House Contracts Guarantee (Amendment) Act 2005 (Vic)
House Contracts Guarantee (Amendment) Act 2005
Act No. 52/2005
table of provisions
Section Page
Part 1—Preliminary
1.Purposes
2.Commencement
3.Principal Act
Part 2—Amendments to House Contracts Guarantee Act 1987
4.Definitions
5.New sections 11A and 11B inserted
11A.State to become liable for guarantees
11B.VMIA to be responsible for the Housing Guarantee Claims Fund and claims
6.Liability in legal proceedings
7.New section 13 substituted
13.Procedure for resolving claims
8.Claims
9.Costs
10.Appeals
11.Discretionary payments
12.Application of payments
13.New Part 2A inserted
Part 2A—Housing Guarantee Claims Fund
17B.Housing Guarantee Claims Fund
17C.What comprises the Housing Guarantee Claims Fund?
17D.Payments out of the Housing Guarantee Claims Fund
17E.Powers of VMIA in relation to the Housing Guarantee Claims Fund
17F.Report to Minister
17G.Auditor-General to audit financial statements of Housing Guarantee Claims Fund
17H.Annual report
17I.Remaining funds to be paid into Domestic Builders
Fund
14.Part 4 heading substituted
15.Sections 22 to 24 repealed
16.References to the approved guarantor substituted
17.Section 25A repealed
18.False representations
19.Definition repealed
20.References to HGFL substituted
21.Procedure for claims
22.Further references to HGFL substituted
23.New section 49 substituted
49.Remaining funds to be paid into Consolidated Fund
24.New section 50 substituted
50.Report to Minister
25.Audit of financial statements
26.New section 52 substituted
52.Annual report
27.Entering into arrangements and agreements with liquidator of HIH
28.New Part 7 inserted
Part 7—Transitional
Division 1—Transfer of Property, Rights and Liabilities of HGFL
57.Definitions
58.State to take over responsibility for guarantees
59.VMIA to be substituted as party to proceedings
60.Construction of instruments
61.Taxes
62.Transfer of staff
63.Evidence
64.Validity of things done under this Division
65.Operation of provisions not subject to review
Division 2—Role of VMIA in relation to guarantees
66.Actions of continuing nature in relation to guarantees
Division 3—Role of VMIA in relation to indemnities
67.Actions of continuing nature in relation to indemnities
68.References to HGFL in any arrangement or agreement under section 53
Division 4—Reporting by HGFL
69.Final annual report by HGFL
Part 3—Amendments to other Acts
29.Amendment to Building Act 1993
30.Amendment to Domestic Building Contracts Act 1995
31.Amendments to Victorian Managed Insurance Authority Act 1996
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Endnotes
House Contracts Guarantee (Amendment) Act 2005
[Assented to 13 September 2005]
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1.Purposes
The purposes of this Act are—
(a)to amend the House Contracts Guarantee Act 1987—
(i)to establish the Housing Guarantee Claims Fund; and
(ii)to confer on the Victorian Managed Insurance Authority responsibility for the administration of the Housing Guarantee Claims Fund and the Domestic Building (HIH) Indemnity Fund and claims on those Funds; and
(iii)to provide for the transfer of the property, rights and liabilities of Housing Guarantee Fund Limited to the State; and
(b)to make consequential amendments to—
(i)the Victorian Managed Insurance Authority Act 1996; and
(ii)the Building Act 1993; and
(iii)the Domestic Building Contracts Act 1995.
2.Commencement
(1)Subject to sub-section (2), this Act comes into operation on a day to be proclaimed.
(2)If this Act does not come into operation before 1 July 2007, it comes into operation on that day.
3.Principal Act
In this Act the House Contracts Guarantee Act 1987 is called the Principal Act.
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Part 2—Amendments to House Contracts Guarantee Act 1987
4.Definitions
(1)In section 3(1) of the Principal Act, insert the following definitions—
' "appointed day" means the date of commencement of the House Contracts Guarantee (Amendment) Act 2005;
"HGFL" means Housing Guarantee Fund Limited A.C.N. 006 258 233;
"VMIA" means the Victorian Managed Insurance Authority established by the Victorian Managed Insurance Authority Act 1996.'.
