New South Wales Consolidated Acts New South Wales Consolidated ActsIn this Schedule--
"former Act" means--
(a) the Builders Licensing Act 1971 , or
(b) the Plumbers, Gasfitters and Drainers Act 1979 , or
(c) the Building Services Corporation Act 1987 .
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act and any Act that amends this Act.
(2) A provision referred to in subclause (1) may, if the regulations so provide, take effect as from the date of assent to the Act concerned or a later date.
(3) To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as--(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Except as provided otherwise by this Schedule or by a regulation made under clause 2, anything--
(a) that was done by the Corporation under or for the purposes of a provision of a former Act, and
(b) that had an effect immediately before the commencement of any corresponding provision of this Act,is to be taken to have been done under or for the purposes of the corresponding provision of this Act.
The Corporation is a continuation of, and the same legal entity as, the Corporation constituted by the Building Services Corporation Act 1987 .
(1) Any person--(a) holding the office of Chairperson of the Corporation immediately before the commencement of clause 1 of Schedule 1 is, on that commencement, to be taken to have been appointed under that clause, or(b) holding the office of a part-time member of the Corporation immediately before the commencement of section 107 is, on that commencement, to be taken to have been appointed under that section to the corresponding office under this Act, or(c) holding the office of an associate member of the Corporation immediately before the commencement of section 108 is, on that commencement, to be taken to have been appointed under that section as such a member, or(d) holding the office of acting member or acting Chairperson of the Corporation immediately before the commencement of clause 2 of Schedule 1 is, on that commencement, to be taken to have been appointed under that clause to the corresponding office under this Act.
(2) Any such appointment is to be taken to have been made for the residue of the term of office for which the person was in fact appointed.
Any person--
(a) who was appointed under the Public Sector Management Act 1988 to the office of General Manager of the Corporation referred to in section 9 of the Building Services Corporation Act 1987 , and
(b) who held that office immediately before the commencement of section 111,is, on that commencement, to be taken to have been so appointed to the office of General Manager referred to in section 111.
A delegation of a function made by the Corporation or the General Manager under the Building Services Corporation Act 1987 is to be treated as having been a delegation of the corresponding function made under this Act.
(1) A full or restricted licence in force under the Builders Licensing Act 1971 immediately before the commencement of this clause, being a licence that authorised its holder to contract to do residential building work (whether or not only if a subsidiary licence is also held), is to be taken to be a licence under this Act authorising its holder to contract to do the same work.
(2) A full or restricted licence in force under the Builders Licensing Act 1971 immediately before the commencement of this clause, being a licence endorsed by the Corporation "qualified full licensee" or "qualified licensee", is to be taken to be an endorsed contractor licence under this Act authorising its holder to contract to do, to do, and to supervise, the same residential building work as it authorised its holder to do immediately before that commencement.
(3) A subsidiary licence in force under the Builders Licensing Act 1971 immediately before the commencement of this clause, being a licence that authorises a person (not being the licensee) to do residential building work, is to be taken to be a supervisor certificate authorising that person to do, and to supervise, the same work.
(4) Such a subsidiary licence ceases to so authorise that person if that person ceases to be--(a) a full-time employee of the holder of the licence, or(b) a director of any corporation that holds the licence.
(5) Any conditions (other than prescribed conditions) to which a licence referred to in this clause was subject immediately before the commencement of this clause are to be taken to have been imposed under this Act (when the licence was in fact granted) on the corresponding licence or supervisor certificate arising under this clause.
(6) Any licence under this Act arising from subclause (1) or (2) is to be taken to have been issued for the residue of the term for which the corresponding full or restricted licence under the Builders Licensing Act 1971 was in fact issued.
(7) Any supervisor certificate under this Act arising from subclause (3) is to be taken to have been issued for the residue of the term for which the corresponding subsidiary licence under the Builders Licensing Act 1971 was in fact issued.
(8) An owner-builder permit in force under the Builders Licensing Act 1971 immediately before the commencement of this clause is to be taken to be an owner-builder permit issued under this Act.
(1) A licence in force under the Plumbers, Gasfitters and Drainers Act 1979 immediately before the commencement of this clause, being a licence authorising its holder to contract to do, to do, and to supervise, plumbing work or gasfitting work, is to be taken to be an endorsed contractor licence under this Act authorising its holder to contract to do, to do, and to supervise, the same work.
(2) A contractor's authority in force under the Plumbers, Gasfitters and Drainers Act 1979 immediately before the commencement of this clause, being an authority authorising its holder to contract to do plumbing work or gasfitting work, is to be taken to be a licence under this Act authorising its holder to contract to do the same work.
(3) A certificate of registration in force under the Plumbers, Gasfitters and Drainers Act 1979 immediately before the commencement of this clause, being a certificate authorising its holder to do plumbing work or gasfitting work under general control, is to be taken to be a tradesperson certificate under this Act authorising its holder to do the same work under the supervision of the holder of an appropriate endorsed contractor licence or supervisor certificate.
(4) Any conditions (other than prescribed conditions) to which such a licence, authority or certificate was subject immediately before the commencement of this clause are to be taken to have been imposed under this Act (when the licence, authority or certificate was in fact granted) on the corresponding licence or tradesperson certificate arising under this clause.
(5) Any licence under this Act arising from subclause (1) or (2) is to be taken to have been issued for the residue of the term for which the corresponding licence or contractor's authority under the Plumbers, Gasfitters and Drainers Act 1979 was in fact issued.
(6) Any tradesperson certificate under this Act arising from subclause (3) is to be taken to have been issued for the residue of the term for which the corresponding certificate of registration under the Plumbers, Gasfitters and Drainers Act 1979 was in fact issued.
(1) A certificate of registration as an electrical contractor in force under the Electricity Act 1945 immediately before the commencement of this clause is to be taken to be a licence under this Act authorising its holder to contract to do electrical wiring work.
(2) An electrical mechanic's licence in force under the Electricity Act 1945 immediately before the commencement of this clause, being a licence authorising its holder to do electrical wiring work without supervision, is to be taken to be a supervisor certificate under this Act authorising its holder to do the same work.
(3) An electrical mechanic's licence in force under the Electricity Act 1945 immediately before the commencement of this clause, being a licence authorising its holder to do electrical wiring work only under supervision, is to be taken to be a tradesperson certificate under this Act authorising its holder to do the same work under the supervision of the holder of an appropriate endorsed contractor licence or supervisor certificate.
(4) Any terms (other than prescribed terms) to which an electrical mechanic's licence was subject immediately before the commencement of this clause are to be taken to have been conditions imposed under this Act (when the licence was in fact issued) on the corresponding licence or supervisor or tradesperson certificate arising under this clause.
(5) Any licence or supervisor or tradesperson certificate under this Act arising from subclause (1), (2) or (3) is to be taken to have been issued for a term of 3 months (or, if a longer term is prescribed, for the longer term) commencing on the commencement of this clause.
An application for an instrument under a former Act, being an application pending immediately before the repeal of the provision under which the application was made is, on that repeal, to be taken to be an application for a corresponding instrument under the corresponding provision of this Act.
(1) In this clause,
"repealed Act" means--(a) the Builders Licensing Act 1971 , or(b) the Plumbers, Gasfitters and Drainers Act 1979 .
(2) The provisions of a repealed Act, as in force immediately before its repeal, apply to and in respect of a complaint made, or an inquiry or appeal commenced, under that Act and pending immediately before that repeal.
(3) Any order, decision or determination resulting from an inquiry or appeal to which this clause applies is to be taken to have been made under the corresponding provisions of this Act and is to have effect accordingly.
A person who, immediately before the repeal of a provision of a former Act, was entitled to commence (but had not commenced) an appeal has, on that repeal, the residue of the time within which that appeal might have been commenced to commence an appeal under the corresponding provision of this Act.
A complaint or investigation under this Act may be made, a restoration, completion or repair order may be served, and show cause action may be taken, with respect to conduct or any other matter or thing that occurred before or after, or partly before and partly after, the commencement of the provisions of this Act under which the complaint or investigation is made, the order is served or the action is taken.
(1) The provisions of the Builders Licensing Act 1971 , as in force immediately before its repeal, apply to and in respect of each house purchaser's agreement and trade indemnity agreement entered into by the Corporation and in force immediately before that repeal.
(2) This clause has effect subject to clauses 25-29.
A certificate purporting to be signed by a prescribed officer and certifying any of the matters referred to in--
(a) section 22(a)-(i) of the Builders Licensing Act 1971 , or
(b) section 62(a)-(i) of the Plumbers, Gasfitters and Drainers Act 1979 , or
(c) section 33A(1)(a)-(c) of the Electricity Act 1945 ,as that Act was in force immediately before the commencement of this clause, is admissible in evidence in any proceedings and is prima facie evidence of the matters stated in it.
A regulation--
(a) that was, immediately before the commencement of Schedule 5, in force under an Act to be amended by that Schedule, and
(b) that could be lawfully made under that Act, as amended by that Schedule,is, on that commencement, to be taken to have been made under that Act, as so amended.
