House Contracts Guarantee Act 1987 - …FILE/87-44a054.docx · Web viewHouse Contracts Guarantee...

Version No. 054

House Contracts Guarantee Act 1987No. 44 of 1987

Version incorporating amendments as at1 July 2013

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purpose 12 Commencement 13 Definitions 13A House and land packages 114 Application of Act 12

PART 2—GUARANTEES 14

5 Guarantee required in relation to certain contracts 146 Guarantees 167 Nature of guarantees 188 Builder liable on sale of house constructed by builder 229 Owner builders 2210 Extension of guarantee in certain circumstances 2310A Discretion to issue guarantee 2511 Builder to have liability for movement of the foundations 2611A State to become liable for guarantees 2711B VMIA to be responsible for the Housing Guarantee Claims

Fund and claims 2712 Liability in legal proceedings 2813 Procedure for resolving claims 2914 Claims 3115 Costs 3216 Appeals 3317 Discretionary payments 3617A Application of payments 36

PART 2A—HOUSING GUARANTEE CLAIMS FUND 38

17B Housing Guarantee Claims Fund 3817C What comprises the Housing Guarantee Claims Fund? 3817D Payments out of the Housing Guarantee Claims Fund 38

1

17E Powers of VMIA in relation to the Housing Guarantee Claims Fund 39

17F Report to Minister 4017G Auditor-General to audit financial statements of Housing

Guarantee Claims Fund 4017H Annual report 4117I Remaining funds to be paid into Domestic Builders Fund 41

PART 3—DOMESTIC BUILDING WORK CONTRACTS 42

18 Requirements in relation to domestic building work contracts 4219 Variation of domestic building work contract 4520 Limit on amount of deposit 4621 Limit on progress payments 4721A Arbitration provisions 49

PART 4—THE REGISTER 50

25 Registers to be kept by VMIA 51

PART 5—MISCELLANEOUS 53

26 Supervision contracts 5327 False representations 5629 Offences by corporation 5730 Time limit for proceedings 5731 Act not to limit liability of builder 5732 Agreement to exclude etc. operation of Act void 5732A Person cannot sign away right to take advantage of a

guarantee 5733 Regulations 5834 Transitional provisions 6034A Savings provisions 6134B Notice to approved guarantor 6334C No offence for certain acts or failures to act under this Act in

April 1996 63

PART 6—DOMESTIC BUILDING (HIH) INDEMNITY SCHEME 64

Division 1—Introductory 64

35 Interpretation 6436 This Part only applies in respect of work carried out or to be

carried out in Victoria 6636A Existing proceedings to be affected by amendments 66

2

Division 2—Indemnity 67

37 Indemnity 6738 What is not covered by the indemnity? 6739 What are the functions and powers of VMIA in relation to the

indemnity scheme? 7040 Who can make a claim under the scheme? 7141 Procedure for claims 7242 When is a claim paid? 7343 Assignment of rights 7344 VMIA may require builder to make payments or rectify work 7445 Other rights not affected 75

Division 3—Domestic Building (HIH) Indemnity Fund 75

46 Domestic Building (HIH) Indemnity Fund 7547 Payments to Consolidated Fund 7648 How can the Fund be invested? 7649 Remaining funds to be paid into Consolidated Fund 7750 Report to Minister 7751 Auditor-General to audit financial statements of Fund 7752 Annual report 78

Division 4—General 78

53 Can VMIA enter into arrangements and agreements with liquidator of HIH? 78

54 Effect of Corporations Law 7955 Offence to make false statements 7956 Regulation-making powers 79

PART 7—TRANSITIONAL 80

Division 1—Transfer of property, rights and liabilities of HGFL 80

57 Definitions 8058 State to take over responsibility for guarantees 8059 VMIA to be substituted as party to proceedings 8160 Construction of instruments 8161 Taxes 8262 Transfer of staff 8263 Evidence 8364 Validity of things done under this Division 8365 Operation of provisions not subject to review 84

Division 2—Role of VMIA in relation to guarantees 84

66 Actions of continuing nature in relation to guarantees 84

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Division 3—Role of VMIA in relation to indemnities 85

67 Actions of continuing nature in relation to indemnities 8568 References to HGFL in any arrangement or agreement under

section 53 85

Division 4—Reporting by HGFL 85

69 Final annual report by HGFL 85__________________

SCHEDULE—Saving of Claims 86

═══════════════

ENDNOTES 87

1. General Information 87

2. Table of Amendments 88

3. Explanatory Details 91

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Version No. 054


Version incorporating amendments as at1 July 2013

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1 Purpose

The purposes of this Act are—

(a) to reform the law relating to house builders' liability; and

(b) to provide for guarantees to be given in relation to house improvement work; and

(c) to specify requirements to be complied with in relation to domestic building work contracts; and

(d) to establish an indemnity scheme in respect of losses arising in respect of certain classes of domestic building work affected by the collapse of the HIH Insurance Group.

2 Commencement

This Act comes into operation on a day or days to be proclaimed.

3 Definitions

(1) In this Act1—

appointed day means the date of commencement of the House Contracts Guarantee (Amendment) Act 2005;

1

S. 1(c) amended by No. 26/2001 s. 3.

S. 1(d) inserted by No. 26/2001 s. 3.

S. 3(1) def. of appointed day inserted by No. 52/2005 s. 4(1).

approved builder means a builder approved by the approved guarantor under its rules;

approved guarantor means HGFL;

approved supervisor means a supervisor approved by the approved guarantor under its rules;

builder means a person who performs, or two or more persons who together perform, domestic building work;

s. 3S. 3(1) def. of building approval substituted by No. 126/1993 s. 264(Sch. 5 item 10.1(a)).

building approval means building permit within the meaning of the Building Act 1993;

building owner—

(i) in relation to a domestic building work contract, means the person for whom domestic building work is, or is to be, performed under the contract; and

(ii) in relation to a supervision contract, means the person for whom the managing or supervision of domestic building work is, or is to be, performed under a supervision contract;

building surveyor means relevant building surveyor within the meaning of the Building Act 1993;

2

S. 3(1) def. of approved guarantor substituted by No. 52/2005 s. 4(2).S. 3(1) def. of approved supervisor inserted by No. 39/1990 s. 4(a).

S. 3(1) def. of building owner substituted by No. 39/1990 s. 4(b).

S. 3(1) def. of building surveyor substituted by No. 126/1993s. 264(Sch. 5 item 10.1(b)).

chief administrator means the Department Head within the meaning of the Public Administration Act 2004 of the Department;

claimant means—

(a) except in Part 6, a person who has made a claim to HGFL or VMIA under this Act; and

(b) in Part 6, a person who has lodged a claim with HGFL or VMIA under that Part;

construct, in relation to a dwelling-house, includes—

(a) to build, re-build, erect or re-erect the dwelling-house up to or beyond lock-up stage (within the meaning of section 21) whether or not any part of the work had been carried out by another builder; and

(b) in the case of a dwelling-house that has never been occupied, to place the dwelling-house on land; and

(c) to convert an existing building into a dwelling-house;

s. 3S. 3(1) def. of contract price substituted by No. 39/1990 s. 4(d ).

contract price, in relation to a domestic building work contract or a supervision contract,

3

S. 3(1) def. of chief administrator substituted by No. 46/1998 s. 7(Sch. 1), amended by No. 108/2004 s. 117(1) (Sch. 3 item 99.1).

S. 3(1) def. of claimant substituted by No. 52/2005 s. 4(3).

S. 3(1) def. of construct amended by No. 39/1990 s. 4(c)(i)(ii).

means the total amount payable to the builder or supervisor under the terms of the contract;

cost plus contract means a domestic building work contract under which the total amount payable to the builder (exclusive of prime cost items and provisional sums) cannot be determined at the time the contract is entered into;

Department means the Department of Justice;

domestic building work means—

(a) the work of constructing a dwelling-house; or

(b) the work of improving a dwelling-house; or

(c) the work of improving a residence that is excluded from the definition of dwelling-house in this subsection by paragraph (a) or (c) of that definition if the work is carried out wholly or substantially within the space bounded by the floor, external walls and roof of the residence; or

(d) in connection with the moving from one site to another of a building that has been occupied and that is not a dwelling-house by reason only of the operation of paragraph (b) of the definition of that term in this subsection, the work of—

4

S. 3(1) def. of Department substituted by No. 46/1998 s. 7(Sch. 1).

S. 3(1) def. of domestic building work amended by No. 39/1990 s. 4(e)(i)-(iii).

s. 3

(i) preparing the site and laying the foundations and placing the building on the site; and

* * * * *

(iii) carrying out any other work required to be carried out to the building in consequence of any work referred to in subparagraph (i); or

(e) work of a prescribed class;

domestic building work contract means a contract between a builder and another person for the performance by the builder of domestic building work (including any variation of such a contract) but does not include—

(a) a contract for the performance of domestic building work for a builder who is in turn obliged to perform the work under another contract; or

(b) a contract for the performance of domestic building work of the class referred to in paragraph (b) or (c) of the definition of domestic building work in this subsection unless the amount payable under the contract in respect of that work (or, in the case of a cost plus contract, the amount set out in the contract as a fair and reasonable estimate of the amount payable under the contract in respect of that work) is more than $3000 or any larger amount that is prescribed for the purposes of this paragraph;

dwelling-house means a building (whether temporary or permanent) that is used, or is intended, adapted or designed for use, as a

5

s. 3

S. 3(1) def. of dwelling-house amended by Nos 97/1987 s. 181(7), 39/1990 s. 4(f).

separate residence for an occupier who has a right to the exclusive use of it but does not include—

(a) a separate residence that is a portion of a building containing two or more separate residences if any part of a separate residence is above or below any part of the first-mentioned residence; or

(b) a building that has been moved from one site to another; or

(c) a building that is attached to a shop, office, warehouse or factory and is used, or is intended, adapted or designed for use, as a residence for an occupier or caretaker of the shop, office, warehouse or factory; or

(d) a building that is used, or is intended, adapted or designed for use, as—

(i) a building in which there is or are available, upon payment of rent, any room or rooms for residential use by an occupier or occupiers (other than members of the family or employees of the owner of the building) who has or have a right to—

(A) use of that room or rooms; and

(B) in common with others, use of any kitchen, lounge, bathroom, laundry, garden, toilet, car parking area, storage area and other like facilities in the building—

6

if the total number of people who may use the room or rooms is not less than four; or

* * * * *

(iii) a motel, residential club, residential hotel or residential part of licensed premises under the Liquor Control Act 1987; or

(iv) a prescribed class of building;

guarantee period, in relation to domestic building work, means the period of 7 years from the time when the contract for the performance or the management or supervision of the performance of that work was entered into or building approval was granted for that work, whichever occurred first;

HGFL means Housing Guarantee Fund Limited A.C.N. 006 258 233;

improve, in relation to a building, means—

(a) to make additions to the floor area of the building; or

(b) to make alterations to the structural design of the building; or

(c) to replace load-bearing fixtures that are part of the structural design of the building and are integral to its functioning; or

(d) to replace or install attached or fixed mechanical components that are integral to the functioning of the building; or

(e) to replace or install non-load-bearing rigid fixtures (other than machinery)

7

s. 3

S. 3(1) def. of guarantee period amended by No. 39/1990 s. 4(g).

S. 3(1) def. of HGFL inserted by No. 52/2005 s. 4(1).

s. 3

that are integral to the functioning of the building; or

(f) to replace or install structures that are attached to the exterior of the building and are integral to its functioning; or

(g) to perform any other work required to be performed in consequence of any work referred to in paragraphs (a) to (f);

industry association means Housing Industry Association or The Master Builders' Association of Victoria;

officer, in relation to a corporation, has the same meaning as in section 9 of the Corporations Act but does not include an employee of the corporation;

owner builder means a person who otherwise than in the course of carrying on a business of constructing dwelling-houses—

(a) constructs a dwelling-house that is intended to be used as a residence (whether or not as a principal place of residence) by—

(i) that person; or

(ii) in the case of a corporation, one or more directors of that corporation; or

(b) constructs two dwelling-houses on a two lot subdivision if—

(i) that person resides or intends; or

(ii) in the case of a corporation, one or more directors of that corporation resides or reside or intends or intend—

8

S. 3(1)def. of officer amended by No. 44/2001 s. 3(Sch. item 62.1).

S. 3(1) def. of owner builder inserted by No. 39/1990 s. 4(h).

s. 3

to reside in one of the dwelling-houses;

recognised person means2—

(a) a person or body recognised by the Minister by order made under section 28 as in force immediately before the commencement of section 166 of the Domestic Building Contracts and Tribunal Act 1995; or

(b) an architect registered under the Architects Act 1991; or

(c) a building surveyor, building inspector or engineer registered under Part 11 of the Building Act 1993;

supervision contract means a contract between two persons under which one of those persons is to manage or supervise the performance of domestic building work for another person who is not an approved builder if—

(a) the total cost of the work managed or supervised is more than $3000 or any larger amount that is prescribed for the purposes of this definition; and

(b) the supervisor substantially controls—

(i) the whole of the undertaking of which the work managed or supervised forms a part; and

(ii) the engagement of tradespersons to perform the work managed or supervised;

s. 3S. 3(1) def. of supervisor inserted by No. 39/1990 s. 4(i).

supervisor in relation to a supervision contract, means the person who is to manage or

9

S. 3(1) def. of recognised person substituted by No. 91/1995 s. 157(a), amended by No. 2/1996 s. 6.

S. 3(1) def. of supervision contract inserted by No. 39/1990 s. 4(i).

supervise the performance of domestic building work;

Tribunal means Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998;

VMIA means the Victorian Managed Insurance Authority established by the Victorian Managed Insurance Authority Act 1996.

