Domestic Building Contracts (Conciliation and Dispute Resolution) Act 2002 (Vic)

Domestic Building Contracts (Conciliation and

Dispute Resolution) Act 2002

Act No. 36/2002

TABLE OF PROVISIONS

Section	Page
PART 1—PRELIMINARY	1

1.	Purposes	1
2.	Commencement	2

PART 2—AMENDMENTS TO DOMESTIC BUILDING

CONTRACTS ACT 1995 4

3.	New Part 3A inserted	4
PART 3A—CONCILIATION OF DISPUTES	4

43A.	Definitions	4
43B.	Making a complaint	4
43C.	Conciliation	5
43D.	Powers of the Director to institute and defend
proceedings	5
43E.	Proceedings and costs	6
43F.	Director may ask for inspector to be appointed	7

4.	Role of inspector	8
5.	Appointment of inspectors	8
6.	Reporting the results of an examination	9
7.	New section 123A inserted	10

123A. Director may provide information to the Commission 10

8. Domestic Builders Fund 10

PART 3—AMENDMENTS TO BUILDING ACT 1993 11

9.	Order requiring insurance	11
10.	Modification of insurance requirements for registration	11
11.	Inquiry into conduct	12
12.	New section 196A inserted	12

196A.	Commission may provide information to the Director of
Consumer and Business Affairs 12

13.	Building Administration Fund	13
14.	Building permit levy	14

i

Section Page

15. New section 241B inserted 14

241B. Report of inspector is evidence 14

PART 4—AMENDMENT OF VICTORIAN CIVIL AND

ADMINISTRATIVE TRIBUNAL ACT 1998 15

16. New clause 12A inserted in Part 6 of Schedule 1 15

12A.	Tribunal may request information about domestic
building dispute 15

═══════════════

ENDNOTES 16

ii

Victoria

No. 36 of 2002

Domestic Building Contracts

(Conciliation and Dispute Resolution)

Act 2002†

[Assented to 18 June 2002]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purposes

The main purposes of this Act are—

(a) to amend the Domestic Building Contracts Act 1995 in relation to—

Domestic Building Contracts (Conciliation and Dispute
Resolution) Act 2002

s. 2 Act No. 36/2002

(i)  the powers of the Director of Consumer and Business Affairs to conciliate domestic building disputes; and

(ii)  the carrying out of building inspections in the event of domestic building disputes; and

(iii)  the provision of information in relation to domestic building disputes; and

(b) to amend the Building Act 1993—

(i)  to provide for an increased building permit levy; and

(ii)  to provide for the giving of information in relation to domestic building disputes; and

(iii)

to increase the grounds on which against a builder; and

(iv)  to provide for certain reports to be evidence in proceedings against an unregistered builder; and

(v)  to clarify the power to amend an insurance order; and

(c) Administrative Tribunal Act 1998 to allow

to amend the Victorian Civil and concerning domestic building disputes.

2. Commencement

(1) Subject to sub-section (2), this Act (except section 10(4)) comes into operation on a day or days to be proclaimed.

Domestic Building Contracts (Conciliation and Dispute
Resolution) Act 2002

Act No. 36/2002 s. 2

(2) If a provision of this Act (other than section 10(4))

does not come into operation before 1 July 2002,

it comes into operation on that day.

(3) Section 10(4) comes into operation on 31 May

2003.

__________________
Domestic Building Contracts (Conciliation and Dispute
Resolution) Act 2002

s. 3 Act No. 36/2002

PART 2—AMENDMENTS TO DOMESTIC BUILDING

CONTRACTS ACT 1995

3. New Part 3A inserted

See:

Act No.	After Part 3 of the Domestic Building Contracts
91/1995	Act 1995 insert—
Reprint No. 4
as at
11 May 2000	'PART 3A—CONCILIATION OF DISPUTES
and amending	43A. Definitions
Act Nos
74/2000
26/2001 and	In this Part—
68/2001  LawToday:	"building owner" includes a person who is
dpc.vic.	the owner for the time being of the
gov.au	building or land in respect of which a domestic building contract was made or domestic building work was carried out;

"domestic building dispute" does not

include a dispute or claim referred to in

section 54(1)(b).

43B. Making a complaint

(1) A building owner who is a party to a

domestic building dispute may complain to
the Director about any matter concerning

that dispute.