Anything done by the Corporation before the commencement of section 100 that could have been lawfully done only if that section had been in force when it was done is to be taken to have been lawfully done.
If a former Act, an instrument issued or made under a former Act or any provision of any such Act or instrument is referred to--
(a) in any other Act, or
(b) in any instrument issued or made under any other Act, or
(c) in any other instrument of any kind,the reference extends to this Act, to any corresponding instrument issued or made under this Act or to any corresponding provision of this Act or of an instrument issued or made under this Act.
(1) This clause applies to the following instruments--(a) any Act (other than this Act) assented to before 24 November 1989,(b) a statutory instrument made before that date under an Act,(c) any other kind of instrument made, issued or executed before that date.
(2) In an instrument to which this clause applies, a reference to--(a) the Builders Licensing Board or the Plumbers, Gasfitters and Drainers Board, or(b) the Building Services Corporation constituted by the Building Services Corporation Act 1987 ,is taken to include a reference to the Director-General.
(3) This clause is taken to have commenced on 24 November 1989.
(4) Subclauses (1)-(3) re-enact (with minor modification) clauses 2 and 5 of the Building Services Corporation (Savings and Transitional) Regulation 1989 . Subclauses (1)-(3) are transferred provisions to which section 30A of the Interpretation Act 1987 applies.
In this Part--
"amending Act" means the Building Services Corporation (Amendment) Act 1994 .
The omission of the requirement in section 57(1)(b) extends to a case where the holder of a licence was informed of the matters in a complaint within 30 days before the commencement of Schedule 1(3)(a) to the amending Act.
A rectification order made by the Corporation before the commencement of Schedule 1(4) to the amending Act is taken to be a rectification order made by a building disputes tribunal.
(1) A show cause action pending at the commencement of Schedule 2(6) to the amending Act is to be heard and determined by the Commercial Tribunal.
(2) Any hearing being held before the Corporation (or a member or committee of the Corporation) immediately before that commencement in relation to a show cause action is terminated. The fact that a hearing was being held, or that it is terminated by this clause, does not affect the power of the Commercial Tribunal to hear and determine the show cause action.
(1) Subject to this clause, a determination or order made by the Corporation under Division 4 of Part 4 is taken to be a determination made by the Commercial Tribunal.
(2) This clause does not affect the right of appeal given by section 85(c), and for that purpose the determination or order appealed against continues as a determination or order of the Corporation.
(3) If a hearing has been completed but a determination has not been made by the Corporation as at the commencement of Schedule 2(6) to the amending Act, the Corporation may make a determination as if the amending Act had not been enacted.
(4) Sections 76, 77, 79 and 82 apply in relation to a determination made by the Corporation as if the amending Act had not been enacted.
(1) This clause applies where--(a) a dispute relates to a house purchaser's agreement under the Builders Licensing Act 1971 , and(b) the dispute occurred before the commencement of this clause in connection with building work to which the agreement relates (whether the dispute arose before, on or after 21 March 1990) and the dispute remains unresolved at that commencement, and(c) arbitration proceedings relating to the dispute are pending at that commencement.
(2) Section 85(e) extends to provide the claimant under the agreement with a right of appeal to the Commercial Tribunal in relation to the dispute.
(3) Such an appeal may be lodged with the registrar of the Commercial Tribunal within 30 days after the commencement of this clause. This subclause has effect despite section 86(1).
(4) Where arbitration proceedings are pending under the agreement at the commencement of this clause--(a) the Corporation must immediately notify the claimant of the right of appeal, and(b) lodging of an appeal has the effect of terminating the arbitration proceedings, and(c) the arbitration proceedings are, on termination, taken to have failed, but the claimant is not liable to pay any costs of the Corporation in the arbitration proceedings.
(1) This clause applies where--(a) a dispute relates to a house purchaser's agreement under the Builders Licensing Act 1971 , and(b) the dispute occurred before the commencement of this clause in connection with building work to which the agreement relates (whether the dispute arose before, on or after 21 March 1990) and the dispute remains unresolved at that commencement, and(c) arbitration proceedings relating to the dispute are not pending at that commencement.
(2) The claimant under the agreement may, within 12 months after the commencement of this clause, request the Corporation to re-assess the claim.
(3) Section 85(e) extends to provide the claimant under the agreement with a right of appeal to the Commercial Tribunal in relation to the determination of the Corporation on the request for re-assessment.
(4) Any provisions of the agreement relating to arbitration do not apply to any dispute arising out of the request for re-assessment.
(1) This clause applies where--(a) a dispute relates to a house purchaser's agreement under the Builders Licensing Act 1971 , and(b) the dispute occurs after the commencement of this clause in connection with building work to which the agreement relates.
(2) Section 85(e) operates to provide the claimant under the agreement with a right of appeal to the Commercial Tribunal in relation to the dispute.
(3) Any provisions of the agreement relating to arbitration do not apply to the dispute.
(1) The Commercial Tribunal may order that interest is payable on any amount ordered by the Tribunal to be paid by the Corporation to a claimant referred to in clause 25 or 26, if the Tribunal is satisfied that delay in finalising the matter was attributable to the Corporation.
(2) Interest is payable on such amount or amounts, in respect of such period or periods and at such rate or rates as the Commercial Tribunal thinks appropriate.
(1) Costs cannot be awarded in favour of the Corporation if an appeal referred to in clause 25 or 26 is dismissed.
(2) The Corporation is to pay the appellant's costs on a solicitor-client basis, as determined by the Commercial Tribunal, if such an appeal is successful. If the appeal is successful as to some but not all matters, those costs are payable by the Corporation only to the extent that the Commercial Tribunal determines.
(1) A person who, immediately before the commencement of Schedule 4(2) to the amending Act held office as a member or associate member of the Corporation ceases to hold that office on that commencement.
(2) The person is not entitled to any compensation or remuneration because of the loss of that office.
Nothing in the amending Act affects the continuity of the Corporation as continued by clause 4.
In this Part--
"amending Act" means the Building Services Corporation Legislation Amendment
Act 1996 .
"assets" means any legal or equitable estate or interest (whether present or
future and whether vested or contingent) in real or personal property of any
description (including money), and includes securities, choses in action, and
documents.
"Corporation" means the Building Services Corporation as constituted under the
Building Services Corporation Act 1989 immediately before the commencement of
Schedule 5[22[#93] to the amending Act.
"liabilities" includes all liabilities, debts and obligations (whether present
or future and whether vested or contingent).
"State tax" means application or registration fees, stamp duty or any other
tax, duty, fee or charge imposed by any Act or law of the State.
Except as provided by this Part, the provisions of Division 1 of Part 2 and Part 2A, as amended by the amending Act, apply to contracts made on or after the commencement of those amendments, whether or not they relate to work commenced before that commencement.
(1) Section 20, as amended by the amending Act, does not apply to an application for a licence or for renewal of a licence made but not determined before the commencement of the amendment.
(2) Section 40, as amended by the amending Act, does not apply to an application for renewal or restoration of an authority made but not determined before the commencement of the amendment.
(1) Part 4, as in force immediately before the commencement of this clause, continues to apply in relation to--(a) conduct that occurred before the commencement, and(b) conduct that occurs after that commencement, if the conduct concerns work commenced before the commencement or relates to a contract entered into before that commencement, and(c) disputes arising before or after that commencement in relation to work done before that commencement or under a contract entered into before that commencement.
(2) A complaint may be made or a show cause notice issued under Part 4, as in force immediately before that commencement in relation to conduct, work or a contract referred to in subclause (1), and the complaint or notice may be dealt with under that Part as so in force.
(3) The Director-General and the Commercial Tribunal have, in relation to any such complaint or show cause notice and resulting show cause action, the same functions under this Act as the Corporation and the Tribunal had before that commencement, including functions as to rectification orders and determinations.
(1) Part 5, as in force immediately before the commencement of this clause, continues to apply in relation to--(a) decisions made before that commencement, and(b) decisions made after that commencement in relation to claims under BSC insurance or by virtue of clause 36.
(2) Section 89A does not apply to building claims arising out of work done, or contracts entered into, before the commencement of that section.
(3) Section 89D applies only to a contract for residential building work or specialist work entered into after the commencement of that section.
(4) In this clause--
"BSC insurance" means a scheme prescribed for the purposes of Part 6 of this Act, as in force immediately before the commencement of Schedule 4[3[#93] to the amending Act.
(1) The Consumer Claims Tribunals Act 1987 , as in force immediately before the commencement of this clause, continues to apply in relation to matters arising out of any residential building work or specialist work done, or a contract entered into, before that commencement.
(2) The Consumer Claims Tribunals Act 1987 , as amended by the amending Act, does not apply to a building claim arising out of work done, or contracts entered into, before that commencement (whether or not the claim arose before or after that commencement).
(3) Section 12K of the Consumer Claims Tribunals Act 1987 applies only to a contract for residential building work or specialist work entered into after the commencement of that section.
