Victorian Current Acts

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DOMESTIC BUILDING CONTRACTS ACT 1995 - SECT 3

Definitions

    (1)     In this Act—

"architect" means a person who is registered as an architect under the Architects Act 1991 ;

S. 3(1) def. of assessor inserted by No. 15/2016 s. 3(1).

"assessor" means an assessor appointed under section 48 ;

S. 3(1) def. of Authority inserted by No. 34/2013 s. 35(Sch.  2 item 2.1(a)).

"Authority" means the Victorian Building Authority established under the Building Act 1993 ;

S. 3(1) def. of breach of dispute resolution order notice inserted by No. 15/2016 s. 3(1).

"breach of dispute resolution order notice" means a notice issued under section 49U;

"builder" means a person who, or a partnership which—

        (a)     carries out domestic building work; or

        (b)     manages or arranges the carrying out of domestic building work; or

        (c)     intends to carry out, or to manage or arrange the carrying out of, domestic building work;

"building" includes any structure, temporary building or temporary structure and also includes any part of a building or structure;

building owner means the person for whom domestic building work is being, or is about to be, carried out;

"building site" means a place where domestic building work has been, is being, or is about to be, carried out;

"business day" means a day that is not—

        (a)     a Saturday or a Sunday; or

        (b)     a day that is wholly or partly observed as a public holiday throughout Victoria;

S. 3(1) def. of certificate of conciliation inserted by No. 15/2016 s. 3(1).

"certificate of conciliation" means a certificate of conciliation issued by the chief dispute resolution officer under section 45F or 46E;

S. 3(1) def. of chief dispute resolution officer inserted by No. 15/2016 s. 3(1).

"chief dispute resolution officer" means the chief dispute resolution officer appointed under Division 9 of Part 4;

S. 3(1) def. of Commission amended by No. 68/2001 s. 17, repealed by No. 34/2013 s. 35(Sch.  2 item 2.1(b)).

    *     *     *     *     *

S. 3(1) def. of conciliation inserted by No. 15/2016 s. 3(1).

"conciliation" includes a conciliation conference;

S. 3(1) def. of conciliation officer inserted by No. 15/2016 s. 3(1).

"conciliation officer" means—

        (a)     the chief dispute resolution officer; or

        (b)     a person appointed as a conciliation officer under Division 9 of Part 4;

"contract price" means the total amount payable under a domestic building contract and includes—

        (a)     the amount the builder is to receive and retain under the contract; and

        (b)     the amount the builder is to receive under the contract for payment to any other person; and

        (c)     the amount any third person is to receive (or it is reasonably estimated will receive) directly from the building owner in relation to the domestic building work to be carried out under the contract—

              (i)     for conveying to the building site or connecting or installing services such as gas, electricity, telephone, water and sewerage; or

              (ii)     for the issue of planning or building permits—

but does not include any amount that the builder excludes in accordance with section 24;

"cost plus contract" means a domestic building contract under which the amount the builder is to receive under the contract cannot be determined at the time the contract is made, even if prime cost items and provisional sums are ignored;

default penalty has the meaning set out in section 128;

"defective", in relation to domestic building work, includes—

        (a)     a breach of any warranty listed in section 8;

        (b)     a failure to maintain a standard or quality of building work specified in the contract;

S. 3(1) def. of determination repealed by No. 15/2016 s. 3(2).

    *     *     *     *     *

S. 3(1) def. of Director substituted by No. 17/1999 s. 30(1), amended by No. 21/2012 s. 239(Sch. 6 item 14.1).

"Director" means the Director within the meaning of the Australian Consumer Law and Fair Trading Act 2012 ;

S. 3(1) def. of dispute resolution order inserted by No. 15/2016 s. 3(1).

"dispute resolution order" means a dispute resolution order issued under Division 6 of Part 4, or that order as amended under this Act;

S. 3(1) def. of Domestic Builders Fund inserted by No. 15/2016 s. 3(1).

"Domestic Builders Fund" means the Domestic Builders Fund established under section 124;

"domestic building contract" means a contract to carry out, or to arrange or manage the carrying out of, domestic building work other than a contract between a builder and a sub-contractor;

domestic building dispute has the meaning set out in section 54 ;

