Builders' Registration and Home-owners' Protection Act Amendment Act 1982 (Qld)

853 4 ueens lrni ANNO TRICESIMO PRIMO ELIZABETHAE SECUNDAE REGINAE No. 61 of 1982 An Act to amend the Builders ' Registration and Home., owners' Protection Act 1979 in certain particulars and for related purposes [ASSENTED TO 13TH D ECEMBER, 1982]

854 Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- 1. Short title. This Act may be cited as the Builders' Registration and Home owners' Protection Act Amendment Act 1982. 2. Commencement . (1) This section and section 1 shall commence on the day on which this Act is assented to for and on behalf of Her Majesty. (2) Except as provided by subsection (1), this Act shall commence on a day appointed by Proclamation, and a reference in this Act to the commencement of this Act or to the day of commencement of this Act is a reference to the day so appointed. 3. Principal Act and citation as amended . (1) In this Act the Builders' Registration and Home-owners' Protection Act1979 is referred to as the Principal Act. (2) The Principal Act as amended by this Act may be cited as the Builders' Registration and Home-owners' Protection Act1979-1982. 4. Amendment of s. 5. Meaning of terms. Section 5 of the Principal Act is amended by in subsection (1)- (a) inserting before the definition " apartment " the following definition:- "Annual Statements of Account " means the statements of account prepared by the Board pursuant to section 29 (2); "; (b) in the definition " builder " omitting the words " firm or "; (c) in the definition " building work " inserting after the words building work " " the words ", without limiting its meaning,"; (d) inserting after the definition " building work " the following definitions :- " " broadcast " means publicly announce or display by means of sound or light (whether transmitted or otherwise); " business name " means a name, style, title or designation under which a business is carried on; " District Court " means a District Court appointed under the District Court Act1967-1982 "; (e) in the definition of " dwelling-house ", after the words " all outbuildings " inserting the words " (whenever constructed) including accommodation for a motor vehicle "; (f) inserting after the definition of " dwelling house " and its meaning the following definition:- ""exhibit" means display or show publicly other than by broadcasting and includes representing or reproducing in any form words, figures or symbols that are capable of being seen by and are readily observed by any person;";

Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 855 (g) omitting the definition " farm building " and its meaning and substituting the following definition and meaning:- " " farm building " means a building other than a building used or intended for use for the residential purposes of the holder of the land on which the building is situated, that- (a) is constructed or to be constructed on land used primarily for agricultural purposes or pastoral purposes; and (b) is used or intended for use for agricultural purposes or pastoral purposes;"; (h) inserting after the definition " farm building " the following definition:- financial year " means the period commencing on 1 July in any calendar year and concluding on 30 June in the next succeeding calendar year;"; (i) in the definition " general builder ", omitting the words " firm or "; (j) in the definition " house builder ", omitting the words " firm or "; (k) in the definition " Magistrates Court ", inserting after the words " deemed so to have been " the words " and in the case of an appeal to that Court pursuant to the provisions of this Act means a Magistrates Court constituted by a Stipendiary Magistrate sitting alone under the Magistrates Courts Act1921-1976 "; (1) inserting after the definition " Minister " the following definition:- " nominneeee " means a registered builder who is nominated by a body corporate to be a nominee of the body corporate pursuant to section 36A;"; (m) omitting the definition " person "; (n) inserting after the definition " offer for sale " the following definition " " practical completion " means that point in the house building construction at which the house building construction- (a) becomes fit for use and occupation as a dwelling house; and (b) is otherwise free from known defects and from contractual omissions; "; (o) omitting the definition " registered builder " and substituting the following definition:- " " registered builder " means an individual who, or a body corporate that is at the material time registered as a general builder or house builder under this Act; "; (p) in the definition " registered general builder " omitting the words " firm or "; (q) in the definition " registered house builder " omitting the words firm or ".

856 Builders ' Registration and Home-owners' Protection A:t Amendment Act 1982, No. 61 5. Amendment of s. 7. Functions of Board . Section 7 of the Principal Act is amended by in subparagraph (b), omitting the words " individuals, bodies corporate and firms " and substituting the words " individuals and bodies corporate ". 6. New s. 7A. The Principal Act is amended by inserting after section 7 the following section :- " 7A. Capacity of Board and members to exercise several jurisdictions. .(1) The fact that the Board or any member thereof or the Registrar (upon the Board's direction or otherwise) has exercised any jurisdiction or authority under this Act shall not- (a) preclude the Board or any member thereof who participated in that exercise of jurisdiction or authority from exercising or participating in the exercise of any other jurisdiction or authority under this Act; or (b) prejudice the exercise of any other jurisdiction or authority under this Act by the Board or any member thereof, upon the ground that the Board or such member is biased, may reasonably be suspected of being biased or has prejudged any question relevant to the exercise of that other jurisdiction or authority and, subject to subsection (2), shall be deemed never to have done so. (2) Subsection (1) does not apply so as to affect the decision of any court given in a cause or matter before the commencement of the Builders' Registration and Home-owners' Protection Act Amendment Act 1982.". 7. Amendment of s. 24. Reports by Board . Section 24 of the Principal Act is amended by, in subsection (2), omitting the words " statement of receipts and disbursements " and substituting the words " Annual Statements of Account ". 8. Amendment of s. 25. Establishment of funds. Section 25 of the Principal Act is amended by adding after the existing paragraph the following paragraph:- " The funds shall be kept separate and distinct and a separate bank account shall be kept for each fund.". 9. New s. 28A. Investment of funds . The Principal Act is amended by inserting after section 28 the following section :- "28A. Investment of funds . (1) The Board may invest moneys which are surplus in any fund kept by the Board in any one or more of the investments specified in section 48 (1) of the Statutory Bodies FinancialArrangements Act1982.

Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 857 Every security, safe custody acknowledgement or other document evidencing title issued in respect of any investment shall be held either by the Board, by the Treasurer on behalf of the Board or in such other manner as is approved by the Treasurer. 10. Repeal of and new s. 29. Audit and financial statement. The Principal Act is amended by repealing section 29 and substituting the following section:- " 29. Accounts and Audit . (1) The Board shall cause proper books and accounts to be provided and kept and true and regular entries to be made therein in respect of all transactions entered into by the Board. (2) (a) The Board shall as soon as practicable after the end of each financial year prepare statements of account with respect to the financial operations of the Board for that year. The Annual Statements of Account shall- (i) set forth in summarized form particulars of the Board's income and expenditure for the financial year in question and a balance sheet showing the financial position of the Board as at the end of that year; (ii) be certified by the Chairman and Registrar as to whether in their opinion they fairly set out the financial transactions of the Board for the period to which they relate and show a true and fair view of the state of affairs of the Board at the end of that period on a basis consistent with that applied in respect of the financial year last preceding; (iii) thereupon be transmitted to the Auditor-General. (b) Until the Annual Statements of Account have been audited and laid before the Legislative Assembly pursuant to section 24, no such statement shall be sold or made available to any person other than a member or officer of the Board, the Minister or a person acting in aid of him or the Auditor-General or a person acting in aid of him. (c) The Auditor-General shall audit the accounts of the Board and shall have with respect to such audit all the powers and authorities conferred on him by the Financial Administration and Audit Act1977-1981. (d) The Auditor-General shall certify on the Annual Statements of Account whether or not he has obtained all the information and explanations required by him and whether or not such statements- (i) are prepared in the form required by this Act; (ii) are in agreement with the accounts of the Board; and (iii) have been properly drawn up so as to present a true and fair view of the transactions for the financial year in question and the financial position at the end of that year on a basis consistent with that applied in respect of the financial year last preceding, and after such certification, shall deliver those statements to the Board.". 28

858 Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 11. New s. 29A. Control of money and property . The Principal Act is amended by inserting after section 29 the following section:- " 29A. Control of money and property . (1) Whenever it appears to or comes to the knowledge of the Board that, arising from a cause which could constitute an offence under The Criminal Code or any other Act or law, there is- (a) a loss of or deficiency in any moneys of or under the control of the Board; or (b) a loss of, destruction of or damage to property of or under the control of the Board, the Board shall forthwith give notice thereof to the Auditor-General and to a member of the Police Force of Queensland of the rank of sergeant of police or of higher rank. (2) The Board shall not- (a) abstain from, discontinue or delay a prosecution for an offence under the laws of the State in relation to any money or property of or under the control of the Board which is or appears to be stolen or wilfully destroyed or damaged; or (b) withhold or promise to withhold or delay any evidence for the purposes of such a prosecution.". 12. Amendment of s. 31 . Persons who may be registered as registered house builders. Section 31 of the Principal Act is amended by- (a) in subsection (1), omitting provision (b) and substituting the following provision:- (b) he has had sufficient practical and supervisory experience in and has sufficient knowledge of all aspects of the house building industry to enable him to carry out the functions, responsibilities and duties of a registered house builder; "; (b) in subsection (2)- (i) omitting from the general words preceding provision (a) the words " or firm "; (ii) omitting provision (a) and substituting the following provision:- (a) all the directors or members of the board of management thereof are of good fame and character;"; (iii) omitting provision (c) and substituting the following provision:- " (c) a nominee of the body corporate has been nominated; "; (c) omitting subsection (3), and substituting the following subsections:- " (3) In the case of an application for registration pursuant to this section by a body corporate the paid up capital of which is less than $100 000, it shall be a condition precedent to the registration of the body corporate, if required by the Board, that each person who is a director or a member of the board of management of the body corporate at the

Builders' Registration and Home-owners ' Protection Act Amendment Act 1982, No. 61 859 time registration is sought in respect of the body corporate shall enter into an instrument of guarantee and indemnity in the form set out in the Schedule to this Act. (4) Notwithstanding the provisions of subsection (3), where a body corporate which is applying for registration pursuant to this section has a paid up capital of less than $100 000 and one or more of the directors or members of the board of management cannot provide the Board with the required instrument of guarantee and indemnity the Board may, subject to the prescribed guidelines, at its discretion, register the body corporate as a registered house builder subject to the restriction that it be so registered for a period which shall not exceed 12 months.". 13. New s. 31A. Firms. The Principal Act is amended by inserting after section 31 the following sections:- " 31A. Firms. (1) Nothing in this Act shall be construed to prevent a registered builder from performing or undertaking to perform building construction as a member of a firm or partnership, and on behalf of the firm or partnership whether or not any other member of the firm or partnership is a registered builder. (2) A contract for the performance of building construction to be performed by a member of a firm or partnership on behalf of the firm or partnership shall be entered into only in the name of a member of the firm or partnership who is a registered builder or in the names of members of the firm or partnership who are registered builders and shall be attested by such member or members and there shall be added after the signature or signatures of such member or members the words " trading with another as " or " trading with others as " (whichever is appropriate) followed by the name in which the firm or partnership carries on business and where that contract is entered into on behalf of a partnership that fact shall be specified in the contract. (3) A person who, as a member of or on behalf of a firm or partnership, enters into or attests a contract to which subsection (2) applies otherwise than in accordance with that subsection commits an offence against this Act. Penalty : $1 000. (4) Notwithstanding the provision of subsection (2), one or more of the other members of a firm or partnership on whose behalf a registered builder is entering into a contract for the performance of building construction pursuant to that subsection, may acknowledge that the contract is being entered into on his or their behalf by signing an acknowledgement to that effect on the contractual document. Failure to comply with the provisions of this subsection shall in no way affect the validity of the contract. (5) The fact that a contract entered into and attested in accordance with subsection (2) is made on behalf of a firm or partnership shall not affect the application of the provisions of Part V to that contract.