(1) Part 6, as in force immediately before the commencement of Schedule 4[3[#93] to the amending Act, and any other provisions of this Act or the regulations relating to insurance under this Act as so in force, applies to work insured, or existing work required to be insured, under that Part before that commencement, in the same way that those provisions applied immediately before that commencement.
(2) The Administration Corporation has the functions of the Corporation in relation to the provisions and the insurance referred to in subclause (1).
Section 102 of the Local Government Act 1993 , as in force immediately before the commencement of this clause, continues to apply in relation to any approval for the doing of any residential building work given before that commencement or referred to in clause 39(1).
On and from the commencement of Schedule 5[22[#93] to the amending Act, a reference in any Act (other than this Act) or in any instrument made under any Act or in any other instrument of any kind to the Building Services Corporation Act 1989 is to be read as a reference to the Home Building Act 1989 .
On and from the commencement of Schedule 5[22[#93] to the amending Act, a reference in any Act (other than this Act) or in any instrument made under any Act or in any other instrument of any kind to the Building Services Corporation is to be read as a reference to the Director-General.
(1) This clause applies to the transfer of assets, rights or liabilities of the Corporation to the Administration Corporation or to another person under section 110.
(2) The following provisions have effect (subject to any order directing the transfer)--(a) the assets concerned vest in the transferee by force of this clause and without the need for any conveyance, transfer, assignment or assurance,(b) the rights and liabilities concerned become by force of this clause the rights and liabilities of the transferee,(c) all proceedings relating to that part of the assets, rights or liabilities commenced before the transfer by or against the Corporation and pending immediately before the transfer are taken to be proceedings pending by or against the transferee,(d) anything done or omitted to be done in relation to that part of the assets, rights or liabilities before the transfer by, to or in respect of the Corporation is (to the extent that it has any force or effect) taken to have been done or omitted to be done by, to or in respect of the transferee,(e) a reference in any other Act, in any instrument, made under any Act or in any document of any kind to the Corporation is (to the extent that it relates to that part of the assets, rights or liabilities but subject to the regulations) to be read as, or as including, a reference to the transferee.
(3) The operation of this clause is not to be regarded--(a) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or(b) as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability.
(4) The operation of this section is not to be regarded as an event of default under any contract or other instrument.
(5) No attornment to the transferee by a lessee from the Corporation is required.
(6) No compensation is payable to any person in connection with a transfer except, in the case of a transfer by order under section 110(3), to the extent (if any) to which the order giving rise to the transfer so provides.
A transfer by order under section 110(3) takes effect on the date specified in the order by which it is effected.
State tax is not chargeable in respect of--
(a) the transfer of assets, rights and liabilities under Part 7, or
(b) anything certified by the Minister as having been done in consequence of such a transfer (for example, the transfer or registration of an interest in land).
A licence, certificate of registration or permit issued by the Corporation and in force immediately before the commencement of this clause is taken to have been issued by the Director-General under this Act.
(1) Nothing in this Act, the amending Act, or any order made under section 110(3), prevents the payment to the Consolidated Fund of any revenue or income arising out of--(a) the exercise of the Corporation's functions, or(b) the exercise by the Director-General or any other person of those functions, or any other functions, after the commencement of Schedule 5[22[#93] to the amending Act.
(2) Subclause (1) does not apply to money held by the Administration Corporation and not subject to an order under section 110(3).
The amendments by way of repeal and re-enactment of sections 7D and 16DD made by the Home Building Amendment Act 1998 do not affect the validity of--
(a) any caveat lodged in accordance with the Real Property Act 1900 , or
(b) any provision in a contract or agreement entered into,before the amendments commenced.
The amendments to sections 92 and 98 made by the Home Building Amendment Act 1998 do not affect any work for which a contract was entered into before the amendments commenced.
(1) An application for a licence that has been made, but not determined, before the commencement of the amendment to section 19 made by Schedule 1[2[#93] to the Home Building Amendment Act 1999 is taken to have been made in accordance with section 19 as so amended.
(2) The Director-General may require the applicant to provide such documentation or information as is referred to in section 19(2A) to support the application.
In this Part--
"amending Act" means the Home Building Amendment Act 2000 .
(1) Any relevant exclusionary provision that would have been a valid provision of a contract of insurance had section 99(2) of this Act (as inserted by Schedule 1[5[#93] to the amending Act) been in force at the time the contract was made is taken to have been a valid provision of the contract at the time the contract was made and at all relevant times after the contract was made.
(2) Subclause (1) applies to proceedings before a court or tribunal that are pending at the commencement of this clause. Accordingly, the rights of the parties to such proceedings are to be determined in accordance with subclause (1).
(3) Subclause (1) does not affect the judgment of the Supreme Court in HIH v Jones[2000[#93] NSWSC 359 , or any other proceedings that have been determined by a court or tribunal before the commencement of this clause, as between the parties to those proceedings.
(4) In this clause--
"relevant exclusionary provision" means a provision of a contract of insurance in relation to residential building work made during the relevant period in accordance with section 92 of the Act that excluded or purported to exclude a developer referred to in section 3A of this Act from making claims under the contract.
"relevant period" means the period commencing on 1 May 1997 and ending on the day immediately before the commencement of Schedule 1[5[#93] to the amending Act, inclusive.
(1) A provision of clause 42 of the Home Building Regulation 1997 that would have been a valid provision of that Regulation had section 103C(2)(b) and (3) of this Act (as inserted by Schedule 1[6[#93] and [7[#93] to the amending Act) been in force at the time the provision commenced is taken to have been a valid provision of the Regulation at the time the provision commenced and at all relevant times after it commenced.
(2) For the avoidance of doubt, it is declared that at the time clause 42(2) of the Home Building Regulation 1997 commenced and at all relevant times after it commenced--(a) the subclause applied to contracts of insurance required by section 92 or 96 of the Act, and(b) the reference to a developer who does residential building work in paragraph (a) of that subclause is a reference to an individual, partnership or corporation (other than a company referred to in section 3A(3) of the Act) on whose behalf the work is done in the circumstances set out in section 3A(2) of the Act.
(3) Subclauses (1) and (2) apply to proceedings before a court or tribunal that are pending at the commencement of this clause. Accordingly, the rights of the parties to such proceedings are to be determined in accordance with subclauses (1) and (2).
(4) Subclauses (1) and (2) do not affect the judgment of the Supreme Court in HIH v Jones[2000[#93] NSWSC 359 , or any other proceedings that have been determined by a court or tribunal before the commencement of this clause, as between the parties to those proceedings.
(1) An amended provision as in force immediately before the commencement of a relevant item continues to apply to a relevant offence committed, or alleged to have been committed, before the commencement of that item.
(2) In this clause--
"relevant item" means an item of Schedule 1 to the amending Act that amends or repeals a provision of this Act that contains an offence.
"relevant offence" means an offence under this Act that is amended or repealed by a relevant item.
Note : Section 30 of the Interpretation Act 1987 is a general provision preserving rights accruing and liabilities incurred before an amendment or repeal of a provision of an Act or statutory rule.
In this Part--
"amending Act" means the Home Building Legislation Amendment Act 2001 .
The amendments made to section 3 by Schedule 1 to the amending Act do not apply to any work done, and do not affect any contract entered into, before the amendments commenced.
The amendments made to sections 21 and 27 by Schedule 1 to the amending Act do not apply to contracts entered into before the amendments commenced.
(1) Section 22 (as re-enacted by the amending Act) extends to a contractor licence in force before that re-enactment. Action may be taken under the re-enacted section in relation to conduct or events that occurred before its re-enactment.
(2) Section 22B (as inserted by the amending Act) extends to a contractor licence in force before the section commenced. Action may be taken under the section in relation to conduct or events that occurred before the commencement of the section.
(3) Section 47A (as inserted by the amending Act) extends to an authority in force before the section commenced and to an authority suspended, cancelled or surrendered before the section commenced.
Section 31(2)(d) (as inserted by the amending Act) does not apply to an application for an owner-builder permit made before the commencement of the paragraph but not determined before that commencement.
Section 40(2D) (as inserted by the amending Act) does not apply to the renewal or restoration of an authority until a date that is one year after the date of commencement of the subsection.
(1) The amendment made to section 7 by Schedule 2 to the amending Act does not apply to a contract entered into before the amendment commenced.
(2) Sections 7BA and 7BB do not apply to a contract entered into before the sections commenced.
(3) The amendment made to section 16D by Schedule 2 to the amending Act does not apply to a contract entered into before the amendment commenced.
(4) Sections 16DBA and 16DBB do not apply to a contract entered into before the sections commenced.
The amendments made to the Act by Schedule 3 to the amending Act do not affect--
(a) any building consultancy work commenced before the commencement of those amendments, or
(b) any contract for building consultancy work entered into before the commencement of those amendments or any work done under any such contract.