(2)In section 3(1) of the Principal Act for the definition of "approved guarantor" substitute—
' "approved guarantor" means HGFL;'.
(3)In section 3(1) of the Principal Act for the definition of "claimant" substitute—
' "claimant" means—
(a)except in Part 6, a person who has made a claim to HGFL or VMIA under this Act; and
(b)in Part 6, a person who has lodged a claim with HGFL or VMIA under that Part;'.
(4)After section 3(4) of the Principal Act insert—
"(5)A reference in this Act to a guarantee given under this Act does not include a reference to an indemnity given under Part 6.".
5.New sections 11A and 11B inserted
After section 11 of the Principal Act insert—
"11A.State to become liable for guarantees
Despite anything to the contrary in this Part, on the appointed day—
(a)the State becomes liable under any guarantee given by HGFL under this Act to the extent of HGFL's liability under that guarantee; and
(b)HGFL ceases to be liable under that guarantee.
11B.VMIA to be responsible for the Housing Guarantee Claims Fund and claims
(1)VMIA is responsible on and after the appointed day for the administration of—
(a)claims on guarantees given by HGFL or the State under this Act; and
(b)the Housing Guarantee Claims Fund.
(2)VMIA has any other functions conferred on it under this Part, Part 2A, Part 4 and Part 7.
(3)Without limiting its other powers, VMIA has any powers necessary to carry out its functions under this Part, Part 2A, Part 4 and Part 7.
(4)VMIA acts on behalf of the State in carrying out its functions and exercising its powers under or for the purposes of this Part, Part 2A, Part 4 and Part 7.
(5)No claim on a guarantee given by HGFL or the State under this Act can be made on the assets of VMIA and the assets of VMIA are not available for the payment of any amount of claim, costs or expenses under such a guarantee.".
6.Liability in legal proceedings
(1)Insert the following heading to section 12 of the Principal Act—
"Liability in legal proceedings".
(2)In section 12(1) of the Principal Act for "the approved guarantor" substitute "the State".
(3)For sections 12(2) and 12(3) of the Principal Act substitute—
"(2)Sub-section (1) applies only if—
(a)the person who makes the claim—
(i)notified the approved guarantor of the legal proceedings before the appointed day and within 3 months of the proceedings being commenced; or
(ii)notified VMIA of the legal proceedings on or after the appointed day and within 3 months of the proceedings being commenced; or
(b)VMIA is not prejudiced in dealing with the claim by the failure of the claimant to give the required notice under paragraph (a).
(3)Without limiting sub-section (2)(b), VMIA can establish prejudice for the purposes of that sub-section by establishing that—
(a)the State could have recovered any sum payable by it in discharge of its liability had VMIA or the approved guarantor been notified of the proceedings within the required time but that it cannot make that recovery because of the failure to give that notice within the required time; or
(b)the approved guarantor could have recovered any sum payable by it in discharge of its liability under this section as in force before the appointed day had the approved guarantor been notified of the proceedings within the required time but that it could not make that recovery because of the failure to give that notice within the required time.".
7.New section 13 substituted
For section 13 of the Principal Act substitute—
"13.Procedure for resolving claims
(1)Subject to this section, the procedures approved under this section as in force immediately before the appointed day for the handling and resolution of claims apply (with any necessary modifications) to the handling and resolution of claims by VMIA under this Part.
(2)If—
(a)a claim has been made to the approved guarantor before the appointed day or to VMIA on or after the appointed day for loss or damage; and
(b)the claimant has also brought legal proceedings against the builder or supervisor involved in the claim—
VMIA must proceed to make a decision in respect of the claim if the matters in dispute in the legal proceedings do not include any matter to which the claim relates.
(3)If—
(a)the approved guarantor, before the appointed day, or VMIA on or after the appointed day has made an offer in respect of a claim by a person for loss or damage; and
(b)within 6 months after the offer was made the offer has not been accepted or rejected—
VMIA may refer the matter to the Tribunal and the Tribunal must treat the matter as if the claimant had not been satisfied with the offer and had appealed to it under section 16.
