Builders' Registration and Home-owners' Protection Act Amendment Act 1987 (Qld)

998 ANNO T ICESI O SE TA ,-I'1 Lea; SECUNDAE [ASSENTED TO 1ST DECEMBER, 1987]

Builders' Registration and Home-owners ' Protection Act Amendment Act 1987, No. 72 999 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 and citation . (1) This Act may be cited as the Builders' Registration and Home-owners' Protection Act Amendment Act 1987. (2) In this Act the Builders'Registration and Home-owners' Protection Act 1979-1983 is referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Builders' Registration and Home-owners ' Protection Act 1979-1987. 2. A. of s. 5. M eaning of ter m s. Section 5 of the Principal Act is amende by- (a) inserting after the definition " apartment ", the following definition:- "architect" m eans a person registered as an architect under the Architects Act 1985;"; (b) inserting after the definition " business name", the following definitions:- " "carrying on business " includes ca rry ing on business as set out in section 5 (1A) of the Companies (Queensland) Code; "director " has the meaning assigned to it in section 5 of the Companies ( Queensland ) Code;"; (c) in the definition "District Court", inserting after the expression "1967-1982 " the expression ";"; (d) in the definition " dwelling-house"- (i) omitting the first paragraph to and including the words "does not include -" and omitting provisions ( a) and ( b) and substituting the following:- "dwelling-house " means a building (whether temporary or permanent ) used or intended , adapted or designed for residential use and includes any out-building (whenever constructed ) used or to be used in association wi th that building or any part thereof but does not include- (a) a building that contains two separate residences which have as their common boundary , a floor or ceiling or part of a floor or ceiling; (b) a building that con tai ns three or more separate residences; (c) building construction or building work comprising a lot shown on a building units plan within the meaning of the Building Units and Group Titles Act 1980-1986;"; (ii) redesignating provisions ( c), (d) and (e) as provisions (d), (e) and (f ) respectively;

1000 Builders ' Registration and Home-owners' Protection Act Amendment Act 1987, No. 72 (e) inserting after the definition "dwelling-house", the following definition:- " "engineer" means a person who is registered as a professional engineer under the Professional Engineers Act 1929-1975;"; (f) omitting the definitions "practical completion" and "purchaser" and substituting the following definitions:- " "officer" when used in relation to a body corporate, includes the persons expressed to be included in the definition of "officer" in section 5 of the Companies (Queensland) Code; "owner" means- (a) in the case of land subject to the provisions of the Real Property Acts, a person who is the registered proprietor of that land; (b) in the case of unregistered land, a person who is the proprietor of the estate of freehold; (c) in the case of land subject to the provisions of the Land Act 1962-1986, a person who is lessee or licensee pursuant to that Act; (d) in the case of land subject to the provisions of the Miners' Homestead Leases Act 1913-1986 or the Mining TitlesFreeholding Act 1980-1986, a person who is a lessee pursuant to either Act; (e) in the case of land subject to the provisions of the StateHousing (Freeholding of Land) Act 1957-1984 or the StateHousing Act 1945-1986, a person who is a lessee pursuant to either Act; (f) in the case of land subject to the provisions of any other Act, a person who is a lessee or licensee pursuant to that Act; (g) any other person prescribed as being an owner for the purposes of this Act; "practical completion" means that point in the building construction at which the building construction becomes fit for intended use or occupation; "purchaser" means- (a) a person who has entered into a contract with a registered house builder for the performance of house building construction of a value exceeding $3 000 by that registered house builder; (b) a person who is the owner of land on which house building construction of a value exceeding $3 000 has been performed by a registered house builder otherwise than pursuant to a contract with that registered house builder; or (c) a person who, subsequent to the performance of house building construction of a value exceeding $3 000 by a

