to a person who has the benefit of the statutory 11
warranty or who is entitled to the same rights as those that a party to the 12
contract has in respect of the statutory warranty. 13
(3) The following duties apply to a person who has the benefit of a statutory 14
warranty but do not limit any duty the person has to mitigate loss arising from 15
breach of a statutory warranty: 16
(a) when a breach of the statutory warranty becomes apparent, the person 17
must make reasonable efforts to ensure that a person against whom the 18
warranty can be enforced is given notice in writing of the breach within 19
6 months after the breach becomes apparent, 20
(b) the person must not unreasonably refuse a person who is in breach of 21
the statutory warranty such access to the residential building work 22
concerned as that person may reasonably require for the purpose of or 23
in connection with rectifying the breach (the duty to allow reasonable 24
access). 25
(4) A breach of warranty becomes apparent for the purposes of this section when 26
any person entitled to the benefit of the warranty first becomes aware (or ought 27
reasonably to have become aware) of the breach. 28
(5) If a failure to comply with a duty under this section is established in 29
proceedings before a court or tribunal concerning a breach of a statutory 30
warranty, the failure is a matter that the court or tribunal may take into account. 31
If the failure is a failure to comply with the duty to allow reasonable access, 32
the court or tribunal must take the failure into account. 33
[28] Section 18E Proceedings for breach of warranties 34
Omit "structural defect (as defined in the regulations)" from section 18E (1) (b). 35
Insert instead "major defect in residential building work". 36
[29] Section 18E (3) and (4) 37
Insert after section 18E (2): 38
(3) The regulations may prescribe defects in a building that are not (despite any 39
other provision of this section) a major defect. 40
(4) In this section: 41
major defect means: 42
(a) a defect in a major element of a building that is attributable to defective 43
design, defective or faulty workmanship, defective materials, or a 44
failure to comply with the structural performance requirements of the 45
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National Construction Code (or any combination of these), and that 1
causes, or is likely to cause: 2
(i) the inability to inhabit or use the building (or part of the building) 3
for its intended purpose, or 4
(ii) the destruction of the building or any part of the building, or 5
(iii) a threat of collapse of the building or any part of the building, or 6
(b) a defect of a kind that is prescribed by the regulations as a major defect. 7
Note. The definition of major defect also applies for the purposes of section 103B 8
(Period of cover). 9
major element of a building means: 10
(a) an internal or external load-bearing component of a building that is 11
essential to the stability of the building, or any part of it (including but 12
not limited to foundations and footings, floors, walls, roofs, columns 13
and beams), or 14
(b) a fire safety system, or 15
(c) waterproofing, or 16
(d) any other element that is prescribed by the regulations as a major 17
element of a building. 18
[30] Section 18F 19
Omit the section. Insert instead: 20
18F Defences 21
(1) In proceedings for a breach of a statutory warranty, it is a defence for the 22
defendant to prove that the deficiencies of which the plaintiff complains arise 23
from: 24
(a) instructions given by the person for whom the work was contracted to 25
be done contrary to the advice of the defendant or person who did the 26
work, being advice given in writing before the work was done, or 27
(b) reasonable reliance by the defendant on instructions given by a person 28
who is a relevant professional acting for the person for whom the work 29
was contracted to be done and who is independent of the defendant, 30
being instructions given in writing before the work was done or 31
confirmed in writing after the work was done. 32
(2) A relevant professional is independent of the defendant if the relevant 33
professional was not engaged by the defendant to provide any service or do 34
any work for the defendant in connection with the residential building work 35
concerned. 36
(3) A relevant professional is not independent of the defendant if it is established 37
that the relevant professional: 38
(a) was engaged on the basis of a recommendation or referral of the 39
defendant to act for the person for whom the work was contracted to be 40
done, or 41
(b) is, or was within 3 years before the relevant instructions were given, a 42
close associate of the defendant. 43
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(4) In this section, relevant professional means a person who: 1
(a) represents himself or herself to be an architect, engineer or surveyor, or 2
(b) represents himself or herself to have expert or specialised qualifications 3
or knowledge in respect of residential building work or any particular 4
aspect of residential building work, or 5
(c) represents himself or herself to be engaged in a profession or to possess 6
a qualification that is recognised by the regulations as qualifying a 7
person as a relevant professional. 8
[31] Section 20 Issue of contractor licences 9
Insert after section 20 (1) (a): 10
(a1) the Chief Executive is not satisfied as to the matters of which the Chief 11
Executive is required to be satisfied by sections 33B and 33C, or 12
[32] Section 20 (1) (d) 13
Insert at the end of section 20 (1) (c): 14
, or 15
(d) the Chief Executive considers that a close associate of the applicant who 16
would not be a fit and proper person to hold an authority exercises a 17
significant influence over the applicant or the operation and 18
management of the applicant's business. 19
[33] Section 20 (6) (c) 20
Omit the paragraph. 21
[34] Section 22 Cancellation of contractor licences 22
Omit section 22 (1) (h) and (i). Insert instead: 23
(h) the Chief Executive would be required to refuse an application for a 24
contractor licence by the person. 25
[35] Section 22 (2) 26
Insert after section 22 (1): 27
(2) The Chief Executive is not required to cancel a contractor licence under 28
subsection (1) (c) if: 29
(a) the licence does not authorise its holder to do general building work or 30
swimming pool building, and 31
(b) the Chief Executive is of the opinion that there is no evident risk to the 32
public that the licensee will be unable to complete any contract (whether 33
an existing contract or a contract in the future) to do residential building 34
work or specialist work authorised by the licence, and 35
(c) the licence is subject to a condition that the holder not contract to do 36
work if the contract price exceeds $20,000 (inclusive of GST) or (if the 37
contract price is not known) the reasonable cost of the labour and 38
materials involved in the work exceeds $20,000 (inclusive of GST). 39
[36] Section 22 (5) 40
Insert after section 22 (4): 41
(5) The holder of a contractor licence must, within 7 days after becoming aware 42
of the occurrence in relation to the licence of any event or circumstance 43
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referred to in subsection (1) (c), (d) or (e), notify the Chief Executive in writing 1
of the event or circumstance. 2
Maximum penalty: 1,000 penalty units in the case of a corporation or 3
200 penalty units in any other case. 4
Note. An offence against subsection (1) committed by a corporation is an executive 5
liability offence attracting executive liability for a director or other person involved in the 6
management of the corporation (see section 137A). 7
[37] Section 22A Suspension of contractor licences--failure to insure 8
Omit section 22A (4). Insert instead: 9
(4) Within 7 days after a contractor licence is so suspended, the holder of the 10
contractor licence must: 11
(a) lodge the suspended contractor licence with the Chief Executive, or 12
(b) if unable to lodge the suspended contractor licence with the Chief 13
Executive, provide the Chief Executive with a statement signed by the 14
holder and providing accurate and complete details of why the 15
contractor licence cannot be lodged. 16
Maximum penalty: 40 penalty units in the case of a corporation and 20 penalty 17
units in any other case. 18
[38] Section 22B Suspension of contractor licences--appointment of controller or 19
administrator 20
Omit section 22B (5). Insert instead: 21
(5) Within 7 days after a contractor licence is so suspended, the holder of the 22
contractor licence must: 23
(a) lodge the suspended contractor licence with the Chief Executive, or 24
(b) if unable to lodge the suspended contractor licence with the Chief 25
Executive, provide the Chief Executive with a statement signed by the 26
holder and providing accurate and complete details of why the 27
contractor licence cannot be lodged. 28
Maximum penalty: 40 penalty units in the case of a corporation and 20 penalty 29
units in any other case. 30
[39] Section 25 Issue of certificates 31
Insert after section 25 (1) (a): 32
(a1) the Chief Executive is not satisfied as to the matters of which the Chief 33
Executive is required to be satisfied by sections 33B and 33D, or 34
[40] Section 25 (1) (d) 35
Insert at the end of section 25 (1) (c): 36
, or 37
(d) the Chief Executive considers that a close associate of the applicant who 38
would not be a fit and proper person to hold an authority exercises a 39
significant influence over the applicant or the operation and 40
management of the applicant's business. 41
[41] Section 29 Definitions 42
Omit "In this Division" from section 29 (1). Insert instead "In this Act". 43
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[42] Section 29 (1) 1
Insert in alphabetical order: 2
dual occupancy and secondary dwelling have the same meanings as in the 3
principal local environmental planning instrument prescribed by the Standard 4
Instrument (Local Environmental Plans) Order 2006. 5
[43] Section 29 (1) 6
Omit "or a dual occupancy" from paragraph (b) of the definition of owner-builder work. 7
Insert instead ", dual occupancy or secondary dwelling". 8
[44] Section 31 Issue of owner-builder permits 9
Omit section 31 (2) (d). Insert instead: 10
(d) that the applicant has completed any education or training, or holds any 11
qualification, required by the Chief Executive or the regulations for 12
eligibility for the grant of an owner-builder permit. 13
[45] Section 31 (3) and (4) 14
Omit section 31 (3). Insert instead: 15
(3) The Chief Executive must refuse an application for an owner-builder permit 16
(the current application) if the applicant was an owner of other land when an 17
owner-builder permit was issued in respect of that other land during the 18
relevant period before the current application was lodged (whether or not that 19
owner-builder permit was issued to the applicant), unless the Chief Executive 20
is satisfied that special circumstances exist. 21
(4) The relevant period is the period of 5 years or such other period as may be 22
prescribed by the regulations. 23
[46] Section 32 Authority conferred by owner-builder permits 24
Insert after section 32 (1): 25
(1A) An owner-builder permit must not be issued to authorise its holder to do 26
residential building work that relates to a dual occupancy unless the Chief 27
Executive is satisfied that special circumstances exist that justify the 28
owner-builder permit authorising its holder to do that work. The Chief 29
Executive may issue guidelines as to the circumstances that will be considered 30
to be special circumstances for the purposes of this subsection. 31
[47] Section 33 Definition 32
Omit the section. 33
[48] Sections 33A-33D 34
Insert before section 34: 35
33A Disqualification from holding authorities 36
(1) A person is disqualified from holding an authority (other than an 37
owner-builder permit) if the person: 38
(a) has been convicted in New South Wales or elsewhere of an offence 39
involving dishonesty within the last 10 years, unless the Chief 40
Executive has determined under subsection (2) that the offence should 41
be ignored, or 42
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(b) has been convicted within the last 5 years of an offence under 1
section 46A (Lending of authority prohibited), unless the Chief 2
Executive has determined under subsection (2) that the offence should 3
be ignored, or 4
(c) is disqualified from holding a licence, certificate of registration or other 5
authority under a corresponding law or is the holder of such a licence, 6
certificate of registration or other authority that is suspended, or 7
(d) is the holder of a licence, permit or other authority that is suspended 8
under legislation administered by the Minister or is disqualified from 9
holding a licence, permit or other authority under legislation 10
