Home Building Act 1989

This Act is the Home Building Act 1989.

This Act commences on a day or days to be appointed by proclamation.

Schedule 1 provides for the interpretation of expressions used in this Act.

For the purposes of this Act, an individual, a partnership or a corporation on whose behalf residential building work is done in the circumstances set out in subsection (2) is a developer in relation to that residential building work.

Residential building work done on land in the circumstances set out in subsection (2) is, for the purpose of determining who is a developer in relation to the work, deemed to have been done on behalf of the owner of the land (in addition to any person on whose behalf the work was actually done).

Note.

This makes the owner of the land a developer even if the work is actually done on behalf of another person (for example, on behalf of a party to a joint venture agreement with the owner for the development of the land). The other person on whose behalf the work is actually done is also a developer in relation to the work.

The circumstances are—

the residential building work is done in connection with an existing or proposed dwelling in a building or residential development where 4 or more of the existing or proposed dwellings are or will be owned by the individual, partnership or corporation, or

the residential building work is done in connection with an existing or proposed retirement village or accommodation specially designed for the disabled where all of the residential units are or will be owned by the individual, partnership or corporation.

A company that owns a building under a company title scheme is not a developer for the purposes of this Act.

This section does not apply to residential building work to which section 3C applies.

Note.

Section 3C provides for the date of completion of new buildings in strata schemes.

The completion of residential building work occurs on the date that the work is complete within the meaning of the contract under which the work was done.

If the contract does not provide for when work is complete (or there is no contract), the completion of residential building work occurs on practical completion of the work, which is when the work is completed except for any omissions or defects that do not prevent the work from being reasonably capable of being used for its intended purpose.

It is to be presumed (unless an earlier date for practical completion can be established) that practical completion of residential building work occurred on the earliest of whichever of the following dates can be established for the work—

the date on which the contractor handed over possession of the work to the owner,

the date on which the contractor last attended the site to carry out work (other than work to remedy any defect that does not affect practical completion),

the date of issue of an occupation certificate under the Environmental Planning and Assessment Act 1979 that authorises commencement of the use or occupation of the work,

(in the case of owner-builder work) the date that is 18 months after the issue of the owner-builder permit for the work.

If residential building work comprises the construction of 2 or more buildings each of which is reasonably capable of being used and occupied separately, practical completion of the individual buildings can occur at different times (so that practical completion of any one building does not require practical completion of all the buildings).

This section applies for the purposes of determining when completion of residential building work occurs for the purposes of any provision of this Act, the regulations or a contract of insurance under Part 6.

This section applies to residential building work comprising the construction of a new building in a strata scheme (within the meaning of the Strata Schemes Management Act 2015) where the issue of an occupation certificate is required to authorise commencement of the use or occupation of the building.

Note.

Section 3B provides for the date of completion of other residential building work.

The completion of residential building work to which this section applies occurs on—

the date of issue of an occupation certificate that authorises the occupation and use of the whole of the building, unless paragraph (b) applies, or

the occurrence of some other event that is prescribed by the regulations as constituting completion of the work.

If a contract to do residential building work (the primary contract) comprises the construction of 2 or more separate buildings, the date of completion of that work is to be determined as if there were a separate contract for each separate building (with each contract on the same terms as the primary contract) so that the work for each building will have a separate completion date. For the purposes of this section, a building is separate if it is reasonably capable of being used and occupied separately from any other building.

Note.

Separate buildings can still have the same completion date if they are completed at the same time.

This section applies for the purpose of determining when completion of residential building work occurs for the purposes of any provision of this Act, the regulations or a contract of insurance under Part 6.

In this section—

building means any structure that, as a new building, requires the issue of an occupation certificate to authorise its use and occupation.

occupation certificate means an occupation certificate under the Environmental Planning and Assessment Act 1979.

Note.

A swimming pool, tennis court or detached garage can be a building for the purposes of this section if an occupation certificate is required to authorise its use and occupation. If a structure in a strata scheme does not require an occupation certificate, section 3B will apply to it instead of section 3C.

In its application to specialist work, this Act is not limited to specialist work that is residential building work and extends to specialist work that is not residential building work (for example, commercial and industrial specialist work).

A person must not contract to do—

any residential building work, or

any specialist work,

except as or on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work.

Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case.

The holder of a contractor licence who has contracted to do any residential building work must not contract with another person for the other person to do the work (or any part of the work) for the holder unless the other person is the holder of a contractor licence to do work of that kind.

Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case.

The holder of a contractor licence must not contract with another person for the other person to do any work (or part of any work) for the holder for which insurance is required under this Act unless the other person is the holder of a contractor licence to do work of that kind.

Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case.

A developer in relation to residential building work must not contract with another person for the other person to do that residential building work on behalf of the developer unless the other person is the holder of a contractor licence authorising the other person to do work of that kind.

Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case.

A person is not guilty of an offence against subsection (2), (3) or (4) if the person establishes that the person did all that could reasonably be required to prevent the contravention of the subsection.

An individual who is convicted of a second or subsequent offence under a provision of this section is liable to a penalty not exceeding 500 penalty units or imprisonment for a term not exceeding 12 months, or both.

An individual, a member of a partnership, an officer of a corporation or a corporation must not represent that the individual, partnership or corporation is prepared to do—

any residential building work, or

any specialist work,

if the individual, partnership or corporation is not the holder of a contractor licence authorising its holder to contract to do that work.

A person must not represent that an individual, partnership or corporation is prepared to do—

any residential building work, or

any specialist work,

if the person knows that the individual, partnership or corporation is not the holder of a contractor licence authorising its holder to contract to do that work.

An individual who is convicted of a second or subsequent offence under this section is liable to a penalty not exceeding 500 penalty units or imprisonment for a term not exceeding 12 months, or both.

Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case.

Sections 7–7E apply to a contract under which the holder of a contractor licence undertakes—

to do, in person, or by others, any residential building work or any specialist work, or

to vary any such undertaking to do residential building work or any specialist work or the way in which any such work is to be done.

However, sections 7, 7AAA, 7AA, 7B and 7BA do not apply to a contract to do residential building work or specialist work in such circumstances that—

if the work were not to be done promptly, there is likely to be a hazard to the health or safety of any person or to the public or to be damage to property, and

the work could not be done promptly if the requirements of sections 7, 7AAA, 7AA, 7B and 7BA were to be complied with before commencing the work.

Section 7(2)(f) and (5) do not apply to a contract referred to in subsection (1)(b).

Note.

Section 7AAA applies to contracts for small jobs.

This section applies to a contract only if the contract price exceeds the prescribed amount or (if the contract price is not known) the reasonable market cost of the labour and materials involved exceeds the prescribed amount. The prescribed amount is the amount prescribed by the regulations for the purposes of this section and is inclusive of GST.

A contract must be in writing and be dated and signed by or on behalf of each of the parties to it.

A contract must contain—

the names of the parties, including the name of the holder of the contractor licence shown on the contractor licence, and

the number of the contractor licence, and

a sufficient description of the work to which the contract relates, and

any plans and specifications for the work, and

the contract price if known, and

any statutory warranties applicable to the work, and

the cost of cover under Part 6 or 6B (if insurance is required under Part 6), and

in the case of a contract to do residential building work—a conspicuous statement setting out the cooling-off period that applies to the contract because of section 7BA, and

in the case of a contract to do residential building work (other than a construction contract to which the Building and Construction Industry Security of Payment Act 1999 applies)—details of any progress payments payable under the contract, and

in the case of a contract to do residential building work—a statement that the contract may be terminated in the circumstances provided by the general law and that this does not prevent the parties agreeing to additional circumstances in which the contract may be terminated, and

any other matter prescribed by the regulations for inclusion in the contract.

The contract must comply with any requirements of the regulations.

If the contract price is known, it must be stated in a prominent position on the first page of the contract.

If the contract price is not known or may be varied under the contract, the contract must contain a warning to that effect and an explanation of the effect of the provision allowing variation of the price. The warning and explanation must be placed next to the price if the price is known.

A contract must not include in the contract the name of any person other than the holder of a contractor licence as, or so it may reasonably be mistaken to be, the holder’s name.

This section does not prevent the holder of a contractor licence with a business name registered under the Business Names Registration Act 2011 of the Commonwealth from also referring in such a contract to the business name.

This section does not apply to—

a contract that is made between parties who each hold a contractor licence and is for work that each party’s contractor licence authorises the party to contract to do, or

a contract to do specialist work that is not also residential building work.

Note.

The exception in paragraph (a) applies to a subcontracting arrangement between licensees, and to a contract between licensees for work to be done on premises that one of the licensees owns.