860 Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 (6) On and from the commencement of the Builders' Registration and Home-owners' Protection Act Amendment Act 1982, the Board shall not make or cause to be made an entry in the Register that purports to indicate that a firm or partnership is a registered builder. (7) A firm that is registered as a registered builder immediately prior to the commencement of the Builders' Registration and Home-owners' Protection Act Amendment Act 1982 shall, save where- (a) the registration of that firm has sooner been cancelled or suspended; (b) the name of that firm has sooner been removed from the Register; or (c) that firm has sooner been dissolved, continue to be entitled to be registered as a registered builder up to and including the 31 December 1983, whereupon it shall cease to be registered as a registered builder pursuant to this Act or to be entitled to be registered. (8) Where a provision of the Builders' Registration and Home-owners'ProtectionAct1979 is amended by the Builders' Registration and Home-owners' Protection Act Amendment Act 1982, whether by way of omission of words or by way of repeal of the provision and substitution of a new provision therefor, whereby words that relate to a firm are omitted, the provision as so amended shall apply in respect of- (a) a firm that at the commencement of the Builders' Registration and Home-owners' Protection Act Amendment Act 1982 is a registered builder for as long as it continues to be a registered builder; and (b) matters arising in connection with the performance of building construction or building work by or on behalf of a firm that at the time of such performance was a registered builder, as if the words that, prior to the amendment, related to a firm had not been omitted therefrom : Provided that it shall not be competent for a firm to renew its registration as a registered builder. (9) A registered builder who, either alone or in conjunction with other persons, is carrying on business under a firm, partnership or business name commits an offence against this Act if- (a) that name is exhibited in connexion with the conduct of his business; (b) that name is broadcast in connexion with the conduct of his business; or (c) that name is otherwise advertised in connexion with the conduct of his business, unless one of the appropriate conditions of subsection (10) is satisfied. Penalty: $1000.

Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 861 (10) The conditions referred to in subsection ( 9) are- (a) in the case referred to in provision (a) of subsection (9), there is included in the exhibition as near as practicable to the exhibited name and in legible form the name and registered number of the registered builder; (b) in the case referred to in provision (b) of subsection (9), there is broadcast on at least one occasion during the broadcast of the firm, partnership or business name the name of the registered builder followed by the words " registered builder "; (c) in the case referred to in provision (c) of subsection (9) there is included in the advertisement as near as practicable to the advertised name and in legible form the name and registered number of the registered builder; (d) in any case referred to in subsection (9), the exhibition, broadcast or advertisement in question has occurred without the registered builder's knowledge and despite his exercise of due diligence to avoid a contravention of subsection (9). (11) This section shall not be construed to affect in any way the legality of a contract entered into in contravention of this section or the enforcement of such a contract against the parties thereto and all other persons who pursuant to law are bound thereby. 14. Amendment of s. 32. Persons who may be registered as general builders . Section 32 of the Principal Act is amended by in subsection (3)- (a) omitting from the general words preceding provision (a) the words " or firm "; (b) omitting provision (a) and substituting the following provision:- "(a) all the directors or members of the board of management thereof are of good fame and character;"; (c) omitting provision (c) and substituting the following provision:- " (c) a nominee of the body corporate has been nominated;". 15. Amendment of s. 34 . Restricted registration . Section 34 of the Principal Act is amended by omitting the first paragraph thereof and substituting the following paragraph: " The Board may subject any registration as a registered builder to- (a) such conditions and restrictions as restrict by reference to number or value the extent or type of building construction that the registered builder may substantially perform, whether under contract or otherwise, within a period specified by the Board;

862 Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 (b) a condition that the registered builder is required, in addition to serving notice on the Board or its agent pursuant to section 64, to notify the Board within a period specified by the Board of building construction performed or undertaken to be performed by him.". 16. New section 34A. Review of restricted registration by Board. The Principal Act is amended by inserting after section 34 the following section :- " 34A. Review of restricted registration by Board. (1) Where the registration of a registered builder is made subject to any condition or restriction the Board may of its own motion and from time to time while the registration remains so subject or, where the registration has been made so subject for a period, upon the expiration of that period, without conducting any inquiry, examination or hearing, review the conduct of the registered builder concerned and if it is of the opinion, formed in light of all relevant circumstances, that the registered builder- (a) has been negligent or incompetent in performing building construction; (b) has failed to comply with a condition or restriction to which his registration is subject, or that a condition or restriction is no longer necessary the Board may, by its order- (c) in a case referred to in provision (a) or (b), cancel the registration or vary or modify the condition or restriction as it thinks fit; or (d) in any other case, remove, vary or modify the condition or restriction, as it thinks fit. (2) The power conferred on the Board by this section is in addition to any other power conferred on it by this Act and may be exercised free of any restriction that affects the exercise of any such other power.". 17. Amendment of s. 35. Modification of restricted registration. Section 35 of the Principal Act is amended by- (a) in subsection (1), omitting the words " a condition or restriction of less effect " and substituting the words " another condition or restriction "; (b) omitting subsection (4). 18. Repeal of and new s. 36. Registration rights and obligations of body corporate or firm . The Principal Act is amended by repealing section 36 and substituting the following section:- " 36. Registration rights and obligations of body corporate . (1) Subject to subsection (2), the entitlement of a body corporate to be registered as a registered builder shall continue only while at least one nominee of the body corporate continues to be registered as a registered builder.

Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 863 (2) Failure on the part of a body corporate to ensure that at least one nominee of the body corporate continues to be registered as a registered builder shall not terminate the entitlement to registration under this Act of the body corporate or be a ground for cancellation or suspension of such registration if the Board finds that- (a) the notice referred to in section 36A (4) could not be given because of circumstances of emergency or another reason that is satisfactory; and (b) the building construction undertaken by the body corporate was at all times managed and supervised by an individual acting in the capacity of and competent to assume and undertake the authorities, duties and responsibilities of a nominee; and (c) a notice referred to in section 36A (4) was given, in the prescribed form, to the Board as soon as practicable.". 19. New section 36A. Nominee of body corporate . The Principal Act is amended by inserting after section 36 the following section:- 36A. Nominee of body corporate . (1) A body corporate- (a) that applies for registration as a registered builder; (b) that is registered as a registered builder at the commencement of the Builders' Registration and Home-owners' Protection Act Amendment Act 1982 and is requested by the Board so to do, shall, by notice in writing to the Board, nominate a fit and proper individual employed by it who is- (c) where the body corporate is a registered house builder, already registered as a registered house builder; (d) where the body corporate is a registered general builder, already registered as a registered general builder, and who has such authority, duties and responsibilities as will ensure the proper management and supervision of the building construction undertaken by it, to be the nominee of the body corporate for the purposes of this Act and to manage and supervise the house building construction or, as the case may be, general building construction undertaken by it. A body corporate may nominate more than one fit and proper individual to be its nominees pursuant to the provisions of this subsection. (2) A notice in writing referred to in subsection (1) shall be accompanied by a form of consent to appointment as nominee of the body corporate which shall- (a) be in the prescribed form and accompanied by the prescribed fee (b) be signed and dated by the individual to whom it relates; and (c) without limiting its contents , state that the individual concerned voluntarily accepts the nomination and the authority, duties and responsibilities that are imposed upon him by this Act.

864 Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 (3) If, in the opinion of the Board, the individual nominated as nominee is a fit and proper person to act in that capacity, the Board shall forthwith cause to be recorded in the Register details of the nominee of the body corporate and the date on which the entry is recorded. (4) A body corporate registered as a registered builder may at any time by notice in writing lodged with the Board, accompanied by a form of consent of the kind referred to in subsection (2), substitute for an individual who, at the time when the notice is lodged, is a nominee of the body corporate pursuant to subsection (1), another individual who is a fit and proper person and is a registered builder as the nominee of the body corporate to act in the like capacity. (5) If, in the opinion of the Board, the individual substituted to act as nominee is a fit and proper person to act in that capacity, the Board shall record in the Register details of the substitution of the nominee of the body corporate and the date on which the entry is recorded. (6) If an individual recorded in the Register as the nominee of a body corporate ceases to act or to be eligible to act in that capacity, he and the body corporate shall, within 14 days after such cessation, lodge with the Board notice in writing thereof and the body corporate shall, by notice in writing lodged with the Board, accompanied by a form of consent of the kind referred to in subsection (2), substitute another individual who is a fit and proper person and is a registered builder as the nominee of the body corporate to act in that capacity. (7) A notice of cessation pursuant to subsection (6) shall be in the prescribed form and be accompanied by the prescribed fee. (8) Upon receipt by the Board of a notice of cessation pursuant to subsection (6), the Board shall forthwith cause to be recorded in the Register details of the cessation and the date on which the entry is recorded. (9) An individual who is recorded in the Register as a nominee of a body corporate shall for the purposes of this Act be deemed to have performed all building work performed by or on behalf of the body corporate during the period that his name is so recorded on the Register. (10) This section applies so as not to prejudice any liability imposed under this Act upon the body corporate that performed or caused to be performed the building work to which an appointment as a nominee of the body corporate relates.". 20. Amendment of s. 37. Keeping of Register . Section 37 of the Principal Act is amended by in subsection (2) omitting from subparagraph (a) the words " and, where that person is a firm, the name and business address of each member of the firm ". 21. Amendment of s. 41. Roll fee. Section 41 of the Principal Act is amended by omitting subsection (6) and substituting the following subsection :- " (6) Notwithstanding section 36 (2), where a person whose name is removed from the Register pursuant to subsection (5) is a nominee of a body corporate whose registration is necessary to the registration

Builders' Registration and Home-owners' Protection Act Amendment Ect 1982, No. 61 865 of the body corporate, then, upon removal of his name from the Register, the name of the body corporate shall also be removed from the Register.". 22. New s. 42A. Removal of name on request . The Principal Act is amended by inserting after section 42 the following section:- " 42A. Removal of name on request . A registered builder may in writing request his name to be removed from the Register and the Board may, if it thinks fit, resolve that the name of that registered builder be so removed. Such removal shall take effect on and from the date of the Board's resolution.". 23. Amendment of s. 44 . Suspension and cancellation by Board. Section 44 of the Principal Act is amended by- (a) in subsection (1)- (i) inserting in provision (a) after the words " section 31 " the expressions ", 36A "; (ii) omitting from provision (c) after the words " building work " the words " in relation to any building construction "; (iii) omitting from provision (d) the words " in relation to any building construction "; (iv) inserting in provision (k) after the words " section 59 " the following expression and words:- [G (1) has failed to pay to the Board the amount of any debt or other moneys due and owing by the registered builder to the Board or has otherwise failed to make recompense to the Board in respect of any liability of the registered builder to the Board pursuant to the provisions of this Act; "; (b) in subsection (3), omitting the words " or firm ". 24. Amendment of s. 45. Procedure for disciplinary action by Board. Section 45 of the Principal Act is amended by- (a) inserting after subsection (2) the following subsection:- (2A) The Registrar is authorized and, it is declared, always was authorized to make an oral or written complaint for the purposes of this section either on his own motion or at the instigation of another person."; (b) in subsection (3), inserting in provision (d) after the words " in the inquiry " the following expression and words:- (4 (da) by its order- (i) suspend for a period determined by the Board the registration of the registered builder, upon a ground specified in section 44 (1) and proved in the inquiry, with respect to building construction other than the building construction directed to be rectified pursuant to provision (ii); and