administered by the Minister, unless the Chief Executive has 11
determined under subsection (3) that the suspension or disqualification 12
should be ignored, or 13
(e) is in partnership with a person who is, or is a director of a body 14
corporate that is, disqualified from holding an authority under this Act, 15
or 16
(f) is for the time being declared to be a person who is disqualified from 17
holding an authority under Part 4 (Disciplinary proceedings), or 18
(g) has failed to pay any monetary penalty payable by the person under 19
Part 4 (Disciplinary proceedings) or has failed to comply with a 20
condition imposed under section 62 (d), and the failure continues, or 21
(h) is in breach of any provision of this Act or the regulations that is 22
prescribed by the regulations as a disqualifying breach. 23
(2) The Chief Executive may determine that an offence committed by a person 24
should be ignored for the purposes of this section because of the time that has 25
passed since the offence was committed or because of the triviality of the acts 26
or omissions giving rise to the offence. 27
(3) The Chief Executive may, in any case that the Chief Executive thinks it 28
appropriate to do so, determine that a suspension or disqualification from 29
holding a licence, permit or other authority under legislation administered by 30
the Minister (as referred to in subsection (1) (d)) is to be ignored for the 31
purposes of this section. 32
(4) In this section: 33
corresponding law means a law of another Australian jurisdiction that is 34
prescribed by the regulations as a law that corresponds to this Act. 35
33B General requirements for issue of certain authorities 36
(1) An authority (other than an owner-builder permit) must not be issued unless 37
the Chief Executive is satisfied that: 38
(a) each relevant person in relation to the application for the authority: 39
(i) is not disqualified from holding the authority or an authority of 40
the kind applied for, or from being a member of a partnership or 41
a director of a body corporate that is the holder of the authority or 42
an authority of the kind applied for, and 43
(ii) is not a debtor under a judgment for money owed to the Chief 44
Executive or the Administration Corporation that has not been 45
satisfied, and 46
(iii) is not a debtor under a judgment for money that has not been 47
satisfied where the judgment is for the payment of money in 48
relation to a building claim under Part 3A or the payment of 49
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money to an insurer in relation to a claim relating to insurance 1
under the Home Building Compensation Fund, and 2
(iv) is not (and has not been within the period of 3 years before the 3
date of the application) a director of a body corporate that is a 4
debtor under a judgment for money as referred to in 5
subparagraph (iii), and 6
(v) is not subject to any order of a court in relation to a building claim 7
under Part 3A that has not been satisfied within the period 8
required for satisfaction of the order, and 9
(vi) is not subject to any order of the Tribunal that has not been 10
satisfied within the period required by the Tribunal, and 11
(vii) has not had what the Chief Executive considers to be an 12
unreasonable number of complaints made against him, her or it 13
and has not had a relevant involvement with a body corporate that 14
has had what the Chief Executive considers to be an unreasonable 15
number of complaints made against it, and 16
(viii) has not had what the Chief Executive considers to be an 17
unreasonable number of formal cautions given to him, her or it 18
and has not had a relevant involvement with a body corporate that 19
has had what the Chief Executive considers to be an unreasonable 20
number of formal cautions given to it, and 21
(ix) has not had what the Chief Executive considers to be an 22
unreasonable number of penalty notices issued against him, her 23
or it and has not had a relevant involvement with a body corporate 24
that has had what the Chief Executive considers to be an 25
unreasonable number of penalty notices issued against it, being 26
penalty notices for offences under this Act that were not dealt 27
with by a court and dismissed, and 28
(x) has not carried out work in respect of which the Chief Executive 29
considers an unreasonable number of insurance claims have been 30
paid and has not had a relevant involvement with a body 31
corporate that has carried out work in respect of which the Chief 32
Executive considers an unreasonable number of insurance claims 33
have been paid, and 34
(xi) is not a director of, a partner of, or a person concerned in the 35
management of, a body corporate or partnership that is 36
disqualified from holding an authority, unless the Chief 37
Executive is satisfied that the applicant took all reasonable steps 38
to prevent the conduct that led to the disqualification, and 39
(xii) within 12 months before the date of the application was not a 40
director of, a partner of, or a person concerned in the management 41
of, a body corporate or partnership that is disqualified from 42
holding an authority or that would be disqualified from holding 43
an authority had it not been dissolved or wound up, unless the 44
Chief Executive is satisfied that the applicant took all reasonable 45
steps to prevent the conduct that led (or would have led) to the 46
disqualification, and 47
(xiii) except in relation to an application for a tradesperson 48
certificate--is not an undischarged bankrupt at the time of the 49
application, and 50
(xiv) except in relation to an application for a tradesperson 51
certificate--was not an undischarged bankrupt at any time within 52
3 years before the date of the application, and 53
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(xv) except in relation to an application for a tradesperson 1
certificate--is not at the time of the application a director of or a 2
person concerned in the management of an 3
externally-administered body corporate (other than external 4
administration resulting from a members' voluntary winding up 5
of the body corporate), and 6
(xvi) except in relation to an application for a tradesperson 7
certificate--within 3 years before the date of the application, was 8
not a director of or a person concerned in the management of a 9
body corporate that was an externally-administered body 10
corporate at any time within that 3-year period (other than 11
external administration resulting from a members' voluntary 12
winding up of the body corporate), and 13
(xvii) except in relation to an application for a tradesperson 14
certificate--was not a director of or a person concerned in the 15
management of a body corporate that became an 16
externally-administered body corporate (other than external 17
administration resulting from a members' voluntary winding up 18
of the body corporate) at any time within 12 months after the 19
person ceased to be a director of or a person concerned in the 20
management of the body corporate and within 3 years before the 21
date of the application, and 22
(b) the applicant, if an individual, is not an apprentice or a trainee within the 23
meaning of the Apprenticeship and Traineeship Act 2001. 24
(2) For the purposes of this section, each of the following persons is a relevant 25
person in relation to an application for an authority: 26
(a) the applicant, 27
(b) if the applicant is a partnership: 28
(i) every partner of the applicant, and 29
(ii) if a member of the partnership is a corporation--every director of 30
that corporation, 31
(c) if the applicant is a corporation--every director of the applicant. 32
Note. Section 24 (4) provides that an application for a tradesperson certificate or 33
supervisor certificate may be made only by an individual, and not by a corporation, 34
partnership or other association. 35
(3) For the purposes of this section, a person has a relevant involvement with a 36
body corporate if the person is at the time of the making of the application for 37
the authority, or was at any time within 3 years before the making of the 38
application for the authority, a director of or a person concerned in the 39
management of the body corporate. 40
(4) Subsection (1) (a) (v) and (vi) do not prevent the issuing of an authority if the 41
Chief Executive is satisfied that the person: 42
(a) has complied with the order of the court or Tribunal after the period 43
required by the court or Tribunal, and 44
(b) has a reasonable excuse for the failure to comply with the order within 45
that period. 46
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33C Additional requirements for obtaining contractor licences 1
(1) A contractor licence must not be issued unless the Chief Executive is satisfied 2
that: 3
(a) the applicant has, or proposes to have, such numbers of nominated 4
supervisors for the contractor licence as the Chief Executive considers 5
are needed to ensure that all work for which the contractor licence is 6
required will be done or supervised by qualified individuals, and 7
(b) the applicant, if also applying for an endorsement of the contractor 8
licence to show that it is the equivalent of a supervisor certificate: 9
(i) satisfies the requirements of section 33D for the issue of a 10
supervisor certificate to the applicant, and 11
(ii) is not disqualified from holding a supervisor certificate or a 12
supervisor certificate of a particular kind, and 13
(iii) is not the holder of a supervisor certificate that is suspended. 14
(2) Despite section 33B (1) (a) (xiii) and (xv), a contractor licence may be issued 15
if: 16
(a) the licence does not authorise its holder to do general building work or 17
swimming pool building, and 18
(b) the Chief Executive is of the opinion that there is no evident risk to the 19
public that the applicant will be unable to complete contracts entered 20
into in the future to do residential building work or specialist work, and 21
(c) the Chief Executive is of the opinion that the relevant person concerned 22
took all reasonable steps to avoid the bankruptcy, liquidation or 23
appointment of a controller or administrator, and 24
(d) the licence is subject to a condition that the holder must not enter into a 25
contract to do work if the contract price exceeds $20,000 (inclusive of 26
GST) or (if the contract price is not known) the reasonable cost of the 27
labour and materials involved in the work exceeds $20,000 (inclusive of 28
GST). 29
(3) Despite section 33B (1) (a) (xiv), (xvi) and (xvii), a contractor licence may be 30
issued if the Chief Executive is of the opinion that: 31
(a) there is no evident risk to the public that the applicant will be unable to 32
complete contracts entered into in the future to do residential building 33
work or specialist work, and 34
(b) the relevant person concerned took all reasonable steps to avoid the 35
bankruptcy, liquidation or appointment of a controller or administrator. 36
(4) A contractor licence issued under subsection (3) may be issued subject to a 37
condition that the holder of the licence must not enter into a contract to do 38
work if the contract price exceeds $20,000 (inclusive of GST) or (if the 39
contract price is not known) the reasonable cost of the labour and materials 40
involved in the work exceeds $20,000 (inclusive of GST). 41
(5) A condition imposed under subsection (4) may be limited so that it does not 42
apply to a subcontract entered into by the holder of the licence. A subcontract 43
is a contract that is made between parties who each hold a contractor licence 44
and that is for work that each party's contractor licence authorises the party to 45
contract to do. 46
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Schedule 1 Amendment of Home Building Act 1989 No 147
(6) An individual may be a nominated supervisor for a contractor licence only if 1
the individual: 2
(a) holds an endorsed contractor licence or a supervisor certificate that 3
authorises its holder to supervise some or all of the work done under 4
contracts for which the contractor licence applied for or held is required, 5
and 6
(b) is, or is proposed by the applicant or holder to be, an employee of, or a 7
member of the partnership or director of the corporation that is, the 8
applicant or holder, and 9
(c) made a consent declaration that is lodged with the Chief Executive and 10
has not been revoked. 11
(7) In subsection (6) (b), employee means an employee who is required, by the 12
terms of employment, to work for his or her employer otherwise than on a 13
casual or temporary basis. 14
(8) An individual cannot be the nominated supervisor for more than one 15
contractor licence unless the Chief Executive: 16
(a) is satisfied that special circumstances exist that will ensure that the 17
individual, either alone or in conjunction with one or more other 18
nominated supervisors, will supervise all work done under contracts for 19