(2) If under the Public Administration Act 2004 the name of the Department is changed, the reference in the definition of Department in subsection (1) to the "Department of Justice" is from the date when the name is changed to be taken to be a reference to the Department by its new name.

(3) A reference in this Act to obligations under a domestic building work contract, or to workmanship in relation to domestic building work, includes a reference to obligations or workmanship in relation to—

(a) outbuildings; and

(b) retaining walls the construction of which is required by or under any Act or enactment; and

(c) provision for lighting, heating, water supply, drainage, sewerage and other like services in respect of the building.

(4) A reference in this Act to a successor in title of a building owner or purchaser includes—

10

S. 3(1) def. of Tribunal inserted by No. 91/1995 s. 157(b), substituted by No. 52/1998s. 311(Sch. 1 item 40.1).

S. 3(1) def. of VMIA inserted by No. 52/2005 s. 4(1).

S. 3(2) amended by Nos 46/1998 s. 7(Sch. 1), 108/2004 s. 117(1) (Sch. 3 item 99.2).

s. 3

(a) a reference to an owner for the time being of the building; and

(b) if there is in force a licence granted under section 138 of the Land Act 1958 to occupy for residence purposes the land on which the building is constructed—a reference to a person who is for the time being the holder of the licence or of a lien by way of security on the improvements on the land; and

(c) if the land on which the building is constructed is a residence area within the meaning of Division 11 of Part I of the Land Act 1958—a reference to a person who is for the time being the holder of a right to occupy the residence area or of an encumbrance by way of security of the right to occupy the residence area.

(5) A reference in this Act to a guarantee given under this Act does not include a reference to an indemnity given under Part 6.

3A House and land packages

(1) This section applies where a contract is entered into for the sale of land on which a dwelling-house is being constructed or is to be constructed before completion of the contract.

(2) If the builder is the same person as the vendor, a domestic building work contract is, for the purposes of this Act, deemed to have been entered into between the purchaser and the builder on the date on which the contract for the sale of the land is entered into.

(3) If the builder is not the same person as the vendor, the approved guarantor is liable for loss or damage suffered by the purchaser before the completion of the contract for sale where—

11

S. 3(5) inserted by No. 52/2005 s. 4(4).

S. 3A inserted by No. 39/1990 s. 5.

s. 3A

(a) the builder knew or ought reasonably to have known at the time when the domestic building work contract was entered into between the builder and the vendor that the vendor had entered into or was likely to enter into, before completion of the domestic building work contract, a contract for the sale of the land; and

(b) the loss or damage suffered arose out of the builder's failure to fulfil the builder's obligations under the domestic building work contract or the builder's bad workmanship, as the case requires.

(4) The rights and liabilities conferred by or arising under this section are additional to, and do not take away from, those conferred by or arising under any other provision of this Act.

4 Application of Act

(1) This Act (except sections 22 and 22A and Part 6) does not apply in relation to domestic building work performed or to be performed by3—

(a) the Director of Housing incorporated under the Housing Act 1983; or

(b) a prescribed person; or

(c) any person if the function of performing that work is vested in that person by or under any Act of the Parliament of Victoria or of the Parliament of the Commonwealth.

(2) This Act (except sections 22 and 22A and Part 6) does not apply to4—

(a) work performed under a domestic building work contract that was entered into on or

12

S. 4 amended by No. 91/1995 s. 158(a).

s. 4

S. 4(1) amended by No. 26/2001 s. 4.

S. 4(2) inserted by No. 91/1995 s. 158(b), amended by No. 26/2001 s. 4.

after the commencement of section 158 of the Domestic Building Contracts and Tribunal Act 1995; or

(b) a domestic building work contract that was entered into on or after that commencement; or

(c) work performed under a supervision contract that was entered into on or after that commencement; or

(d) a supervision contract that was entered into on or after that commencement.

(3) Part 2 does not apply to the work of constructing a dwelling-house if that dwelling-house was first sold under a contract that was entered into on or after the commencement of section 158 of the Domestic Building Contracts and Tribunal Act 1995 unless—

(a) a guarantee had been given under that Part; or

(b) a conditional certificate of guarantee had been issued under section 6(3); or

(c) a certificate had been issued under section 25(3)(d)—

in respect of that dwelling-house before that commencement.

_______________

13

S. 4(3) inserted by No. 91/1995 s. 158(b).

s. 4

PART 2—GUARANTEES

5 Guarantee required in relation to certain contractss. 5

S. 5(1) amended by No. 39/1990 s. 6(1)(b)(c).

(1) A person must not—

(a) enter into a contract to perform domestic building work; or

(b) enter into a contract to manage or supervise the performance of domestic building work—

unless a guarantee given under this Act by the approved guarantor is in force in relation to the domestic building work or the supervision contract, as the case requires.

Penalty:100 penalty units.

(1A) A person must not enter into a contract to sell a dwelling-house under which the purchaser will become entitled to possession or to the receipt of rents and profits before the end of any applicable guarantee period unless—

(a) a guarantee given under this Act by the approved guarantor is in force; or

(b) a conditional certificate of guarantee under section 6(3) has been issued by the approved guarantor—

in relation to the dwelling-house.


(1B) A person must not, for the purposes of avoiding this Act, enter into more than one contract to perform, in relation to the same dwelling-house, domestic building work of the class referred to in

S. 5(1)(b) substituted by No. 39/1990 s. 6(1)(a).

S. 5(1A) inserted by No. 39/1990 s. 6(2).

S. 5(1B) inserted by No. 39/1990 s. 6(2).

Part 6—Domestic Building (HIH) Indemnity Scheme


14

paragraph (b), (c) or (d) of the definition of domestic building work in section 3(1).


(1C) If—

(a) a person enters into more than one contract to perform domestic building work of the class referred to in paragraph (b), (c) or (d) of the definition of domestic building work in section 3(1); and

(b) the works substantially form the same undertaking; and

(c) the person had, instead of entering into those contracts, entered into a single contract for the performance of those works, the contract would be a domestic building work contract—

those contracts are deemed, for the purposes of this Act, to constitute a single domestic building work contract entered into on the date on which the last of those contracts was entered into.

(1D) For the purposes of subsections (1B) and (1C), if a person referred to in those subsections—

(a) is a director of a corporation, a contract entered into by the corporation; or

(b) is a body corporate, a contract entered into by another body corporate that is related to that body corporate (within the meaning of section 50 of the Corporations Act)—

is deemed to be a contract entered into by that person.

(2) Despite subsections (1), (1A) and (1B), a contract entered into in contravention of any of those subsections is not void by reason only of the contravention but it is voidable at the option of the

S. 5(1C) inserted by No. 39/1990 s. 6(2).

S. 5(1D) inserted by No. 39/1990 s. 6(2).

s. 5

S. 5(1D)(b) substituted by No. 44/2001 s. 3(Sch. item 62.2).

S. 5(2) amended by No. 39/1990s. 6(3)(i)(ii).



15

building owner or purchaser (as the case requires) at any time before completion of the contract or within 60 days after entering into the contract, whichever is the earlier.

6 Guarantees

(1) The approved guarantor gives under this Act a guarantee in relation to the following types of domestic building work:

(a) The work by an approved builder of constructing a dwelling-house under a domestic building work contract;

(b) The work by an approved builder of constructing a dwelling-house that is sold by the builder under a contract entered into with a purchaser—

(i) during the guarantee period; or

(ii) after the issue of a conditional certificate of guarantee under subsection (3);

(c) The work by an owner builder of constructing a dwelling-house that is sold by the owner builder under a contract entered into with a purchaser—

(i) during the guarantee period; or

(ii) after the issue of a conditional certificate of guarantee under subsection (3);

(d) The work by an approved builder of improving a building under a domestic building work contract;

(e) The work referred to in paragraph (d) of the definition of domestic building work in section 3(1) and performed by an approved

s. 6

S. 6(1)(b) amended by No. 39/1990 s. 7(1)(a).

S. 6(1)(c) substituted by No. 39/1990 s. 7(1)(b).



16

builder under a domestic building work contract;

(f) The work of a class prescribed for the purposes of the definition of domestic building work in section 3(1) and performed by an approved builder under a domestic building work contract;

s. 6S. 6(1)(g) inserted by No. 39/1990 s. 7(1)(c).

(g) The work by a person or persons of performing domestic building work under the management or supervision of an approved supervisor under a supervision contract, if a guarantee is not otherwise given under this Act in relation to that work.

(1A) The approved guarantor gives under this Act a guarantee in relation to the work by an approved supervisor of managing or supervising the performance of domestic building work under a supervision contract unless all of that domestic building work is performed by an approved builder under a domestic building work contract.

(2) The guarantee referred to in subsection (1) or (1A) is to be taken to have been given—

(a) in the case referred to in paragraph (a), (d), (e), (f) or (g) of subsection (1) or subsection (1A) on the domestic building work contract or the supervision contract being entered into; and


S. 6(2) amended by No. 39/1990 s. 7(3)(a).

S. 6(2)(a) amended by No. 39/1990 s. 7(3)(b)(i)(ii).



17

(b) in the case referred to in paragraph (b) or (c) of that subsection, on the completion of the contract for sale.

(3) The approved guarantor may issue a conditional certificate of guarantee in the case of a dwelling-house constructed by an approved builder or an owner builder and intended to be sold by the builder, stating that the guarantee will come into force on the completion of the contract of sale.

7 Nature of guarantees

(1) A guarantee given under this Act by the approved guarantor in relation to domestic building work performed or to be performed by an approved builder under a domestic building work contract is a guarantee to the building owner and the owner's successors in title of the performance of the builder's obligations under the domestic building work contract.

(1A) A guarantee given under this Act by the approved guarantor in relation to the work by an approved supervisor under a supervision contract is a guarantee to the building owner and the building owner's successors in title of the performance of the obligations of the supervisor under the supervision contract.

(1B) A guarantee given under this Act by the approved guarantor in relation to domestic building work performed or to be performed by a person or persons under the management or supervision of an approved supervisor under a supervision contract is a guarantee to the building owner and the building owner's successors in title of the workmanship of the person or persons in relation to the domestic building work.

S. 6(3) inserted by No. 39/1990 s. 7(4).

s. 7





18

(2) Subject to section 9, a guarantee given under this Act by the approved guarantor in relation to a dwelling-house constructed by an approved builder or by an owner builder and sold by the builder or the owner builder under a contract for sale entered into during the guarantee period or after the issue of a conditional certificate of guarantee under section 6(3) is a guarantee to the purchaser of the dwelling-house and the purchaser's successors in title of the workmanship of the builder or the owner builder in relation to the construction of the dwelling-house.

(3) The liability of the approved guarantor under a guarantee referred to in subsection (1), (1A), (1B) or (2) is the liability to make good loss or damage suffered by the building owner or purchaser or a successor in title of the building owner or purchaser on account of—

(a) in the case of a guarantee referred to in subsection (1), the failure of the builder to fulfil the builder's obligations under the contract; or

(aa) in the case of a guarantee referred to in subsection (1A), the failure of the supervisor to fulfil the supervisor's obligations under the supervision contract; or

(b) in any case, a defect caused by bad workmanship that appears in the building during the guarantee period.

(4) The maximum liability of the approved guarantor under a guarantee is $40 000 or any larger amount that is prescribed for the purposes of this subsection.

(5) The approved guarantor is not liable under a guarantee for loss or damage of $100 (or any larger amount that is prescribed for the purposes

S. 7(2) amended by No. 39/1990 s. 8(2)(a)(i)-(iii).

S. 7(3) amended by No. 39/1990 s. 8(2)(b)(i).

s. 7

S. 7(3)(aa) inserted by No. 39/1990 s. 8(2)(b)(ii).

S. 7(4) amended by No. 39/1990 s. 8(2)(c).

S. 7(5) amended by No. 39/1990 s. 8(2)(d).



19

of this subsection) or less arising out of a single defect unless—

(a) the claim is for loss or damage arising out of the work of constructing a dwelling-house and the defect is notified in accordance with section 14(2) within three months of the dwelling-house first being occupied; or

(b) the claim is for loss or damage arising out of the work of improving a building and the defect is notified in accordance with section 14(2) within three months of the work being completed.

(6) The approved guarantor is not liable under a guarantee for loss or damage of more than $100 (or any larger amount that is prescribed for the purposes of subsection (5)) but less than $500 (or any larger amount that is prescribed for the purposes of this subsection) arising out of a single defect unless—

(a) the claim is for loss or damage arising out of the work of constructing a dwelling-house and the defect appears within one year of the dwelling-house first being occupied; or

(b) the claim is for loss or damage arising out of the work of improving a building and the defect appears within one year of the work being completed.

(7) A guarantee given by the approved guarantor under this Act has effect subject to any terms and conditions that are prescribed.

(7A) If an approved builder enters into a domestic building work contract under which the builder agrees to—

(a) construct two or more dwelling-houses for a person then, despite anything to the contrary

S. 7(6) amended by No. 39/1990 s. 8(2)(e)(i)(ii).

s. 7




20

in this section but subject to subsection (8), a separate guarantee is in force in relation to each dwelling-house; or

(b) improve two or more dwelling-houses for a person then, despite anything to the contrary in this section, a separate guarantee is in force in relation to each dwelling-house if the work in respect of that dwelling-house, if performed under a separate contract, would be a domestic building work contract.