Builders' Registration and Home-owners' Protection Act Amendment Act 1987, No. 72 1001 registered house builder , becomes the owner of land on which that house building construction has been performed; but does not include the registered house builder who performed such house building construction; "Real Property Acts " has the meaning assigned to it in the Property Law Act 1974-1986;"; (g) inserting after the definition " roofing ", the following definition:- "unregistered land" means land alienated by the Crown for an estate of freehold other than land subject to the provisions of the Real Property Acts;". 3. Amendment of s. 10. Subsequent members of Board. Section 10 of the Principal Act is amended by- (a) in the first paragraph, omitting the words "other than as constituted pursuant to section 9, shall consist of eight" and substituting the words "other than the Board constituted at the commencement of the Builders' Registration and Home-owners' Protection Act Amendment Act 1987, shall consist of seven"; (b) in provision (a), omitting the words "one shall be the representative" and substituting the words "two shall be the representatives"; (c) omitting provisions (d), (e) and (f) and substituting the following provision:- "(d) one shall be the representative of consumers.". 4. Amendment of s. 12 . Chairman of B o ar d . Section 12 of the Principal Act is amended by- (a) in subsection (2), omitting the words "the member" and substituting the words "one of the members"; (b) adding at the end of subsection (2), the following paragraph:- "The Chairman of the Board shall be appointed by the Governor in Council by the notification referred to in section 10 (2).". 5. Amendment of s. 20 . Proceedings of Board. Section 20 of the Principal Act is amended in subsection (1) by omitting the word "Five" and substituting the word "Four". 6. Amendment of s. 31 . Persons who m ay be registered as registered house builders . Section 31 of the Principal Act is amended by- (a) in subsection (1)- (i) in the first paragraph, inserting after the words "prescribed form" the words "(which shall be in the form of a statutory declaration)";

1002 Builders ' R egistration and Home - owners' Protection Act Amendment Act 1987, No. 72 (ii) omitting provisions ( b), (c), (d) and ( e) and substituting the following provisions:- (i) he has had not less than 2 years sufficient practical and supervisory experience in and has sufficient knowledge of all aspects of the house building industry to enable hi m to c arry out the functions, responsibilities a nd duties of a registered house builder; or (A) he is an architect; (B) he is an engineer; (C) he is a m ember of the Australian Institute of Quantity Surveyors; or (D) he is a member of the Australian Institute of Building, and in the cases referred to in provisions (A), (B), (C) and (D ), has had not less than 2 years practical and supervisory experience in the house building industry sufficient to enable him to carry out the functions, responsibilities and duties of a registered house builder; (c) he is not a person whose registration is cancelled or suspended under this Act; (d) he has sufficient financial resources to enable him to carry on business as a registered house builder; and (e) he meets such other requirements as are prescribed for registration as a registered house builder in respect of individuals generally or the class of individual to which he belongs.". (b) in subsection (2)- (i) omitting the words "i n the State , which applies in the prescribed form " and substituting the words " within the State, which applies in the prescribed fo rm (which shall be in the form of a Statutory Declaration made by at least one director of that body corporate)"; (ii) in provision (a), omitting the words "or members of the board of management " and substituting the words " and other officers"; (iii) omitting provision ( d) and substituting the following provisions:- "(d) no officer thereof is a person whose registration under this Act is suspended or cancelled; (e) either- (i) no officer thereof has been made ba nkru pt or has othe rwi se taken advantage of the laws relating to ban kru ptcy;

Builders' Registration and Home-owners' Protection Act Amendment Act 1987, No. 72 1003 or (ii) an officer thereof has been made bankrupt or has otherwise taken advantage of the laws relating to bankruptcy but the body corporate is able to show to the satisfaction of the Board that it should be registered; (f) it-has sufficient financial resources to enable it to carry on business as a registered house builder; and (g) it meets such other requirements as are prescribed for registration as a registered house builder in respect of companies generally or the class of company to which it belongs.". 7. Am endment of s. 32 . Persons who may be registered as registered general builders . Section 32 of the Principal Act is amended by- (a) in subsection (I )- (i) in the first paragraph, inserting after the words "prescribed form" the words "(which shall be in the form of a statutory declaration)"; (ii) omitting provision (b) (i) and substituting the following provision:- "(i) he has had not less than 2 years sufficient practical and supervisory experience in and has sufficient knowledge of all aspects of the general building industry to enable him to carry out the functions, responsibilities and duties of a registered general builder;"; (iii) omitting provisions (b) (ii) and (b) (iii) and substituting the following provisions:- "(ii)- (A) he is an architect; (B) he is an engineer; (C) he is a member of the Australian institute of Quantity Surveyors; or (D) he is a member of the Australian Institute of Building, and in the cases referred to in provisions (A), (B), (C) and (D ), has had not less than 2 years practical and supe rvi sory experience in the general building industry sufficient to enable him to carry out the functions, responsibilities and duties of a registered general builder; (c) he is not a person whose registration is cancelled or suspended under this Act; (d) he has sufficient financial resources to enable him to carry on business as a registered general builder;