866 Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 (ii) direct the registered builder to rectify to the satisfaction of the Board, within a period determined by the Board and specified in its order, any building construction in relation to which a ground specified in section 44 (1) has been proved in the inquiry"; (d) in subsection (5)- (i) inserting after the words " under provision (c), (d) " the expressions ", (da) "; (ii) inserting after provision (b) the following provision:- " (ba) in the case of an order made under provision (da)-- (i) the registered builder against whom it is made shall cease to be registered under this Act for the period specified by the order or until the order is revoked as prescribed, provided that nevertheless, during that period, for the purposes of this Act, it is lawful for the person to whom the order is directed to perform the building construction specified in the order in accordance with the direction of the Board contained in the order; (ii) if the person to whom the order is directed fails to comply in all respects with a direction of the Board pursuant to provision (da), then, notwithstanding any other provision of this Act, the Board may, at the conclusion of the period for which the registered builder is suspended pursuant to that provision, cancel the registration of the registered builder without further inquiry and thereupon the registered builder shall cease to be registered under this Act until the order is revoked as prescribed;"; (e) omitting subsection (6) and substituting the following subsection:- " (6) Where the registration of a body corporate as a registered builder is duly suspended or cancelled by the Board on a ground referred to in provision (c) or (d) of section 44 (1) the Board without further inquiry may by its order suspend or cancel the registration as a registered builder of the nominee or nominees of that body corporate if- (a) it has sent to such nominee or nominees a copy of the notice sent to the body corporate under subsection (1); and (b) it has afforded such nominee or nominees an opportunity of giving an explanation personally or in writing.". 25. Amendment of s. 48. Right of Appeal . Section 48 of the Principal Act is amended by- (a) inserting after provision (c) the following provision:- (ca) suspends the registration of any person as a registered builder and directs the registered builder to rectify any building construction;",

Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 867 (b) inserting after provision (d) and before the conjunction " or " the following provision:- "(da) reviews a restricted registration pursuant to section 34A and cancels the registration of any person as a registered builder or varies or modifies a condition or restriction to which the registration is subject;"; (c) by adding at the end of the section the following paragraph:- The appellant shall institute his appeal by lodging with the Magistrates Court written notice of his grounds of appeal and serving a copy of that notice on the Board.". 26. Amendment of s. 51. Building construction by body corporate or firm. Section 51 of the Principal Act is amended by- (a) in the note appearing in and at the commencement of the section omitting the words " or firm "; (b) omitting subsection (1) and substituting the following subsection:- (1) Where building construction is undertaken by a body corporate that is registered as a registered builder the body corporate shall cause- (a) the building construction to be managed and supervised by a nominee of the body corporate; and (b) the name of that nominee and, in the case of general building construction, the number allotted to him upon his registration under this Act as a registered builder or, in the case of house building construction, the number allotted to him upon his registration under this Act as a registered house builder to appear- (i) in every advertisement published by or on behalf of the body corporate in respect of the building construction; and (ii) in the sign affixed or erected on the site of the building construction pursuant to section 52."; (c) omitting subsection (2); (d) in subsection (3)- (i) omitting the words " or (2) (a) "; (ii) omitting the words " or (2) (b) ". 27. New ss. 52A, 52B and 52C. The Principal Act is amended by inserting after section 52 the following sections:- " 52A. Order to cease building construction . (1) Where it appears to the Registrar of the Board that any building construction or house building construction has been commenced or is being performed- (a) in contravention of the provisions of section 53 (2) (a), section 53 (2) (b) or section 54 (2); or (b) in contravention of or in respect of which there is a failure to comply with a condition or restriction to which the registration of a registered builder is subject pursuant to the provisions of section 34,

868 Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 he may make application to a Judge of the Supreme Court in Chambers for an order directed to the person who has commenced or is performing the building construction or house building construction that work on that building construction cease or, as the case may be, be not resumed except in accordance with this Act. (2) An application referred to in subsection (1) shall be made and in the first instance shall be dealt with ex parte. If it is made to appear to the Judge in Chambers that the building construction or house building construction in question has been commenced or is being performed in contravention of any of the provisions of this Act referred to in subsection (1) he shall- (a) make an interim order of the description sought by the applicant; (b) adjourn the matter of the application for a period of seven days; and (c) make an order directed to the person who has commenced or is performing that building construction or house building construction to show cause why the interim order should not be made absolute. (3) An interim order made under subsection (2) shall continue in force for a period of seven days from the day of its making but may be extended and, if necessary, revived by order of a Judge of the Supreme Court. 52B. Offences related to orders to cease building construction. A person to whom an order pursuant to section 52A is directed shall not fail to comply with that order. Penalty: (a) in the case of a body corporate, $5 000 and a further penalty of $500 for each day on which is performed work in connexion with the building construction or house building construction to which it relates; (b) in the case of a person other than a body corporate, $2 000 and a further penalty of $200 for each day on which is performed work in connection with the building construction or house building construction to which it relates. 52C. Powers of Court not prejudiced . The provisions of section 52B shall be without prejudice to the liability of the person to whom an order is directed to be dealt with for contempt of court if he disobeys the order.". 28. Amendment of s. 53. Offences by persons not registered as registered builders or concerned with building construction who are not so registered . Section 53 of the Principal Act is amended by- (a) in subsection (1), inserting after the first paragraph the following paragraph:- " A person shall not commit an offence defined in this subsection by reason only that he is a member of a firm or partnership whose members include one or more registered builders.";

Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 869 (b) in subsection (2), inserting after the first paragraph the following paragraph:- " A person shall not commit an offence defined in this subsection or be disentitled to recover a fee or charge referred to in provision (e) by reason only that he is a member of a firm or partnership whose members include one or more registered builders and that registered builder or any one or more of those registered builders has performed, tendered for or offered to perform or, as the case may be, entered into a contract to perform the building construction in question nor shall the contract entered into be thereby rendered illegal."; (c) in subsection (5), omitting all words from and including " Where such offer for sale " to and including " in each such advertisement." and substituting the following words:- " Where such offer for sale is in the form of an advertisement in a newspaper or similar publication it shall be sufficient compliance with the provisions of this subsection that relate to the giving of notification if the notification- (d) is contained in each such advertisement; and (e) contains the words " building construction owner-built-no insurance warranty ".". 29. Amendment of s. 58 . Offences by registered builder . Section 58 of the Principal Act is amended by- (a) numbering the existing provisions as subsection (1) and, in that subsection, inserting after provision (g) the following provision:- "(ga) holds another person out to be a registered builder;"; (b) adding at the end of the section the following subsection:- (2) Where the members of a firm or partnership consist of one or more registered builders and one or more other persons who is not or are not registered builders no registered builder, being such a member, shall hold any other person, being such a member, out as a registered builder by reason only that the registered builder is a member of the firm or partnership.". 30. Amendment of s. 59. Remedy for unsatisfactory work . Section 59 of the Principal Act is amended by- (a) in subsection (1), omitting the words " has not been performed in a proper and workmanlike manner " and substituting the following words " is faulty or unsatisfactory "; (b) omitting subsection (3) and substituting the following subsection:- ( 33) ) For the purposes of this section, the expression " building work that is faulty or unsatisfactory " includes building work that has not been performed in accordance with all of the following provisions:- (a) in a proper and workmanlike manner; (b) with materials of good quality that are fit for the purpose for which they are used; (c) in such a manner that the building concerned is fit for human habitation;

870 Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 (d) to the standard to be expected of a reasonably competent registered builder; (e) so as to comply with- (i) every relevant Act, regulation or by-law; or (ii) all relevant provisions of a contract entered into in relation to the performance of the building work concerned.". 31. Repeal of and new s. 60. The Principal Act is amended by omitting section 60 and substituting the following section:- " 60. Appeal against Board ' s order . (1) Subject to this Act, a person to whom an order made pursuant to section 59 (1) is directed may within 21 days after the date on which the order is served on that person, appeal against the order in accordance with the following provisions of this section:- A. If the cost of complying with the order is not more than the maximum sum recoverable as a debt in the jurisdiction of Magistrates Courts, the appeal shall lie to the Magistrates Court exercising jurisdiction at or nearest the place where the building work in question was performed. An appeal pursuant to this paragraph A shall be instituted by- (i) lodging with the court having jurisdiction written notice of appeal; and (ii) serving a copy of that notice on the Board. A notice of appeal- (iii) shall specify the grounds of appeal; and (iv) if a form is prescribed, shall be in or to the effect of that form. B. If the cost of complying with the order is more than the maximum sum referred to in paragraph A, the appeal shall lie to the District Court exercising jurisdiction at or nearest the place where the building work in question was performed. An appeal pursuant to this paragraph B shall be instituted by- (i) lodging with the court having jurisdiction written notice of appeal ; and (ii) serving a copy of that notice on the Board. A notice of appeal- (iii) shall specify the grounds of appeal; and (iv) if a form is prescribed, shall be in or to the effect of that form. (2) Jurisdiction is hereby conferred on Magistrates Courts and on District Courts to hear and determine appeals instituted in accordance with subsection (1). (3) For the purposes of this section, the Board may assess the cost of complying with an order of the Board made pursuant to section 59 (1). (4) A certificate purporting to be signed by the Registrar as to the amount of the cost assessed by the Board pursuant to subsection (3) shall, upon its production in an appeal instituted pursuant to this section, be evidence and, in the absence of evidence to the contrary, conclusive evidence of the matters contained therein.

Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 871 32. Amendment of s. 62 . Nature of Appeal . Section 62 of the Principal Act is amended by omitting the words " heard on the best evidence available " and substituting the words " upon a hearing de novo ". 33. Amendment of s. 65. Payment of insurance premium to be noted on building approval . Section 65 of the Principal Act is amended by in subsection (3), omitting from provision (a) the word " payble " and substituting the word " payable ". 34. Amendment of s. 67. Obligation of legal representative , mortgagee, liquidator and vendor to pay insurance premium. Section 67 of the Principal Act is amended by in subsection (1), omitting from provision (c) the words ", upon the dissolution of the firm ". 35. Amendment of s. 69. Presumed house-purchaser's agreement on insurance . Section 69 of the Principal Act is amended by- (a) in subsection (2)- (i) omitting from provision (a) the words " or the dissolution of the firm "• (ii) omitting from provision (b) the word " complete " and substituting the words " execute to practical completion "; (iii) omitting provision (c) and substituting the following provision- (c) loss or damage suffered by him by reason of a breach of the warranty referred to in section 76 (2) where such breach consists of defects in the house building construction, which defects first became apparent after the date of practical completion of the house building construction;"; (b) in subsection (2)- (i) omitting from provision (i) of subparagraph (b) of paragraph B the words " date of completion " where they twice occur and substituting the words " date of practical completion "; (ii) omitting from provision (ii) of subparagraph (b) of paragraph B the words " date of completion " where they twice occur and substituting the words " date of practical completion "; (c) in subsection (3), omitting from provision (a) the words " or firm ". 36. Amendment of s. 70. Recovery of payments made under house- purchasers' agreement . Section 70 of the Principal Act is amended by- (a) in provision (a), omitting the words " individual, body corporate or firm " and substituting the words " individual or body corporate "; (b) in provision (b), omitting the words " individual, body corporate or firm " and substituting the words " individual or body corporate ". 37. Amendment of s. 72. Board ' s power to determine date of contract, etc. Section 72 of the Principal Act is amended by, in subsection (1), inserting in provision (b) after the words " the date of commencement or " the word " practical

872 Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 38. Amendment of s. 74. Board ' s certificate as to existence of insurance cover . Section 74 of the Principal Act is amended by, in subsection (1), in provision (b), inserting after the words " date of commencement or " the word " practical ". 39. Amendment of s. 76. Presumed warranty in building contracts. Section 76 of the Principal Act is amended by in subsection (2) omitting the words " and with proper materials " and substituting the words ", with materials of good quality that are fit for the purpose for which they are used, in such a manner that the house building construction concerned is fit for human habitation and to the standard to be expected of a reasonably competent registered builder ". 40. New s. 77A. The Principal Act is amended by inserting after section 77 the following section:- " 77A. Breach of warranty presumed in special cases. For the purpose of this Act, in a case where the failure to execute to practical completion the house building construction concerned is due to- (a) the removal from the Register; (b) the cancellation of registration; (c) the suspension of registration; or (d) (in the case of an individual) the death, of the person by whom the house building construction referred to in provision (a) of section 64 (1) was or was to be performed, failure to execute to practical completion that house building construction shall be deemed to be a breach of the warranty referred to in section 76 (2).". 41. Amendment of s. 85. Application of Act to bodies corporate and firms. Section 85 of the Principal Act is amended by- (a) in the note in and at the commencement of that section, omitting the words " and firms "; (b) in subsection (2)- (i) omitting the words " or a firm "; (ii) omitting the words " or, as the case may be, on every member of the firm "; (c) omitting subsection (3). 42. Amendment of s. 90. Procedural and evidentiary matters affecting Board ' s hearings and other proceedings . Section 90 of the Principal Act is amended by adding after subsection (5) the following subsections:- " (6) In any proceeding in respect of an offence against this Act an allegation or averment in a complaint commencing that proceeding- (a) as to the date on which the matter of complaint came to the knowledge of the complainant;

Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 873 (b) that a person or class of person was not, at the time specified or during a specified period, a person exempted or excepted from all or any of the provisions of this Act; or (c) that a building construction or class of building construction was not, at the time specified or during a specified period, building construction or a class of building construction exempted from all or any of the provisions of this Act, shall be evidence and, in the absence of evidence to the contrary, conclusive evidence of the matter so alleged or averred. (7) A certificate purporting to be signed by the Registrar to the effect that the Board has or has not received a notice of nomination, a form of consent to appointment, a notice of cessation or a notice of substitution pursuant to the provisions of section 36A shall upon its production in any proceeding be evidence and, in the absence of evidence to the contrary, conclusive evidence of the matters contained therein.". 43. Amendment of s. 91 . Board ' s power to examine on oath. Section 91 of the Principal Act is amended by- (a) in subsection (1)- (i) inserting in provision (b) after the words " statutory declaration ", the words " under the Oaths Act1867-1981 "; (ii) omitting the expression " . " at the end of the subsection and inserting the following expression and provision:- [G (c) require an applicant to verify by way of declaration under the Oaths Act1867-1981 (the taking of which being hereby authorized) information furnished to the Board in respect of his or its application for registration "; (b) adding at the end of the section the following subsection:- (3) The provisions of subsection (2) are in addition to the provisions of The Criminal Code provided that a person shall not be twice punished for the same offence.". 44. New ss. 93A and 93B. The Principal Act is amended by inserting after section 93 the following sections:-- " 93A. Rules of Court and procedure on Appeals . (I) (a) Rules of court may be made, under the Magistrates Courts Act1921-1982 with respect to the institution, conduct and disposal of appeals to the Magistrates Court pursuant to the provisions of this Act. (b) Until those Rules are made or in so far as those Rules do not extend- (i) the procedure for obtaining subpoenas to witnesses requiring them to attend on such an appeal shall, subject however to all such modifications and adaptations thereof as are necessary to give operation and effect to this Act, be that provided by the Rules of Court made under the Magistrates Courts Act1921-1982, as if that appeal were a proceeding under those lastmentioned Rules of Court;