The amendments made by Schedule 4 to the amending Act do not apply to a building claim for which an application had been made for the determination of the claim before the commencement of the amendments. Division 2 of Part 5 (as in force before the commencement of the amending Act) continues to apply to such building claims.
(1) The amendments made by Schedule 5 to the amending Act do not apply to proceedings commenced under Part 4 before the commencement of the amendments. Part 4, as in force immediately before the commencement of those amendments, continues to apply to those proceedings.
(2) The amendments made by Schedule 5 to the amending Act extend to any complaint made before the commencement of those amendments in relation to which proceedings have not commenced.
(3) A complaint may be made, and disciplinary action or proceedings may be taken under Part 4, after the commencement of the amendments made by Schedule 5 to the amending Act in relation to conduct or events that occurred before the commencement of those amendments.
(1) The amendments made to sections 92, 93, 94(1), 94A(1), 96 and 96A by Schedule 6 to the amending Act do not apply to an insurance contract that is in force at the time of commencement of the amendments.
(2) Sections 94(1A)-(1C) and 94A(1A)-(1C) extend to a contract entered into before the subsections commence.
(3) Section 101A(2) extends to a contract of insurance that is in force at the time of commencement of the subsection.
(4) Sections 103AA-103AC extend to approvals in force before the commencement of the sections. Action may be taken under sections 103AA-103AC in relation to conduct or events that occurred before the commencement of the sections.
(1) To avoid doubt--(a) a certificate of insurance provided on or before 20 June 2001 evidencing a contract of insurance in relation to residential building work--(i) that was entered into with HIH Casualty and General Insurance Limited or FAI General Insurance Company Limited, and(ii) that complied with this Act, and(iii) that was in force on 20 June 2001,is, for the purposes of section 92, taken to be a certificate evidencing a contract of insurance that complies with this Act and is in force in relation to that work, and(b) a certificate of insurance provided on or before 20 June 2001 evidencing a contract of insurance in relation to the supply of a kit home--(i) that was entered into with HIH Casualty and General Insurance Limited or FAI General Insurance Company Limited, and(ii) that complied with this Act, and(iii) that was in force on 20 June 2001,is, for the purposes of section 93, taken to be a certificate evidencing a contract of insurance that complies with this Act and is in force in relation to that supply, and(c) a certificate of insurance provided on or before 15 March 2001 evidencing a contract of insurance in relation to owner-builder work--(i) that was entered into with HIH Casualty and General Insurance Limited or FAI General Insurance Company Limited, and(ii) that complied with this Act, and(iii) that was in force on 15 March 2001,is, for the purposes of section 95, taken to be a certificate evidencing a contract of insurance that complies with this Act and is in force in relation to that work, and(d) a certificate of insurance provided on or before 20 June 2001 evidencing a contract of insurance in relation to residential building work--(i) that was entered into with HIH Casualty and General Insurance Limited or FAI General Insurance Company Limited, and(ii) that complied with this Act, and(iii) that was in force on 20 June 2001,is, for the purposes of section 96, taken to be a certificate evidencing a contract of insurance that complies with this Act and is in force in relation to that work.
(2) To avoid doubt--(a) a certificate of insurance provided after 20 June 2001 evidencing a contract of insurance that was entered into with HIH Casualty and General Insurance Limited or FAI General Insurance Company Limited is, for the purposes of section 92, 93 or 96, not a certificate evidencing a contract of insurance that complies with this Act, and(b) a certificate of insurance provided after 15 March 2001 evidencing a contract of insurance that was entered into with HIH Casualty and General Insurance Limited or FAI General Insurance Company Limited is, for the purposes of section 95, not a certificate evidencing a contract of insurance that complies with this Act.
Subject to the regulations, an amendment to a provision of this Act that is made by the Home Building Amendment (Insurance) Act 2002 does not apply to an insurance contract that is in force at the time the amendment commences.
In this Part,
"the 2002 amending Act" means the Building Legislation Amendment (Quality of
Construction) Act 2002 .
Sections 20 and 40, as amended by Schedule 2.1[2[#93]-[4[#93] to the 2002 amending Act, do not apply to applications made before the commencement of those amendments.
Division 2 of Part 3A, as in force immediately before the commencement of Schedule 2.1[6[#93] to the 2002 amending Act, continues to apply to current building disputes (that is, building disputes that had been notified in accordance with that Division before that commencement) as if that Act had not been enacted.
Section 48N, as in force immediately before the commencement of Schedule 2.1[9[#93] and [10[#93] to the 2002 amending Act, continues to apply to proceedings on a building claim with respect to a matter that had been dealt with under Division 2 of Part 3A, as then in force.
Section 62, as amended by Schedule 2.1[15[#93] to the 2002 amending Act, extends to proceedings commenced before the commencement of that amendment.
In this Part--
"amending Act" means the Home Building Amendment Act 2004 .
(1) Sections 20, 25, 32B and 40, as amended by the amending Act, do not apply to an application for an authority or for renewal or restoration of an authority made but not determined before the commencement of the amendment.
(2) The Home Building Regulation 2004 , as amended by the amending Act, does not apply to an application for an authority made but not determined before the commencement of the amendment.
(1) The amendments made by Schedule 3 to the amending Act do not apply to proceedings commenced under Part 4 before the commencement of the amendments. Part 4, as in force immediately before the commencement of those amendments, continues to apply to those proceedings.
(2) The amendments made by Schedule 3 to the amending Act extend to any complaint made before the commencement of those amendments in relation to which proceedings have not commenced.
(3) A complaint may be made, and disciplinary action or proceedings may be taken under Part 4, after the commencement of the amendments made by Schedule 3 to the amending Act in relation to conduct or events that occurred before the commencement of those amendments.
Section 103AD, as inserted by the amending Act, extends to relevant information obtained before the commencement of that amendment.
(1) In this clause--
"amending Act" means the Home Building Amendment (Statutory Warranties) Act 2006 .
(2) Part 2C, as amended by the amending Act, extends to a breach of warranty that occurred before the commencement of this clause.
(3) Part 2C, as amended by the amending Act, applies to and in respect of proceedings to enforce a statutory warranty that are commenced after the commencement of this clause and that are subsequent to earlier proceedings to enforce the same warranty that were finally disposed of before that commencement.
(4) Part 2C, as amended by the amending Act, applies to or in respect of subsequent proceedings to enforce a statutory warranty that were commenced before the commencement of this clause and that have not been heard.
(1) In this clause,
"amending Act" means the Home Building Amendment Act 2008 .
(2) Section 42A, as inserted by the amending Act, applies in relation to a building claim made after the commencement of that section regardless of whether the claim arises from a contract that was entered into before or after the commencement of that section.
In this Part--
"amending Act" means the Home Building Amendment (Insurance) Act 2009 .
"contract of insurance" means a contract of insurance entered into for the
purposes of Part 6 of this Act.
(1) Section 99(3)-(6) (as inserted by the amending Act) apply only to a contract of insurance entered into on or after the commencement of those provisions.
(2) An insurance contract that is entered into on or after the commencement of those provisions using any existing stock of insurance contract forms is deemed to include the provision required to be included by section 99(3) (as inserted by the amending Act).
(3) A reference in clause 73A of the Home Building Regulation 2004 to section 93(3) of the Act is taken for all purposes to have been a reference to section 99(3) of the Act on and from the commencement of that clause.
(1) Section 102(3A) extends to--(a) a contract of insurance entered into before the commencement of that subsection (despite any provision of the policy), and(b) a claim under any such contract of insurance, and(c) proceedings on such a claim (including proceedings commenced but not finally determined before the commencement of that subsection).
(2) Despite subclause (1), section 102(3A) does not extend to or otherwise affect--(a) a claim that was paid in full before the commencement of that subsection, or(b) any agreement made before the commencement of that subsection to settle a claim, or(c) a decision of an insurer made before the commencement of that subsection that cannot be the subject of appeal because of clause 65 of the Home Building Regulation 2004 , or(d) the amount that a person is entitled to recover under a contract of insurance where that amount was paid before the commencement of that subsection under the indemnity provided by Division 2 (Insurance claims indemnified by State) of Part 6A of this Act, or(e) any final determination of legal proceedings made by a court or tribunal before the commencement of that subsection.
(3) This clause applies only to contracts of insurance entered into on or after 1 May 1997.
(1) Section 103BA (Limitations on policy coverage--claims made and notified policy) extends to--(a) a contract of insurance entered into before the commencement of that section (despite any provision of the contract), and(b) a claim under any such contract of insurance, and(c) proceedings on such a claim (including proceedings commenced but not finally determined before the commencement of that section).
(2) Despite subclause (1), section 103BA does not extend to or otherwise affect--(a) a claim that was paid in full before the commencement of that section, or(b) any agreement made before the commencement of that section to settle a claim, or(c) a decision of an insurer made before the commencement of that section that cannot be the subject of appeal because of clause 65 of the Home Building Regulation 2004 , or(d) the amount that a person is entitled to recover under a contract of insurance where that amount was paid before the commencement of that section under the indemnity provided by Division 2 (Insurance claims indemnified by State) of Part 6A of this Act, or(e) any final determination of legal proceedings made by a court or tribunal before the commencement of that section.