which each contractor licence is required, and 20
(b) gives written permission. 21
(9) The holder of an endorsed contractor licence does not require the Chief 22
Executive's permission to become the nominated supervisor for only one other 23
contractor licence. 24
(10) The Chief Executive may, by order, exempt an applicant from a requirement 25
in relation to nominated supervisors if the Chief Executive is satisfied that 26
there are special circumstances that warrant it. 27
33D Additional requirements for obtaining supervisor and tradesperson 28
certificates 29
(1) A supervisor or tradesperson certificate must not be issued unless the Chief 30
Executive is satisfied that the applicant: 31
(a) has such qualifications or has passed such examinations or practical 32
tests, or both, as the Chief Executive determines to be necessary to 33
enable the applicant to do, or to supervise, the work for which the 34
certificate is required, and 35
(b) has had experience of such a kind and for such a period as the Chief 36
Executive considers would enable the applicant to do, or to supervise, 37
the work for which the certificate is required, and 38
(c) is capable of doing or supervising work for which the certificate is 39
required. 40
(2) Despite section 33B (1) (a) (xiii)-(xvii), the Chief Executive may issue a 41
supervisor certificate if the Chief Executive is satisfied that the relevant person 42
took all reasonable steps to avoid the relevant bankruptcy, winding up or 43
appointment of a controller or administrator. 44
[49] Section 36 Conditions of authorities 45
Insert before section 36 (1) (a): 46
(a1) the conditions set out in Schedule 3 for the authority, and 47
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Schedule 1 Amendment of Home Building Act 1989 No 147
[50] Section 36 (1) (a) 1
Insert "this Act or" after "prescribed by". 2
[51] Section 38 Provisional authorities 3
Insert after section 38 (4): 4
(5) In deciding whether or not special circumstances exist that would warrant 5
issuing a provisional supervisor certificate, the Chief Executive must at least 6
be satisfied that: 7
(a) the applicant has passed a minimum standard test set or approved by the 8
Chief Executive to establish the applicant's credentials as an 9
experienced tradesperson in relation to the work that the certificate will 10
authorise its holder to do or to supervise, and 11
(b) the applicant will have the opportunity within 3 years of being issued 12
the certificate provisionally to satisfy the requirements imposed by or 13
under this Act for the issue of the certificate. 14
[52] Section 40 15
Omit the section. Insert instead: 16
40 Renewal or restoration of authorities 17
(1) The provisions of this Act and the regulations that apply in respect of the issue 18
of an authority also apply to the renewal or restoration of an authority (as if the 19
renewal or restoration of an authority were the issue of the authority). 20
(2) The Chief Executive may also refuse an application for renewal or restoration 21
of an authority if: 22
(a) the authority is surrendered or cancelled before it is due to expire, or 23
(b) the authority is a provisional authority. 24
(3) The Chief Executive may approve further education courses, or other training, 25
that must be completed by specified persons before an application for renewal 26
or restoration of an authority can be accepted. 27
(4) The Chief Executive may refuse an application for renewal or restoration of an 28
authority if the Chief Executive is not satisfied that, in the period since the 29
authority was most recently issued, renewed or restored: 30
(a) the applicant, or 31
(b) in the case of an applicant that is a corporation, the directors of that 32
corporation or any class of persons specified by the Chief Executive, or 33
(c) in the case of an applicant that is a partnership, each partner or any class 34
of persons specified by the Chief Executive, or 35
(d) an employee of the applicant, 36
has undertaken or completed, for at least as many hours as are required by the 37
Chief Executive, the further education course or courses, or other training, 38
approved by the Chief Executive for the purposes of this section. 39
(5) The Chief Executive may also refuse an application for restoration of an 40
authority if the Chief Executive is not satisfied that: 41
(a) in a case where the applicant failed to apply for renewal before the 42
authority expired--the failure to apply for renewal of the authority 43
before it expired was due to inadvertence, or 44
(b) it is just and equitable to restore the authority. 45
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(6) The Chief Executive may, under subsection (5), refuse an application for 1
restoration if: 2
(a) the Chief Executive requests the applicant or a nominee of the applicant 3
to appear at a reasonable time and place to be examined concerning the 4
merits of the application, and 5
(b) the applicant or nominee fails to so attend or fails to answer any 6
question put (whether or not at such an examination) by or on behalf of 7
the Chief Executive and reasonably related to ascertaining the merits of 8
the application. 9
[53] Section 42A Automatic suspension of licence for failure to comply with order to pay 10
money in relation to building claim 11
Omit section 42A (7). Insert instead: 12
(7) If a licence is suspended by operation of this section, the holder of the licence 13
must, as soon as practicable after the suspension takes effect: 14
(a) lodge the licence with the Chief Executive, or 15
(b) if unable to lodge the licence with the Chief Executive, lodge with the 16
Chief Executive a statement signed by the person and providing 17
accurate and complete details of why the licence cannot be lodged. 18
Maximum penalty: 40 penalty units in the case of a corporation and 20 penalty 19
units in any other case. 20
[54] Section 44 Return of cancelled or varied authority 21
Omit section 44 (1). Insert instead: 22
(1) Immediately after an authority is cancelled or the Chief Executive either varies 23
the authority it confers or imposes a condition on it by service of a notice, the 24
person to whom it was issued must: 25
(a) lodge the authority with the Chief Executive, or 26
(b) if unable to lodge the authority with the Chief Executive, lodge with the 27
Chief Executive a statement signed by the person and providing 28
accurate and complete details of why the authority cannot be lodged. 29
Maximum penalty: 40 penalty units in the case of a corporation and 20 penalty 30
units in any other case. 31
[55] Section 48D Investigation of dispute 32
Omit "a member of staff of the Department of Fair Trading" from section 48D (1). 33
Insert instead "an employee of the Office of Finance and Services". 34
[56] Section 48E Inspector may make rectification order 35
Insert "due under the contract for the work or the supply of the kit home" after "money" in 36
section 48E (3) (a). 37
[57] Section 48E (3) (a1) 38
Insert after section 48E (3) (a): 39
(a1) may be made as a staged rectification order (being an order that 40
specifies stages in which the requirements of the order must be 41
complied with), and 42
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Schedule 1 Amendment of Home Building Act 1989 No 147
[58] Section 48E (3) (b) 1
Omit the paragraph. Insert instead: 2
(b) must specify a date by which the requirements of the order must be 3
complied with (or a date by which the requirements of each stage of the 4
order must be complied with in the case of a staged rectification order), 5
subject to the complainant's compliance with any condition referred to 6
in paragraph (a), and 7
[59] Section 48E (3) (c) 8
Omit "before the date specified in accordance with paragraph (b)". 9
[60] Section 48E (4) and (5) 10
Insert after section 48E (3): 11
(4) A rectification order may be amended by a further order of an inspector on the 12
application of the person on whom the rectification order was served. 13
(5) It is a condition of every contractor licence that the contractor must comply 14
with the requirements of a rectification order. 15
[61] Section 48F Effect of rectification order 16
Omit "before the date specified in accordance with section 48E (3) (b)" from 17
section 48F (2). 18
[62] Section 48MA 19
Insert after section 48M: 20
48MA Rectification of defective work is preferred outcome in proceedings 21
A court or tribunal determining a building claim involving an allegation of 22
defective residential building work or specialist work by a party to the 23
proceedings (the responsible party) is to have regard to the principle that 24
rectification of the defective work by the responsible party is the preferred 25
outcome. 26
[63] Section 48O Powers of Tribunal 27
Omit section 48O (2). Insert instead: 28
(2) The Tribunal can make an order even if it is not the order that the applicant 29
asked for. 30
[64] Section 51 Improper conduct: generally 31
Omit "in a good and workmanlike manner" from section 51 (1) (d). 32
Insert instead "with due care and skill". 33
[65] Section 53 Improper conduct: nominated supervisors 34
Omit "in a good and workmanlike manner" from section 53 (1) (c). 35
Insert instead "with due care and skill". 36
[66] Section 56 Grounds for taking disciplinary action against holder of a contractor 37
licence 38
Omit "in a good and skilful manner" from section 56 (d) (ii). 39
Insert instead "with due care and skill". 40
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[67] Section 66 Return of cancelled, suspended or varied authority 1
Omit section 66 (1). Insert instead: 2
(1) If the Chief Executive suspends, varies or cancels an authority, the holder of 3
the authority must return the authority within the period specified by the Chief 4
Executive when suspending, varying or cancelling the authority by: 5
(a) lodging the authority with the Chief Executive, or 6
(b) if unable to lodge the authority with the Chief Executive, lodging with 7
the Chief Executive a statement signed by the person providing accurate 8
and complete details of why the authority cannot be lodged. 9
Maximum penalty: 40 penalty units in the case of a corporation and 20 penalty 10
units in any other case. 11
[68] Section 83B Administrative reviews by Tribunal 12
Omit "at an office of the Department of Fair Trading" from section 83B (4) (a). 13
Insert instead "with the Chief Executive". 14
[69] Section 86 Time limits for appeals 15
Omit "at an office of the Department of Fair Trading" from section 86 (2) (a). 16
Insert instead "with the Chief Executive". 17
[70] Part 6, heading 18
Omit the heading. Insert instead: 19
Part 6 Insurance under Home Building Compensation Fund 20
[71] Part 6, Division 1, heading 21
Omit the heading. Insert instead: 22
Division 1 Home Building Compensation Fund Board 23
[72] Section 89E Constitution of Home Building Compensation Fund Board 24
Omit "Home Warranty Insurance Scheme Board". 25
Insert instead "Home Building Compensation Fund Board". 26
[73] Section 89F Membership of Fund Board 27
Omit "Scheme Board" wherever occurring in section 89F (1), (2) and (4). 28
Insert instead "Fund Board". 29
[74] Section 89F (2) (a) 30
Omit the paragraph. Insert instead: 31
(a) the Chief Executive or a nominee of the Chief Executive, and 32
[75] Section 89F (4) 33
Omit "Schedule 1". Insert instead "Schedule 5". 34
[76] Section 89G Functions 35
Omit "Scheme Board". Insert instead "Fund Board". 36
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Schedule 1 Amendment of Home Building Act 1989 No 147
[77] Section 89G (d) 1
Omit "the scheme established by this Part with respect to home warranty insurance". 2
Insert instead "the insurance scheme established by this Part". 3
[78] Section 90 Definitions 4
Omit the definitions of home warranty insurance and owner-builder work from 5
section 90 (1). 6
[79] Section 90 (1), definition of "insolvent" 7
Omit "(within the meaning of the Corporations Act 2001 of the Commonwealth)" from 8
paragraph (b). 9
[80] Section 90 (2) 10
Omit the subsection. Insert instead: 11
(2) A reference in this Part to the disappearance of a contractor, supplier or 12
owner-builder is a reference to disappearance from Australia and includes a 13
reference to the fact that, after due search and inquiry, the contractor, supplier 14
or owner-builder cannot be found in Australia. 15
[81] Section 91A Market practice and claims handling guidelines 16
Omit "Scheme Board" from section 91A (1). Insert instead "Fund Board". 17
[82] Section 91A (1) 18
Omit "home warranty insurance". 19
Insert instead "insurance under the Home Building Compensation Fund". 20
[83] Section 92 Contract work must be insured 21
Omit "in the name of the person who contracted to do the work" wherever occurring in 22
section 92 (1) (a) and (2) (a). 23
Insert instead "in the name under which the person contracted to do the work". 24
[84] Section 92 (2A) 25
Insert after section 92 (2): 26