(8) Despite anything to the contrary in this section if—

(a) an approved builder enters into a domestic building work contract under which the builder agrees to construct; or

(b) an approved supervisor enters into a supervision contract under which the supervisor agrees to manage or supervise the construction of—

three or more dwelling-houses for a person (other than the Director of Housing incorporated under the Housing Act 1983), the approved guarantor does not, for the purposes of this Act, guarantee to that person the performance of the builder's obligations under the domestic building work contract or the supervisor's obligations under the supervision contract, as the case may be.

(9) Despite anything to the contrary in this section if—

S. 7(8) substituted by No. 39/1990 s. 8(3).

s. 7

S. 7(9) substituted by No. 39/1990 s. 8(3), amended by No. 44/2001 s. 3(Sch. item 62.3(a)(b)).



21

(a) an approved builder that is a body corporate enters into a domestic building work contract for; or

(b) an approved supervisor that is a body corporate enters into a supervision contract to manage or supervise—

the construction of a dwelling-house with a body corporate to which the approved builder or the approved supervisor (as the case may be) is related within the meaning of section 50 of the Corporations Act, the approved guarantor does not, for the purposes of this Act, guarantee to that body corporate the performance of the builder's obligations under the domestic building work contract or the supervisor's obligations under the supervision contract, as the case may be.

(10) Nothing in subsection (8) or (9) affects the guarantee to the successors in title of a person referred to in those subsections of the performance of the builder's obligations under the domestic building work contract or the supervisor's obligations under the supervision contract, as the case may be.

(11) Despite anything to the contrary in this Act, this Act does not provide for a guarantee to be given in respect of materials supplied under a domestic building work contract if that contract does not also provide for their installation.

8 Builder liable on sale of house constructed by builder

If a builder enters into a contract for the sale of a dwelling-house constructed by the builder and under this Act there is, or is required to be, in force a guarantee in relation to the dwelling-

S. 7(9)(a) amended by No. 44/2001 s. 3(Sch. item 62.3(a)).

S. 7(9)(b) amended by No. 44/2001 s. 3(Sch. item 62.3(a)).

S. 7(10) amended by No. 39/1990 s. 8(4).

s. 8Part 6—Domestic Building (HIH) Indemnity Scheme


22

house, the builder is liable to the purchaser or a successor in title of the purchaser in respect of loss or damage on account of a defect caused by bad workmanship that appears in the dwelling-house during the guarantee period.

9 Owner builders

(1) For the guarantee referred to in section 7(2) to be applicable to the purchaser of a dwelling-house constructed by an owner builder and sold by the owner builder under a contract of sale entered into during the guarantee period or after the issue of a conditional certificate of guarantee under section 6(3), the following requirements must be complied with:

(a) The builder must, within the period of six months before entering into the contract for sale, have obtained from a recognised person and given to the purchaser before the purchaser signed the contract, a report containing such matters on the dwelling-house as are required by the Minister by notice published in the Government Gazette;

* * * * *

(c) The builder must have paid to the approved guarantor the amount fixed by it from time to time for the purposes of this paragraph.

* * * * *

(3) The guarantee applicable by virtue of this section does not extend to defects identified in the report

S. 9(1) amended by No. 39/1990 s. 9(1).

S. 9(1)(a) amended by No. 5/1989 s. 4(a).

S. 9(1)(b) repealed by No. 5/1989 s. 5(1)(a).

S. 9(2) amended by No. 5/1989 ss 4(b), 5(1)(b), repealed by No. 39/1990 s. 9(2).

S. 9(3) inserted by No. 5/1989 s. 5(2), amended by No. 39/1990 s. 9(3).



23

on the dwelling-house obtained under subsection (1)(a).

10 Extension of guarantee in certain circumstancess. 10

S. 10(1) amended by Nos 5/1989 s. 4(c), 39/1990 s. 10(1)(b).

(1) If—

(a) a builder has—

(i) under section 24 of this Act; or

(ii) under section 27(3) of the Building Act 1993—

given to the approved guarantor notice of the builder's intention to construct a dwelling-house otherwise than under a domestic building work contract entered into by the builder; and

(b) the builder has not entered into a contract for the sale of the dwelling-house or any such contract has been rescinded; and

(c) another person becomes entitled to sell the land on which the dwelling-house is constructed and proposes to do so within the guarantee period—

the person referred to in paragraph (c) must, within the period of six months before entering into a contract for the sale of the land—

S. 10(1)(a) amended by No. 39/1990 s. 10(1)(a).S. 10(1)(a)(ii) substituted by No. 126/1993 s. 264(Sch. 5 item 10.2).



24

(d) obtain from a recognised person and give to the purchaser before the purchaser signs the contract, a report containing such matters on the dwelling-house as are required by the Minister by notice published in the Government Gazette; and

(e) pay to the approved guarantor the amount fixed by it from time to time for the purposes of this paragraph.


(2) If subsection (1) is not complied with, the purchaser may rescind the contract for the sale of the land at any time before the purchaser becomes entitled to possession or to the receipt of rents and profits.

(3) A provision in a contract for the sale of land or in any other document whereby the right conferred by subsection (2) on the purchaser is excluded, limited, modified or restricted is void and of no effect.

(4) If subsection (1) is complied with and the contract for sale is entered into during the guarantee period, the purchaser is, for the purposes of this Act, to be treated as if the purchaser had purchased the dwelling-house under a contract for sale entered into by the builder except that the guarantee applicable by virtue of this subsection does not extend to defects identified in the report on the dwelling-house obtained under this section.

(5) A person referred to in subsection (1)(c) must not complete construction of or improve a dwelling-house referred to in this section unless—

(a) the person is an approved builder; or

(b) the work is carried out by an approved builder.

S. 10(1)(e) inserted by No. 39/1990 s. 10(1)(c).

S. 10(5) inserted by No. 39/1990 s. 10(2).



25


10A Discretion to issue guarantee

Despite anything to the contrary in this Act, the approved guarantor may give a guarantee in relation to a dwelling-house which could not otherwise be sold on the same basis as a guarantee given to an owner builder under section 9 and subject to the requirements set out in that section.

11 Builder to have liability for movement of the foundations

s. 11S. 11(1) repealed by No. 39/1990 s. 12(1).

* * * * *

(2) For the purposes of this Act, if there is movement of the foundations of a dwelling-house, other than movement caused by earthquake, then—

(a) there is a defect in the dwelling-house; and

(b) the defect is to be taken to have been caused by bad workmanship; and

(c) the builder or supervisor is liable for loss or damage suffered by a person on account of that defect if a guarantee given under this Act is in force in respect of the dwelling-house.


s. 10A

S. 11(2)(c) amended by No. 39/1990 s. 12(2)(a).



26

(3) Nothing in subsection (2)(c) makes a builder or supervisor liable for loss or damage that the builder or supervisor proves was caused by an act or omission of a person other than—

(a) the builder or supervisor; or

(b) a person employed by or under contract to the builder; or

(c) a person performing work under the management or supervision of the supervisor.

11A State to become liable for guarantees

Despite anything to the contrary in this Part, on the appointed day—

(a) the State becomes liable under any guarantee given by HGFL under this Act to the extent of HGFL's liability under that guarantee; and

(b) HGFL ceases to be liable under that guarantee.

11B VMIA to be responsible for the Housing Guarantee Claims Fund and claims

(1) VMIA is responsible on and after the appointed day for the administration of—

(a) claims on guarantees given by HGFL or the State under this Act; and

(b) the Housing Guarantee Claims Fund.

(2) VMIA has any other functions conferred on it under this Part, Part 2A, Part 4 and Part 7.

S. 11(3) amended by No. 39/1990 s. 12(2)(b)(i).

S. 11(3)(a) amended by No. 39/1990 s. 12(2)(b)(i).

S. 11(3)(c) inserted by No. 39/1990 s. 12(2)(b)(ii).


s. 11A

S. 11B inserted by No. 52/2005 s. 5.



27

(3) Without limiting its other powers, VMIA has any powers necessary to carry out its functions under this Part, Part 2A, Part 4 and Part 7.

(4) VMIA acts on behalf of the State in carrying out its functions and exercising its powers under or for the purposes of this Part, Part 2A, Part 4 and Part 7.

(5) No claim on a guarantee given by HGFL or the State under this Act can be made on the assets of VMIA and the assets of VMIA are not available for the payment of any amount of claim, costs or expenses under such a guarantee.

12 Liability in legal proceedings

s. 12S. 12(1) amended by Nos 39/1990 s. 22(a), 52/2005 s. 6(2).

(1) Subject to this Act, if an approved builder or an approved supervisor becomes subject to a liability to a building owner or purchaser as a result of legal proceedings brought in respect of domestic building work in relation to which a guarantee is given under this Act, the State guarantees that liability.

(2) Subsection (1) applies only if—

(a) the person who makes the claim—

(i) notified the approved guarantor of the legal proceedings before the appointed day and within 3 months of the proceedings being commenced; or

S. 12 (Heading) inserted by No. 52/2005 s. 6(1).




28

(ii) notified VMIA of the legal proceedings on or after the appointed day and within 3 months of the proceedings being commenced; or

(b) VMIA is not prejudiced in dealing with the claim by the failure of the claimant to give the required notice under paragraph (a).

(3) Without limiting subsection (2)(b), VMIA can establish prejudice for the purposes of that subsection by establishing that—

(a) the State could have recovered any sum payable by it in discharge of its liability had VMIA or the approved guarantor been notified of the proceedings within the required time but that it cannot make that recovery because of the failure to give that notice within the required time; or

(b) the approved guarantor could have recovered any sum payable by it in discharge of its liability under this section as in force before the appointed day had the approved guarantor been notified of the proceedings within the required time but that it could not make that recovery because of the failure to give that notice within the required time.

s. 13S. 13 amended by Nos 39/1990 s. 22(b), 91/1995 s. 159, 11/2002 s. 3(Sch. 1 item 34.1), substituted by No. 52/2005 s. 7.

13 Procedure for resolving claims

(1) Subject to this section, the procedures approved under this section as in force immediately before the appointed day for the handling and resolution of claims apply (with any necessary modifications) to the handling and resolution of claims by VMIA under this Part.

(2) If—




29

(a) a claim has been made to the approved guarantor before the appointed day or to VMIA on or after the appointed day for loss or damage; and

(b) the claimant has also brought legal proceedings against the builder or supervisor involved in the claim—

VMIA must proceed to make a decision in respect of the claim if the matters in dispute in the legal proceedings do not include any matter to which the claim relates.

(3) If—

(a) the approved guarantor, before the appointed day, or VMIA on or after the appointed day has made an offer in respect of a claim by a person for loss or damage; and

(b) within 6 months after the offer was made the offer has not been accepted or rejected—

VMIA may refer the matter to the Tribunal and the Tribunal must treat the matter as if the claimant had not been satisfied with the offer and had appealed to it under section 16.

(4) VMIA may from time to time submit to the Minister for approval the procedures it proposes to adopt in the handling and resolution of claims under this Part.

(5) VMIA may propose to adopt as part of its procedures—

(a) the requirement that a claim be made in a particular way; and

(b) the requirement that a claimant supply to it a statutory declaration made by the claimant



30

verifying any information supplied to VMIA by the claimant in respect of a claim.

(6) The Minister must consult with the Minister administering the Victorian Managed Insurance Authority Act 1996 before approving the procedures.

(7) The Minister may approve the procedures with or without amendment.

(8) VMIA must adopt the procedures approved by the Minister.

(9) A procedure does not take effect unless it has been approved by the Minister.

14 Claimss. 14

S. 14(1) amended by Nos 5/1989 s. 6, 52/2005 s. 8(1).

(1) A person cannot claim under a guarantee given under this Act for loss or damage on account of the failure of the builder to fulfil the builder's obligation to complete the domestic building work under a domestic building work contract unless that person, within six months of the builder ceasing that work, notified the approved guarantor or VMIA of that failure in writing.

(1A) A person cannot claim under a guarantee given under this Act for loss or damage on account of the failure of the supervisor to fulfil the supervisor's obligations to complete the management or supervision of domestic building

S. 14(1A) inserted by No. 39/1990 s. 13(1), amended by No. 52/2005 s. 8(1).



31

work under a supervision contract unless that person, within six months of the supervisor ceasing that work, notified the approved guarantor or VMIA of that failure in writing.

(2) Except as provided by subsection (3), a person cannot claim under a guarantee given under this Act for loss or damage on account of a defect unless that person, within six months of becoming aware of the defect—

(a) notified the builder or supervisor of the defect orally or in writing; or

(b) notified the approved guarantor or VMIA of the defect in writing.

(3) Subsection (2) has no effect unless in a particular case VMIA can establish that the failure to notify the defect in accordance with that subsection prejudiced VMIA in dealing with the claim.

(4) For the purposes of subsection (3) VMIA is prejudiced in dealing with a claim if—

(a) the defect became materially worse between the date by which notification of it should have been given in accordance with subsection (2) and the date on which notification of it was given; or

(b) the builder or supervisor was able on the date by which notification should have been given to pay the cost of rectification but was unable to do so at the date on which notification was given.

(5) If a person gives notice of a defect, that person is to be taken for the purposes of this Act to have given notice of every defect of which the defect notified is a symptom, whether or not the claim in

S. 14(2)(a) amended by No. 39/1990 s. 13(2)(a).

S. 14(2)(b) amended by No. 52/2005 s. 8(1).


S. 14(4) amended by No. 52/2005 s. 8(3).

S. 14(4)(b) amended by No. 39/1990 s. 13(2)(b).



32

respect of the defect that was actually notified has been settled.