(3) This clause applies only to contracts of insurance entered into on or after 1 May 1997.
For the purposes of this Part, proceedings
are not
"finally determined" if--
(a) any period for bringing an appeal as of right in respect of the proceedings has not expired (ignoring any period that may be available by way of extension of time to appeal), or
(b) any appeal in respect of the proceedings is pending (whether or not it is an appeal brought as of right).
Clause 58A of the Home Building Regulation 2004 (as inserted by the amending Act) extends to a contract of insurance entered into before the commencement of that clause, and for that purpose every contract of insurance entered into before that commencement is taken to include provision as referred to in that clause.
(1) If clause 63A of the Regulation prevented a claim for loss from being made during any part of the loss notification period for the loss, there is to be a period of grace for notifying the loss.
(2) The period of grace starts on the repeal of clause 63A of the Regulation and continues for a period that is equal in length to that part of the loss notification period for which clause 63A of the Regulation prevented the claim from being made.
(3) A loss notified to an insurer during the period of grace is deemed to have been notified during the loss notification period for the loss.
(4) If an insurer has refused a claim on the basis of clause 63A of the Regulation--(a) the insurer must notify the claimant of any period of grace for notifying the loss to which the claim relates that results from the operation of this clause, and(b) the period of grace for notifying the loss concerned starts (despite subclause (2)) when the claimant receives the insurer's notification under paragraph (a) and continues for the period provided for by subclause (2).
(5) The refusal of a claim for loss on the basis of clause 63A of the Regulation (being a claim that would have been validly made had clause 63A of the Regulation not been made)--(a) does not prevent the claimant from resubmitting the claim or submitting the claim as a new claim (without the need to appeal against the decision to refuse the claim), and(b) does not prevent the insurer from proceeding to accept and assess the refused claim as a claim now properly made.
(6) An insurer is not entitled to refuse or reduce liability on a claim for loss on the grounds of a failure to notify the loss during the loss notification period if the loss is notified during the period of grace.
(7) The period of grace provided by this clause does not apply in a case in which the loss notification period ended before the commencement of clause 63A of the Regulation.
(8) In this clause--
"loss notification period" for a loss means the period within which loss must be notified to the insurer under a contract of insurance in order for the loss to be covered by the contract of insurance (as provided by section 103BA).Note : Section 103BA extends to existing contracts of insurance.
"the Regulation" means the Home Building Regulation 2004 .
(1) This clause applies to an application fee paid by or on behalf of a person for an authority that the person is no longer required to hold because of the amendments made by the Occupational Licensing Legislation Amendment (Regulatory Reform) Act 2009 .
(2) A person may apply to the Director-General for a refund of an application fee to which this clause applies if the person--(a) paid the application fee, or(b) is applying for or on behalf of the person who paid the application fee.
(3) The fixed component of the application fee is to be refunded, on a pro rata basis, to a person who makes an application under subclause (2).
(4) In this clause--
"application fee" means any of the following--(a) an application fee for the grant of a new authority,(b) an application fee for the renewal of an authority,(c) an application fee for the restoration of an authority.
"fixed component" of an application fee is the amount set out in Column 4 of Schedule 4 to the Home Building Regulation 2004 in relation to the fee.
In this Part--
"amending Act" means the NSW Self Insurance Corporation Amendment (Home
Warranty Insurance) Act 2010 .
"existing approved insurer" means an insurer approved by the Minister under
section 103A (as in force before the new scheme day) for the purposes of Part
6 of this Act whose approval is in force immediately before the new scheme
day, and includes an insurer whose approval has been suspended under section
103AA (as in force before the new scheme day).
"former approved insurer" means an insurer (other than an existing approved
insurer) who was formerly an insurer approved by the Minister under section
103A (as in force before the new scheme day) for the purposes of Part 6 of
this Act.
"home warranty insurance" has the same meaning as in Part 6 of this Act.
"insurance industry deed" means the agreement referred to in section 103A(5)
before its repeal by the amending Act, as in force immediately before the new
scheme day.
"new scheme day" means the day on which Schedule 2[5[#93] to the amending Act
commences.
"owner-builder work" has the same meaning as in Part 6 of this Act.
"relevant approved insurer" means an existing approved insurer or
former approved insurer.
On and from the new scheme day, the Self Insurance Corporation is the only insurer authorised to issue new home warranty insurance in respect of residential building work or owner-builder work done in New South Wales.
(1) On and from the new scheme day, any existing approved insurer ceases by force of this clause to be authorised to issue new home warranty insurance.
(2) Subclause (1) extends to the issue of home warranty insurance in connection with any application for such insurance made (but for which a policy of insurance has not yet been issued) before the new scheme day.
(3) No compensation is payable by or on behalf of the Crown to any existing approved insurer for any loss or damage arising directly or indirectly from the operation of this clause (or amendments made to this Act by the amending Act).
(4) Accordingly, no proceedings for damages or other relief (whether grounded on the provisions of any contract or otherwise arising at law or in equity) for the purpose of obtaining compensation in respect of any such loss or damage may be instituted or maintained.
(5) In this clause--
"compensation" includes damages or any other form of compensation (whether or not monetary).
"the Crown" means the Crown within the meaning of the Crown Proceedings Act 1988 and includes--(a) the Director-General, and(b) any member of staff of a government Department.
Note : This Division re-enacts (with necessary modifications) provisions in Part 6 of this Act that were formerly applicable to relevant approved insurers under sections 103AB-103AD as conditions of their approval. Sections 103AB-103AD were repealed by the amending Act. See also clause 97 of this Schedule in relation to civil penalties for contraventions of approval conditions that occurred before the new scheme day.
(1) A relevant approved insurer must provide to the Director-General any information about the insurance provided by the insurer under a contract of insurance entered into before the new scheme day to meet the requirements of Part 6 of this Act (as previously in force) that the Director-General requests in writing, within the time specified in the request.
(2) Without limiting subclause (1), the information required may include information about--(a) claims handling, or(b) the settlement of claims, or(c) particular claimants or insured persons, or(d) persons licensed under this Act.
(3) The Director-General may, with the consent of the relevant approved insurer who provided it, provide any information obtained under this clause to any other insurer (including the Self Insurance Corporation).
(1) If a person has applied for home warranty insurance or has been provided home warranty insurance by the Self Insurance Corporation, the Corporation may, by notice in writing, request any relevant approved insurer to disclose to the Corporation any relevant insurance information relating to the person if the Corporation has reasonable grounds to believe that--(a) the person made an application to the insurer for home warranty insurance before the new scheme day, or(b) the person was provided with home warranty insurance by the insurer before the new scheme day.
(2) A relevant approved insurer must provide the Self Insurance Corporation with the relevant insurance information requested under subclause (1) as soon as reasonably practicable after the request is made.
(3) In this clause--
"relevant insurance information" , in relation to a person who applied to a relevant approved insurer for, or to whom a relevant approved insurer provided, home warranty insurance means--(a) information concerning the business, commercial, professional or financial affairs of the person that is relevant to the provision of home warranty insurance, or(b) information obtained in the course of an investigation of an application for such insurance, or(c) information concerning the home warranty insurance (if any) provided to the person.
(1) A relevant approved insurer must, subject to the regulations, continue to comply with the continuing insurance industry deed obligations of the insurer with respect to home warranty insurance offered or provided by the insurer before the new scheme day.
(2) For the purposes of subclause (1), the
"continuing insurance industry deed obligations" of a relevant approved insurer are--(a) if the insurer is a former approved insurer--such obligations that, by virtue of clause 13.1 of the insurance industry deed, continued to be imposed on the insurer immediately before the new scheme day, or(b) if the insurer is an existing approved insurer--such obligations that would, by virtue of clause 13.1 of the insurance industry deed, continued to have been imposed on the insurer had the insurer's approval been revoked by the Minister under section 103A immediately before the new scheme day.
(3) Without limiting subclause (2), the Minister may continue to issue (or amend or revoke) Industry Guidelines in the manner contemplated by the insurance industry deed.
(4) Any Industry Guidelines issued or amended on or after the new scheme day continue to have effect for the purposes of determining the content of the continuing insurance industry deed obligations of a relevant approved insurer.
(5) The regulations may make provision for or with respect to the continued application of any of the continuing insurance industry deed obligations of relevant approved insurers and the modification of any such obligations.
(6) In this clause--
"Industry Guidelines" means the industry guidelines within the meaning of the insurance industry deed.
"modification" includes addition, exception, omission or substitution.
A request for information made under this Division may extend to information that was obtained before the new scheme day as well as to information obtained on or after that day.
(1) If a relevant approved insurer contravenes a requirement imposed on the insurer by or under clause 91, 92 or 93, the Minister may impose a civil penalty on the insurer concerned of an amount not exceeding $50,000.