(4)VMIA may from time to time submit to the Minister for approval the procedures it proposes to adopt in the handling and resolution of claims under this Part.
(5)VMIA may propose to adopt as part of its procedures—
(a)the requirement that a claim be made in a particular way; and
(b)the requirement that a claimant supply to it a statutory declaration made by the claimant verifying any information supplied to VMIA by the claimant in respect of a claim.
(6)The Minister must consult with the Minister administering the Victorian Managed Insurance Authority Act 1996 before approving the procedures.
(7)The Minister may approve the procedures with or without amendment.
(8)VMIA must adopt the procedures approved by the Minister.
(9)A procedure does not take effect unless it has been approved by the Minister.".
8.Claims
(1)In sections 14(1), 14(1A) and 14(2) of the Principal Act, after "the approved guarantor" insert "or VMIA".
(2)For section 14(3) of the Principal Act substitute—
"(3)Sub-section (2) has no effect unless in a particular case VMIA can establish that the failure to notify the defect in accordance with that sub-section prejudiced VMIA in dealing with the claim.".
(3)In section 14(4) of the Principal Act for "the approved guarantor" substitute "VMIA".
9.Costs
(1)In section 15 of the Principal Act—
(a)for "The approved guarantor" substitute "VMIA"; and
(b)in paragraph (b) after "approved guarantor" insert "or VMIA".
(2)At the end of section 15 of the Principal Act insert—
"(2)This section does not apply if the costs referred to in sub-section (1) were reimbursed before the appointed day.".
10.Appeals
(1)In section 16(1) of the Principal Act—
(a)in paragraphs (a), (b), (ba), (c) and (f) after "the approved guarantor" (wherever occurring) insert "or VMIA"; and
(b)after "the approved guarantor" (where last occurring) insert "or VMIA".
(2)For section 16(2) of the Principal Act substitute—
"(2)If, within 3 months after making a claim for loss or damage, a claimant has not received notice from the approved guarantor or VMIA of its decision on the claim—
(a)if that period ended before the appointed day, the approved guarantor is to be treated as having made, on the last day of that period, a decision to accept liability for the claim; and
(b)if the period ended on or after the appointed day, VMIA is to be treated as having made, on the last day of that period, a decision to accept liability for the claim.".
(3)For section 16(4) of the Principal Act substitute—
"(4)VMIA may make an offer in respect of a claim if—
(a)it has decided to accept a claim; or
(b)before the appointed day, the approved guarantor had decided to accept the claim.
(4A)Sub-section (4) applies whether or not a builder has appealed under sub-section (1)(ba) or (c) or a supervisor has appealed under sub-section (1)(f) in respect of the decision.".
(4)In section 16(5) of the Principal Act after "the approved guarantor" insert "or VMIA".
(5)In section 16(6) of the Principal Act for "the approved guarantor" substitute "VMIA".
11.Discretionary payments
(1)In section 17(1) of the Principal Act—
(a)for "the approved guarantor" substitute "VMIA"; and
(b)after "in respect of a claim made to it" insert "or the approved guarantor".
(2)Section 17(2) of the Principal Act is repealed.
12.Application of payments
(1) For section 17A(1) of the Principal Act substitute—
"(1)If a claim relates to a failure to complete building work or a defect in building work and that claim was accepted by the approved guarantor before the appointed day or is accepted by VMIA on or after the appointed day, or is upheld on appeal, any payment made by VMIA in respect of that claim may be made on the condition that it is applied for the purpose of completion of that work or the rectification of that defect.".
(2)In sections 17A(2) and 17A(3) of the Principal Act for "The approved guarantor" substitute "VMIA".
(3)In section 17A(4) for "the approved guarantor" (where twice occurring) substitute "VMIA".
13.New Part 2A inserted
After Part 2 of the Principal Act insert—
"Part 2A—Housing Guarantee Claims Fund
17B.Housing Guarantee Claims Fund
There is to be established a Fund to be called the Housing Guarantee Claims Fund.
17C.What comprises the Housing Guarantee Claims Fund?
(1)All property vested in the State under section 58 forms part of the Housing Guarantee Claims Fund.