(2A) An individual who is convicted of a second or subsequent offence under 27
subsection (1) or (2) is liable to a penalty not exceeding 500 penalty units or 28
imprisonment for a term not exceeding 12 months, or both. 29
[85] Section 92 (5) and (6) 30
Omit section 92 (6). Insert instead: 31
(5) A contract of insurance that is in force in compliance with this section in 32
relation to residential building work (the original work) done by a person 33
extends to any residential building work done by the person by way of 34
rectification of the original work. 35
Note. Accordingly, this section does not require a separate contract of insurance in 36
relation to the rectification work. 37
(6) To avoid doubt, this section extends to residential building work that is also 38
owner-builder work (when the work is done under a contract between the 39
person who contracts to do the work and the owner-builder). 40
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[86] Section 92B Operation of contract of insurance 1
Omit the section. 2
[87] Section 95 3
Omit the section. Insert instead: 4
95 No insurance for owner-builder work 5
(1) A contract of insurance under this Part cannot be entered into in relation to 6
owner-builder work carried out or to be carried out by a person as an 7
owner-builder. 8
Note. Insurance under the Home Building Compensation Fund cannot be offered or 9
obtained for owner-builder work done by an owner-builder. This does not affect the 10
requirement of section 92 for insurance to be obtained for owner-builder work done 11
under a contract. 12
(2) A person who is the owner of land in relation to which an owner-builder permit 13
was issued must not enter into a contract for the sale of the land unless the 14
contract includes a conspicuous note (a consumer warning) stating: 15
(a) that an owner-builder permit was issued in relation to the land 16
(specifying the date on which it was issued), and 17
(b) work done under an owner-builder permit is not required to be insured 18
under this Act unless the work was done by a contractor to the 19
owner-builder. 20
Maximum penalty: 1,000 penalty units in the case of a corporation and 21
200 penalty units in any other case. 22
(3) The requirement for a contract of sale to include a consumer warning does not 23
apply: 24
(a) to a sale of land more than 7 years and 6 months after the owner-builder 25
permit was issued, or 26
(b) if the reasonable market cost of the labour and materials involved does 27
not exceed the amount prescribed by the regulations for the purposes of 28
this section, or 29
(c) if the owner-builder work carried out under the owner-builder permit is 30
of a class prescribed by the regulations. 31
(4) The requirement for a contract of sale to include a consumer warning applies 32
to a person as the owner of land whether the person is the person to whom the 33
owner-builder permit was issued or a successor in title to that person. 34
(5) If a person contravenes this section in respect of a contract, the contract is 35
voidable at the option of the purchaser before the completion of the contract. 36
Note. Prior to its amendment by the Home Building Amendment Act 2014, section 95 37
required an owner-builder to obtain insurance under this Part before selling the land 38
concerned. Schedule 4 provides for the continued application of the previous 39
requirements of section 95 to sales of land before the amendment to that section. 40
[88] Section 96 Insurance in relation to residential building work not carried out under 41
contract 42
Omit section 96 (3) (a) and (b). Insert instead: 43
(a) to a person who does owner-builder work (whether as the holder of an 44
owner-builder permit or for the holder of such a permit), or 45
[89] Section 96 (3) (e) 46
Insert "if" before "the reasonable". 47
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[90] Section 96 (4) 1
Insert after section 96 (3B): 2
(4) A contract of insurance that is in force in compliance with this section in 3
relation to residential building work (the original work) done by a person 4
extends to any residential building work done by the person by way of 5
rectification of the original work. 6
Note. Accordingly, this section does not require a separate contract of insurance in 7
relation to the rectification work. 8
[91] Section 96B 9
Insert after section 96A: 10
96B Obligations of sellers of excluded dwellings (houses and units used for 11
commercial purposes) 12
(1) A contract for the sale of land comprising a house or unit that is excluded from 13
the definition of dwelling in this Act because it was designed, constructed or 14
adapted for commercial use as tourist, holiday or overnight accommodation 15
must contain the warning required by this section if work has been done on the 16
land in the previous 6 years that would have been residential building work 17
had the house or unit not been excluded from the definition of dwelling. 18
(2) The warning required by this section is a prominent statement to the effect that 19
the property does not have the protection of the Home Building Act 1989. 20
(3) A person must not as vendor enter into a contract for the sale of land that is 21
required to contain a warning under this section unless the contract contains 22
the required warning. 23
Maximum penalty: 1,000 penalty units in the case of a corporation and 24
200 penalty units in any other case. 25
(4) If a person contravenes this section in respect of a contract, the contract is 26
voidable at the option of the purchaser before the completion of the contract. 27
[92] Section 97 Exemptions from insurance requirements 28
Omit "95 or" from section 97 (1). 29
[93] Section 99 Requirements for insurance for residential building work done under 30
contract 31
Omit section 99 (1) (b) (i) and (ii). Insert instead: 32
(i) to have the contractor rectify a breach of a statutory warranty in 33
respect of the work, or 34
(ii) to recover compensation from the contractor for any such breach. 35
[94] Section 99 (3) 36
Omit section 99 (3)-(6). Insert instead: 37
(3) If a partnership contracts to do residential building work, the insolvency of any 38
of the partners constitutes the insolvency of the contractor for the purposes of 39
a contract of insurance required by section 92 in relation to the work. The 40
contract of insurance must include provision to that effect. 41
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[95] Section 100 1
Insert after section 99: 2
100 Requirements for insurance of work not done under contract 3
(1) A contract of insurance in relation to residential building work required by 4
section 96 must insure a purchaser of the land on which the work is done and 5
the purchaser's successors in title against the risk of being unable, because of 6
the insolvency, death or disappearance of the contractor concerned: 7
(a) to have the contractor rectify any such breach, or 8
(b) to recover compensation from the contractor for a breach of a statutory 9
warranty in respect of the work. 10
(2) If a partnership contracts to do residential building work, the insolvency of any 11
of the partners constitutes the insolvency of the contractor for the purposes of 12
a contract of insurance required by section 96 in relation to the work. The 13
contract of insurance must include provision to that effect. 14
(3) In this section: 15
contractor means a person to whom section 96 applies doing residential 16
building work otherwise than under a contract. 17
[96] Section 101 18
Omit the section. Insert instead: 19
101 Deemed insolvency of contractor for insurance purposes 20
(1) A contract of insurance in relation to residential building work required by 21
section 92 or 96 must include provision that deems the suspension of a 22
contractor's licence under section 42A to constitute the insolvency of the 23
contractor for the purposes of the application of the contract to any loss that is 24
the subject of a building claim order made against the contractor that remains 25
unsatisfied. 26
(2) The following provisions apply to a claim under a contract of insurance that 27
arises because of the operation of this section in connection with a building 28
claim order: 29
(a) the claim is limited to a loss that would have been covered by the 30
contract in the event of the contractor's insolvency, 31
(b) the amount of the claim need not be the same as the amount of the 32
building claim order (and in particular is not limited by the amount of 33
the building claim order), 34
(c) the building claim order does not limit any right of a beneficiary to 35
appeal against a decision of the insurer in respect of a claim under the 36
contract (and any such right of appeal may be exercised as if the 37
building claim order had not been made), 38
(d) the building claim order does not limit any right of recovery of the 39
insurer against the contractor in respect of the loss to which the claim 40
relates (whether that right arises pursuant to any rights of the 41
beneficiary to which the insurer is subrogated, or otherwise). 42
(3) For the purposes of the operation of a provision of a contract of insurance 43
referred to in subsection (2), a contractor's licence that would have been 44
suspended under section 42A were it not for the fact that the licence expired, 45
or was surrendered or cancelled, before the suspension took effect is taken to 46
have been suspended under that section. 47
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(4) In this section: 1
building claim has the same meaning as in Part 3A, and includes a claim for 2
the payment of an unspecified sum of money that arises from a supply of 3
building goods or services as defined in section 48A. 4
building claim order means an order of a court or the Tribunal in respect of a 5
building claim. 6
[97] Section 102A 7
Insert after section 102: 8
102A Register of insurance particulars 9
(1) The Chief Executive of the Office of Finance and Services is to maintain or 10
cause to be maintained a register of such particulars of the following as he or 11
she considers appropriate: 12
(a) insurance certificates issued to evidence contracts of insurance under 13
the Home Building Compensation Fund entered into for the purposes of 14
this Act on or after 1 July 2010, 15
(b) claims successfully made under such contracts of insurance, 16
(c) such other matters concerning contracts of insurance under the Home 17
Building Compensation Fund as the regulations may prescribe. 18
(2) Particulars included in the register can include information that is personal 19
information under the Privacy and Personal Information Protection Act 1998 20
unless the regulations under this Act otherwise provide. 21
(3) The Chief Executive of the Office of Finance and Services is to make the 22
contents of the register publicly available in such manner as he or she 23
considers appropriate. 24
[98] Section 103B Period of cover 25
Omit "structural defect within the meaning of the regulations" from section 103B (2) (a). 26
Insert instead "major defect in residential building work (within the meaning of 27
section 18E)". 28
[99] Section 103B (2) (b) 29
Omit the paragraph. Insert instead: 30
(b) in the case of any other loss--2 years after completion of the work. 31
[100] Section 103BA Time limits for policies issued between 1.5.1997 and 30.6.2002 32
Omit "home warranty insurance" wherever occurring in section 103BA (1) and (4). 33
Insert instead "insurance under the Home Building Compensation Fund". 34
[101] Section 103BB Time limits for policies issued from 1.7.2002 35
Omit "home warranty insurance" from section 103BB (1). 36
Insert instead "insurance under the Home Building Compensation Fund". 37
[102] Section 103BB (5) 38
Omit the subsection. 39
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[103] Section 103BC 10-year "long stop" limit on claims under existing policies 1
Omit "home warranty insurance" from section 103BC (1). 2
Insert instead "insurance under the Home Building Compensation Fund". 3
[104] Section 103EA False or misleading applications for insurance 4
Omit "home warranty insurance" from section 103EA (1). 5
Insert instead "insurance under the Home Building Compensation Fund". 6
[105] Section 103T Combined financial and other reporting by Guarantee Corporation and 7
Office of Finance and Services 8
Omit "Department of Fair Trading". Insert instead "Office of Finance and Services". 9
[106] Section 114 Home Building Administration Fund 10
Omit "Department of Fair Trading" from section 114 (1). 11
Insert instead "Office of Finance and Services". 12
[107] Section 115C Functions 13
Omit "Scheme Board" from section 115C (a). Insert instead "Fund Board". 14
[108] Section 115D Membership of Advisory Council 15
Omit "Scheme Board" wherever occurring in section 115D (1) (a) and (b). 16
Insert instead "Fund Board". 17
[109] Section 115D (1) (c) 18
Omit the paragraph. Insert instead: 19