(2) The complaint must be in writing.

(3) The Director may ask a building owner who

has made a complaint to give more
information about the complaint within the
time fixed by the Director.

(4) A building owner who has made a complaint must give his or her name to the Director and such other information relating to his or her

identity as the Director may require.

Domestic Building Contracts (Conciliation and Dispute
Resolution) Act 2002

Act No. 36/2002 s. 3

(5) A building owner may not make a complaint

under this section in respect of a domestic building dispute if an application has been made to the Tribunal to determine the

domestic building dispute.

43C. Conciliation

(1) If a complaint is made under section 43B, the

Director may refer the dispute to a domestic building dispute conciliator for conciliation if the dispute is reasonably likely to be

settled.

(2) In this section—

"domestic building dispute conciliator"

means—

(a) the Public Sector Management

a person employed under Part 3 of administration of this Act; or

(b) a person or body authorised by the Director for the purposes of this section.

43D. Powers of the Director to institute and

defend proceedings

(1) If a building owner is involved in a domestic building dispute, the Director may, subject to this section, institute proceedings on behalf

of, or defend proceedings brought against the

building owner if the Director is satisfied—

(a)	that the building owner has a good cause of action or a good defence to an action relating to the dispute; and
(b)	that it is in the public interest to institute or defend proceedings on behalf of the building owner.

Domestic Building Contracts (Conciliation and Dispute
Resolution) Act 2002

s. 3 Act No. 36/2002

(2) The Director must not under sub-section (1)

institute or defend proceedings on behalf of a
person unless—

(a) the Minister has given his or her consent in writing, subject to any conditions that the Minister determines;

and

(b) the building owner has given consent in writing, and has not revoked that consent before the proceedings or the defence is instituted.

43E. Proceedings and costs

(1) If the Director institutes or defends

proceedings on behalf of a building owner

under section 43D—

(a)

the Director may settle the proceedings judgment in the proceedings; and

(b)	if a judgment is obtained in the proceedings in favour of the building owner, the Director may take such steps as are necessary to enforce the judgment; and
(c)	an amount (other than an amount in respect of costs) recovered in the proceedings is payable to the building owner; and
(d)	an amount in respect of costs recovered in the proceedings is payable to the Director; and
(e)	the building owner is liable to pay an amount (not being an amount of costs) awarded against the building owner in the proceedings; and

Domestic Building Contracts (Conciliation and Dispute
Resolution) Act 2002

Act No. 36/2002 s. 3

(f) the Director is liable to pay the costs of or incidental to the proceedings that are payable by the building owner.

(2) If, in proceedings instituted or defended on

behalf of a building owner under section
43D—

(a)	a party to the proceedings files a counterclaim; or
(b)	the building owner is entitled to file a counterclaim—

and the counterclaim is not or would not be Tribunal hearing the proceedings for an order that the counterclaim not be heard in the course of those proceedings.

related to the proceedings and to the interests
of the building owner in the dispute, the

(3) If the court or the Tribunal makes an order

under sub-section (2), the court or the Tribunal may make those ancillary or consequential provisions (if any) that it

thinks just.

43F. Director may ask for inspector to be

appointed

(1) The Director may ask the Commission to

appoint an inspector to examine any building
work or any aspect of building work that is
the subject of a domestic building dispute

if—

(a)	the Director considers it necessary to resolve the dispute; or
(b)	the Director is not able to resolve the dispute by conciliation.

Domestic Building Contracts (Conciliation and Dispute
Resolution) Act 2002

s. 4 Act No. 36/2002

(2) A request under sub-section (1) may include a request for the appointment of an inspector to examine whether or not the domestic

building work performed by the builder is

defective.

(3) A request under sub-section (1) must—

(a) be in writing; and

(b) be accompanied by a copy of all documents held by the Director that relate to the request.'.

4. Role of inspector

In section 44 of the Domestic Building Contracts
Act 1995, for sub-section (2) substitute—

"(2) Any person who is a party to a dispute may ask the Commission to appoint an inspector to examine whether or not the domestic

building work performed by the builder is

defective.".

5. Appointment of inspectors

(1) In section 45(1) of the Domestic Building

Contracts Act 1995 for "section 44" substitute

"section 43F or 44".