15 Costs

(1) VMIA must reimburse a person in whose favour a guarantee is given under this Act for any costs incurred by that person in respect of a successful claim under the guarantee, if the costs were incurred at any time after—

(a) the expiration of three months after the claim was made; or

(b) a rejection by the approved guarantor or VMIA of the claim—

whichever occurs first.

(2) This section does not apply if the costs referred to in subsection (1) were reimbursed before the appointed day.

16 Appeals

(1) A person—

(a) whose claim to the approved guarantor or VMIA for loss or damage the approved guarantor or VMIA has decided to reject; or

(b) being a claimant, to whom the approved guarantor or VMIA has decided to make an offer with which the claimant is not satisfied; or

s. 16S. 16(1)(ba) inserted by No. 39/1990 s. 14(a), amended by No. 52/2005 s. 10(1)(a).

S. 15 amended by No. 52/2005 s. 9(1)(a) (2)(ILA s. 39B(1)).

s. 15

S. 15(b) amended by No. 52/2005 s. 9(1)(b).

S. 15(2) inserted by No. 52/2005 s. 9(2).

S. 16(1) amended by Nos 91/1995 s. 160(1), 52/2005 s. 10(1)(b).


S. 16(1)(b) amended by No. 52/2005 s. 10(1)(a).



33

(ba) being a builder, who is dissatisfied with a decision of the approved guarantor or VMIA not to reject a claim made for loss or damage on account of the failure of that builder to fulfil the builder's obligations under the domestic building work contract; or

(c) being a builder, who is dissatisfied with a decision of the approved guarantor or VMIA not to reject a claim made for loss or damage on account of a defect alleged to be caused by bad workmanship on the part of that builder; or

(d) being a builder, who is dissatisfied with a decision of the approved guarantor not to approve that builder in relation to a class of domestic building work; or

(e) being a builder, who is dissatisfied with a decision of the approved guarantor to revoke the approval of that builder in relation to a class of domestic building work; or

(f) being a supervisor, who is dissatisfied with a decision of the approved guarantor or VMIA not to reject a claim made for loss or damage on account of the failure of that supervisor to fulfil the supervisor's obligations under the supervision contract; or

(g) being a supervisor, who is dissatisfied with a decision of the approved guarantor not to approve that supervisor in relation to a class of domestic building work; or

(h) being a supervisor, who is dissatisfied with a decision of the approved guarantor to revoke the approval of that supervisor in relation to a class of domestic building work—

S. 16(1)(c) amended by No. 52/2005 s. 10(1)(a).

S. 16(1)(f) inserted by No. 39/1990 s. 14(b), amended by No. 52/2005 s. 10(1)(a).

S. 16(1)(g) inserted by No. 39/1990 s. 14(b).

S. 16(1)(h) inserted by No. 39/1990 s. 14(b).



34

may, within 28 days after receiving notice from the approved guarantor or VMIA of the decision, appeal to the Tribunal5.

(2) If, within 3 months after making a claim for loss or damage, a claimant has not received notice from the approved guarantor or VMIA of its decision on the claim—

(a) if that period ended before the appointed day, the approved guarantor is to be treated as having made, on the last day of that period, a decision to accept liability for the claim; and

(b) if the period ended on or after the appointed day, VMIA is to be treated as having made, on the last day of that period, a decision to accept liability for the claim.

(3) In calculating a period of time for the purposes of subsection (2), there must not be included in the period any period during which legal proceedings brought by the claimant against the builder or supervisor involving any matter to which the claim relates had not been settled or determined.

(4) VMIA may make an offer in respect of a claim if—

(a) it has decided to accept a claim; or

(b) before the appointed day, the approved guarantor had decided to accept the claim.

(4A) Subsection (4) applies whether or not a builder has appealed under subsection (1)(ba) or (c) or a supervisor has appealed under subsection (1)(f) in respect of the decision.

s. 16S. 16(5) substituted by No. 91/1995 s. 160(3), amended by No. 52/2005 s. 10(4).

(5) An appeal by a builder under subsection (1)(ba) or (c) or by a supervisor under subsection (1)(f) is

s. 16

S. 16(2) amended by No. 91/1995 s. 160(2), substituted by No. 52/2005 s. 10(2).

S. 16(3) amended by No. 39/1990 s. 14(c).

S. 16(4) substituted by Nos 91/1995 s. 160(3), 52/2005 s. 10(3).




35

not affected by the making of an offer or any payment made by the approved guarantor or VMIA in respect of the claim which is the subject of the appeal6.

(6) If the Tribunal upholds an appeal by a builder under subsection (1)(ba) or (c) or a supervisor under subsection (1)(f), VMIA7—

(a) is not entitled to recover any amount paid to the claimant under subsection (4); and

(b) despite anything to the contrary in this Act or any document or instrument, is not entitled to recover from the builder or supervisor any amount paid to the claimant under subsection (4) which exceeds the liability in respect of the claim determined on that appeal.

(7) If a builder or supervisor appeals to the Tribunal under subsection (1), the claimant is a party to the appeal8.

(8) If a claimant appeals to the Tribunal under subsection (1), the builder or supervisor concerned is a party to the appeal9.

17 Discretionary payments

(1) Subject to subsection (2), VMIA may make a payment or payments in respect of a claim made to it or the approved guarantor which it is not liable to make but which it would have been liable to make if—

(a) the builder or supervisor had been an approved builder or an approved supervisor; or

(b) the defect had been caused by bad workmanship on the part of the builder or of

S. 16(6) amended by No. 39/1990 s. 14(d), substituted by No. 91/1995 s. 160(3), amended by No. 52/2005 s. 10(5).



S. 17(1) amended by No. 52/2005 s. 11(1)(a)(b).

S. 17(1)(a) substituted by No. 39/1990 s. 22(c)(i).

S. 17(1)(b) amended by No. 39/1990 s. 22(c)(ii).



36

a person working under the management or supervision of the supervisor.

* * * * *

17A Application of payments10

s. 17S. 17A(1) substituted by No. 52/2005 s. 12(1).

(1) If a claim relates to a failure to complete building work or a defect in building work and that claim was accepted by the approved guarantor before the appointed day or is accepted by VMIA on or after the appointed day, or is upheld on appeal, any payment made by VMIA in respect of that claim may be made on the condition that it is applied for the purpose of completion of that work or the rectification of that defect.

(2) VMIA need not impose a condition under subsection (1) if it considers that it is unreasonable or impracticable to apply the payments for that purpose.

(3) VMIA may make a payment which is subject to a condition imposed under subsection (1)—

(a) to or at the direction of the claimant, if the claimant gives an undertaking to apply the payment for the purpose for which it is made; or

(b) to any person carrying out the building work in respect of which the payment is made.

S. 17(2) amended by No. 91/1995 s. 161, repealed by No. 52/2005 s. 11(2).


S. 17A(2) amended by No. 52/2005 s. 12(2).

S. 17A(3) amended by No. 52/2005 s. 12(2).



37

(4) If the claimant is dissatisfied with a decision of VMIA to make a payment in accordance with subsection (3)(b), the claimant may, within 28 days after receiving notice from VMIA of the decision, appeal to the Tribunal against the decision.

__________________

S. 17A(4) amended by No. 52/2005 s. 12(3).

s. 17APart 6—Domestic Building (HIH) Indemnity Scheme


38

s. 17B

Pt 2A (Heading and ss 17B–17I) inserted by No. 52/2005 s. 13.

PART 2A—HOUSING GUARANTEE CLAIMS FUND

17B Housing Guarantee Claims Fund

There is to be established a Fund to be called the Housing Guarantee Claims Fund.

17C What comprises the Housing Guarantee Claims Fund?

(1) All property vested in the State under section 58 forms part of the Housing Guarantee Claims Fund.

(2) There must be paid into the Housing Guarantee Claims Fund—

(a) all money received from the disposal of any property in the Fund under section 17E(4); and

(b) any money appropriated by Parliament for the purposes of the Fund; and

(c) income from the investment of the Fund; and

(d) all fees received by VMIA under section 25; and

(e) all other money authorised or required to be paid to the Fund by any person or body.

17D Payments out of the Housing Guarantee Claims Fund

(1) There may be paid out of the Housing Guarantee Claims Fund at the direction of VMIA—


S. 17C inserted by No. 52/2005 s. 13.

S. 17D inserted by No. 52/2005 s. 13.



39

(a) any amount payable on a claim on a guarantee given under this Act; and

(b) any amount payable in respect of any liability that becomes a liability of the State under section 58; and

(c) any amount paid by the State in respect of any liability that becomes a liability of the State under section 58; and

(d) the costs and expenses incurred in the administration of the Fund and any claim on a guarantee given under this Act; and

(e) any amount determined by the Auditor-General to defray the reasonable costs and expenses of an audit of the accounts of the Fund; and

(f) with the consent of the Minister, any amount required to meet the costs and expenses of and any liabilities arising on the winding up of HGFL; and

(g) any other amount authorised by or under this or any other Act to be paid out of the Fund.

(2) All amounts paid out of the Fund under subsection (1)(c) or (1)(e) must be paid into the Consolidated Fund.

(3) All money and other property in the Fund is an asset of the State.

17E Powers of VMIA in relation to the Housing Guarantee Claims Fund

(1) VMIA may invest any part of the Housing Guarantee Claims Fund that is not immediately required for the purposes of the Fund in any manner approved by the Treasurer.

(2) Despite subsection (1), VMIA may continue any investment of funds of HGFL existing

s. 17E

S. 17E inserted by No. 52/2005 s. 13.



40

immediately before the appointed day and forming part of the Housing Guarantee Claims Fund as if the investment had been made by VMIA.

(3) VMIA may use any property in the Fund for any purpose related to the administration of the Fund.

(4) VMIA may dispose of any property (other than money) in the Fund.

(5) VMIA may enter into any agreement with any person in relation to the settlement of any liability of the State or to the State transferred under section 58.

17F Report to Minister

VMIA must from time to time at the direction of the Minister report to the Minister in the manner required by the Minister on its administration of—

(a) claims on guarantees given by HGFL or the State under this Act; and

(b) the Housing Guarantee Claims Fund.

17G Auditor-General to audit financial statements of Housing Guarantee Claims Fund

(1) The financial statements of the Housing Guarantee Claims Fund must be audited annually by the Auditor-General.

(2) The Auditor-General has in respect of the audit all the powers conferred on the Auditor-General by any law relating to the audit of the Public Account.

(3) The Auditor-General must submit a report of the audit to the Minister.

(4) The Minister must cause a copy of any audit report to be laid before each House of Parliament within 7 sitting days of that House after it is received by the Minister under subsection (3).

s. 17F

S. 17F inserted by No. 52/2005 s. 13.

S. 17G inserted by No. 52/2005 s. 13.



41

17H Annual report

VMIA must include in its annual report for a financial year under Part 7 of the Financial Management Act 1994—

(a) details of its administration of—

(i) claims on guarantees given by HGFL or the State under this Act; and

(ii) the Housing Guarantee Claims Fund; and

(b) the audited financial statements of the Housing Guarantee Claims Fund.

17I Remaining funds to be paid into Domestic Builders Fund

(1) If the Minister is satisfied that all claims on a guarantee given under this Act have been dealt with and that no further claim can be made on a guarantee given under this Act, the Minister may by notice published in the Government Gazette, close the Housing Guarantee Claims Fund.

(2) On the publication of the notice under subsection (1) all money standing to the credit of the Housing Guarantee Claims Fund must be paid into the Domestic Builders Fund established under the Domestic Building Contracts Act 1995.

_______________

S. 17H inserted by No. 52/2005 s. 13.

s. 17H

S. 17I inserted by No. 52/2005 s. 13.



42

PART 3—DOMESTIC BUILDING WORK CONTRACTS

18 Requirements in relation to domestic building work contracts

(1) The following requirements must be complied with in relation to a domestic building work contract:

(a) The contract must set out in writing—

(i) the names of the parties; and

(ii) the subject-matter of the contract, either fully or in summary; and

(iia) the date of commencement of work or the method by which the date of commencement is to be determined; and

(iib) the estimated date of completion of work or the estimated number of days from the date of commencement of work that is required for the completion of work; and

(iii) the contract price or, in the case of a cost plus contract, the manner in which the contract price is to be determined; and

(iv) the date of the contract;

(aa) If the contract does not set out the date of commencement of work, the contract must contain a provision that the builder will use all reasonable endeavours to expedite the commencement of the work;

(b) Subject to subsection (4), the contract must comply with any requirements of the regulations as to the contents of domestic building work contracts;

s. 18

S. 18(1)(a)(iia) inserted by No. 39/1990 s. 15(1).

S. 18(1)(a)(iib) inserted by No. 39/1990 s. 15(1).

S. 18(1)(aa) inserted by No. 39/1990 s. 15(2).



43

(c) The contract, or the part of it that is in writing if it is not all in writing, must be signed by the builder and the building owner personally or by an agent authorised to act on behalf of the builder or building owner;

(d) The building owner must be given a copy of the signed contract or part contract (as the case requires) as soon as reasonably practicable after it has been signed by both parties together with any notice that the Minister may, by order published in the Government Gazette, require to be given;

(e) The copy of the contract or part contract (as the case requires) and the notice given to the building owner must (apart from signatures or initials) be readily legible.

(2) If a requirement of paragraph (a), (c), (d) or (e) of subsection (1) is not complied with—

(a) the builder is guilty of an offence and liable to a penalty of not more than 50 penalty units.