S. 3(1) def. of domestic building dispute account inserted by No. 15/2016 s. 3(1).

"domestic building dispute account" means the domestic building dispute account in the Building account within the meaning of the Building Act 1993 ;

S. 3(1) def. of Domestic Building Dispute Resolution Victoria Trust Fund inserted by No. 15/2016 s. 3(1).

"Domestic Building Dispute Resolution Victoria Trust Fund" means the trust fund established under section 51;

"domestic building work" means any work referred to in section 5 that is not excluded from the operation of this Act by section 6;

S. 3(1) def. of domestic building work dispute inserted by No. 15/2016 s. 3(1).

domestic building work dispute has the meaning set out in section 44;

S. 3(1) def. of home amended by Nos 109/1997 s. 533(Sch. 2 item 2.1), 74/2000 s. 3(Sch. 1 item 37.1).

"home" means any residential premises and includes any part of a commercial or industrial premises that is used as a residential premises but does not include—

        (a)     a caravan within the meaning of the Residential Tenancies Act 1997 or any vehicle used as a residence; or

        (b)     any residence that is not intended for permanent habitation; or

        (c)     a rooming house within the meaning of the Residential Tenancies Act 1997 ; or

        (d)     a motel, residential club, residential hotel or residential part of licensed premises under the Liquor Control Reform Act 1998 ; or

        (e)     a nursing home, hospital or accommodation associated with a hospital; or

        (f)     any residence that the regulations state is not a home for the purposes of this definition;

S. 3(1) def. of insurer amended by Nos 26/2001 s. 16(1), 35/2004 s. 38, 52/2005 s. 30, 37/2016 s. 4(2).

"insurer" means—

        (a)     any person providing any required insurance under the Building Act 1993 (whether or not that person has a direct contractual relationship with a builder); and

        (aa)     any person providing any required insurance under the Architects Act 1991 (whether or not that person has a direct contractual relationship with an architect);

    *     *     *     *     *

"major domestic building contract" means a domestic building contract in which the contract price for the carrying out of domestic building work is more than $5000 (or any higher amount fixed by the regulations);

"prime cost item" means an item (for example, a fixture or fitting) that either has not been selected, or whose price is not known, at the time a domestic building contract is entered into and for the cost of supply and delivery of which the builder must make a reasonable allowance in the contract;

proceeding includes any application for the review of a determination;

provisional sum is an estimate of the cost of carrying out particular work (including the cost of supplying any materials needed for the work) under a domestic building contract for which a builder, after making all reasonable inquiries, cannot give a definite amount at the time the contract is entered into;

"sub-contractor" means a person who enters into a contract with a builder to carry out part of the work that is to be carried out under a domestic building contract;

S. 3(1) def. of Tribunal substituted by No. 52/1998 s. 37(2), repealed by No. 15/2016 s. 3(2).

    *     *     *     *     *

S. 3(1) def. of Victorian Managed Insurance Authority inserted by No. 15/2016 s. 3(1).

"Victorian Managed Insurance Authority" means the Victorian Managed Insurance Authority established under the Victorian Managed Insurance Authority Act 1996 .

    (2)     If a builder and a building owner agree that domestic building work is to be carried out on a home in stages by the builder under a series of separate contracts that are to be entered into after the initial agreement, then for the purposes of this Act the initial agreement and the subsequent contracts are to be considered to be a single contract.

    (3)     If a provision of this Act requires or enables the giving of a document to a specified person, the provision is satisfied if the document is given to an authorised agent of that person.

S. 3(4) inserted by No. 37/2004 s. 3.

    (4)     A contract for the sale of land on which a home is being constructed or is to be constructed that provides or contemplates that the construction of the home will be completed before the completion of the contract is not, and is not to be taken to form part of, a domestic building contract within the meaning of this Act if—

        (a)     the home is being constructed under a separate contract that is a major domestic building contract; or

        (b)     the contract of sale provides that the home is to be constructed under a separate contract that is a major domestic building contract.

S. 3(5) inserted by No. 37/2004 s. 3.

    (5)     Subsection (4) does not apply to a contract for the sale of land that is the subject of proceedings commenced in a court or tribunal before 16 March 2004 but not completed before that date in which it was alleged, before that date, that the contract was, or formed part of, a domestic building contract.



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