(2)There must be paid into the Housing Guarantee Claims Fund—
(a)all money received from the disposal of any property in the Fund under section 17E(4); and
(b)any money appropriated by Parliament for the purposes of the Fund; and
(c)income from the investment of the Fund; and
(d)all fees received by VMIA under section 25; and
(e)all other money authorised or required to be paid to the Fund by any person or body.
17D.Payments out of the Housing Guarantee Claims Fund
(1)There may be paid out of the Housing Guarantee Claims Fund at the direction of VMIA—
(a)any amount payable on a claim on a guarantee given under this Act; and
(b)any amount payable in respect of any liability that becomes a liability of the State under section 58; and
(c)any amount paid by the State in respect of any liability that becomes a liability of the State under section 58; and
(d)the costs and expenses incurred in the administration of the Fund and any claim on a guarantee given under this Act; and
(e)any amount determined by the Auditor-General to defray the reasonable costs and expenses of an audit of the accounts of the Fund; and
(f)with the consent of the Minister, any amount required to meet the costs and expenses of and any liabilities arising on the winding up of HGFL; and
(g)any other amount authorised by or under this or any other Act to be paid out of the Fund.
(2)All amounts paid out of the Fund under sub-section (1)(c) or (1)(e) must be paid into the Consolidated Fund.
(3)All money and other property in the Fund is an asset of the State.
17E.Powers of VMIA in relation to the Housing Guarantee Claims Fund
(1)VMIA may invest any part of the Housing Guarantee Claims Fund that is not immediately required for the purposes of the Fund in any manner approved by the Treasurer.
(2)Despite sub-section (1), VMIA may continue any investment of funds of HGFL existing immediately before the appointed day and forming part of the Housing Guarantee Claims Fund as if the investment had been made by VMIA.
(3)VMIA may use any property in the Fund for any purpose related to the administration of the Fund.
(4)VMIA may dispose of any property (other than money) in the Fund.
(5)VMIA may enter into any agreement with any person in relation to the settlement of any liability of the State or to the State transferred under section 58.
17F.Report to Minister
VMIA must from time to time at the direction of the Minister report to the Minister in the manner required by the Minister on its administration of—
(a)claims on guarantees given by HGFL or the State under this Act; and
(b)the Housing Guarantee Claims Fund.
17G.Auditor-General to audit financial statements of Housing Guarantee Claims Fund
(1)The financial statements of the Housing Guarantee Claims Fund must be audited annually by the Auditor-General.
(2)The Auditor-General has in respect of the audit all the powers conferred on the Auditor-General by any law relating to the audit of the Public Account.
(3)The Auditor-General must submit a report of the audit to the Minister.
(4)The Minister must cause a copy of any audit report to be laid before each House of Parliament within 7 sitting days of that House after it is received by the Minister under sub-section (3).
17H.Annual report
VMIA must include in its annual report for a financial year under Part 7 of the Financial Management Act 1994—
(a)details of its administration of—
(i)claims on guarantees given by HGFL or the State under this Act; and
(ii)the Housing Guarantee Claims Fund; and
(b)the audited financial statements of the Housing Guarantee Claims Fund.
17I.Remaining funds to be paid into Domestic Builders Fund
(1)If the Minister is satisfied that all claims on a guarantee given under this Act have been dealt with and that no further claim can be made on a guarantee given under this Act, the Minister may by notice published in the Government Gazette, close the Housing Guarantee Claims Fund.
(2)On the publication of the notice under sub-section (1) all money standing to the credit of the Housing Guarantee Claims Fund must be paid into the Domestic Builders Fund established under the Domestic Building Contracts Act 1995.".
14.Part 4 heading substituted
For the heading to Part 4 of the Principal Act substitute—
"Part 4—The Register".
15.Sections 22 to 24 repealed
Sections 22, 22A, 23 and 24 of the Principal Act are repealed.
16.References to the approved guarantor substituted
(1)Insert the following heading to section 25 of the Principal Act—
"Registers to be kept by VMIA".