* * * * *

(3) If a requirement of paragraph (aa) or (b) of subsection (1) is not complied with—

(a) the builder is guilty of an offence and liable to a penalty of not more than 10 penalty units; and

(b) the contract has effect as if the requirement had been complied with.

s. 18

S. 18(2)(a) amended by No. 5/1989 s. 7(a)(i).

S. 18(2)(b) repealed by No. 5/1989 s. 7(a)(ii).

S. 18(3) amended by Nos 5/1989 s. 7(b), 39/1990 s. 15(3).



44

(4) The Governor in Council in the regulations may, in specifying a requirement to be complied with as to the contents of domestic building work contracts, provide for the exemption of a contract from that requirement if the building owner, in such manner as is specified in the regulations, agrees to the exclusion of that requirement.

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


(6) A builder must not enter into a cost plus contract that does not set out in writing a fair and reasonable estimate by the builder of the contract price.

Penalty: 2 penalty units.

(6A) A builder must not enter into a contract that includes domestic building work and any other work unless the contract—

(a) identifies which work is domestic building work; and

(b) sets out—

(i) particulars of the domestic building work to be performed; and

(ii) the amount payable under the contract in respect of that domestic building work.


s. 18




45

(7) A contract is not illegal, void or unenforceable only because a requirement of paragraph (a), (c), (d) or (e) of subsection (1) or of subsection (5), (6) or (6A) is not complied with.

19 Variation of domestic building work contract

(1) Subject to subsection (2), if at any time after a domestic building work contract is entered into a variation is made to the contract, the builder is not entitled to recover in any court the cost of any work performed or materials supplied under the variation unless the variation is in writing and signed by the builder and the building owner personally or by an agent authorised to act on behalf of the builder or building owner.

(2) Subsection (1) does not apply to a variation that is made necessary by—

(a) any written directions lawfully given by a building surveyor; or

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

if the builder gives to the building owner within seven days after the variation is made a statement setting out the reason for, and the cost to be incurred in consequence of, the variation and a copy of the directions (if any) given by the building surveyor.

(3) This section does not apply in relation to a cost plus contract.

S. 18(7) amended by Nos 5/1989 s. 7(c), 39/1990 s. 15(5), 11/2002 s. 3(Sch. 1 item 34.2).



46

20 Limit on amount of deposit

(1) A person must not demand or receive under a domestic building work contract, or enter into a domestic building work contract under which the person is entitled to demand or receive—

(a) if the contract price is $20 000 (or any larger amount that is prescribed for the purposes of this subsection) or more, more than 3% of the contract price; or

(b) if the contract price is less than $20 000 (or any larger amount that is prescribed for the purposes of this subsection), more than 10% of the contract price—

before the commencement of the domestic building work that is the subject of the contract.


(2) For the purposes of this section, the definition of domestic building work in section 3(1) includes the work of moving from one site to another a building described in paragraph (d) of that definition.

(3) If a domestic building work contract contains a provision that contravenes subsection (1), the contract is voidable at the option of the building owner at any time before completion of the contract, unless the court is of the opinion that in the particular circumstances it would be inequitable for the contract to be avoided.

(4) If a person is convicted of an offence against subsection (1), the convicting court may order the person convicted to pay to the building owner a sum not exceeding the total amount already paid by the building owner under the terms of the contract.

s. 20

S. 20(1)(a) amended by No. 39/1990 s. 16.

S. 20(1)(b) amended by No. 39/1990 s. 16.



47

(5) The reference in subsection (4) to a person who is convicted of an offence includes a reference to a person who, without being convicted of the offence, is found guilty of or has pleaded guilty to the offence and the reference in that subsection to the convicting court is to be construed accordingly.

(6) This section does not apply in relation to a cost plus contract.

21 Limit on progress payments

(1) In this section—

base stage, in relation to a dwelling-house, means the stage when—

(a) in the case of a concrete slab floor, the floor is completed; and

(b) in the case of a timber floor, the concrete footings are poured and the base brickwork is built to floor level;

frame stage, in relation to a dwelling-house, means the stage when the house's frame is completed and approved by the building surveyor;

lock-up stage, in relation to a dwelling-house, means the stage when the external wall cladding and roof covering is fixed, the flooring laid and the doors and windows fixed;

fixing stage, in relation to a dwelling-house, means the stage when all internal architraves, skirtings, doors, built-in shelves, baths, basins, troughs, sinks, cabinets and cupboards are fitted and fixed in position.



48

(2) This section does not apply in relation to a contract between a builder and a government department or public statutory authority or in relation to a cost plus contract.

(3) Unless the parties to a domestic building work contract otherwise agree in writing in the prescribed manner, a person who constructs a dwelling-house must not demand or receive under the contract, or enter into a contract under which that person is entitled to demand or receive, in the case of a contract described in column 1 of the Table more than the percentage of the contract price specified in column 2 of the Table at the completion of a stage specified in column 3 of the Table in relation to that contract.

Penalty:20 penalty units.TABLE

Column 1

Type of contract

Column 2Percentageof contractprice

Column 3

Stage

Contract to build to lock-up stage 20% Base stage " 25% Frame stage

Contract to build to fixing stage 12% Base stage " 18% Frame stage " 40% Lock-up stage

Contract to construct through all stages 10% Base stage " 15% Frame stage " 35% Lock-up stage " 25% Fixing stage

(4) A contract is not illegal, void or unenforceable only because a requirement of this section is not complied with.



49

21A Arbitration provisions11

(1) If a provision of a domestic building work contract requires any dispute to be referred to arbitration, that provision shall on and from the commencement of section 163 of the Domestic Building Contracts and Tribunal Act 1995 be deemed to be a requirement to refer the matter for determination by the Tribunal.

(2) Subsection (1) applies despite anything to the contrary in the domestic building work contract.

(3) Despite subsection (1), if a dispute under a domestic building work contract had been referred to arbitration before the commencement of section 163 of the Domestic Building Contracts and Tribunal Act 1995 and had not been determined before that commencement the arbitration may be continued and completed as if that section had not been enacted.

_______________


s. 21A

S. 21A(1) amended by No. 11/2002 s. 3(Sch. 1 item 34.3).



50

PART 4—THE REGISTER

* * * * *

* * * * *

* * * * *

* * * * *

Pt 4 (Heading) substituted by No. 52/2005 s. 14.

S. 22 amended by Nos 39/1990 s. 17, 83/1992 s. 180, 91/1995 s. 164, 26/2001 s. 5, repealed by No. 52/2005 s. 15.

s. 22

S. 22A inserted by No. 91/1995 s. 165, amended by Nos 2/1996 s. 8, 52/1998 s. 311(Sch. 1 item 40.2), 26/2001 s. 6, repealed by No. 52/2005 s. 15.

S. 23 amended by Nos 5/1989 s. 8, 39/1990 s. 18, 11/2002 s. 3(Sch. 1 item 34.4), repealed by No. 52/2005 s. 15.

S. 24 amended by No. 39/1990 s. 19, repealed by No. 52/2005 s. 15.



51

25 Registers to be kept by VMIA

s. 25S. 25(1) amended by Nos 39/1990 s. 22(d)(i)(ii), 126/1993 s. 264(Sch. 5 item 10.3), substituted by No. 52/2005 s. 16(2).

(1) VMIA must, in the form required by the Minister, keep—

(a) a register of builders and supervisors approved by the approved guarantor; and

(b) a register of work in relation to which a guarantee given by the approved guarantor under this Act is in force and of which the approved guarantor has received notice under section 24 of this Act or section 27(3) of the Building Act 1993 or of which the approved guarantor otherwise had actual notice before the appointed day.

(2) VMIA must permit a person to inspect a register required to be kept by it under subsection (1) at any time during ordinary office hours at its offices.

(3) VMIA must, on payment of the prescribed fee, issue a certificate in accordance with the regulations certifying—

(a) whether or not a person named in the certificate is approved by the approved guarantor; or

(b) whether or not a person named in the certificate has notified the approved guarantor under section 24 of a matter specified in the certificate; or

(c) whether or not work specified in the certificate is work in relation to which a

S. 25 (Heading) inserted by No. 52/2005 s. 16(1).



S. 25(3)(a) amended by No. 39/1990 s. 22(d)(iii).

S. 25(3)(c) amended by No. 52/2005 s. 16(4)(c).



52

guarantee given by the approved guarantor or the State under this Act is in force; or

(d) whether or not a person named in the certificate has notified the approved guarantor under section 27(3) of the Building Act 1993 of an application for building approval.

(4) VMIA must, at the request of the applicant for the certificate, include in a certificate issued under subsection (3) a statement as to whether or not the approved guarantor or VMIA has received a claim under a guarantee in force in relation to the building to which the certificate relates.

s. 25S. 25(5) substituted by No. 52/2005 s. 16(5).

(5) A document purporting to be a register or part of a register required to be kept by VMIA under subsection (1) and purporting to be certified by VMIA as that register or part of that register is admissible in evidence in any proceedings for an offence against this Act and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

(6) A certificate purporting to be issued by VMIA under subsection (3) or by the approved guarantor under subsection (3) as in force immediately before the appointed day, is admissible in evidence in any proceedings for an offence against this Act and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

* * * * *

S. 25(3)(d) amended by No. 126/1993 s. 264(Sch. 5 item 10.4).



S. 25A inserted by No. 5/1989 s. 9, amended by No. 44/2001 s. 3(Sch. item 62.4, 62.5), repealed by No. 52/2005 s. 17.



53

_______________



54

PART 5—MISCELLANEOUS

26 Supervision contractss. 26


(1) A person must not enter into a supervision contract with another person unless—

(a) the supervisor is an approved builder or an approved supervisor; or

(b) the other person has entered into, or in the supervision contract agrees to enter into, a domestic building work contract with an approved builder.


(1A) The following requirements must be complied with in relation to a supervision contract:

(a) The contract must set out in writing—

(i) the names of the parties; and

(ii) the date of the contract; and

(iii) the subject-matter of the contract, either fully or in summary; and

(iv) the date of commencement of work or the method by which the date of commencement is to be determined; and

(v) the estimated date of completion of work or the estimated number of days from the date of commencement of work that is required for the completion of work; and

(vi) the fair and reasonable estimate of the total cost of works, including a fair and reasonable estimate of the cost of the




55

works to be performed by each tradesperson or type of tradesperson; and

(vii) the contract price, or the manner in which the contract price is to be determined; and

(viii) outlays or other charges;

(b) Subject to subsection (1D), the contract must comply with any requirements of the regulations as to the contents of supervision contracts;

(c) The contract, or the part of it that is in writing if it is not all in writing, must be signed by both parties personally or by an agent authorised to act on behalf of them;

(d) The building owner must be given a copy of the signed contract or part contract (as the case requires) as soon as reasonably practicable after it has been signed by both parties together with any notice that the Minister may, by order published in the Government Gazette, require to be given;

(e) The copy of the contract or part contract (as the case requires) and the notice given to the building owner must (apart from signatures or initials) be readily legible;

(f) The contract must contain a provision that any variation to the supervision contract must be in writing and signed by both parties personally or by an agent authorised to act on behalf of them.

(1B) If a requirement of paragraph (a), (c), (d) or (e) of subsection (1A) is not complied with, the supervisor is guilty of an offence and liable to a penalty of not more than 50 penalty units.

s. 26




56

(1C) If a requirement of paragraph (b) or (f) of subsection (1A) is not complied with—

(a) the supervisor is guilty of an offence and liable to a penalty of not more than 10 penalty units; and

(b) the contract has effect as if the requirement had been complied with.

(1D) If, at any time after a supervision contract is entered into, a supervisor purports to vary the supervision contract otherwise than in writing, the supervisor is guilty of an offence and liable to a penalty of not more than 10 penalty units.

(1E) The Governor in Council in the regulations may, in specifying a requirement to be complied with as to the contents of supervision contracts, provide for the exemption of a contract from that requirement if the building owner, in such manner as is specified in the regulations, agrees to the exclusion of that requirement.

(1F) A contract is not illegal, void or unenforceable only because a requirement of paragraph (a), (c), (d) or (e) of subsection (1A) is not complied with.

(2) If a supervision contract contravenes subsection (1)—

(a) the contract is voidable, at any time before completion of the contract, at the option of the building owner; and

(b) the supervisor is not entitled to recover in any court the cost of any work performed under the contract.

S. 26(1C) inserted by No. 39/1990 s. 20(1).

s. 26

S. 26(1D) inserted by No. 39/1990 s. 20(1).

S. 26(1E) inserted by No. 39/1990 s. 20(1).

S. 26(1F) inserted by No. 39/1990 s. 20(1).


S. 26(2)(b) amended by No. 39/1990 s. 20(2)(b).



57

(3) If a supervision contract complies with subsection (1) by reason that the building owner agrees in the supervision contract to enter into a contract with an approved builder for the performance of the domestic building work and the building owner fails to do so, then—

(a) the building owner is guilty of an offence and liable to a penalty of not more than 100 penalty units; and

(b) the contract is voidable at the option of the supervisor at any time before completion of the contract.

27 False representations

(1) A person must not—

(a) represent that a person has a status under or for the purposes of this Act that the person does not have; or

(b) represent that a building has a status under or for the purposes of this Act that it does not have; or

(c) falsely represent that a guarantee of a particular type is in force under this Act; or

(d) make a false or misleading statement concerning the making of a claim to the VMIA under this Act.


(2) It is a defence to a prosecution of a person for an offence against subsection (1) if the person proves that the person believed on reasonable grounds that the representation was true or that the statement was not false or misleading.