(2) In section 45(2) of the Domestic Building

Contracts Act 1995 for "The Commission must not" substitute "If a request is made under section 44, the Commission must not".

(3) After section 45(3) of the Domestic Building

Contracts Act 1995 insert—

"(4) No fee is payable in respect of the

appointment of an inspector at the request of
the Director under section 43F.".

Domestic Building Contracts (Conciliation and Dispute
Resolution) Act 2002

Act No. 36/2002 s. 6

(4) In section 47(2) of the Domestic Building

Contracts Act 1995 for "The person" substitute
"If a request is made under section 44, the

person".

(5) After section 47(2) of the Domestic Building

Contracts Act 1995 insert—

"(3) No costs are payable under this section if the

inspector conducting the test was appointed at the request of the Director under section 43F.".

6. Reporting the results of an examination

(1) In section 48 of the Domestic Building Contracts

Act 1995 for sub-section (2) substitute—

"(2) The report must be in writing and the

inspector must give a copy of the report to

each party to the dispute.

(2A) If an inspector has been appointed at the

request of the Director under section 43F, the inspector must also give a copy of the report to the Director and the Commission.

(2B) A report must contain the prescribed

information (if any).".

(2) In section 48 of the Domestic Building Contracts

Act 1995, for sub-section (3) substitute—

"(3) If the inspector believes that the building

work is defective, he or she must include in
the report recommendations as to what
should be done to rectify the defective
work.".

Domestic Building Contracts (Conciliation and Dispute
Resolution) Act 2002

s. 7 Act No. 36/2002

7. New section 123A inserted

After section 123 of the Domestic Building

Contracts Act 1995 insert—

"123A. Director may provide information to the

Commission

The Director may provide the Commission with any information held by the Director in relation to a domestic building dispute if the Director considers that the provision of the information will assist in the resolution of the dispute.".

8. Domestic Builders Fund

After section 124(2)(c) of the Domestic Building

Contracts Act 1995 insert—

"(ca) all money paid to the Fund out of the

domestic building dispute account in the
Building Administration Fund under section

200(7E) of the Building Act 1993; and".

__________________
Domestic Building Contracts (Conciliation and Dispute
Resolution) Act 2002

Act No. 36/2002 s. 9

PART 3—AMENDMENTS TO BUILDING ACT 1993

See:

9. Order requiring insurance Act No. 126/1993

(1) In section 135(2) of the Building Act 1993 after "sub-section (1)" insert "or sub-section (4)".	Reprint No. 4
as at 8 June 2001
(2) In section 135 of the Building Act 1993 for sub- section (4) substitute—	and amending
Act Nos 26/2001,
"(4) The Minister may, by order published in the Government Gazette, amend or revoke an	30/2001, 32/2001,
68/2001 and

order made under sub-section (1).".	11/2002 LawToday:
dpc.vic.
gov.au

10.  Modification of insurance requirements for registration

(1) In section 172(2)(b) of the Building Act 1993,

before "give written proof" insert "if under Part 9
the applicant is required to be covered by
insurance,".

(2) In section 172 of the Building Act 1993 for sub- sections (8) and (9) substitute—

"(8) Despite sub-section (3), the Board is not required to suspend the registration of a person for a failure to comply with sub- section (2)(b) if the Board is satisfied that—

(a)	the person has applied for the required insurance; and
(b)	the only reason for the person not being covered by the required insurance is that the insurer has not made a decision on the application.".

Domestic Building Contracts (Conciliation and Dispute
Resolution) Act 2002

s. 11 Act No. 36/2002

(3) In section 174 of the Building Act 1993 for sub- sections (4) and (5) substitute—

"(4) Despite sub-section (1), the Board is not required to suspend the registration of a person who has ceased to be covered by the

required insurance if the Board is satisfied

that—

(a)	the person has applied for the required insurance; and
(b)	the only reason for the person not being covered by the required insurance is that the insurer has not made a decision on the application.".

(4) In the Building Act 1993—

(a) in section 172, sub-section (8) is repealed;

(b) in section 174, sub-section (4) is repealed.

11. Inquiry into conduct

After section 179(1)(fa) of the Building Act 1993 insert—

"(fb) has failed to carry out a recommendation

contained in an inspector's report under
section 48 of the Domestic Building

Contracts Act 1995; or".