(2)For section 25(1) of the Principal Act substitute—
"(1)VMIA must, in the form required by the Minister, keep—
(a)a register of builders and supervisors approved by the approved guarantor; and
(b)a register of work in relation to which a guarantee given by the approved guarantor under this Act is in force and of which the approved guarantor has received notice under section 24 of this Act or section 27(3) of the Building Act 1993 or of which the approved guarantor otherwise had actual notice before the appointed day.".
(3)For section 25(2) of the Principal Act substitute—
"(2)VMIA must permit a person to inspect a register required to be kept by it under sub-section (1) at any time during ordinary office hours at its offices.".
(4)In section 25(3) of the Principal Act—
(a)for "The approved guarantor" substitute "VMIA"; and
(b)omit "signed by a person authorised by the approved guarantor in that behalf"; and
(c)in paragraph (c) after "approved guarantor" insert "or the State".
(5)For sections 25(4), 25(5) and 25(6) of the Principal Act substitute—
"(4)VMIA must, at the request of the applicant for the certificate, include in a certificate issued under sub-section (3) a statement as to whether or not the approved guarantor or VMIA has received a claim under a guarantee in force in relation to the building to which the certificate relates.
(5)A document purporting to be a register or part of a register required to be kept by VMIA under sub-section (1) and purporting to be certified by VMIA as that register or part of that register is admissible in evidence in any proceedings for an offence against this Act and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(6)A certificate purporting to be issued by VMIA under sub-section (3) or by the approved guarantor under sub-section (3) as in force immediately before the appointed day, is admissible in evidence in any proceedings for an offence against this Act and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.".
17.Section 25A repealed
Section 25A of the Principal Act is repealed.
18.False representations
In section 27(1)(d) of the Principal Act for "approved guarantor" substitute "VMIA".
19.Definition repealed
In section 35(1) of the Principal Act, the definition of "HGFL" is repealed.
20.References to HGFL substituted
(1)In the heading to section 39 of the Principal Act, for "HGFL" substitute "VMIA".
(2)In sections 39 and 40 of the Principal Act, for "HGFL" (wherever occurring) substitute "VMIA".
21.Procedure for claims
(1)In section 41(1) of the Principal Act, for "HGFL" substitute "VMIA".
(2)Sections 41(2) and 41(7) of the Principal Act are repealed.
(3)In sections 41(3) and 41(5) of the Principal Act, for "HGFL" (wherever occurring) substitute "VMIA".
(4)After section 41(3) of the Principal Act insert—
"(3A)The Minister must consult with the Minister administering the Victorian Managed Insurance Authority Act 1996 before approving the procedures.".
22.Further references to HGFL substituted
(1)In section 42 of the Principal Act, for "HGFL" (wherever occurring) substitute "VMIA".
(2)In section 43(1) of the Principal Act for "HGFL" (wherever occurring) substitute "VMIA".
(3)In section 43(2) of the Principal Act for "HGFL" substitute "the State".
(4)In the heading to section 44 of the Principal Act, for "HGFL" substitute "VMIA".
(5)In sections 44, 47 and 48 of the Principal Act, for "HGFL" (wherever occurring) substitute "VMIA".
23.New section 49 substituted
For section 49 of the Principal Act substitute—
"49.Remaining funds to be paid into Consolidated Fund
(1)If the Minister is satisfied that all claims against the Domestic Building (HIH) Indemnity Fund have been dealt with and that no further claim can be made under this Part, the Minister may, by notice published in the Government Gazette, close the Fund.
(2)On the publication of the notice under sub-section (1), all money standing to the credit of the Domestic Building (HIH) Indemnity Fund must be paid into the Consolidated Fund.".
24.New section 50 substituted
For section 50 of the Principal Act substitute—
"50.Report to Minister
VMIA must from time to time at the direction of the Minister report to the Minister in the manner required by the Minister on its administration of—
(a)the indemnity scheme established under this Part; and
(b)the Domestic Building (HIH) Indemnity Fund.".
25.Audit of financial statements
(1)In the heading to section 51 of the Principal Act for "accounts" substitute "financial statements".
(2)In section 51(1) of the Principal Act for "accounts" substitute "financial statements".