* * * * *


S. 26(3)(a) amended by No. 39/1990 s. 20(3)(c).

S. 26(3)(b) amended by No. 39/1990 s. 20(3)(d).

s. 27

S. 27(1)(d) amended by No. 52/2005 s. 18.

S. 28 repealed by No. 91/1995 s. 166.



58

29 Offences by corporation

If an offence against this Act committed by a corporation is proved to have been committed with the consent or connivance of, or to have been attributable to any wilful neglect on the part of, an officer of the corporation, that officer is also guilty of that offence and liable to the penalty for that offence.

30 Time limit for proceedings

Despite anything to the contrary in any Act, proceedings for an offence against this Act may be commenced within the period of 3 years after the commission of the alleged offence and not afterwards.

31 Act not to limit liability of builder

Nothing in this Act limits the liability that a person would have had to any other person if this Act had not been enacted.

32 Agreement to exclude etc. operation of Act void

A provision in a contract that, but for this section, would have the effect of excluding, limiting, modifying or restricting the operation of this Act, or a liability arising under this Act, is void.

32A Person cannot sign away right to take advantage of a guarantee12

A provision of an agreement or instrument that purports to restrict or remove the right of a person to take proceedings in respect of a building defect to which a guarantee under this Act applies is void to the extent that it applies to a defect other than a defect that was known or ought reasonably to

s. 29

S. 31 amended by No. 39/1990 s. 22(e).




59

have been known to the person to exist at the time the agreement or instrument was executed.

33 Regulations

(1) The Governor in Council may make regulations for or with respect to—

(a) prescribing terms and conditions with which the approved guarantor must comply;

(b) prescribing a class of work to be domestic building work;

(c) prescribing a class of building not to be a dwelling-house;

(d) prescribing provisions to be included in a domestic building work contract or a supervision contract or a contract included in a class of domestic building work contracts or supervision contracts and prescribing the circumstances in which it is not necessary for those provisions to be so included;

(e) prescribing the manner in which the parties to a domestic building work contract may agree to exempt that contract from the operation of section 21(3);

(f) prescribing terms and conditions to which guarantees, or guarantees included in a class of guarantees, given under this Act are subject;

(g) prescribing the form of certificates to be issued by the approved guarantor under section 25(3);

(h) prescribing amounts for the purposes of—

(i) paragraph (b) of the definition of domestic building work contract in section 3(1); and

s. 33

S. 33(1)(d) amended by No. 39/1990 s. 21(a)(i)(ii).

S. 33(1)(h) substituted by No. 39/1990 s. 21(b).



60

(ii) the definition of supervision contract in section 3(1); and

(iii) section 7(4), (5) and (6); and

(iv) section 20(1);

(i) exempting a person or a person included in a class of persons from the operation of this Act and prescribing the extent of the exemption;

(j) prescribing fees;

(k) prescribing forms;

(l) generally prescribing any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2) A power conferred by this Act to make regulations may be exercised—

(a) either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified case or class of case;

(b) so as to make, as respects the cases in relation to which it is exercised—

(i) the same provision for all cases in relation to which the power is exercised, or different provisions for different cases or classes of case, or different provisions for the same case or class of case for different purposes; or

(ii) any such provision either unconditionally or subject to any specified condition.



61

(3) Regulations made under this Act may be made—

(a) so as to apply—

(i) at all times or at a specified time; or

(ii) throughout the whole of the State or in a specified part of the State; or

(iii) as specified in both subparagraphs (i) and (ii);

(b) so as to confer a discretionary authority or impose a duty on a specified person or body or a specified class of persons or bodies;

(c) so as to impose a penalty not exceeding 10 penalty units for a contravention of the regulations.

(4) Regulations made under this Act may be disallowed in whole or in part by resolution of either House of the Parliament.

* * * * *

34 Transitional provisions

(1) The repeal by section 35 of this Act of Division 1A of Part XLIX of the Local Government Act 1958 does not affect the operation of any guarantee given under that Division in respect of a dwelling-house.

(2) Part 2 does not apply to—

S. 33(4) substituted by No. 5/1989 s. 10, amended by No. 78/2010 s. 24(Sch. 1 item 16.1).

S. 33(5) inserted by No. 5/1989 s. 10, repealed by No. 78/2010 s. 24(Sch. 1 item 16.2).



62

(a) work performed under a domestic building work contract that was entered into before the commencement of that Part; or

(b) the work of constructing a dwelling-house if that dwelling-house was sold under a contract that was entered into before the commencement of that Part; or

(c) work in relation to which a guarantee was in force under Division 1A of Part XLIX of the Local Government Act 1958 immediately before the commencement of that Part.

(3) Part 3 does not apply to a domestic building work contract that was entered into before the commencement of that Part.

(4) Section 26 does not apply to a supervision contract within the meaning of that section that was entered into before the commencement of that section.

(5) A builder recognised by the approved guarantor under its rules immediately before the commencement of section 23(1) is on and from that commencement, but subject to this Act, to be deemed to be a builder approved by the approved guarantor under section 23(1)(a) until that approval is revoked.

(6) The amendment of the Sale of Land Act 1962 made by section 36(1) of this Act does not apply to a contract for the sale of land entered into before the commencement of that section.

34A Savings provisions

(1) If a domestic building work contract or supervision contract was entered into in April 1996, the guarantee referred to in section 6(1) or (1A) is deemed to have been given on the




63

domestic building work contract or supervision contract being entered into.

(2) If a contract for sale referred to in section 6(1)(b) was entered into in April 1996, the guarantee referred to in section 6(1) is deemed to have been given on the completion of that contract.

(3) If—

(a) a contract for sale referred to in section 6(1)(c) was entered into in April 1996; and

(b) section 9 had been complied with before that contract was entered into—

the guarantee referred to in section 6(1) is deemed to have been given on the completion of that contract.

(4) If—

(a) a contract for sale referred to in section 10 was entered into in April 1996; and

(b) section 10(1) had been complied with before that contract was entered into—

the guarantee referred to in that section is deemed to have been given on the completion of that contract.

(5) Any approval given or purported to have been given in April 1996 by the approved guarantor under section 23 is deemed to have been validly given under that section.

(6) Any certificate issued or purported to have been issued in April 1996 by the approved guarantor under section 25(3)(d) is deemed to have been validly issued under that section.

(7) All money received by the approved guarantor under this Act or purportedly under this Act in



64

April 1996 is deemed to have been validly received by the approved guarantor and paid into its funds.

(8) If any dispute arises in relation to the operation of this section, any person affected may refer the dispute to the Tribunal for determination.

34B Notice to approved guarantor

If, before the commencement of section 7 of the Domestic Building Contracts and Tribunal (Amendment) Act 1996, an approved builder or approved supervisor has not served on the approved guarantor a notice referred to in section 24 in respect of a contract entered into or building work commenced in April 1996, the approved builder or approved supervisor must serve that notice on the approved guarantor within 14 days after that commencement.


34C No offence for certain acts or failures to act under this Act in April 1996

Despite anything to the contrary in this Act, a person is not liable for an offence under this Act for an action or failure to act which but for section 2(1A) of the Domestic Building Contracts and Tribunal Act 1995 and section 3(2) of the Domestic Building Contracts and Tribunal (Amendment) Act 1996 would not have constituted an offence at the time of the action or failure to act.

* * * * *

_______________


s. 34B

S. 34C inserted by No. 2/1996 s. 7.

Ss 35–38 repealed by No. 26/2001 s. 7.



65

PART 6—DOMESTIC BUILDING (HIH) INDEMNITY SCHEME

Division 1—Introductory

35 Interpretation

(1) In this Part—

builder has the same meaning as it has in the Domestic Building Contracts Act 1995;

building owner has the same meaning as it has in the Domestic Building Contracts Act 1995;

building site has the same meaning as it has in the Domestic Building Contracts Act 1995;

developer in relation to a HIH policy, means any building owner or other person for whom three or more homes were being or were proposed to be built—

(a) on any one building site; or

(b) on more than one building site under a major domestic building contract—

at the time that the building work to which the HIH policy applied commenced;

domestic building work has the same meaning as it has in the Domestic Building Contracts Act 1995;

* * * * *

Pt 6 (Heading and ss 35–56) inserted by No. 26/2001 s. 8.

New s. 35 inserted by No. 26/2001 s. 8, amended by No. 25/2002 s. 4(2) (ILA s. 39B(1)).

s. 35

S. 35(1) def. of building owner inserted by No. 25/2002 s. 4(1).

S. 35(1) def. of building site inserted by No. 25/2002 s. 4(1).

S. 35(1) def. of developer inserted by No. 25/2002 s. 4(1).

S. 35(1) def. of HGFL repealed by No. 52/2005 s. 19.



66

HIH means—

(a) HIH Casualty and General Insurance Ltd. A.C.N. 008 482 291; or

(b) FAI General Insurance Company Ltd. A.C.N. 000 327 855;

HIH policy means a contract of insurance—

(a) which was underwritten by HIH (otherwise than as reinsurer) before the relevant date; and

(b) which at the time it was underwritten by HIH was—

(i) insurance required by order under section 135(1)(a) and (c) of the Building Act 1993 in relation to the carrying out of domestic building work or managing or arranging the carrying out of domestic building work; or

(ii) insurance required by order under section 135(1)(b) and (c) of the Building Act 1993; and

(c) which relates to building work for which a building permit was issued under the Building Act 1993 before the relevant date;

home has the same meaning as it has in the Domestic Building Contracts Act 1995;

liquidator includes provisional liquidator;

loss includes damage and costs;

major domestic building contract has the same meaning as it has in the Domestic Building

s. 35

S. 35(1) def. of home inserted by No. 25/2002 s. 4(1).

S. 35(1) def. of major domestic building contract inserted by No. 25/2002 s. 4(1).



67

Contracts Act 1995;

owner-builder in relation to a building, means—

(a) a person to whom section 137B(2) of the Building Act 1993 applies; or

(b) a mortgagee in possession of the building from that person; or

(c) an executor or administrator of the estate of that person;

relevant date means 30 April 2001.

(2) In calculating the number of homes that were being built or were proposed to be built for the purposes of determining whether a building owner or other person is a developer, a home which was or was to be the principal place of residence of that building owner or person is to be disregarded.

36 This Part only applies in respect of work carried out or to be carried out in Victoria

Nothing in this Part applies in relation to any building work carried out or to be carried out outside Victoria or to any loss arising in relation to that work.

36A Existing proceedings to be affected by amendments

To avoid doubt it is declared that the amendments made to this Part by the House Contracts Guarantee (HIH Further Amendment) Act 2002 are intended to affect the rights of parties to proceedings commenced in any court or tribunal but not finally determined before the date on which that Act received the Royal Assent.

Division 2—Indemnity

S. 35(2) inserted by No. 25/2002 s. 4(2).

New s. 36 inserted by No. 26/2001 s. 8.

s. 36




68

37 Indemnity

(1) Subject to this Part, the State must indemnify any person who is entitled to an indemnity under a HIH policy to the extent of the indemnity under that policy.

(2) Despite any provision of a HIH policy which limits the liability of HIH if it ceases to trade, a person is deemed for the purposes of this section to be entitled to an indemnity under a HIH policy if that person would have been entitled to that indemnity if HIH had not ceased to trade.

38 What is not covered by the indemnity?

(1) An indemnity under section 37 does not apply—

(a) to the builder or owner-builder covered by the HIH policy; or

(aa) to the developer covered by the HIH policy, or

(b) to any loss if an indemnity is provided in relation to the loss by another contract of insurance which is—

(i) insurance required by order under section 135(1)(a) and (c) of the Building Act 1993 in relation to the carrying out of domestic building work or managing or arranging the carrying out of domestic building work; or

(ii) insurance required by order under section 135(1)(b) and (c) of the Building Act 1993; or

New s. 37 inserted by No. 26/2001 s. 8, amended by No. 25/2002 s. 6 (ILA s. 39B(1)).

s. 37

S. 37(2) inserted by No. 25/2002 s. 6.

New s. 38 inserted by No. 26/2001 s. 8.

S. 38(1)(aa) inserted by No. 25/2002 s. 7(1).



69

(ba) to any loss indemnified under the HIH policy that is a not a loss of a kind required by the relevant order under section 135 of the Building Act 1993 to be indemnified; or

(c) to any loss if a claim has been made under the HIH policy in respect of the loss and payment in full has been received by the claimant; or

(d) to any loss if—

(i) a claim for the loss was determined by the Tribunal or a court before the relevant date not to be a valid claim under the HIH policy; and

(ii) the claimant is not entitled to bring any further proceedings on or after the relevant date to appeal against or seek a review of that determination; or

(e) to any loss if the building work to which the indemnity under the HIH policy applied commenced on site on or after 31 May 2001.

(2) If a claim has been made under a HIH policy in respect of a loss and settlement has been reached or a determination has been made by the Tribunal or a court in respect of the claim—

(a) the amount of the loss for which an indemnity is provided under section 37 in respect of the loss is the amount so agreed in the settlement or determined by the Tribunal or the court; and

(b) the amount of the loss for which an indemnity is provided under section 37 in respect of the loss is reduced by any amount paid by HIH or a liquidator of HIH to the claimant in respect of the claim on the HIH policy.

S. 38(1)(ba) inserted by No. 25/2002 s. 7(2).



70

(3) Section 37 does not apply to indemnify a loss if the indemnity for that loss under the HIH policy arises solely because—

(a) a claim for the loss has been made on the HIH policy on or after 16 December 2000; and

(b) the claim is deemed to have been accepted under the HIH policy because it was not dealt with by HIH within the period specified by the policy.