(2) A civil penalty that has been imposed under this clause may be recovered by the Minister in a court of competent jurisdiction as a debt due to the Director-General.
(3) A civil penalty that is paid or recovered is payable into the Consolidated Fund.
(1) A relevant approved insurer requested to provide information under this Division is required or authorised to disclose the information despite section 121 or any other law of this or any other jurisdiction with respect to the privacy of such information that would otherwise prohibit that disclosure.
(2) A relevant approved insurer is not liable for any damage caused by the provision of information under this Division to the Director-General or the Self Insurance Corporation or any other insurer.
(1) Section 103AB (as in force immediately before the new scheme day) continues to apply in relation to any contravention of a condition of an approval under section 103A (as in force before the new scheme day) that occurred before the new scheme day.
(2) Subclause (1) does not authorise the Minister to take action under section 103AB (as continued in force by that subclause) in relation to any contravention of a condition of an approval for which the approval of an insurer has previously been suspended or for which action has previously been taken under section 103AB.
(1) Nothing in this Part (or in any of the amendments made to this Act by the amending Act)--(a) affects the validity or enforceability of any contract of insurance entered into by a relevant approved insurer before the new scheme day, or(b) without limiting section 30 of the Interpretation Act 1987 --affects the continued application of--(i) sections 92A, 92B, 99, 101, 101A, 102, 103B and 103BA in relation to contracts for home warranty insurance entered into before the new scheme day or claims made under such contracts, or(ii) section 103EA in relation to applications for home warranty insurance made before the new scheme day, or(iii) sections 121A and 127 in relation to matters that occurred or arose before the new scheme day, or(iv) the provisions of Part 5 of the Home Building Regulation 2004 in relation to contracts for home warranty insurance entered into before the new scheme day or claims made under such contracts.Note : Section 30 of the Interpretation Act 1987 provides that the amendment of an Act does not, among other things, affect the previous operation of the Act or anything duly suffered, done or commenced under the Act or affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act.
(2) Subject to the regulations, this Part has effect despite any provision of this or any other Act or any other law or the provisions of any contract, agreement or other arrangement.
(1) In this Part--
"amending Act" means the Home Building Amendment (Warranties and Insurance) Act 2010 .
"interim period" means the period commencing on 17 May 2010 (the date of the decision in the relevant judgment) and ending on the commencement of the amending Act.
"relevant judgment" means the decision of the New South Wales Court of Appeal in Ace Woollahra Pty Ltd v The Owners--Strata Plan 61424 [#38] Anor[2010[#93] NSWCA 101 .
(2) For the purposes of this Part, proceedings are not
"finally determined" if--(a) any period for bringing an appeal as of right in respect of the proceedings has not expired (ignoring any period that may be available by way of extension of time to appeal), or(b) any appeal in respect of the proceedings is pending (whether or not an appeal is brought as of right).
(1) This Part prevails to the extent of any inconsistency with any other provision of this Schedule.
(2) Regulations made under clause 2 of this Schedule may have effect despite any provision of this Part.
The amendments made by the amending Act do not extend to or otherwise affect--
(a) the relevant judgement, or
(b) subject to clause 102(3), any proceedings before a court or tribunal that are finally determined, or
(c) a decision of an insurer or the Building Insurers' Guarantee Corporation made before the commencement of the amendments that cannot be the subject of an appeal because of clause 65 of the Home Building Regulation 2004 .
(1) Section 18D (as amended by the amending Act) extends to a breach of a statutory warranty in relation to residential building work done on land owned by a non-contracting owner under a contract entered into before the commencement of the amending Act.
(2) A non-contracting owner in relation to a contract to do residential building work on land who is entitled, on and after the commencement of the amending Act, to the benefit of a statutory warranty in relation to work done on the land may enforce the statutory warranty--(a) subject to subclause (3), in proceedings commenced in accordance with Part 2C on or after the commencement of the amending Act, or(b) in proceedings commenced by the non-contracting owner, but not finally determined, before the commencement of the amending Act to enforce the same statutory warranty.
(3) A non-contracting owner in relation to a contract to do residential building work on land who--(a) is entitled to the benefit of a statutory warranty under section 18D in relation to a particular deficiency in work done on the land, and(b) was found, in proceedings under Part 2C that were finally determined during the interim period, not to be entitled to enforce the same statutory warranty for that particular deficiency solely because the owner was not a party to the contract,may enforce the same statutory warranty in proceedings subsequent to the earlier unsuccessful proceedings that are brought within 6 weeks after the commencement of the amending Act.
(4) Nothing in this clause authorises or permits a non-contracting owner who was a party in proceedings the subject of the relevant judgment to bring subsequent proceedings under subclause (3).
(1) Subject to the regulations, the amendments made by the amending Act extend to any--(a) contract of insurance entered into before the commencement of the amendments (despite any provision of the contract) (an
"existing contract" ), and(b) proceedings on a claim under an existing contract commenced but not finally determined before the commencement of the amendments.
(2) Any payment purporting to be made under Part 6 of this Act to a non-contracting owner under an existing contract or to a beneficiary under an indemnity provided under section 103I(1) before the commencement of the amendments made by the amending Act is taken to have been validly made if it could validly have been made if those amendments were then in force.
(3) This clause applies only to contracts of insurance entered into on or after 1 May 1997.
In this Part--
"amending Act" means the Home Building Amendment Act 2011 .
(1) This Part prevails to the extent of any inconsistency with any other provision of this Schedule.
(2) Regulations made under clause 2 of this Schedule have effect despite any provision of this Part.
The amendments made by the amending Act are made for the purpose of the avoidance of doubt and accordingly (except as otherwise provided by this Part) those amendments extend to--
(a) residential building work commenced or completed before the commencement of the amendment, and
(b) a contract of insurance entered into before the commencement of the amendment, and
(c) a loss or liability that arose before the commencement of the amendment, and
(d) the notification of a loss before the commencement of the amendment.
An amendment made by the amending Act does not (despite any other provision of this Part) extend to or otherwise affect any decision of a court or tribunal in proceedings commenced in the court or tribunal before the commencement of the amendment (whether the decision is made before or after that commencement).
An amendment made by the amending Act to Part 2 of this Act (or to the Home Building Regulation 2004 , to the extent that it relates to an amendment to that Part) does not apply in respect of a contract for residential building work entered into before the commencement of the amendment.
The amendment made to section 18E by the amending Act does not apply in respect of a contract for residential building work entered into before the commencement of the amendment.
(1) The amendment made by the amending Act to section 92 (and to clause 70 of the Home Building Regulation 2004 , to the extent that it relates to the amendment to section 92) does not apply in respect of a contract for residential building work entered into before the commencement of the amendment.
(2) The amendment made by the amending Act to section 95 (and to clause 70 of the Home Building Regulation 2004 , to the extent that it relates to the amendment to section 95) does not apply in respect of a contract for the sale of land entered into before the commencement of the amendment.
(3) The amendment made by the amending Act to section 96 (and to clause 70 of the Home Building Regulation 2004 , to the extent that it relates to the amendment to section 96) does not apply to residential building work done before the commencement of the amendment.
An amendment made by the amending Act to section 102(3) or clause 60 or 69 of the Home Building Regulation 2004 does not apply in respect of a contract of insurance entered into before the commencement of the amendment.
The amendments made by the amending Act to substitute section 102(6) and insert clause 18 of the Home Building Regulation 2004 do not apply in respect of a contract of insurance entered into before the commencement of the amendments.
Sections 103BA- 103BC (as inserted by the amending Act) do not apply to a loss in respect of which a claim was made under a policy of insurance before the commencement of the section concerned, whether or not the claim was finalised before that commencement.
(1) The requirement under section 103BA (as inserted by the amending Act) that a claim in respect of a loss be made during the required claim period is satisfied in the case of a loss for which no claim was made during the required claim period but that was properly notified to the insurer during the required claim period and before the commencement of that section if a claim in respect of the loss is made within 6 months after the commencement of that section.
(2) The
"required claim period" is the period of insurance or the period of 6 months after the loss became apparent in the case of a loss that became apparent in the last 6 months of the period of insurance.
(3) In this clause,
"properly notified" has the same meaning as in section 103BB.
(1) The requirement under section 103BB(3)(a) that a loss be
"properly notified" to an insurer during the required notification period is satisfied in the case of a loss that was notified (but not properly notified only because it was not notified in writing) to the insurer during the required notification period and before the commencement of that section if the loss is properly notified to the insurer within 6 months after the commencement of that section.
(2) The
"required notification period" is the period of insurance or the period of 6 months after the loss became apparent in the case of a loss that became apparent in the last 6 months of the period of insurance.
(1) A provision included in an insurance contract for the purpose of giving effect to clause 63(3) of the Home Building Regulation 2004 is taken to be modified to the extent necessary to give effect to clause 63(3) of that Regulation as amended by the amending Act.