(3)Section 51 (2) of the Principal Act is repealed.
26.New section 52 substituted
For section 52 of the Principal Act substitute—
"52.Annual report
VMIA must include in its annual report for a financial year under Part 7 of the Financial Management Act 1994—
(a)details of its administration of—
(i)the indemnity scheme established under this Part; and
(ii)the Domestic Building (HIH) Indemnity Fund; and
(b)the audited financial statements of the Domestic Building (HIH) Indemnity Fund.".
27.Entering into arrangements and agreements with liquidator of HIH
(1)In the heading to section 53 of the Principal Act, for "HGFL" substitute "VMIA".
(2)In section 53 of the Principal Act for "HGFL" substitute "VMIA".
28.New Part 7 inserted
After Part 6 of the Principal Act insert—
'Part 7—Transitional
Division 1—Transfer of Property, Rights and Liabilities of HGFL
57.Definitions
In this Division—
"instrument" includes a document and an oral agreement;
"liabilities" includes all liabilities, duties and obligations, whether actual, contingent or prospective;
"property" means a legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description;
"rights" means all rights, powers, privileges and immunities, whether actual, contingent or prospective;
"transferred HGFL employee" means a person who is to be taken under this Division to be employed by VMIA on the appointed day.
58.State to take over responsibility for guarantees
(1)On the appointed day—
(a)all property and rights of HGFL vest in the State; and
(b)all liabilities of HGFL become liabilities of the State; and
(c)the State becomes the successor in law of HGFL in relation to that property and those rights and liabilities.
(2)For the purposes of this Division, the property of HGFL includes—
(a)all assets of HGFL; and
(b)any register kept by the approved guarantor under section 25 as in force immediately before the appointed day.
59.VMIA to be substituted as party to proceedings
If, immediately before the appointed day, proceedings to which HGFL was a party were pending or existing in any court or tribunal, then, on and after the appointed day, VMIA, on behalf of the State, is substituted as a party to the proceedings and has the same rights in the proceedings as HGFL had.
60.Construction of instruments
(1)Each existing instrument that relates to the property, rights or liabilities of HGFL has effect and continues to have effect according to its tenor on and after the appointed day as if a reference in the instrument to HGFL were a reference to the State.
(2)In this section "existing instrument" means an instrument existing immediately before the appointed day—
(a)to which HGFL was a party; or
(b)that was given to or in favour of HGFL; or
(c)that refers to HGFL; or
(d)under which—
(i)money is, or may become, payable to or by HGFL; or
(ii)other property is to be, or may become liable to be, transferred to or by HGFL.
61.Taxes
No stamp duty or other tax is chargeable under any Act in respect of anything done under this Division or in respect of any act or transaction connected with or necessary to be done because of this Division, including a transaction entered into or an instrument made, executed or lodged.
62.Transfer of staff
(1)A person who immediately before the appointed day was employed by HGFL must, on the appointed day, be taken to be employed by VMIA on the same terms and conditions and with the same accrued and accruing entitlements as those that applied to that person as an employee of HGFL immediately before the appointed day.
(2)The service of a transferred HGFL employee as an employee of VMIA is to be taken for all purposes to be continuous with the service of that person, immediately before the appointed day, with HGFL.
(3)A transferred HGFL employee is not entitled to receive any payment or other benefit by reason of having ceased to be an employee of HGFL because of this Division.
(4)Nothing in this section prevents—
(a)any of the terms and conditions of employment of a transferred HGFL employee from being altered by or under any law, award or agreement with effect from any time after the appointed day; or
(b)a transferred HGFL employee from resigning, or the termination of a person's employment, at any time after the appointed day in accordance with the then existing terms and conditions of his or her employment by VMIA.
63.Evidence
(1)Documentary or other evidence that would have been admissible for or against the interests of HGFL before the appointed day is admissible for or against the interests of the State on or after the appointed day.
(2)Division 3A of Part III of the Evidence Act 1958 continues to apply with respect to the books of account of HGFL and to entries made in those books of account before the appointed day whether or not they relate to property, rights or liabilities of HGFL vested in the State under this Division.