1004 Builders' Registration and Home-owners ' Protection Act Amendment Act 1987, No. 72 and (e) he meets such other requirements as are prescribed for registration as a registered general builder in respect of individuals generally or the class of individual to which he belongs.". (b) omitting subsection (2); (c) renumbering subsection ( 3) as subsection ( 2) and in that subsection- (i) omitting the words " in the State , which applies in the prescribed form " and substituting the words " within the State , which applies in the prescribed form ( which shall be in the form of a Statutory Declaration made by at least one director of that body corporate)"; (ii) in provision (a), omitting the words " or members of the board of management " and substituting the words " and other officers"; (iii) inserting after provision ( c), the following provisions:- "(d) no officer thereof is a person whose registration under this Act is suspended or cancelled; (e) either- (i) no officer thereof has been made bankrupt or has otherwise taken advantage of the laws relating to bankruptcy; or (ii) an officer thereof has been made bankrupt or has otherwise taken advantage of the laws relating to bankruptcy but the body corporate is able to show to the satisfaction of the Board that it should be registered; (f) it has sufficient financial resources to enable it to carry on business as a registered general builder; and (g) it meets such other requirements as are prescribed for registration as a registered general builder in respect of companies generally or the class of company to which it belongs.". 8. Amendment of s. 34 . Restricted registration . Section 34 of the Principal Act is amended in the last paragraph by omitting the words "With the approval of the Minister, the" and substituting the word "The". 9. Amendment of s. 48 . Ri ght of appeal. Section 48 of the Principal Act is amended by omitting the words "one month" and substituting the words "two months". 10. Amendment of s. 52A. Order to cease building construction. Section 52A of the Principal Act is amended by- (a) in subsection (1)- (i) omitting the words "or house building construction has been commenced or is being performed-" and omitting provisions (a) and

Builders' Registration and Home-owners' Protection Act Amendment Act 1987, No. 72 1005 (b) and substituting the words " has been commenced or is being performed in contravention of any of the provisions of this Act"; (ii) omitting the words " or house building construction that work on" and substituting the words ", that the performance of"; (b) in subsection (2)- (i) omitting the words " or house building construction " where twice occurring; (ii) omitting the words "referred to in subsection (1)"; (iii) in provision (b), inserting after the word " days" the words "or as near as practicable thereto"; (c) omitting subsection ( 3) and substituting the following subsections:- "(3) An interim order made under subsection (2) shall continue in force until such time as that order is made absolute or is discharged. (4) At least 3 days before the adjourned hearing of the application the Board shall serve on the person to whom the order is to be directed- (a) a copy of the interim order; and (b) all affidavit material relied on by the applicant in the first instance. (5) Upon the adjourned hearing of the application the Judge in Chambers shall, if he finds that the building construction was commenced or is being performed in contravention of any of the provisions of this Act, make the order absolute; (6) The Judge in Chambers who hears the application may make such order as to the costs of the application as he thinks fit.". 11. Amendment of s. 53 . C -ce ---sons not registered as registered builders or concern( b construction who ar e not so registered . Section 53 of the Principal Act is amended by- (a) in subsection (2)- (i) omitting provisions ( a) and ( b) and substituting the following provision:- "(a) perform any building construction;"; (ii) redesignating provisions ( c) and ( d) as provisions ( b) and (c) respectively; (iii) omitting provisi o n (e) and substituting the following provision:- "(d) be entitled to claim , sue for or otherwise recover, by any process in a court, by arbitration or otherwise , any fee,