12. New section 196A inserted

After section 196 of the Building Act 1993 insert—

"196A. Commission may provide information to the
Director of Consumer and Business Affairs

The Commission may provide the Director of Consumer and Business Affairs with any information held by the Commission in

relation to a domestic building dispute (within the meaning of section 3 of the

Domestic Building Contracts (Conciliation and Dispute
Resolution) Act 2002

Act No. 36/2002 s. 13

Domestic Building Contracts Act 1995) if the Commission considers that the provision of the information will assist in the

resolution of the dispute.".

13. Building Administration Fund

(1) In section 200(2)(e) of the Building Act 1993 for "account." substitute "account; and".

(2) After section 200(2)(e) of the Building Act 1993

insert—

"(f) the domestic building dispute account.".

(3) After section 200(3C) of the Building Act 1993

insert—

"(3D) Amounts paid into the fund on account of the

building permit levy payable under section
201(1C) must be credited to the domestic
building dispute account.".

(4) In section 200(5)(d) of the Building Act 1993 for "sub-section (7D)." substitute "sub-section (7D); or".

(5) After section 200(5)(d) of the Building Act 1993

insert—

"(e) out of the domestic building dispute account in accordance with sub-section (7E).".

(6) After section 200(7D) of the Building Act 1993

insert—

"(7E) Amounts may be paid out of the domestic building dispute account to the Domestic Builders Fund established under the

Domestic Building Contracts Act 1995 and
to the building permit levy account in the
proportions determined from time to time by
the Minister and the Minister administering
the Domestic Building Contracts Act
1995.".

Domestic Building Contracts (Conciliation and Dispute
Resolution) Act 2002

s. 14 Act No. 36/2002

14. Building permit levy

(1) In section 201(1B) of the Building Act 1993 for "or (1A)" substitute ", (1A) or (1C)".

(2) After section 201(1B) of the Building Act 1993

insert—

"(1C) There is imposed by this Act, in addition to the levy imposed by sub-sections (1) and

(1A), a building permit levy of ⋅064 cents in
every dollar of the cost of building work for

which a building permit is sought.".

(3) After section 201(10) of the Building Act 1993

insert—

"(11) The additional building levy imposed by

sub-section (1C) is not payable in respect of
an application for a building permit made

before 1 July 2002.".

15. New section 241B inserted

After section 241A of the Building Act 1993 insert—

"241B. Report of inspector is evidence

A copy of a report of an inspector given to the Commission under section 48 of the Domestic Building Contracts Act 1995 relating to an unregistered builder, is evidence in any proceeding against the builder under this Act or the regulations.".

__________________
Domestic Building Contracts (Conciliation and Dispute
Resolution) Act 2002

Act No. 36/2002 s. 16

PART 4—AMENDMENT OF VICTORIAN CIVIL AND

ADMINISTRATIVE TRIBUNAL ACT 1998

16. New clause 12A inserted in Part 6 of Schedule 1

See:

In Part 6 of Schedule 1 to the Victorian Civil and	Act No.
Administrative Tribunal Act 1998, after	53/1998 Reprint No. 2
clause 12 insert—	as at 15 July 2001
"12A. Tribunal may request information about domestic building dispute	and
amending Act Nos

(1) The Tribunal may request the Director or the Building Commission to provide the	98/2000, 2/2001,
68/2001 and
Tribunal with any information held by the	96/2001. LawToday:
Director or the Commission that relates to a
proceeding under the Domestic Building	dpc.vic.
gov.au
Contracts Act 1995 in relation to a domestic building dispute within the meaning of section 3 of that Act.

(2) The Director or the Commission (as the case

requires) must comply with a request under
sub-clause (1).".

═══════════════
Domestic Building Contracts (Conciliation and Dispute
Resolution) Act 2002

Endnotes Act No. 36/2002

ENDNOTES

†

Minister's second reading speech—

Legislative Assembly: 16 May 2002

Legislative Council: 11 June 2002

The long title for the Bill for this Act was "to amend the Domestic
Building Contracts Act 1995 to provide for the conciliation of domestic
building disputes, to amend the Building Act 1993 to increase the
building permit levy and to further regulate domestic builders, to amend
the Victorian Civil and Administrative Tribunal Act 1998 and for
other purposes."