Where a building contract departs from the statutory progress payments schedule under s 40(2) of the Domestic Building Contracts Act 1995 (Vic), the building owner must sign the prescribed warning (Form 1) in a manner that permits the confident inference that the owner has read the warning about the change to their legal rights; initials at the foot of the page, identical to initials on every other page of the contract, are insufficient. The warning must be signed before the contract is signed, not merely before conditions precedent are satisfied. Estoppel cannot be raised by a builder to preclude an owner from relying on the builder's contravention of s 40(2), even where the parties agreed to the alternative regime and the owner paid progress claims in accordance with it.
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