1006 Builders ' Registration and Home-owners' Protection Act Amendment Act 1987, No. 72 charge, damages or other reward of whatever nature, in respect of the building construction performed or agreed to be performed,"; (iv) omitting the words "section 56" and substituting the words "section 54, 56"; (v) omitting the words "a fee or charge referred to in provision (e)" and substituting the words "any fee, charge, damages or other reward referred to in provision (d)"; (vi) omitting the words "Penalty: $2 000." and substituting the following words:- "Penalty: (a) in the case of a natural person, $5 000 for a first offence, $7 500 for a second offence and $10 000 for a third or subsequent offence; (b) in the case of a body corporate, $10 000 for a first offence, $15 000 for a second offence and $20 000 for a third or subsequent offence."; (b) omitting subsections (3) and (4); (c) renumbering subsection (5) as subsection (3) and in that subsection omitting the words "within six years after the commencement" and substituting the words "during the period on and from the commencement of the building construction to a date 6 years after the date of practical completion". 12. Rep t new s. 54. Proc ed ur e to allow build in g construction on odwel _' °,ise. Section 54 of the Principal Act is repealed and the following section substituted:- "54. Procedur e to allow building con ; Dn own dwelling- house. (1) A person shall be exempt fro -.1 the provisions of section 53 (2) if he, in relation to a dwelling -house for his own occupation- (a) personally performs house building construction; or (b) causes the performance of that house building construction which is personally managed and supervised by him. (2) A person who is not a registered house builder who proposes, in relation to a dwellin, -house for his own occupation, to personally perform or cause ":e , , ^r`,3rmance of house building construction to a value exceeding 3 000 shall, before such house building construction is commenced, furnish to the Board notification in the prescribed form of such proposal. Penalty: $1 000. (3) If a person, who at the time he performed or caused the performance of house building construction in relation to a dwelling-house for his own occupation, was not a registered

Builders' Registration and Home-owners' Protection Act Amendment Act 1987, No. 72 1007 house builder , sells, offers for sale, lets or leases the dwelling- house within the period of 6 years after the commencement of that house building construction , it shall, except where the sale, offer, letting or leasing is made with the approval of the Board first had and obtained in writing, be deemed that the dwelling- house was not at any time intended for occupation by that person. (4) Subsection (1)- (a) shall not apply to a person who personally performs or causes the performance of house building construction in relation to a dwelling - house for his own occupation where that dwelling-house contains two separate residences; (b) shall not , unless the prior approval in writing of the Board is first obtained , apply to a person who personally performs or causes the performance of house building construction in relation to a dwelling- house for his own occupation , where that person has in the past 6 years performed or caused the perfo rm ance of house building construction (otherwise than pursuant to a contract with a registered house builder) in relation to a dwelling - house for his own occupation. An application for the Board ' s approval under provision (b) shall be made in the prescribed form.". 13. Amend m ent of s. 55. Ap of ss. 53 and 54 in prescri bed cases. Section 55 of the Princip -- 1 . ct is amended by- (a) omitting subsection ( 1) and substituting the following subsections:- "(1) For the purposes of section 53 (2) and section- 54 a person who causes, whether in whole or in part and whether directly or indirectly , the performance of building construction, shall be deemed to perform such building construction. (2) For the purposes of subsection ( 1) a person causes the performance of building construction if he unde rtak es, by contract or othe rwi se , to perform any function in or about such building const ru ction including any of the following:- (a) advisory services ( except for architectural services rendered by an architect and engineering services rendered by an engineer); (b) administrative services; (c) management services; (d) supervisory services ( except for architectural services rendered by an architect and engineering services rendered by an engineer)."; (b) renumbering subsection ( 2) as subsection ( 3) and in that subsection- (i) omitting the words " Subsections ( 2) and ( 3) of section 53" and substituting the words " Section 53 (2)";