(2) A provision included in an insurance contract for the purpose of giving effect to clause 53(3) of the Home Building Regulation 1997 is taken to be modified to the extent necessary to give effect to clause 63(3) of the Home Building Regulation 2004 as amended by the amending Act.
(3) The modification of a provision of an insurance contract effected by this clause is taken to have had effect from the commencement of the contract concerned.
(4) The amendment by the amending Act of clause 63 of the Home Building Regulation 2004 (the
"clause 63 amendment" ) is taken to have had effect from the commencement of that Regulation. Clause 53 of the Home Building Regulation 1997 is taken to have been amended (from its commencement) to the same effect as the clause 63 amendment.
(5) Nothing in this clause affects the liability of an insurer for a claim that was made under a policy of insurance before the date of assent to the amending Act, whether or not the claim was finalised before that date.
(6) For the purposes of this clause, a claim for a loss was not made under a policy of insurance merely because the insurer is taken to have been notified of that loss by operation of clause 63(3) of the Home Building Regulation 2004 , clause 53(3) of the Home Building Regulation 1997 or a provision included in an insurance contract for the purpose of giving effect to either of those clauses.
The amendment made by the amending Act to clause 55 of the Home Building Regulation 2004 does not apply in respect of a contract of insurance entered into before the commencement of the amendment.
This Part does not apply to the amendments made by the amending Act to the Civil Liability Act 2002 .
Note : Schedule 1 to the Civil Liability Act 2002 provides transitional arrangements for amendments to that Act.
In this Part--
"amending Act" means the Home Building Amendment Act 2014 .
"amendment" of a provision includes--
(a) substitution or omission of the provision, and
(b) in the case of a new provision, the insertion of that provision.
(1) This Part prevails to the extent of any inconsistency with any other provision of this Schedule.
(2) Regulations made under clause 2 of this Schedule have effect despite any provision of this Part.
(1) Except as otherwise provided by this Part or the regulations, an amendment made by the amending Act extends to--(a) residential building work or specialist work commenced or completed before the commencement of the amendment, and(b) a contract to do residential building work or specialist work entered into before the commencement of the amendment (including a contract completed before that commencement), and(c) a contract of insurance entered into before the commencement of the amendment, and(d) a loss, liability, claim or dispute that arose before the commencement of the amendment, and(e) an application for a licence or certificate that is pending on the commencement of the amendment.
(2) However, an amendment made by the amending Act does not apply to or in respect of--(a) proceedings commenced in a court or tribunal before the commencement of the amendment (whether or not the proceedings were finally determined before that commencement), or(b) a claim made before the commencement of the amendment under a contract of insurance (whether or not the claim was finalised before that commencement).
(1) An amendment made by the amending Act that creates a new offence (or that extends an existing offence to conduct that is currently not the subject of the offence) does not apply in respect of conduct occurring before the commencement of the amendment.
(2) Sections 4(6), 5(3) and 92(2A) apply only to a second or subsequent offence under the provision concerned committed after the commencement of the provision and so apply even if the first offence concerned was committed before that commencement.
(1) An amendment of section 7 (except section 7(8)) by the amending Act does not apply to a contract entered into before the commencement of the amendment.
(2) The amendment of section 7A by the amending Act does not apply to a contract entered into before the commencement of the amendment.
An amendment of section 8, 8A or 16E by the amending Act does not apply in respect of a contract entered into before the commencement of the amendment.
(1) Section 18BA (Duties of person having benefit of statutory warranty) does not apply in respect of a contract entered into before the commencement of the section.
(2) The amendment of section 18F by the amending Act does not apply in respect of a contract entered into before the commencement of the amendment.
An amendment of section 20 or 25 by the amending Act does not apply to an application for a contractor licence or a supervisor or tradesperson certificate made before the commencement of the amendment.
(1) An amendment of section 22 by the amending Act extends to a contractor licence in force immediately before the commencement of the amendment.
(2) Section 22(5) applies to an event or circumstance that occurs before the commencement of that provision and of which the holder of a contractor licence became aware before that commencement as if the holder became aware of the event or circumstance on that commencement.
(1) Section 32(1A) does not apply to an owner-builder permit issued before the commencement of that provision or issued after the commencement of that provision pursuant to an application made before that commencement.
(2) An amendment of section 31 by the amending Act does not apply to an application for an owner-builder permit made before the commencement of the amendment.
An amendment of section 48E by the amending Act does not apply to an order under that section made before the commencement of the amendment.
An amendment of section 92(1) or (2) by the amending Act does not apply to a contract of insurance entered into before the commencement of the amendment.
Section 95 (and sections 97 and 101 in their operation in respect of that section) as in force before being amended by the amending Act continues to apply to and in respect of the following contracts--
(a) a contract of insurance or a contract for the sale of land entered into before the commencement of the amendment of section 95,
(b) a contract for the sale of land entered into after that commencement if a contract of insurance that complies with this Act is in force in relation to the work concerned when the contract is entered into.
Section 96B (Obligations of sellers of excluded dwellings (houses and units used for commercial purposes)) does not apply to a contract for the sale of land entered into before the commencement of that section.
An amendment of section 99(3)-(6) or 100(2) by the amending Act does not apply to a contract of insurance entered into before the commencement of the amendment.
The amendment of section 101 by the amending Act does not apply to a contract of insurance entered into under section 96 before the commencement of the amendment.
The repeal of section 103BB(5) by the amending Act does not apply in respect of a contract of insurance entered into before that repeal.
Section 137A does not apply to an executive liability offence committed before the commencement of that section.
The amendment of section 144 by the amending Act does not apply to any matter or thing done or omitted to be done before the commencement of the amendment.
(1) A ground under a provision of this Act for refusing the issue, renewal or restoration of an authority that was not a ground for that refusal before the commencement of the provision (whether the ground was under this Act or a regulation under this Act) does not apply to an application for the issue, renewal or restoration of an authority made before the commencement of the provision, and does not apply to an authority issued, renewed or restored before that commencement until the first renewal of the authority after that commencement.
(2) A reference in a provision of section 33B to a members' voluntary winding up applies in respect of an authority in force immediately before the commencement of the provision as if the reference included a reference to a creditors' voluntary winding up, but only until the first renewal of the authority after that commencement.
An amendment
made by the amending Act that results in a change to the meaning of
"residential building work" or
"dwelling" does not apply to a contract to do residential building work
entered into before the commencement of the amendment.
An amendment made by the amending Act that changes the terms that a contract must contain applies only to a contract entered into after the commencement of the amendment.
(1) The amendments made by the amending Act to change references to home warranty insurance to references to insurance under the Home Building Compensation Fund effect a change of terminology only, and accordingly--(a) the amendments do not affect the validity of any contract of insurance entered into before the commencement of the amendments, and(b) a reference in this Act to insurance under the Home Building Compensation Fund includes a reference to home warranty insurance under a contract of insurance entered into before the commencement of the amendments.
(2) The Home Building Compensation Fund Board provided for by the amendments made by the amending Act is a continuation of the Home Warranty Insurance Scheme Board as constituted under this Act immediately before the commencement of those amendments.
(3) Guidelines in force under section 91A immediately before the amendment of that section by the amending Act are taken to have been issued under that section as amended by the amending Act.
Anything lodged at an office of the Department of Fair Trading before the commencement of an amendment made by the amending Act to a provision of this Act that requires it to be so lodged is, for the purposes of the operation of the provision after the commencement of the amendment, taken to have been lodged with the Chief Executive.
An amendment made by the amending Act that imposes a requirement that was a requirement of the regulations before the amendment commenced extends to any contract or other matter which was subject to the requirement under the regulations immediately before the commencement of the amendment.
(1) The Home Building Compensation Fund Board is abolished.
(2) Each person holding office as a member of the Fund Board ceases to hold office as such a member on the abolition of the Fund Board and is not entitled to any remuneration or compensation for the loss of that office.
In this Part--
"amending Act" means the Home Building Amendment (Compensation Reform) Act
2017 .
"assets" means any legal or equitable estate or interest (whether present or
future, whether vested or contingent and whether personal or assignable) in
real or personal property of any description (including money), and includes
securities, choses in action and documents.
"dissolution day" for FTAC means the day on which section 107 is repealed by
the amending Act.
"FTAC" means the Fair Trading Administration Corporation constituted by
section 107, as in force immediately before its repeal by the amending Act.
"instrument" means an instrument (other than this Act or an instrument made
under this Act) or any other document that creates, modifies or extinguishes
rights or liabilities (or would do so if lodged, filed or registered in
accordance with any law), and includes any judgment, order, process or other
instrument issued by a court or tribunal.
"liabilities" means any liabilities, debts or obligations (whether present or
future, whether vested or contingent and whether personal or assignable).
"rights" means any rights, powers, privileges or immunities (whether present
or future, whether vested or contingent and whether personal or assignable).
(1) For the purposes of section 102A, as amended by the amending Act, the particulars kept in the register maintained by the Self Insurance Corporation immediately before that amendment are to form part of the register kept by the Authority under that section.
(2) This clause does not prevent the Authority from correcting those particulars or omitting those particulars from the register.