(4) Nothing in subsection (3) prevents section 37 from applying to indemnify a loss to the extent that the loss is indemnified under the HIH policy otherwise than in the circumstances set out in subsection (3).

(5) If—

(a) a builder is entitled to an indemnity under a HIH policy in relation to building work; and

(b) the HIH policy was issued to comply with an order made before October 1998 under section 135 of the Building Act 1993; and

(c) the building owner of the building work to which the HIH policy applies is not entitled to an indemnity under the HIH policy; and

(d) the builder is not entitled to an indemnity under section 37 in respect of the indemnity under the HIH policy because of subsection (1)(a)—

the building owner is entitled to an indemnity under section 37 in respect of a loss to the same extent that the builder would have been entitled under that section in respect of that loss if subsection (1)(a) had not been enacted.

(6) The exclusion by subsection (1)(aa) of a developer covered by a HIH policy from an indemnity under

S. 38(3) inserted by No. 25/2002 s. 7(3).

S. 38(4) inserted by No. 25/2002 s. 7(3).

S. 38(5) inserted by No. 25/2002 s. 7(3).

s. 38

S. 38(6) inserted by No. 25/2002 s. 7(3).



71

section 37 in respect of building work does not affect the right of any person who is the subsequent owner of the building or land on which the building work was carried out and who is covered by that HIH policy to an indemnity under section 37.

(7) The exclusion by subsection (1)(aa) of a developer covered by a HIH policy from an indemnity under section 37 in respect of building work does not apply to—

(a) a person specified in the Schedule in respect of a claim lodged by that person with HGFL on the date specified in the Schedule in respect of that person;

(b) a developer who lodged a claim with HGFL before 1 November 2001 if settlement of the claim was reached with HGFL before the date on which the House Contracts Guarantee (HIH Further Amendment) Act 2002 received the Royal Assent.

39 What are the functions and powers of VMIA in relation to the indemnity scheme?

s. 39S. 39(1) amended by No. 52/2005 s. 20(2).

(1) VMIA is responsible for the administration of—

(a) the indemnity scheme established under this Part; and

(b) the Domestic Building (HIH) Indemnity Fund.

S. 38(7) inserted by No. 25/2002 s. 7(3).

S. 39 (Heading) amended by No. 52/2005 s. 20(1).S. 39 inserted by No. 26/2001 s. 8.



72

(2) VMIA has any other functions conferred on it under this Part.

(3) Without limiting its other powers, VMIA has any powers necessary to carry out its functions under this Part.

(4) VMIA acts on behalf of the State in carrying out its functions and exercising its powers under or for the purposes of this Part.

(5) No claim under this Part can be made on the assets of VMIA and the assets of VMIA are not available for the payment of any amount of claim, costs or expenses under this Part.

40 Who can make a claim under the scheme?

(1) A person who has incurred a loss which is covered by an indemnity under section 37 may make a claim against the Domestic Building (HIH) Indemnity Fund in respect of that loss.

(2) A claim must be lodged with VMIA in accordance with the procedures approved by the Minister under section 41.

(3) A claim may be made under this section in respect of a loss whether or not a claim in respect of that loss has been made against HIH or a liquidator of HIH or any other person.

(4) If a claim is made under this section, the liquidator of HIH must make available to VMIA, on request, copies of any relevant documents held by the liquidator in relation to the HIH policy to which the claim relates.

41 Procedure for claims

S. 39(2) amended by No. 52/2005 s. 20(2).

S. 39(3) amended by No. 52/2005 s. 20(2).

S. 39(4) amended by No. 52/2005 s. 20(2).

S. 39(5) amended by No. 52/2005 s. 20(2).

S. 40 inserted by No. 26/2001 s. 8.

s. 40

S. 40(2) amended by No. 52/2005 s. 20(2).

S. 40(4) amended by No. 52/2005 s. 20(2).




73

(1) Subject to subsection (2), VMIA may from time to time submit to the Minister for approval the procedures it proposes to adopt in the handling and resolution of claims under this Part.

s. 41S. 41(2) repealed by No. 52/2005 s. 21(2).

* * * * *

(3) VMIA may propose to adopt as part of its procedures—

(a) the requirement that a claim be made in a particular way; and

(b) the requirement that a claim be made within a particular time; and

(c) the requirement that a claimant supply to it a statutory declaration made by the claimant verifying any information supplied to VMIA by the claimant in respect of the claim.

(3A) The Minister must consult with the Minister administering the Victorian Managed Insurance Authority Act 1996 before approving the procedures.

(4) The Minister may approve the procedures with or without amendment.

(5) VMIA must adopt the procedures approved by the Minister.

(6) A procedure does not take effect unless it has been approved by the Minister.

* * * * *

S. 41(1) amended by No. 52/2005 s. 21(1).

S. 41(3) amended by No. 52/2005 s. 21(3).

S. 41(3)(c) amended by No. 52/2005 s. 21(3).


S. 41(5) amended by No. 52/2005 s. 21(3).

S. 41(7) repealed by No. 52/2005 s. 21(2).



74

42 When is a claim paid?

If VMIA accepts a claim in respect of a loss covered by an indemnity under section 37, VMIA must pay to the person out of the Domestic Building (HIH) Indemnity Fund the amount assessed by VMIA as payable under the indemnity.

43 Assignment of rights

(1) VMIA must not pay any amount under section 42 in respect of a claim unless—

(a) the person entitled to payment under the claim has first assigned in writing to the State the person's right to recover from HIH, the builder or, if required by VMIA, any other person any amount in respect of the loss; and

(b) express notice in writing of the assignment has been given to HIH, the builder or other person, as the case requires.

(2) If a person assigns to the State a right to recover from HIH under a HIH policy, the liquidator of HIH must not take into account any amount paid out under an indemnity under this Part in determining a claim under that policy.

44 VMIA may require builder to make payments or rectify work

S. 42 inserted by No. 26/2001 s. 8, amended by No. 52/2005 s. 22(1).

s. 42


S. 43(1) amended by No. 52/2005 s. 22(2).

S. 43(1)(a) amended by No. 52/2005 s. 22(2).

S. 43(2) amended by No. 52/2005 s. 22(3).




75

(1) Subject to subsection (3), if a claim is made under section 40 for loss arising from incomplete or defective building work, VMIA may give reasonable directions to the builder concerned in respect of—

(a) the completion of the building work or the rectification of the defective building work; or

(b) the payment by the builder to the Domestic Building (HIH) Indemnity Fund of any amount in respect of the completion of the building work or the rectification of the defective building work.

(2) Subject to subsection (3), if a claim is made under section 40, VMIA may direct the builder concerned to pay to the Domestic Building (HIH) Indemnity Fund any amount paid out of the Fund on that claim.

(3) VMIA may only give a direction under subsection (1) or (2) to the extent that HIH would be able to require that work or require a payment to HIH by the builder under the relevant HIH policy.

(4) A builder must comply with a direction under subsection (1) or (2).

(5) VMIA may recover an amount to be paid by a builder under this section in any court of competent jurisdiction as a debt due to the State.

45 Other rights not affected

Subject to section 43, nothing in this Part affects any right that a person has against an owner-

s. 44

S. 44(1) amended by No. 52/2005 s. 22(5).

S. 44(2) amended by No. 52/2005 s. 22(5).

S. 44(3) amended by No. 52/2005 s. 22(5).

S. 44(5) amended by No. 52/2005 s. 22(5).




76

builder or a builder under a domestic building contract or at common law or under the Domestic Building Contracts Act 1995 or the Building Act 1993.

Division 3—Domestic Building (HIH) Indemnity Fund

46 Domestic Building (HIH) Indemnity Fund

(1) There is to be established a Fund to be called the Domestic Building (HIH) Indemnity Fund.

(2) There must be paid into the Fund—

(a) any money appropriated by Parliament for the purposes of the Fund;

* * * * *

(c) money recovered by the State from any person under a right assigned under section 43;

(d) money paid or recovered under section 44;

(e) all other money authorised or required to be paid to the Fund by any person or body;

(f) income from the investment of the Fund.

(3) There may be paid out of the Fund—

(a) the costs and expenses incurred in establishing and administering the indemnity scheme under this Part;

(b) money directed under section 47 to be paid out of the Fund;

(c) the amount of any claim payable under this Part;

(d) any amount determined by the Auditor-General to defray the reasonable costs and


S. 46(2)(b) repealed by No. 34/2013 s. 35(Sch. 2 item 5).



77

expenses of an audit of the accounts of the Fund;

(e) any other amount authorised under this Part or under any other Act to be paid out of the Fund.

(4) All amounts paid out of the Fund under subsection (3)(d) must be paid into the Consolidated Fund.

(5) All money in the Fund is an asset of the State.

47 Payments to Consolidated Fund

s. 47S. 47(1) amended by No. 52/2005 s. 22(5).

(1) If the Treasurer is satisfied that there is in the Domestic Building (HIH) Indemnity Fund at any time an amount in excess of the amount required to meet the anticipated payments from the Fund, the Treasurer after consultation with VMIA may direct the payment of the whole or any part of that excess amount out of the Fund into the Consolidated Fund.

(2) VMIA must comply with a direction under subsection (1).

48 How can the Fund be invested?

VMIA may invest any part of the Domestic Building (HIH) Indemnity Fund not immediately required for the purposes of the Fund in any manner approved by the Treasurer.

49 Remaining funds to be paid into Consolidated Fund

(1) If the Minister is satisfied that all claims against the Domestic Building (HIH) Indemnity Fund have been dealt with and that no further claim can


S. 47(2) amended by No. 52/2005 s. 22(5).

S. 48 inserted by No. 26/2001 s. 8, amended by No. 52/2005 s. 22(5).

S. 49 inserted by No. 26/2001 s. 8, substituted by No. 52/2005 s. 23.



78

be made under this Part, the Minister may, by notice published in the Government Gazette, close the Fund.

(2) On the publication of the notice under subsection (1), all money standing to the credit of the Domestic Building (HIH) Indemnity Fund must be paid into the Consolidated Fund.

s. 49S. 50 inserted by No. 26/2001 s. 8, substituted by No. 52/2005 s, 24.

50 Report to Minister

VMIA must from time to time at the direction of the Minister report to the Minister in the manner required by the Minister on its administration of—

(a) the indemnity scheme established under this Part; and

(b) the Domestic Building (HIH) Indemnity Fund.

51 Auditor-General to audit financial statements of Fund

(1) The financial statements of the Domestic Building (HIH) Indemnity Fund must be audited annually by the Auditor-General.

* * * * *

(3) The Auditor-General has in respect of the audit all the powers conferred on the Auditor-General by any law relating to the audit of the Public Account.


S. 51(1) amended by No. 52/2005 s. 25(2).

S. 51(2) amended by No. 9/2002 s. 3(Sch. item 8), repealed by No. 52/2005 s. 25(3).



79

(4) The Auditor-General must submit a report of the audit to the Minister.

(5) The Minister must cause a copy of any audit report to be laid before each House of Parliament within 7 sitting days of that House after it is received by the Minister under subsection (4).

s. 52S. 52 inserted by No. 26/2001 s. 8, substituted by No. 52/2005 s. 26.

52 Annual report

VMIA must include in its annual report for a financial year under Part 7 of the Financial Management Act 1994—

(a) details of its administration of—

(i) the indemnity scheme established under this Part; and

(ii) the Domestic Building (HIH) Indemnity Fund; and

(b) the audited financial statements of the Domestic Building (HIH) Indemnity Fund.

Division 4—General

53 Can VMIA enter into arrangements and agreements with liquidator of HIH?

VMIA may, with the approval of the Minister—

(a) enter into agreements or arrangements on behalf of the State with; and

(b) on behalf of the State accept any assignment from—

S. 53 (Heading) amended by No. 52/2005 s. 27(1).S. 53 inserted by No. 26/2001 s. 8, amended by No. 52/2005 s. 27(2).



80

any liquidator of HIH or any other person for the purpose of the settling of any claim for loss in respect of which an assignment was made under section 43 or for any other purpose relating to an indemnity under this Part.

54 Effect of Corporations Law

This Part has effect despite any provision of the Corporations (Victoria) Act 1990 or of the applicable provisions (as defined in that Act) of the State.

55 Offence to make false statements

A person must not make a false or misleading statement in relation to the making of a claim under this Part.


56 Regulation-making powers

The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Part to be prescribed or necessary to be prescribed to give effect to this Part.

__________________






81

PART 7—TRANSITIONAL

Division 1—Transfer of property, rights and liabilities of HGFL

57 Definitions

In this Division—

instrument includes a document and an oral agreement;

liabilities includes all liabilities, duties and obligations, whether actual, contingent or prospective;

property means a legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description;

rights means all rights, powers, privileges and immunities, whether actual, contingent or prospective;

transferred HGFL employee means a person who is to be taken under this Division to be employed by VMIA on the appointed day.

58 State to take over responsibility for guarantees

(1) On the appointed day—

(a) all property and rights of HGFL vest in the State; and

(b) all liabilities of HGFL become liabilities of the State; and

Pt 7 (Headings and ss 57–69) inserted by No. 52/2005 s. 28.

S. 57 inserted by No. 52/2005 s. 28.

S. 58 inserted by No. 52/2005 s. 28.



82

(c) the State becomes the successor in law of HGFL in relation to that property and those rights and liabilities.

(2) For the purposes of this Division, the property of HGFL includes—

(a) all assets of HGFL; and

(b) any register kept by the approved guarantor under section 25 as in force immediately before the appointed day.