1008 Builders ' Registration and Home-owners ' Protection Act Amendment Act 1987, No. 72 (ii) omitting the word "work" and substituting the words "building construction". 14. Amendment of s. 56 . Exemption of ce rta in persons who perform building construction . Section 56 of the Principal Act is amended by - (a) in subsection (1), in provision (c), omitting the words "or a person or contractor referred to in section 54 (1) or a sub-contractor to such contractor" and substituting the words "a person referred to in section 54 (1) or a person who performs building construction as part only of building construction to be performed or caused to be performed by the person referred to in section 54 (1)"; (b) in subsection (2)- (i) in provision (b), omitting the words "or contractor"; (ii) omitting the words "work to be performed by the registered builder or to be managed and supervised" and substituting the words "construction to be performed by the registered builder or performed or caused to be performed". 15. Amendment of s. 58. O ffences by registered builder. Section 58 of the Principal Act is amended in subsection (1) by- (a) in provision (i), omitting the word "alloted" and substituting the word "allotted"; (b) omitting the words "Penalty: $1 000." and substituting the following words:- "Penalty: (a) in the case of a natural person, $ 5 000 for a first offence, $7 500 for a second offence and $10 000 for a third or subsequent offence; (b) in the case of a body corporate, $10 000 for a first offence, $15 000 for a second offence and $20 000 for a third or subsequent offence.". 16. Amendment of s. 59 . Remedy for unsatisfactory work. Section 59 of the Principal Act is amended by- (a) inserting after subsection (1), the following subsection:- "(2) Except where the Board is of the opinion (after consideration of all the relevant circumstances) that the faulty or unsatisfactory building work has been concealed by the fraud of the person who has performed it or caused it to be performed, an order shall not be made under subsection (1) unless the Board is notified in writing of the facts which evidence such building work as being faulty or unsatisfactory, within 6 years and 3 months from the date of practical completion of the building construction.". (b) renumbering subsections (2), (3) and ( 4) as subsections (3), (4) and (5) respectively.

Builders' Registration and Home-owners' Protection Act Amendment Act 1987, No. 72 1009 17. Amendment of s. 64. Board to be given notice of contracts and to be paid insurance premiums . Section 64 of the Principal Act is amended by- (a) omitting subsections (1) and (2) and substituting the following subsections:- "(1) (a) A registered house builder who proposes to perform house building construction, of a value exceeding $3 000 whether pursuant to a contract or not, shall serve on the Board or an agent of the Board, notice of that house building construction. This notice shall be in the prescribed form and shall contain the prescribed particulars which shall include the proposed date of commencement and the proposed date of practical completion of the house building construction. (b) Such notice shall be served- (i) where there is a contract for the performance of that house building construction, within 14 days after entering into that contract; (ii) where that house building construction is to be performed otherwise than pursuant to a contract, not less than 14 days before the commencement of that house building construction. (2) (a) A registered house builder who proposes to perform house building construction of a value exceeding $3 000, whether pursuant to a contract or not, shall pay to the Board or an agent of the Board, an insurance premium in respect of house building construction of or to each dwelling-house in an amount calculated in accordance with the prescribed scale. (b) Such insurance premium shall be paid- (i) where there is a contract for the performance of that house building construction, within 14 days after entering into that contract; (ii) where that house building construction is to be performed otherwise than pursuant to a contract, not less than 14 days before the commencement of that house building construction.". (b) in subsection (3), omitting the words "subsection (1)" and substituting the words "this section". 1 8 . Amendment of s. 69 . Presumed house-purchaser 's agreement on ins ur ance. Section 69 of the Principal Act is amended in subsection (3), in provision (a) by omitting the expression "," and substituting the word "or". 19. Amendment of s. 70. Recovery of pa ym ents made under house- purchaser ' s agreement . Section 70 of the Principal Act is amended in provision (b) by omitting the words " against such individual or body corporate".

1010 Builders' Registration and Home-owners' Protection Act Amendment Act 1987, No. 72 20.A m end m ent of s. 9 . - Board ' s hearings and oti is amended by adding a t: A -nd evidenti m atter- Section 90 o the Princi yof, the following subsection:- "(8) A cert ' lc, a : ii to be under the hand of the Registrar to t'-.e c .a: iat d ,i proval pursuant to section 54 (3) or 54 (4) has not been gran:- l shall, upon its p:-c_ -c 7ca in any proceeding be evidence and in the absence o< : ^ici nce to the contrary, conclusive evidence of that fact.". 21. Amendment of s. 91. B o ar d's power to examine Section 91 of the Principal Act is amended in subsection (1), ' a , ovision (c), by inserting after the word "registration" the exp ression ".".