(c) the Chief Executive or a nominee of the Chief Executive, and 20
[110] Section 115D (3) 21
Omit "Schedule 1". Insert instead "Schedule 5". 22
[111] Section 119 Liability for report 23
Omit "each of the Department of Fair Trading's staff" from section 119 (b). 24
Insert instead "each employee of the Office of Finance and Services". 25
[112] Section 120 Register 26
Omit section 120 (2) and (2A). Insert instead: 27
(2) The register is to be in the form determined by the Chief Executive and is to 28
be available for inspection by the public. 29
(2A) The Chief Executive may determine the fees (if any) to be paid for inspection 30
of the register or the provision of copies of information contained on the 31
register. 32
[113] Section 123 Service of notices or other documents 33
Insert after section 123 (1) (a) (iii): 34
(iv) by sending it to an email address provided by him or her for the 35
purpose of the service of notices or other documents, or 36
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Schedule 1 Amendment of Home Building Act 1989 No 147
(v) by sending it by facsimile transmission to a facsimile number 1
provided by him or her for the purpose of the service of notices 2
or other documents, or 3
[114] Section 123 (1) (b) (iv) and (v) 4
Insert at the end of section 123 (1) (b) (iii): 5
, or 6
(iv) by sending it to an email address provided for the firm or 7
corporation, by a person apparently concerned in the 8
management of the firm or corporation, for the purpose of the 9
service of notices or other documents on the firm or corporation, 10
or 11
(v) by sending it by facsimile transmission to a facsimile number 12
provided for the firm or corporation, by a person apparently 13
concerned in the management of the firm or corporation, for the 14
purpose of the service of notices or other documents on the firm 15
or corporation. 16
[115] Section 127A Power to request name and address of persons undertaking residential 17
building work or specialist work 18
Omit section 127A (6). Insert instead: 19
(6) In this section: 20
authorised officer means an employee of the Office of Finance and Services 21
authorised by the Chief Executive for the purposes of this section and holding 22
a certificate issued by the Chief Executive as to that authority. 23
[116] Section 128 Obstruction of employees and others 24
Omit "officer of the Department of Fair Trading" from section 128 (1) (a). 25
Insert instead "employee of the Office of Finance and Services". 26
[117] Section 128 (1) (a) 27
Omit "officer's". Insert instead "employee's". 28
[118] Section 131 Certificate evidence 29
Omit "a prescribed officer of the Department of Fair Trading". 30
Insert instead "an employee of the Office of Finance and Services prescribed by the 31
regulations". 32
[119] Section 137 Offence by body corporate--general liability of directors etc 33
Insert "or a contravention that constitutes an executive liability offence for the purposes of 34
section 137A" after "Part 6A" in section 137 (1A). 35
[120] Section 137A 36
Insert after section 137: 37
137A Liability of directors etc for specified offences by corporation--offences 38
attracting executive liability 39
(1) For the purposes of this section, an executive liability offence is an offence 40
against section 22 (5) that is committed by a corporation. 41
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Schedule 1 Amendment of Home Building Act 1989 No 147
(2) A person commits an offence against this section if: 1
(a) a corporation commits an executive liability offence, and 2
(b) the person is: 3
(i) a director of the corporation, or 4
(ii) an individual who is involved in the management of the 5
corporation and who is in a position to influence the conduct of 6
the corporation in relation to the commission of the executive 7
liability offence, and 8
(c) the person: 9
(i) knows or ought reasonably to know that the executive liability 10
offence (or an offence of the same type) would be or is being 11
committed, and 12
(ii) fails to take all reasonable steps to prevent or stop the 13
commission of that offence. 14
Maximum penalty: 200 penalty units. 15
(3) The prosecution bears the legal burden of proving the elements of the offence 16
against this section. 17
(4) The offence against this section can only be prosecuted by a person who can 18
bring a prosecution for the executive liability offence. 19
(5) This section does not affect the liability of the corporation for the executive 20
liability offence, and applies whether or not the corporation is prosecuted for, 21
or convicted of, the executive liability offence. 22
(6) This section does not affect the application of any other law relating to the 23
criminal liability of any persons (whether or not directors or other managers of 24
the corporation) who are accessories to the commission of the executive 25
liability offence or are otherwise concerned in, or party to, the commission of 26
the executive liability offence. 27
(7) In this section: 28
director has the same meaning it has in the Corporations Act 2001 of the 29
Commonwealth. 30
reasonable steps, in relation to the commission of an executive liability 31
offence, includes, but is not limited to, such action (if any) of the following 32
kinds as is reasonable in all the circumstances: 33
(a) action towards: 34
(i) assessing the corporation's compliance with the provision 35
creating the executive liability offence, and 36
(ii) ensuring that the corporation arranged regular professional 37
assessments of its compliance with the provision, 38
(b) action towards ensuring that the corporation's employees, agents and 39
contractors are provided with information, training, instruction and 40
supervision appropriate to them to enable them to comply with the 41
provision creating the executive liability offence so far as the provision 42
is relevant to them, 43
(c) action towards ensuring that: 44
(i) the plant, equipment and other resources, and 45
(ii) the structures, work systems and other processes, 46
relevant to compliance with the provision creating the executive 47
liability offence are appropriate in all the circumstances, 48
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Schedule 1 Amendment of Home Building Act 1989 No 147
(d) action towards creating and maintaining a corporate culture that does 1
not direct, encourage, tolerate or lead to non-compliance with the 2
provision creating the executive liability offence. 3
[121] Section 141 Repeals 4
Omit the section. 5
[122] Section 144 6
Omit the section. Insert instead: 7
144 Limitation of liability 8
A matter or thing done or omitted to be done by the Chief Executive, a member 9
of the Advisory Council or the Fund Board or a person acting under the 10
direction of the Chief Executive, the Advisory Council or the Fund Board, 11
does not, if the matter or thing was done or omitted in good faith for the 12
purposes of executing this Act, subject the Chief Executive, the member or a 13
person so acting personally to any action, liability, claim or demand. 14
[123] Schedule 1 Provisions relating to advisory bodies 15
Renumber the Schedule as Schedule 5. 16
[124] Schedule 5 (as renumbered) 17
Omit "Scheme Board" wherever occurring in clauses 1 (a) and 2 (2). 18
Insert instead "Fund Board". 19
[125] Schedule 1 20
Insert as Schedule 1: 21
Schedule 1 Definitions and other interpretative 22
provisions 23
1 Definitions 24
(1) In this Act: 25
Administration Corporation means the Fair Trading Administration 26
Corporation constituted under Part 7. 27
Advisory Council means the Home Building Advisory Council constituted 28
under Part 7B. 29
authority means the following: 30
(a) a contractor licence (whether or not an endorsed contractor licence), 31
(b) a supervisor or tradesperson certificate, 32
(c) an owner-builder permit. 33
Building Code of Australia has the same meaning as in the Environmental 34
Planning and Assessment Act 1979. 35
Chief Executive means: 36
(a) the Commissioner for Fair Trading, Office of Finance and Services, or 37
(b) if there is no such position in that Office--the Chief Executive of that 38
Office. 39
close associate--see clause 5. 40
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complying development certificate has the same meaning as in the 1
Environmental Planning and Assessment Act 1979. 2
consent declaration means a declaration by an individual who is, or is 3
proposed to be, the nominated supervisor for a contractor licence, being a 4
declaration to the effect that the individual understands the responsibilities of 5
a nominated supervisor and consents to being that nominated supervisor. 6
contract price means the total amount payable under a contract to do work or 7
to supply a kit home and includes: 8
(a) the amount that the person contracting to do the work or to supply a kit 9
home is to receive and retain under the contract, and 10
(b) the amount that the person is to receive under the contract for payment 11
to any other person, and 12
(c) the amount any third person is to receive (or it is reasonably estimated 13
will receive) directly from the person for whom the work is done or to 14
whom the kit home is supplied in relation to the work done, or the kit 15
home supplied, under the contract: 16
(i) for conveying to the building site or connecting or installing 17
services such as gas, electricity, telephone, water and sewerage, 18
or 19
(ii) for the issue of development or building consents. 20
contractor licence means a contractor licence referred to in section 4 or 5. 21
developer--see section 3A. 22
development consent has the same meaning as in the Environmental Planning 23
and Assessment Act 1979. 24
dual occupancy--see section 29. 25
dwelling--see clause 3. 26
electrical wiring work has the same meaning as it has in the Electricity 27
(Consumer Safety) Act 2004. 28
endorsed contractor licence means a contractor licence endorsed under this 29
Act to show that it is the equivalent of a supervisor certificate. 30
externally-administered body corporate has the same meaning as in the 31
Corporations Act 2001 of the Commonwealth. 32
fixed apparatus means apparatus fixed to a dwelling or part of a dwelling with 33
the intention that it should remain in that position permanently. 34
function includes a power, authority or duty, and exercise a function includes 35
perform a duty. 36
Fund Board means the Home Building Compensation Fund Board constituted 37
under Part 6. 38
gasfitting work has the same meaning as it has in the Gas Supply Act 1996. 39
insurance under the Home Building Compensation Fund means insurance 40
under a contract of insurance required to be entered into by or under Part 6. 41
kit home--see clause 4. 42
major defect--see section 18E. 43
National Construction Code means the National Construction Code produced 44
and maintained by the Australian Building Codes Board, as in force from time 45
to time. 46
nominated supervisor means an individual: 47
(a) who holds an endorsed contractor licence or a supervisor certificate, and 48
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(b) who is for the time being registered in accordance with the regulations 1
for the purpose of supervising the doing of residential building work or 2
specialist work. 3
non-contracting owner, in relation to a contract to do residential building 4
work on land, means an individual, partnership or corporation that is the owner 5
of the land but is not a party to the contract and includes any successor in title 6
to the owner. 7
officer, in relation to a corporation, has the same meaning as it has in the 8
Corporations Act 2001 of the Commonwealth. 9
owner of land means the only person who, or each person who jointly or 10
severally, at law or in equity: 11
(a) is entitled to the land for an estate of freehold in possession, or 12
(b) is entitled to receive, or receives, or if the land were let to a tenant would 13
be entitled to receive, the rents and profits of the land, whether as 14
beneficial owner, trustee, mortgagee in possession or otherwise. 15
owner-builder means a person who does owner-builder work under an 16
owner-builder permit issued to the person for that work. 17
owner-builder permit means an owner-builder permit issued under Division 3 18
of Part 3. 19
owner-builder work--see section 29. 20
plumbing and drainage work means: 21
(a) plumbing and drainage work within the meaning of the Plumbing and 22
Drainage Act 2011, or 23
(b) any plumbing work or drainage work that, because of a relevant law, 24
can be done lawfully only by the holder of an endorsed contractor 25
licence, a supervisor or a tradesperson certificate or some other 26
specified person, or 27
(c) water plumbing work comprising the construction of or work on a fire 28
suppression system that is connected or to be connected to a water main. 29
progress payment for residential building work means any payment on 30
account after work is commenced under a contract to do residential building 31