59 VMIA to be substituted as party to proceedings

If, immediately before the appointed day, proceedings to which HGFL was a party were pending or existing in any court or tribunal, then, on and after the appointed day, VMIA, on behalf of the State, is substituted as a party to the proceedings and has the same rights in the proceedings as HGFL had.

60 Construction of instruments

(1) Each existing instrument that relates to the property, rights or liabilities of HGFL has effect and continues to have effect according to its tenor on and after the appointed day as if a reference in the instrument to HGFL were a reference to the State.

(2) In this section existing instrument means an instrument existing immediately before the appointed day—

(a) to which HGFL was a party; or

(b) that was given to or in favour of HGFL; or

(c) that refers to HGFL; or

(d) under which—

(i) money is, or may become, payable to or by HGFL; or

S. 59 inserted by No. 52/2005 s. 28.

S. 60 inserted by No. 52/2005 s. 28.



83

(ii) other property is to be, or may become liable to be, transferred to or by HGFL.

61 Taxes

No stamp duty or other tax is chargeable under any Act in respect of anything done under this Division or in respect of any act or transaction connected with or necessary to be done because of this Division, including a transaction entered into or an instrument made, executed or lodged.

62 Transfer of staff

(1) A person who immediately before the appointed day was employed by HGFL must, on the appointed day, be taken to be employed by VMIA on the same terms and conditions and with the same accrued and accruing entitlements as those that applied to that person as an employee of HGFL immediately before the appointed day.

(2) The service of a transferred HGFL employee as an employee of VMIA is to be taken for all purposes to be continuous with the service of that person, immediately before the appointed day, with HGFL.

(3) A transferred HGFL employee is not entitled to receive any payment or other benefit by reason of having ceased to be an employee of HGFL because of this Division.

(4) Nothing in this section prevents—

(a) any of the terms and conditions of employment of a transferred HGFL employee from being altered by or under any law, award or agreement with effect from any time after the appointed day; or

(b) a transferred HGFL employee from resigning, or the termination of a person's employment, at any time after the appointed

S. 61 inserted by No. 52/2005 s. 28.

S. 62 inserted by No. 52/2005 s. 28.



84

day in accordance with the then existing terms and conditions of his or her employment by VMIA.

63 Evidence

(1) Documentary or other evidence that would have been admissible for or against the interests of HGFL before the appointed day is admissible for or against the interests of the State on or after the appointed day.

(2) The Evidence Act 2008 applies with respect to the books of account of HGFL and to entries made in those books of account before the appointed day whether or not they relate to property, rights or liabilities of HGFL vested in the State under this Division, as if those books of account and entries were business records.

64 Validity of things done under this Division

Nothing effected by this Division or suffered under this Division—

(a) is to be regarded as placing any person in breach of contract or confidence or as otherwise making any of them guilty of a civil offence; or

(b) is subject to compliance with or is to be regarded as placing any person in breach of or as constituting a default under any Act or other law or any provision in any agreement, arrangement or understanding including, without limiting the generality of the foregoing, any provision prohibiting, restricting or regulating the assignment or transfer of any property or right or the disclosure of any information; or

(c) is to be regarded as fulfilling any condition which allows a person to exercise a power,

S. 63 inserted by No. 52/2005 s. 28.

S. 63(2) amended by No. 69/2009 s. 54(Sch. Pt 1 item 32).

S. 64 inserted by No. 52/2005 s. 28.



85

right or remedy in respect of or to terminate any agreement or obligation; or

(d) is to be regarded as giving rise to any remedy for a party to a contract or an instrument or as causing or permitting the termination of any contract or instrument because of a change in the beneficial or legal ownership of any property, right or liability; or

(e) is to be regarded as causing any contract or instrument to be void or otherwise unenforceable; or

(f) is to be regarded as frustrating any contract; or

(g) releases any surety or other obligor wholly or in part from any obligation.

65 Operation of provisions not subject to review

Nothing done under this Division gives rise to any cause or right of action or application before any court or tribunal.

Division 2—Role of VMIA in relation to guarantees

66 Actions of continuing nature in relation to guarantees

(1) Any act, matter or thing of a continuing nature commenced before the appointed day by HGFL in respect of a guarantee, or a claim on a guarantee, given under this Act may be continued and completed on and after the appointed day by VMIA.

(2) For the purposes of subsection (1), any act or decision of HGFL before the appointed day in relation to a guarantee or claim on a guarantee is to be taken to be an act or decision of VMIA in

S. 65 inserted by No. 52/2005 s. 28.

s. 65

S. 66 inserted by No. 52/2005 s. 28.



86

respect of any period on and after the appointed day.

Division 3—Role of VMIA in relation to indemnities

67 Actions of continuing nature in relation to indemnities

(1) Any act, matter or thing of a continuing nature commenced before the appointed day by HGFL under Part 6 may be continued and completed on and after the appointed day by VMIA.

(2) For the purposes of subsection (1), any act or decision of HGFL before the appointed day in relation to any matter under Part 6 is to be taken to be an act or decision of VMIA in respect of any period on and after the appointed day.

68 References to HGFL in any arrangement or agreement under section 53

Without limiting section 67, any reference to HGFL in any agreement, arrangement or assignment under section 53, must be taken on or after the appointed day, to be a reference to VMIA.

Division 4—Reporting by HGFL

69 Final annual report by HGFL

Despite the repeal of section 25A and the substitution of section 52, those sections, as in force immediately before the appointed day, continue to apply to HGFL until it is wound up.

__________________

S. 67 inserted by No. 52/2005 s. 28.

s. 67

S. 68 inserted by No. 52/2005 s. 28.

S. 69 inserted by No. 52/2005 s. 28.



87

SCHEDULE

SAVING OF CLAIMS

Claimant Date of Lodgement of Claim

ANZ Banking Group Ltd A.C.N. 005 357 522

23 October 2001

Ausland Investment Group Pty LtdA.C.N. 081 206 340

5 October 2001

Ausvimex Pty LtdA.C.N. 077 213 917

30 July 2001

Louis Basil Bourazikas 8 August 2001

Forty Fifth Vilmar Pty LtdA.C.N. 007 164 383

3 August 2001

Leicester Turtle Pty LtdA.C.N. 086 751 224

1 August 2001

Tambo Ash Pty LtdACN 067 404 602

16 August 2001

═══════════════

Sch. inserted by No. 25/2002 s. 8.

Sch.Part 6—Domestic Building (HIH) Indemnity Scheme


88

ENDNOTES

1. General InformationMinister's second reading speech—

Legislative Assembly: 26 March 1987

Legislative Council: 30 April 1987

The long title for the Bill for this Act was "A Bill to make fresh provision concerning the guarantees required to be given in relation to domestic building work, to specify requirements to be complied with in relation to domestic building work contracts, to repeal Division 1A of Part XLIX of the Local Government Act 1958 and the Building Contracts (Deposits) Act 1962, to amend the Sale of Land Act 1962 and the Building Control Act 1981 and for other purposes.".

The House Contracts Guarantee Act 1987 was assented to on 19 May 1987 and came into operation as follows:

All of Act (except sections 18(2)(b), 22(1)(e)) on 1 May 1988; section 18(2)(b) on 1 November 1988: Government Gazette 30 March 1988 page 752; section 22(1)(e) repealed uncommenced by section 15 of House Contracts Guarantee (Amendment) Act 2005 No. 52.

EndnotesPart 6—Domestic Building (HIH) Indemnity Scheme


89

2. Table of AmendmentsThis Version incorporates amendments made to the House Contracts Guarantee Act 1987 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Liquor Control Act 1987, No. 97/1987Assent Date: 1.12.87Commencement Date: S. 181(7) on 3.5.88: Government Gazette 27.4.88

p. 1044Current State: This information relates only to the provision/s

amending the House Contracts Guarantee Act 1987

House Contracts Guarantee (Amendment) Act 1989, No. 5/1989Assent Date: 2.5.89Commencement Date: 2.5.89Current State: All of Act in operation

House Contracts Guarantee (Further Amendment) Act 1990, No. 39/1990Assent Date: 13.6.90Commencement Date: 1.1.91: Government Gazette 12.12.90 p. 3681Current State: All of Act in operation

Employee Relations Act 1992, No. 83/1992Assent Date: 24.11.92Commencement Date: S. 180 on 27.11.92: Special Gazette (No. 63) 27.11.92



Building Act 1993, No. 126/1993Assent Date: 14.12.93Commencement Date: S. 264 (Sch. 5 item 10) on 1.7.94: Special Gazette

(No. 42) 1.7.94 p. 1Current State: This information relates only to the provision/s


Domestic Building Contracts and Tribunal Act 1995, No. 91/1995Assent Date: 5.12.95Commencement Date: Ss 157, 159–168 on 1.4.96: Government Gazette

29.2.96 p. 445; s. 158 on 1.5.96: s. 2(1A)Current State: This information relates only to the provision/s


Domestic Building Contracts and Tribunal (Amendment) Act 1996, No. 2/1996Assent Date: 18.6.96Commencement Date: 18.6.96: s. 2Current State: All of Act in operation



90

Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998Assent Date: 26.5.98Commencement Date: S. 7(Sch. 1) on 1.7.98: s. 2(2)Current State: This information relates only to the provision/s


Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998, No. 52/1998

Assent Date: 2.6.98Commencement Date: S. 311(Sch. 1 item 40) on 1.7.98: Government Gazette

18.6.98 p. 1512Current State: This information relates only to the provision/s


House Contracts Guarantee (HIH) Act 2001, No. 26/2001Assent Date: 7.6.01Commencement Date: Ss 3–8 on 8.6.01: s. 2(1)Current State: This information relates only to the provision/s


Corporations (Consequential Amendments) Act 2001, No. 44/2001Assent Date: 27.6.01Commencement Date: S. 3(Sch. item 62) on 15.7.01: s. 2Current State: This information relates only to the provision/s


Corporations (Financial Services Reform Amendments) Act 2002, No. 9/2002Assent Date: 23.4.02Commencement Date: S. 3(Sch. item 8) on 23.4.02: s. 2Current State: This information relates only to the provision/s


Statute Law (Further Revision) Act 2002, No. 11/2002Assent Date: 23.4.02Commencement Date: S. 3(Sch. 1 item 34) on 24.4.02: s. 2(1)Current State: This information relates only to the provision/s


House Contracts Guarantee (HIH Further Amendment) Act 2002, No. 25/2002Assent Date: 12.6.02Commencement Date: 8.6.01: s. 2Current State: All of Act in operation

Public Administration Act 2004, No. 108/2004Assent Date: 21.12.04Commencement Date: S. 117(1)(Sch. 3 item 99) on 5.4.05: Government

Gazette 31.3.05 p. 602Current State: This information relates only to the provision/s




91

House Contracts Guarantee (Amendment) Act 2005, No. 52/2005Assent Date: 13.9.05Commencement Date: Ss 4–28 on 1.2.06: Government Gazette 25.1.06



Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009

Assent Date: 24.11.09Commencement Date: S. 54(Sch. Pt 1 item 32) on 1.1.10: s. 2(2)Current State: This information relates only to the provision/s


Subordinate Legislation Amendment Act 2010, No. 78/2010Assent Date: 19.10.10Commencement Date: S. 24(Sch. 1 item 16) on 1.1.11: s. 2(1)Current State: This information relates only to the provision/s


Building and Planning Legislation Amendment (Governance and Other Matters) Act 2013, No. 34/2013

Assent Date: 18.6.13Commencement Date: S. 35(Sch. 2 item 5) on 1.7.13: s. 2Current State: This information relates only to the provision/s


–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––



92

3. Explanatory Details

EndnotesEndnotesPart 6—Domestic Building (HIH) Indemnity Scheme


93

1 S. 3(1): Section 23 of the House Contracts Guarantee (Further Amendment) Act 1990, No. 39/1990 reads as follows:

23Savings

The provisions of the Principal Act as in force immediately before the commencement of section 4 of this Act continue to apply to the work by a person other than an approved builder of constructing a dwelling-house, if the person had given notice to the approved guarantor under section 23(3) of the Building Control Act 1981 prior to the commencement of section 4 of this Act.

2 S. 3(1) def. of recognised person: Section 168 (repealed) of the Domestic Building Contracts Act 1995, No. 91/1995 (as amended by No. 52/1998) read as follows:

168Appeals—Transitional

Despite the amendment of the House Contracts Guarantee Act 1987 by this Part—

(a) an appeals committee established by the approved guarantor under its rules may continue to hear any appeal commenced to be heard by the committee but not completed before the commencement of this section and that Act continues to apply to those appeals as if those amendments had not been made; and

S. 168(b) amended by No. 52/1998 s. 44.

(b) the Victorian Civil and Administrative Tribunal may review—

(i) any decision in respect of which an application for review was made and not determined under that Act before the commencement of this section; or

(ii) any decision made on an appeal to which paragraph (a) applies—

and that Act continues to apply to those reviews and applications for review as if those amendments had not been made.

3 S. 4(1): See note 2.4 S. 4(2): See note 2.5 S. 16(1): See note 2.6 S. 16(5): See note 2.7 S. 16(6): See note 2.8 S. 16(7): See note 2.9 S. 16(8): See note 2.

10 S. 17A: See note 2.11 S. 21A: See note 2.12 S. 32A: See note 2.

House Contracts Guarantee Act 1987 - …FILE/87-44a054.docx · Web viewHouse Contracts Guarantee...

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Transcript of House Contracts Guarantee Act 1987 - …FILE/87-44a054.docx · Web viewHouse Contracts Guarantee...