Consumer Claims Tribunals (Building Disputes) Amendment Act 1989 (NSW)

CONSUMER CLAIMS TRIBUNALS (BUILDING DISPUTES)

AMENDMENT ACT 1989 No. 148

NEW SOUTH WALES

TABLE OF PROVISIONS

1. Short title
2. Commencement

3. Amendment of Consumer Claims Tribunals Act 1987 No. 206

SCHEDULE 1 - AMENDMENTS

CONSUMER CLAIMS TRIBUNALS (BUILDING DISPUTES)

AMENDMENT ACT 1989 No. 148

NEW SOUTH WALES

Act No. 148, 1989

An Act to amend the Consumer Claims Tribunal Act 1987 to make further provision for the hearing and determination of certain claims	concerning building goods and services. [Assented to 7 November
1989]

Consumer Claims Tribunals (Building Disputes) Amendment 1989

The Legislature of New South Wales enacts:

Short title

1. This Act may be cited as the Consumer Claims Tribunals

(Building Disputes) Amendment Act 1989.

Commencement

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

proclamatioa
Amendment of Consumer Claims Tribunals Act 1987 No. 206

3. The Consumer Claims Tribunals Act 1987 is amended as set out

in Schedule 1.

SCHEDULE 1 - AMENDMENTS

(Sec. 3)

(1) Section 3 (Definitions):

After the definition of "banker" in section 3 (1), insert

"building disputes tribunal" means a consumer

claims tribunal which hears and determines a building

claim, as referred to in Part 3A;

(2) Section 4A

After section 4, insert

Nomination of building dispute referees

(1) At least one of the persons appointed as a

referee is to be nominated as a building dispute referee.
(2) The nomination is to be made by the instrument of
appointment of the person as a referee or by a subsequent

4A

instrument executed by the Governor.

(3) A person is not to be nominated as a building dispute referee except on the recommendation of the Minister and the Minister is not to recommend a person unless satisfied that the person has extensive experience in the building industry.

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SCHEDULE 1 - AMENDMENTS - continued

(4) Before making such a recommendation, the Minister

(a)	is to seek advice on the matter from the senior referee, the Building Services Corporation, the Master Builders' Association of New South Wales and the Housing Industry Association (New South Wales); and
(b)	is to take into consideration any advice received by the Minister within the period specified by the Minister when seeking the advice.

(5) A building claim referee is not prevented from hearing and determining a claim merely because it is not a building claim.

(3) Part3A

After Part 3, insert

PART 3A - BUILDING CLAIMS

Definitions

12A In this Part

"BSC" means the Building Services Corporation

constituted by the BSC Act;

"BSC Act" means the Building Services Corporation

Act 1989;

"building claim" means a claim for

(a) the payment of a specified sum of money, or

(b) the supply of specified services; or

(c)	relief from payment of a specified sum of money, or
(d)	the delivery, return or replacement of specified goods or goods of a specified description; or
(e)	a combination of 2 or more of the remedies referred to in paragraphs (a) - (d),

that arises from a supply of building goods or services, whether under a contract or not, or that arises under

Consumer Claims Tribunals (Building Disputes) Amendment 1989

SCHEDULE 1 - AMENDMENTS - continued

a contract that is collateral to a contract for the supply

of building goods or services;

"building goods or services" means goods or services

supplied for or in connection with the carrying out of residential building work or specialist work (within the meaning of the BSC Act) being goods or services:

(a)	supplied by the person who contracts to do that work; or
(b)	supplied in such circumstances as may be prescribed to the person who contracts to do that work.

Building claims to be considered to be consumer claims

(1) For the purposes of this Act, a building claim is to be considered to be a consumer claim and a person who makes a building claim is to be considered to be a consumer

12B.

(a) despite the definitions of "consumer" and "consumer claim" in section 3 (1); and

(b) even when the claim is made by a supplier.

(2) A claim is not to be considered to be a building claim

for the purposes of this Part if:

(a)	it is made by a person as the supplier of goods or services; and
(b) at the time any contract for the supply of those to hold any licence required by the BSC Act to be held to authorise the entering into of the contract

goods or services was entered into, the person failed Regulations may provide that certain claims are not building claims

12C. The regulations may make provision for circumstances in which a claim is not to be considered to be a building claim for the purposes of this Part

Tribunal to be known as building disputes tribunal

12D. When it hears and determines a building claim, a

tribunal is to be known as a building disputes tribunal.

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Special qualifications required for referee constituting building disputes tribunal

The referee who constitutes a building disputes

tribunal must be a referee who is nominated as a building
disputes referee (section 4A).

12R

Preliminary referral of building claim to BSC
12F. (1) If it appears to the registrar that a claim lodged is a building claim, the registrar must, despite section 14 (Fixing of times for hearings of consumer claims and notification to parties of times and places of hearings), refer the claim to the BSC for consideration.

(2) The registrar may consult the senior referee if in doubt as to whether a claim is a building claim and should be dealt with under this section.

(3) If the claim has not been withdrawn within 1 month after it is referred to the BSC or the BSC advises that it proposes to take no action in the matter, the registrar is to proceed to deal with the claim under section 14.

(4) This section does not apply to a class of building

claims prescribed as being exempt from this sectioa
Referral of claim to BSC during hearing

12G. (1) If a tribunal hearing a building claim thinks it

appropriate to do so in the interests of settling the claim, it may adjourn the hearing and refer the claim to the BSC

for consideratioa

(2) The tribunal may further adjourn the hearing of the claim if it thinks it appropriate to do so for the purpose of enabling any action to be taken under the BSC Act which may result in settlement and withdrawal of the claim.

(3) Section 20 (Adjournment of the hearing of a consumer claim) applies to any such adjournment and this section does not limit the operation of section 20.

BSC not prevented from taking action when claim pending
12H. (1) The fact that a consumer claim is pending
before a tribunal does not prevent the BSC from taking

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action under Part 4 (Dispute resolution and disciplinary provisions) of the BSC Act in respect of a matter even if the claim concerns that matter.

(2) If the BSC takes any such action in respect of a matter and is or becomes aware that a consumer claim pending before a tribunal concerns that matter, the BSC must inform the senior referee of the action taken.

Power to make additional orders in favour of respondent

121. (1) In determining a building claim wholly or partly in favour of a respondent to the claim, a tribunal may make such one or more of the following orders as it considers appropriate:

(a) any order it could make under section 30 (2);

(b)	an order that requires a claimant to perform specified work in order to rectify a defect in goods or services to which the claim relates;
(c)	an order that requires a claimant to supply to the respondent specified services other than work;
(d)	in the case of a claim for relief from payment of money, an order declaring that a specified amount of money is not due or owing by the respondent to the claimant;
(e)	an order that requires a claimant to deliver to the respondent goods of a specified description;

(f)	an order that requires a claimant to replace goods
to which the claim relates.

(2) This section does not affect the power of a building disputes tribunal to make an order under section 30 (1) (orders in favour of claimant).

Excluded building claims not excluded from rest of Act
If a claim would be a building claim but for section 12B (2) or 12C, this Part does not prevent a person from bringing the claim before a consumer claims tribunal if it could be brought apart from this Part

12J.

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(4) Section 36 (Enforcement of other tribunal orders):

In section 36(1), after "or (2) (c)", insert "or 121 (1) (b), (c),

(e) or (f)".

[Minister's second reading speech made in -

Legislative Assembly on 18 October 1989 Legislative Council on 25 October 1989]