work. 32
relevant law means an Act or a statutory instrument that is declared by the 33
regulations to be an Act or statutory instrument that regulates the specialist 34
work concerned. 35
residential building work--see clause 2. 36
roof plumbing work means any work involved in the fixing, installation, 37
renovation, alteration, repair and maintenance of guttering, downpipes, roof 38
flashing and roof coverings on any building or structure, except work in 39
relation to roof coverings consisting of: 40
(a) non-metallic tiles and slates, or 41
(b) glass (being work usually performed by glaziers), or 42
(c) concrete, or 43
(d) timber and timber products, or 44
(e) thatching, or 45
(f) malthoid, bituminous or similar membrane material. 46
secondary dwelling--see section 29. 47
Self Insurance Corporation means the NSW Self Insurance Corporation 48
constituted by the NSW Self Insurance Corporation Act 2004. 49
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Schedule 1 Amendment of Home Building Act 1989 No 147
specialist work means the following work whether or not done in connection 1
with a dwelling: 2
(a) plumbing and drainage work, other than roof plumbing work, 3
(b) gasfitting work, 4
(c) electrical wiring work, 5
(d) any work declared by the regulations to be refrigeration work or 6
air-conditioning work. 7
Note. Work can be specialist work whether or not it is done in connection with a 8
dwelling (so it can include work done in connection with commercial or industrial work). 9
statutory warranty means a warranty established by Part 2C. 10
supervisor certificate means a supervisor certificate issued under Division 2 11
of Part 3. 12
supply means supply for consideration, but does not include supply for the 13
purposes of resale. 14
tradesperson certificate means a tradesperson certificate issued under 15
Division 2 of Part 3 16
Tribunal means the Civil and Administrative Tribunal established by the Civil 17
and Administrative Tribunal Act 2013. 18
2 Definition of "residential building work" 19
(1) In this Act, residential building work means any work involved in, or 20
involved in co-ordinating or supervising any work involved in: 21
(a) the construction of a dwelling, or 22
(b) the making of alterations or additions to a dwelling, or 23
(c) the repairing, renovation, decoration or protective treatment of a 24
dwelling. 25
(2) Each of the following is included in the definition of residential building 26
work: 27
(a) roof plumbing work done in connection with a dwelling, 28
(b) specialist work done in connection with a dwelling, 29
(c) work concerned in installing in a dwelling any fixture or fixed apparatus 30
that is designed for the heating or cooling of water, food or the 31
atmosphere or for air ventilation or the filtration of water in a swimming 32
pool or spa (or in adding to, altering or repairing any such installation). 33
(3) Each of the following is excluded from the definition of residential building 34
work: 35
(a) any work (other than specialist work) the reasonable market cost of the 36
labour and materials involved in which does not exceed the amount 37
prescribed by the regulations, 38
(b) any work (other than specialist work) involved in the manufacturing of 39
a moveable dwelling, within the meaning of the Local Government 40
Act 1993 (other than a moveable dwelling that is a manufactured home 41
within the meaning of that Act), 42
(c) any work involved in the manufacture, assembly or erection of a 43
moveable dwelling that is a manufactured home within the meaning of 44
the Local Government Act 1993, other than: 45
(i) specialist work, or 46
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Schedule 1 Amendment of Home Building Act 1989 No 147
(ii) work involving the connecting together on the site on which the 1
manufactured home is installed of its major sections and any 2
associated structures forming part of the manufactured home and 3
attaching them to footings, 4
(d) any work (other than specialist work) involved in the site preparation 5
for, or the assembling or erection on site of, a moveable dwelling 6
excluded by paragraph (b), unless the work requires development 7
consent, 8
(e) any work referred to in paragraph (d) done in relation to land on which 9
a council has authorised a moveable dwelling to be placed by issuing an 10
approval under the Local Government Act 1993, whether or not a 11
development consent is also required, 12
(f) any work that would otherwise be residential building work but that by 13
or under another Act a person is prohibited from doing unless the person 14
is the holder of a contractor licence or another authority under that other 15
Act, but subject to subclause (4), 16
(g) internal painting work, but subject to subclause (5), 17
(h) any work (other than specialist work) done in relation to the removal 18
and transport of a dwelling, but subject to subclause (6), 19
(i) the supervision only of residential building work: 20
(i) by a person registered as an architect under the Architects 21
Act 2003, or 22
(ii) by a person supervising owner-builder work for no reward or 23
other consideration, or 24
(iii) by any other person, if all the residential building work is being 25
done or supervised by the holder of a contractor licence 26
authorising its holder to contract to do that work, 27
(j) demolition work, 28
(k) any work involved in the installation of any material that forms an upper 29
layer or wearing surface of a floor (even if installed as a fixture) and that 30
does not involve any structural changes to the floor, but not including 31
work involved in the installation of floor tiles unless the regulations 32
otherwise provide, 33
(l) any work that involves the installation or maintenance of any fixed 34
apparatus such as a lift, an escalator, an inclinator or a garage door by 35
means of which persons or things are raised or lowered or moved in 36
some direction that is restricted by fixed guides. 37
(4) Work referred to in subclause (3) (f) is not excluded from the definition of 38
residential building work if it is part only of the work to be done under a 39
contract to do residential building work. 40
(5) Internal painting work is not excluded from the definition of residential 41
building work (under subclause (3) (g)) if it is part only of the work to be done 42
under a contract to do residential building work. 43
(6) Work referred to in subclause (3) (h) is not excluded from the definition of 44
residential building work if it is part only of the work to be done under a 45
contract to do residential building work at the new site of the dwelling 46
(whether or not that work is done under the same contract as the contract to 47
remove and transport the dwelling). 48
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(7) The regulations may: 1
(a) declare any work to be included in the definition of residential building 2
work, or 3
(b) declare any work to be excluded from the definition of residential 4
building work. 5
3 Definition of "dwelling" 6
(1) In this Act, dwelling means a building or portion of a building that is designed, 7
constructed or adapted for use as a residence (such as a detached or 8
semi-detached house, transportable house, terrace or town house, duplex, 9
villa-home, strata or company title home unit or residential flat). 10
(2) Each of the following structures or improvements is included in the definition 11
of dwelling if it is constructed for use in conjunction with a dwelling: 12
(a) a swimming pool or spa, 13
(b) parts of a building containing more than one dwelling (whether or not 14
the building is also used for non-residential purposes), being stairways, 15
passageways, rooms, and the like, that are used in common by the 16
occupants of those dwellings, together with any pipes, wires, cables or 17
ducts that are not for the exclusive enjoyment of any one dwelling, 18
(c) parts of a building containing one dwelling only (where the building is 19
also used for non-residential purposes), being stairways, passageways 20
and the like which provide access to that dwelling, 21
(d) if non-residential parts of a building containing one or more dwellings 22
give support or access to the residential part--the major elements of the 23
non-residential parts giving such support or access, 24
(e) cupboards, vanity units and the like fixed to a dwelling, 25
(f) detached garages and carports, 26
(g) detached decks, porches, verandahs, pergolas and the like, 27
(h) cabanas and non-habitable shelters, 28
(i) detached workshops, sheds and other outbuildings (but not jetties, 29
slipways, pontoons or boat ramps and any structures ancillary to these 30
exceptions), 31
(j) concrete tennis courts and the like but only if the work involved is to be 32
done under a contract to do other work that is residential building work, 33
(k) driveways, paths and other paving, 34
(l) retaining walls, 35
(m) agricultural drainage designed or constructed to divert water away from 36
the footings of a dwelling or a retaining wall, 37
(n) fences and gates, 38
(o) ornamental ponds and water features, and other structural 39
ornamentation, the construction or installation of which requires 40
development consent but only if the work involved is to be done under 41
a contract to do other work that is residential building work, 42
(p) any other structure or improvement prescribed by the regulations. 43
(3) Each of the following is excluded from the definition of dwelling: 44
(a) a boarding house, guest house, hostel or lodging house, 45
(b) all residential parts of a hotel or motel, 46
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(c) any residential part of an educational institution, 1
(d) accommodation (other than self-contained units) specially designed for 2
the aged, persons with a disability or children, 3
(e) any residential part of a health care building that accommodates staff, 4
(f) a house or unit designed, constructed or adapted for commercial use as 5
tourist, holiday or overnight accommodation, 6
(g) any part of a non-residential building that is constructed or adapted for 7
use as a caretaker's residence, 8
(h) a moveable dwelling (with or without a flexible annexe) within the 9
meaning of the Local Government Act 1993 that is, or is a vehicle of a 10
kind capable of being, registered within the meaning of the Road 11
Transport Act 2013 (such as a caravan or a motor home), 12
(i) a residential building for the purposes of which development consent 13
can be granted only because of State Environmental Planning Policy 14
No 15--Rural Landsharing Communities, 15
(j) concrete tennis courts and the like, except as expressly included under 16
subclause (2), 17
(k) ornamental ponds and water features and other structural 18
ornamentation, except as expressly included under subclause (2), 19
(l) a building or portion of a building that is prescribed by the regulations 20
as excluded from the definition. 21
(4) A structure or improvement that is included in the definition of dwelling if it 22
is constructed for use in conjunction with a dwelling is to be regarded as a 23
dwelling whether or not there exists any dwelling of which it could be taken 24
to form part. 25
4 Definition of "kit home" 26
(1) In this Act, kit home means a set of building components that, when offered 27
for sale, is represented as sufficient for the construction of a dwelling, garage, 28
carport or other structure prescribed by the regulations, according to a plan or 29
instructions furnished by the supplier of the set to the purchaser in connection 30
with the sale. 31
(2) Despite subclause (1), the following are not kit homes for the purposes of this 32
Act: 33
(a) a set of components for the construction of a moveable dwelling (within 34
the meaning of the Local Government Act 1993) that is not a vehicle of 35
a kind capable of being registered within the meaning of the Road 36
Transport Act 2013, 37
(b) a set of components for the construction of a dwelling, structure or 38
improvement prescribed by the regulations. 39
5 Meaning of "close associate" 40
(1) For the purposes of this Act, a person is a close associate of another person if 41
the person: 42
(a) is a business partner of the other person, or 43
(b) is an employee or agent of the other person, or 44
(c) is a corporation, or a member of a corporation, partnership, syndicate or 45
joint venture, in which the other person or a person referred to in 46
paragraph (a), (b) or (d) has a beneficial interest, or 47
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(d) bears a relationship to the other person that is a prescribed relationship 1
under subclause (2), or 2
(e) is a corporation that is a subsidiary (within the meaning of the 3
Corporations Act 2001 of the Commonwealth) of the other person, or 4
(f) holds or is entitled to exercise, in respect of the other person or the 5