(1) Section 103BC, as amended by the amending Act, extends to contracts of insurance in force on the commencement of that amendment.
(2) However, subclause (1) does not apply to any claims made in respect of any such contract before that commencement.
Section 103E, as in force before its substitution by the amending Act, continues to have effect in relation to the following--
(a) residential building work commenced before that substitution,
(b) residential building work the subject of a contract entered into before that substitution,
(c) sales entered into before that substitution.
(1) A new claim may not be made by a beneficiary under Division 2 of Part 6A of the Act in relation to a matter covered by a former approved insurer as such an insurer.
(2) A claim is a
"new claim" for the purposes of this clause if--(a) the claim is made on or after the commencement of section 103OA (as inserted by the amending Act), or(b) the claim is a continuation, or a revival, of a claim made before that commencement that had been previously finalised or withdrawn, or had not been prosecuted by the claimant for a period of not less than 12 months.
(3) This clause does not affect any claim that is not a new claim.
(4) In this clause,
"former approved insurer" has the same meaning as in Part 6A.
(1) FTAC is dissolved on the dissolution day.
(2) On the dissolution day for FTAC--(a) the Home Building Trust Account, the Building Insurance Fund and the Fair Trading Administration Corporation General Account are closed, and(b) any balance standing to the credit of those accounts is transferred to the Crown.
(3) The annual report for the year ending 30 June 2017 may be included in the annual report of the Department of Finance, Services and Innovation for that year.
(4) Subject to the regulations, a reference in any other Act or instrument made under any other Act or in any instrument of any kind to FTAC is (to the extent that it relates to the assets, rights and liabilities transferred to the Crown) to be read on and from the dissolution day as being a reference to the Crown.
(5) In this clause--
"Building Insurance Fund" means the Building Insurance Fund required to be maintained under section 112A, as in force immediately before its repeal by the amending Act.
"Fair Trading Administration Corporation General Account" and
"Home Building Trust Account" mean the accounts required to be maintained under sections 113 and 112, respectively, as in force immediately before the repeal of those sections by the amending Act.
(1) On the dissolution day, any assets, rights and liabilities of FTAC immediately before its dissolution by this Part are transferred to the Crown.
(2) On and from the dissolution day, the following provisions have effect in relation to the transfer--(a) the transferred assets vest in the transferee by virtue of this clause without the need for any further conveyance, transfer, assignment or assurance,(b) the transferred rights and liabilities become, by virtue of this clause, the rights and liabilities of the transferee,(c) all proceedings relating to the transferred assets, rights or liabilities commenced before the dissolution day by or against FTAC pending immediately before the dissolution day are taken to be proceedings pending by or against the Crown,(d) any act, matter or thing done or omitted to be done in relation to the transferred assets, rights or liabilities before the dissolution day by, to or in respect of FTAC is (to the extent to which that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the Crown,(e) the Crown has all the entitlements and obligations of FTAC in relation to the transferred assets, rights and liabilities that FTAC would have had but for the dissolution of FTAC, whether or not those entitlements and obligations were actual or potential at the time the dissolution took effect.
(3) The operation of this clause and the clause dissolving FTAC is not to be regarded as--(a) a breach of contract, trust or confidence or otherwise as a civil wrong, or(b) a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or(c) giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of, or exercise of rights under, any instrument, or(d) an event of default under any contract or other instrument.
(1) The Home Building Advisory Council is dissolved on the repeal of Part 7B of this Act by the Fair Trading Legislation Amendment (Reform) Act 2018 .
(2) A person who held office as a member of the Home Building Advisory Council immediately before the repeal of Part 7B and Schedule 5 is not entitled to compensation or remuneration because of the dissolution of the Home Building Advisory Council.
In
this Part--
"amendment Act" means the Better Regulation and Customer Service Legislation
Amendment (Bushfire Relief) Act 2020 .
"relevant period" means the period--
(a) starting on 18 July 2019, and
(b) ending immediately before the commencement of the amendment Act.
(1) This clause applies if, during the relevant period, the Secretary waived, reduced, postponed or refunded, in whole or part, a fee payable or paid by a person under this Act or the regulations on the ground the Secretary was satisfied it was appropriate because--(a) the person was suffering financial hardship, or(b) special circumstances existed.
(2) The waiver, reduction, postponement or refund is taken to have been as valid as if it had happened after the commencement of the amendment Act.
To remove any doubt, the power of the Secretary to waive, reduce, postpone or refund, in whole or part, a fee payable or paid under this Act or the regulations applies in relation to--
(a) a person who was suffering financial hardship--(i) during the relevant period, or(ii) because of events that happened during the relevant period, or
(b) special circumstances--(i) that existed during the relevant period, or(ii) that exist because of events that happened during the relevant period.
Section 11C applies to the appointment of a registered certifier that occurs after the commencement of that section even if the relevant contract was entered before that commencement.
Section 11D does not apply to a contract entered before the commencement of that section.
(1) Sections 4, 5, 12, 15A- 15C and 16 do not have effect during the transitional period in relation to specialist work that is medical gasfitting work, mechanical services and medical gas work or medical gas technician work.
(2) In this clause,
"transitional period" means the period commencing on 1 November 2020 and ending--(a) in relation to medical gasfitting work and medical gas technician work--at the end of 30 September 2022, and(b) in relation to mechanical services and medical gas work that is medical gasfitting work--at the end of 30 September 2022, and(c) in relation to mechanical services and medical gas work that is not medical gas fitting work--28 February 2023.
(1) Despite section 33E(1), a tradesperson certificate authorising the holder to do mechanical services and medical gas work may be issued to a person who--(a) immediately before 1 March 2023, holds a tradesperson certificate authorising the holder to do plumbing and drainage work, and(b) meets the requirements set out in section 33E(1)(b) and (c), and(c) otherwise meets the requirements for the issue of the certificate.
(2) Despite section 33E(1A), an endorsed contractor licence or a supervisor certificate authorising the holder to do and supervise mechanical services and medical gas work may be issued to a person who--(a) immediately before 1 March 2023, holds an endorsed contractor licence or a supervisor certificate authorising the holder to do and supervise plumbing and drainage work, and(b) meets the requirements set out in section 33E(1A)(b) and (c), and(c) otherwise meets the requirements for the issue of the licence or certificate.
(3) An authority does not authorise the holder to do, or to do and supervise, plumbing and drainage work for the purposes of subclause (1)(a) or (2)(a) if the authority authorises the holder to do, or to do and supervise, only draining work and no other specialist work.
(4) To avoid doubt, section 33E(1B)-(1D), as inserted by the Health Legislation (Miscellaneous) Amendment Act (No 2) 2022 , extend to an authority to which subclause (1) or (2) applies.
(5) In this clause--
"draining work" has the meaning given by the Home Building Regulation 2014 , Schedule 4 as in force immediately before the commencement of this clause.
(1) Despite sections 33F(1) and 33G(1), a tradesperson certificate authorising the holder to do medical gasfitting work or medical gas technician work may be issued to a person who--(a) immediately before 1 October 2022, holds a tradesperson certificate authorising the holder to do gasfitting work or plumbing and drainage work, and(b) meets the following requirements--(i) for medical gasfitting work--the requirements set out in section 33F(1)(b) and (c),(ii) for medical gas technician work--the requirements set out in section 33G(1)(b) and (c), and(c) otherwise meets the requirements for the issue of the certificate.
(2) Despite sections 33F(1A) and 33G(1A), an endorsed contractor licence or a supervisor certificate authorising the holder to do and supervise medical gasfitting work or medical gas technician work may be issued to a person who--(a) immediately before 1 October 2022, holds an endorsed contractor licence or a supervisor certificate authorising the holder to do and supervise gasfitting work or plumbing and drainage work, and(b) meets the following requirements--(i) for medical gasfitting work--the requirements set out in section 33F(1A)(b) and (c),(ii) for medical gas technician work--the requirements set out in section 33G(1A)(b) and (c), and(c) otherwise meets the requirements for the issue of the licence or certificate.
(3) An authority does not authorise the holder to do, or to do and supervise, plumbing and drainage work for the purposes of subclause (1)(a) or (2)(a) if the authority authorises the holder to do, or to do and supervise, only draining work and no other specialist work.
(4) In this clause--
"draining work" has the meaning given by the Home Building Regulation 2014 , Schedule 4 as in force immediately before the commencement of this clause.
(1) For the purposes of section 20(2), a notice published in the Gazette before the commencement of the amending Act, specifying the qualifications and experience required to be held by an applicant for a contractor licence, is taken to have been validly made and to be valid on and from the date the notice was published.
(2) For the purposes of section 25(2), a notice published in the Gazette before the commencement of the amending Act, specifying the qualifications and experience required to be held by an applicant for a supervisor or tradesperson certificate, is taken to have been validly made and to be valid on and from the date the notice was published.
(3) In this clause--
"amending Act" means the Building Legislation Amendment Act 2021 .