874 Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 (ii) a Stipendiary Magistrate may, in any particular case, give such directions as he deems fit, including directions in relation to obtaining subpoenas where the procedure under subparagraph (i) does not extend or is inappropriate, and such directions shall, according to their tenor, have the force and effect of Rules of Court made for the purposes of the appeal. (2) (a) Rules of Court may be made under the DistrictCourts Act1967-1982 with respect to the institution, conduct and disposal of appeals to the District Court pursuant to the provisions of this Act. (b) Until those Rules are made or in so far as those Rules do not extend- (i) the procedure for obtaining subpoenas to witnesses requiring them to attend at those appeals shall, subject however to all such modifications and adaptations thereof as are necessary to give operation and effect to this Act, be that provided by the Rules of Court made under the provisions of the District CourtsAct1967-1982, as if those appeals were proceedings before a District Court; (ii) a District Court Judge may, in any particular case, give such directions as he deems fit, including directions in relation to obtaining subpoenas where the procedure under provision (i) does not extend or is inappropriate, and such directions shall, according to their tenor, have the force and effect of Rules of Court made for the purposes thereof."; " 93B. Power to delegate . (1) The Board may, with the prior consent in writing of the Minister, as provided by the instrument of delegation, by writing delegate to the Chairman of the Board or to the Registrar all or any of the powers, authorities, functions and duties had by the Board pursuant to section 59. (2) A power, authority, function or duty so delegated if exercised or performed by the delegate, shall be exercised or performed in accordance with the instrument of delegation. (3) If the Minister is of the opinion that the delegation should be revoked he may give notice in writing to the Board of the revocation of his consent to delegate whereupon the delegation shall cease to have effect. (4) Subject to subsection (3), a delegation is revocable at the will of the Board and does not prevent the exercise of a power or authority or the performance of a function or duty by it. (5) In a proceeding for the purposes of this Act, a certificate purporting to be under the hand of the Chairman of the Board to the effect- (a) that the Board has delegated to him or to the Registrar the powers, authorities, functions and duties referred to in subsection (1); (b) that the delegation has not been revoked or ceased to have effect, shall be evidence and, in the absence of evidence to the contrary, conclusive evidence of the matters contained therein.".

Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 875 45. Amendment of s. 94 . Regulations . Section 94 of the Principal Act is amended by- (a) inserting after provision (d) the following provision:- " (da) guidelines to which the Board is subject pursuant to section 31 (4) in relation to restricted registration of a body corporate;"; (b) adding at the end of provision (f) the words " which forms may, in whole or in part, be prescribed to be in the form of a statutory declaration ". 46. Schedule . The Principal Act is amended by inserting after section 108 the following Schedule:- "SCHEDULE THIS DEED OF GUARANTEE AND INDEMNITY is made the day of BETWEEN : XYZ of (address and occupation) [s. 31] AND: ABC of (address and occupation) (hereinafter referred to as " the Guarantors ") of the one part AND: BUILDERS' REGISTRATION BOARD OF QUEENSLAND a body corporate created by the Builders'RegistrationandHome-owners'ProtectionAct1979 (hereinafter referred to as " the Board ") of the other part WHEREAS has applied for registration as a registered house builder pursuant to Section 31 of the Builders' Registration andHome-owners' Protection Act1979-1982 AND WHEREAS the Board has required, pursuant to Section 31 (3) of the said Act that each and every director of provide a certain guarantee and indemnity Now THIS DEED WITNESSETH AS FOLLOWS: 1. The guarantors jointly and severally guarantee to the Board the payment by all monies payable from time to time by to the Board under Part V of the Builders' Registration and Home-owners Protection Act upon and after registration of as a registered house builder. 2. The guarantors hereby jointly and severally undertake that they will at all times (upon and after the registration of as a registered house builder) indemnify the Board and keep the Board indemnified against all claims and payments for which the Board may render itself legally liable under Part V of the Builders' Registration andHome-owners' Protection Act and against all actions, suits, proceedings, claims, demands, costs and expenses whatsoever made against the Board or incurred or become payable by the Board under Part V of the Builders'RegistrationandHome-owners'ProtectionAct howsoever arising from the housebuilding activities of 3. This Guarantee and Indemnity shall be binding notwithstanding any changes that shall subsequently take place in the constitution of (whether by amalgamation with any person firms or companies or otherwise) and whether such amalgamation shall or shall not involve the purchase and sale of assets by and to

876 Builders' Registration and Home-owners' Protection Act Amendment Act 1982, No. 61 4. This Guarantee and Indemnity shall be binding notwithstanding any cancellation or suspension of the registration of as a registered house builder , nor otherwise by the removal of from the Register of Builders kept pursuant of Section 37 of the said Act , nor by the Board subjecting the registration of as a registered house builder to any conditions and/or restrictions. 5. This Guarantee and Indemnity shall be binding on each of the guarantors notwithstanding that any or all of the guarantors hereafter ceases or cease to be a director or directors of 6. The Board may treat the guarantors in all respects as though they are jointly liable with instead of being merely sureties for 7. In order to give full and complete effect to the provisions of this Guarantee and Indemnity the guarantors hereby waive all suretyship and other rights inconsistent therewith and which they might otherwise be entitled to claim and enforce. 8. Subject to Clauses 1 and 2 hereof the Guarantee and Indemnity hereby given are to continue for the whole of the indebtedness or liability of to the Board provided that the total liability under this Guarantee and Indemnity shall in no event exceed the sum of One hundred thousand dollars ($100,000.00). 9. The liability of the guarantors under this Guarantee and Indemnity shall not be affected by the granting by the Board of time or any other indulgence whatsoever. 10. This Guarantee and Indemnity shall be binding on the personal representatives of the Guarantors. In witness thereof the parties hereto have set their hands and seals the day hereinbefore mentioned. Signed sealed and delivered by in the presence of: J.P. Signed sealed and delivered by in the presence of: J.P. Given under the Common Seal of The Builders' Registration Board of Queensland in the presence of: J.P.