business of the other person, any other relevant financial interest, 6
relevant position or relevant power. 7
(2) For the purposes of subclause (1) (d), a person bears a prescribed relationship 8
to another person if the relationship is that of: 9
(a) a spouse or former spouse, or 10
(b) an existing or former de facto partner, or 11
(c) a child, grandchild, sibling, parent or grandparent, whether derived 12
through paragraph (a) or (b) or otherwise, or 13
(d) a kind prescribed by the regulations for the purposes of this clause. 14
Note. De facto partner is defined in section 21C of the Interpretation Act 1987. 15
(3) For the purposes of subclause (1) (f): 16
relevant financial interest means: 17
(a) any share in the capital of the business, or 18
(b) any entitlement to receive any income derived from the business, 19
whether the entitlement arises at law or in equity or otherwise. 20
relevant position means the position of director, manager, and other executive 21
positions and secretary, however those positions are designated. 22
relevant power means any power, whether exercisable by voting or otherwise 23
and whether exercisable alone or in association with others: 24
(a) to participate in any directorial, managerial or executive decision, or 25
(b) to elect or appoint any person to any relevant position. 26
6 References to conditions 27
In this Act, a reference to conditions includes a reference to terms, restrictions 28
and prohibitions. 29
7 Notes 30
Notes included in this Act do not form part of this Act. 31
[126] Schedules 2 and 3 32
Omit Schedule 3. Insert instead: 33
Schedule 2 Terms to be included in certain contracts 34
(Sections 7E and 16DE) 35
Part 1 Contracts to do residential building work 36
1 Plans and specifications 37
(1) All plans and specifications for work to be done under this contract, including 38
any variations to those plans and specifications, are taken to form part of this 39
contract. 40
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(2) Any agreement to vary this contract, or to vary the plans and specifications for 1
work to be done under this contract, must be in writing signed by or on behalf 2
of each party to this contract. 3
(3) This clause only applies to a contract to which section 7AA (Consumer 4
information) of the Home Building Act 1989 applies. 5
2 Quality of construction 6
(1) All work done under this contract will comply with: 7
(a) the Building Code of Australia (to the extent required under the 8
Environmental Planning and Assessment Act 1979, including any 9
regulation or other instrument made under that Act), and 10
(b) all other relevant codes, standards and specifications that the work is 11
required to comply with under any law, and 12
(c) the conditions of any relevant development consent or complying 13
development certificate. 14
(2) Despite subclause (1), this contract may limit the liability of the contractor for 15
a failure to comply with subclause (1) if the failure relates solely to: 16
(a) a design or specification prepared by or on behalf of the owner (but not 17
by or on behalf of the contractor), or 18
(b) a design or specification required by the owner, if the contractor has 19
advised the owner in writing that the design or specification contravenes 20
subclause (1). 21
Part 2 Contracts to supply kit homes 22
3 Plans and specifications 23
(1) All plans and specifications for building components to be supplied under this 24
contract, including any variations to those plans and specifications, are taken 25
to form part of this contract. 26
(2) Any agreement to vary this contract, or to vary the plans and specifications for 27
building components to be supplied under this contract, must be in writing 28
signed by or on behalf of each party to this contract. 29
4 Quality of construction 30
(1) All building components supplied under this contract will comply with: 31
(a) the Building Code of Australia (to the extent required under the 32
Environmental Planning and Assessment Act 1979, including any 33
regulation or other instrument made under that Act), and 34
(b) all other relevant codes, standards and specifications that the work is 35
required to comply with under any law, and 36
(c) the conditions of any relevant development consent or complying 37
development certificate. 38
(2) Despite subclause (1), this contract may limit the liability of the contractor for 39
a failure to comply with subclause (1) if the failure relates solely to: 40
(a) a design or specification prepared by or on behalf of the owner (but not 41
by or on behalf of the contractor), or 42
(b) a design or specification required by the owner, if the contractor has 43
advised the owner in writing that the design or specification contravenes 44
subclause (1). 45
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Schedule 1 Amendment of Home Building Act 1989 No 147
Schedule 3 Conditions of authorities 1
(Section 36) 2
1 Contractor licences generally 3
The holder of a contractor licence must notify the Chief Executive in writing 4
of the following particulars within 7 days of the specified events occurring and 5
must provide any specified documents: 6
(a) if the holder becomes aware of any material change in the 7
circumstances that warranted the Chief Executive giving permission 8
allowing an individual to be a nominated supervisor for more than one 9
contractor licence or making an order exempting a licensee from having 10
a nominated supervisor--the date on which the holder became aware of 11
that change and the details of the change, 12
(b) if a nominated supervisor for the contractor licence ceases to be an 13
employee, member or director of the holder--the date of cessation, the 14
supervisor's name, and the type of authority held by the supervisor and 15
its number, 16
(c) if a person is selected to be a nominated supervisor for the contractor 17
licence after it has been issued--the supervisor's name, the type of 18
authority held and its number. (The person's consent declaration must 19
accompany any such notification.) 20
2 Individual contractor licences 21
Note. Under section 24 (1) of the Licensing and Registration (Uniform Procedures) 22
Act 2002 (as modified by section 19 (3) (d) of the Home Building Act 1989), it is a 23
condition of each contractor licence that the licensee must notify the Chief Executive, 24
within 7 days after the change, of any change that occurs in the licensee's name, 25
address or other registered particulars. 26
(1) An individual who is the holder of a contractor licence must, within 7 days of 27
becoming or ceasing to be a nominated supervisor, notify the Chief Executive 28
in writing of the following particulars: 29
(a) if the holder becomes a nominated supervisor for another contractor 30
licence--the date of the consent declaration and the name of the holder 31
of the other contractor licence and its number, 32
(b) if the holder ceases to be a nominated supervisor for another contractor 33
licence--the date of so ceasing and the name of the holder of the other 34
contractor licence and its number. 35
(2) An individual who is the holder of a contractor licence and the nominated 36
supervisor for more than one contractor licence must, within 7 days after 37
becoming aware of any material change in the circumstances that warranted 38
the Chief Executive giving permission allowing the individual to be a 39
nominated supervisor for more than one contractor licence, notify the Chief 40
Executive in writing of the following particulars: 41
(a) the date on which the holder became aware of the change, 42
(b) details of the change. 43
3 Partnership contractor licences 44
Note. Under section 24 (1) of the Licensing and Registration (Uniform Procedures) 45
Act 2002 (as modified by section 19 (3) (d) of the Home Building Act 1989), it is a 46
condition of each contractor licence that the licensee must notify the Chief Executive, 47
within 7 days after the change, of any change that occurs in the licensee's name, 48
address or other registered particulars. 49
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A partnership that is the holder of a contractor licence must notify the Chief 1
Executive in writing of the following particulars within 7 days of the specified 2
events occurring: 3
(a) if a corporation is a member of the partnership holding the contractor 4
licence--particulars of the events and details required by clause 4 for 5
each corporation which is such a member, 6
(b) if there is a change in the membership or in the name of a member of the 7
partnership or the partnership is dissolved--the date and details of the 8
change or dissolution, including the name, date of birth and address of 9
each former partner and new partner (if applicable). 10
4 Corporation contractor licences 11
Note. Under section 24 (1) of the Licensing and Registration (Uniform Procedures) 12
Act 2002 (as modified by section 19 (3) (d) of the Home Building Act 1989), it is a 13
condition of each contractor licence that the licensee must notify the Chief Executive, 14
within 7 days after the change, of any change that occurs in the licensee's name, 15
address or other registered particulars. 16
(1) A corporation that is the holder of a contractor licence must notify the Chief 17
Executive in writing within 7 days of any change of directors of the 18
corporation. 19
(2) The notification referred to in subclause (1) must include the name, date of 20
birth and address of each new and former director. 21
5 Supervisor certificates and tradesperson certificates 22
Note. Under section 24 (1) of the Licensing and Registration (Uniform Procedures) 23
Act 2002 (as modified by section 24 (3) (d) of the Home Building Act 1989), it is a 24
condition of each tradesperson certificate and supervisor certificate that the holder of 25
the certificate must notify the Chief Executive, within 7 days after the change, of any 26
change that occurs in the holder's name, address or other registered particulars. 27
(1) The holder of a supervisor certificate must, within 7 days of becoming or 28
ceasing to be a nominated supervisor, notify the Chief Executive in writing of 29
the following particulars: 30
(a) if the holder becomes a nominated supervisor for a contractor licence-- 31
the date of the consent declaration and the name of the holder of the 32
contractor licence and its number, 33
(b) if the holder ceases to be a nominated supervisor for a contractor 34
licence--the date of so ceasing and the name of the holder of the 35
contractor licence and its number. 36
(2) The holder of a supervisor certificate who is the nominated supervisor for 37
more than one contractor licence must, within 7 days after becoming aware of 38
any material change in the circumstances that warranted the Chief Executive 39
giving permission allowing the individual to be a nominated supervisor for 40
more than one contractor licence, notify the Chief Executive in writing of the 41
following particulars: 42
(a) the date on which the holder became aware of the change, 43
(b) details of the change. 44
6 Further details 45
The holder of an authority must provide further details of the changes referred 46
to in this Schedule if requested to do so by the Chief Executive and, if the 47
Chief Executive so requests, must provide those further details in a form 48
approved by the Chief Executive. 49
Page 42
Home Building Amendment Bill 2014 [NSW]
Schedule 1 Amendment of Home Building Act 1989 No 147
7 Lost, stolen, defaced or destroyed authorities 1
The holder of an authority that is lost, stolen, defaced or destroyed must notify 2
the Chief Executive in writing of the event or condition within 7 days of 3
becoming aware of it. 4
[127] Schedule 4 Savings and transitional provisions 5
Omit clause 2 (1). Insert instead: 6
(1) The regulations may contain provisions of a savings or transitional nature 7
consequent on the enactment of this Act and any Act that amends this Act. 8
[128] Schedule 4 9
Insert at the end of the Schedule with appropriate Part and clause numbering: 10
Part Provisions consequent on enactment of Home 11
Building Amendment Act 2014 12
Definitions 13
In this Part: 14
amending Act means the Home Building Amendment Act 2014. 15
amendment of a provision includes: 16
(a) substitution or omission of the provision, and 17
(b) in the case of a new provision, the insertion of that provision. 18
Application of Part 19
(1) This Part prevails to the extent of any inconsistency with any other provision 20
of this Schedule. 21
(2) Regulations made under clause 2 of this Schedule have effect despite any 22
provision of this Part. 23
General operation of amendments 24
(1) Except as otherwise provided by this Part or the regulations, an amendment 25
made by the amending Act extends to: 26
(a) residential building work or specialist work commenced or completed 27
before the commencement of the amendment, and 28
(b) a contract to do residential building work or specialist work entered into 29
before the commencement of the amendment (including a contract 30
completed before that commencement), and 31
(c) a contract of insurance entered into before the commencement of the 32
amendment, and 33
(d) a loss, liability, claim or dispute that arose before the commencement of 34
the amendment, and 35
(e) an application for a licence or certificate that is pending on the 36
commencement of the amendment. 37
(2) However, an amendment made by the amending Act does not apply to or in 38
respect of: 39
(a) proceedings commenced in a court or tribunal before the 40
commencement of the amendment (whether or not the proceedings 41
were finally determined before that commencement), or 42
Page 43
Home Building Amendment Bill 2014 [NSW]
Schedule 1 Amendment of Home Building Act 1989 No 147
(b) a claim made before the commencement of the amendment under a 1
contract of insurance (whether or not the claim was finalised before that 2
commencement). 3
New offences and increased penalties 4
(1) An amendment made by the amending Act that creates a new offence (or that 5
extends an existing offence to conduct that is currently not the subject of the 6
offence) does not apply in respect of conduct occurring before the 7
commencement of the amendment. 8
(2) Sections 4 (6), 5 (3) and 92 (2A) apply only to a second or subsequent offence 9
under the provision concerned committed after the commencement of the 10
provision and so apply even if the first offence concerned was committed 11
before that commencement. 12
Form of contracts 13
(1) An amendment of section 7 (except section 7 (8)) by the amending Act does 14
not apply to a contract entered into before the commencement of the 15
amendment. 16
(2) The amendment of section 7A by the amending Act does not apply to a 17
contract entered into before the commencement of the amendment. 18
Deposits and progress payments 19
An amendment of section 8, 8A or 16E by the amending Act does not apply in 20
respect of a contract entered into before the commencement of the 21
amendment. 22
Statutory warranties 23
(1) Section 18BA (Duties of person having benefit of statutory warranty) does not 24
apply in respect of a contract entered into before the commencement of the 25
section. 26
(2) The amendment of section 18F by the amending Act does not apply in respect 27
of a contract entered into before the commencement of the amendment. 28
Issue of licences and certificates 29
An amendment of section 20 or 25 by the amending Act does not apply to an 30
application for a contractor licence or a supervisor or tradesperson certificate 31
made before the commencement of the amendment. 32
Cancellation of contractor licence 33
(1) An amendment of section 22 by the amending Act extends to a contractor 34
licence in force immediately before the commencement of the amendment. 35
(2) Section 22 (5) applies to an event or circumstance that occurs before the 36
commencement of that provision and of which the holder of a contractor 37
licence became aware before that commencement as if the holder became 38
aware of the event or circumstance on that commencement. 39
Owner-builder permits 40
(1) Section 32 (1A) does not apply to an owner-builder permit issued before the 41
commencement of that provision or issued after the commencement of that 42
provision pursuant to an application made before that commencement. 43
Page 44
Home Building Amendment Bill 2014 [NSW]
Schedule 1 Amendment of Home Building Act 1989 No 147
(2) An amendment of section 31 by the amending Act does not apply to an 1
application for an owner-builder permit made before the commencement of 2
the amendment. 3
Rectification orders 4
An amendment of section 48E by the amending Act does not apply to an order 5
under that section made before the commencement of the amendment. 6
Insurance contracts--name of contractor 7
An amendment of section 92 (1) or (2) by the amending Act does not apply to 8
a contract of insurance entered into before the commencement of the 9
amendment. 10
Insurance obligations of owner-builders 11
Section 95 (and sections 97 and 101 in their operation in respect of that 12
section) as in force before being amended by the amending Act continues to 13
apply to and in respect of the following contracts: 14
(a) a contract of insurance or a contract for the sale of land entered into 15
before the commencement of the amendment of section 95, 16
(b) a contract for the sale of land entered into after that commencement if a 17
contract of insurance that complies with this Act is in force in relation 18
to the work concerned when the contract is entered into. 19
Contracts for sale of exempt dwellings 20
Section 96B (Obligations of sellers of excluded dwellings (houses and units 21
used for commercial purposes)) does not apply to a contract for the sale of land 22
entered into before the commencement of that section. 23
Effect of partnership insolvency 24
An amendment of section 99 (3)-(6) or 100 (2) by the amending Act does not 25
apply to a contract of insurance entered into before the commencement of the 26
amendment. 27
Insurance in relation to work not carried out under contract 28
The amendment of section 101 by the amending Act does not apply to a 29
contract of insurance entered into under section 96 before the commencement 30
of the amendment. 31
Non-completion claims as delayed claims 32
The repeal of section 103BB (5) by the amending Act does not apply in respect 33
of a contract of insurance entered into before that repeal. 34
Executive liability offences 35
Section 137A does not apply to an executive liability offence committed 36
before the commencement of that section. 37
Limitation of liability 38
The amendment of section 144 by the amending Act does not apply to any 39
matter or thing done or omitted to be done before the commencement of the 40
amendment. 41
Page 45
Home Building Amendment Bill 2014 [NSW]
Schedule 1 Amendment of Home Building Act 1989 No 147
Grounds for refusal of authority 1
(1) A ground under a provision of this Act for refusing the issue, renewal or 2
restoration of an authority that was not a ground for that refusal before the 3
commencement of the provision (whether the ground was under this Act or a 4
regulation under this Act) does not apply to an application for the issue, 5
renewal or restoration of an authority made before the commencement of the 6
provision, and does not apply to an authority issued, renewed or restored 7
before that commencement until the first renewal of the authority after that 8
commencement. 9
(2) A reference in a provision of section 33B to a members' voluntary winding up 10
applies in respect of an authority in force immediately before the 11
commencement of the provision as if the reference included a reference to a 12
creditors' voluntary winding up, but only until the first renewal of the 13
authority after that commencement. 14
Definitions of "residential building work" and "dwelling" 15
An amendment made by the amending Act that results in a change to the 16
meaning of residential building work or dwelling does not apply to a contract 17
to do residential building work entered into before the commencement of the 18
amendment. 19
Changes to terms of contract 20
An amendment made by the amending Act that changes the terms that a 21
contract must contain applies only to a contract entered into after the 22
commencement of the amendment. 23
References to home warranty insurance etc 24
(1) The amendments made by the amending Act to change references to home 25
warranty insurance to references to insurance under the Home Building 26
Compensation Fund effect a change of terminology only, and accordingly: 27
(a) the amendments do not affect the validity of any contract of insurance 28
entered into before the commencement of the amendments, and 29
(b) a reference in this Act to insurance under the Home Building 30
Compensation Fund includes a reference to home warranty insurance 31
under a contract of insurance entered into before the commencement of 32
the amendments. 33
(2) The Home Building Compensation Fund Board provided for by the 34
amendments made by the amending Act is a continuation of the Home 35
Warranty Insurance Scheme Board as constituted under this Act immediately 36
before the commencement of those amendments. 37
(3) Guidelines in force under section 91A immediately before the amendment of 38
that section by the amending Act are taken to have been issued under that 39
section as amended by the amending Act. 40
Lodgment at office of Department of Fair Trading 41
Anything lodged at an office of the Department of Fair Trading before the 42
commencement of an amendment made by the amending Act to a provision of 43
this Act that requires it to be so lodged is, for the purposes of the operation of 44
the provision after the commencement of the amendment, taken to have been 45
lodged with the Chief Executive. 46
Page 46
Home Building Amendment Bill 2014 [NSW]
Schedule 1 Amendment of Home Building Act 1989 No 147
Provisions of regulations transferred to Act 1
An amendment made by the amending Act that imposes a requirement that 2
was a requirement of the regulations before the amendment commenced 3
extends to any contract or other matter to which the requirement was subject 4
under the regulations immediately before the commencement of the 5
amendment. 6
[129] The whole Act 7
Omit "Director-General" and "Director-General's" wherever occurring (except where 8
otherwise amended by this Schedule and in Schedule 4 to the Act). 9
Insert instead "Chief Executive" and "Chief Executive's" respectively. 10
Page 47
Home Building Amendment Bill 2014 [NSW]
Schedule 2 Amendment of NSW Self Insurance Corporation Act 2004 No 106
Schedule 2 Amendment of NSW Self Insurance Corporation 1
Act 2004 No 106 2
[1] Section 3 Definitions 3
Omit paragraph (c) of the definition of Government managed fund scheme in section 3 (1). 4
Insert instead: 5
(c) insurance under the Home Building Compensation Fund is provided (or 6
the Home Building Compensation Fund is managed) by or on behalf of 7
the Self Insurance Corporation, or 8
[2] Section 3 (1) 9
Omit the definitions of home warranty insurance and Home Warranty Insurance Fund. 10
[3] Section 3 (1) 11
Insert in alphabetical order: 12
Home Building Compensation Fund means the Fund established under 13
section 12A. 14
insurance under the Home Building Compensation Fund means insurance 15
under a contract of insurance required to be entered into by or under Part 6 of 16
the Home Building Act 1989. 17
[4] Section 3 (1), definition of "insurance intermediary" 18
Omit "home warranty insurance". 19
Insert instead "insurance under the Home Building Compensation Fund". 20
[5] Section 8A Specific functions in relation to insurance under Home Building 21
Compensation Fund 22
Omit "home warranty insurance" wherever occurring. 23
Insert instead "insurance under the Home Building Compensation Fund". 24
[6] Section 8A (1) 25
Omit "Home Warranty Insurance Fund" wherever occurring. 26
Insert instead "Home Building Compensation Fund". 27
[7] Section 11 Self Insurance Fund 28
Omit "Home Warranty Insurance Fund" and "home warranty insurance" wherever 29
occurring. 30
Insert instead "Home Building Compensation Fund" and "insurance under the Home 31
Building Compensation Fund" respectively. 32
[8] Part 4, Division 2, heading 33
Omit "Home Warranty Insurance Fund". 34
Insert instead "Home Building Compensation Fund". 35
Page 48
Home Building Amendment Bill 2014 [NSW]
Schedule 2 Amendment of NSW Self Insurance Corporation Act 2004 No 106
[9] Section 12A Home Building Compensation Fund 1
Omit "Home Warranty Insurance Fund" and "home warranty insurance" wherever 2
occurring. 3
Insert instead "Home Building Compensation Fund" and "insurance under the Home 4
Building Compensation Fund" respectively. 5
[10] Section 12B Investment of money in Home Building Compensation Fund 6
Omit "Home Warranty Insurance Fund". 7
Insert instead "Home Building Compensation Fund". 8
[11] Section 13 Regulations 9
Omit "home warranty insurance" from section 13 (1A) (f). 10
Insert instead "insurance under the Home Building Compensation Fund". 11
[12] Schedule 1 Savings, transitional and other provisions 12
Insert at the end of the Schedule with appropriate Part and clause numbers: 13
Part Provisions consequent on enactment of Home 14
Building Amendment Act 2014 15
Home Building Compensation Fund 16
The Home Building Compensation Fund provided for by section 12A is a 17
continuation of the Home Warranty Insurance Fund provided for by that 18
section before the commencement of this clause. 19
Page 49
Home Building Amendment Bill 2014 [NSW]
Schedule 3 Repeals
Schedule 3 Repeals 1
The following Acts are repealed: 2
Home Building Legislation Amendment Act 2001 No 51 3
Building Legislation Amendment (Quality of Construction) Act 2002 No 134 4
Page 50
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