64.Validity of things done under this Division
Nothing effected by this Division or suffered under this Division—
(a)is to be regarded as placing any person in breach of contract or confidence or as otherwise making any of them guilty of a civil offence; or
(b)is subject to compliance with or is to be regarded as placing any person in breach of or as constituting a default under any Act or other law or any provision in any agreement, arrangement or understanding including, without limiting the generality of the foregoing, any provision prohibiting, restricting or regulating the assignment or transfer of any property or right or the disclosure of any information; or
(c)is to be regarded as fulfilling any condition which allows a person to exercise a power, right or remedy in respect of or to terminate any agreement or obligation; or
(d)is to be regarded as giving rise to any remedy for a party to a contract or an instrument or as causing or permitting the termination of any contract or instrument because of a change in the beneficial or legal ownership of any property, right or liability; or
(e)is to be regarded as causing any contract or instrument to be void or otherwise unenforceable; or
(f)is to be regarded as frustrating any contract; or
(g)releases any surety or other obligor wholly or in part from any obligation.
65.Operation of provisions not subject to review
Nothing done under this Division gives rise to any cause or right of action or application before any court or tribunal.
Division 2—Role of VMIA in relation to guarantees
66.Actions of continuing nature in relation to guarantees
(1)Any act, matter or thing of a continuing nature commenced before the appointed day by HGFL in respect of a guarantee, or a claim on a guarantee, given under this Act may be continued and completed on and after the appointed day by VMIA.
(2)For the purposes of sub-section (1), any act or decision of HGFL before the appointed day in relation to a guarantee or claim on a guarantee is to be taken to be an act or decision of VMIA in respect of any period on and after the appointed day.
Division 3—Role of VMIA in relation to indemnities
67.Actions of continuing nature in relation to indemnities
(1)Any act, matter or thing of a continuing nature commenced before the appointed day by HGFL under Part 6 may be continued and completed on and after the appointed day by VMIA.
(2)For the purposes of sub-section (1), any act or decision of HGFL before the appointed day in relation to any matter under Part 6 is to be taken to be an act or decision of VMIA in respect of any period on and after the appointed day.
68.References to HGFL in any arrangement or agreement under section 53
Without limiting section 67, any reference to HGFL in any agreement, arrangement or assignment under section 53, must be taken on or after the appointed day, to be a reference to VMIA.
Division 4—Reporting by HGFL
69.Final annual report by HGFL
Despite the repeal of section 25A and the substitution of section 52, those sections, as in force immediately before the appointed day, continue to apply to HGFL until it is wound up.'.
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Part 3—Amendments to other Acts
29.Amendment to Building Act 1993
In section 3(1) of the Building Act 1993 for the definition of "insurer" substitute—
' "insurer" includes the Victorian Managed Insurance Authority established by the Victorian Managed Insurance Authority Act 1996;'.
30.Amendment to Domestic Building Contracts Act 1995
In section 3(1) of the Domestic Building Contracts Act 1995, in the definition of "insurer" for paragraphs (b) and (c) substitute—
"(b)in relation to any domestic building work or domestic building contract that is subject to a guarantee under the House Contracts Guarantee Act 1987 or to which Part 6 of that Act applies, the Victorian Managed Insurance Authority established by the Victorian Managed Insurance Authority Act 1996.".
31.Amendments to Victorian Managed Insurance Authority Act 1996
(1)After section 6(e) of the Victorian Managed Insurance Authority Act 1996 insert—
"(ea)to carry out any functions conferred on it by the House Contracts Guarantee Act 1987;".
(2)After section 8(4) of the Victorian Managed Insurance Authority Act 1996 insert—
"(4A)The Minister must consult with the Minister administering the House Contracts Guarantee Act 1987 before giving a direction under this section that relates to the functions of the Authority under that Act.".
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Endnotes
Minister's second reading speech—
Legislative Assembly: 5 May 2005
Legislative Council: 17 August 2005
The long title for the Bill for this Act was "to amend the House Contracts Guarantee Act 1987 to establish the Housing Guarantee Claims Fund, to confer responsibility on the Victorian Managed Insurance Authority for the administration of that Fund and the Domestic Building (HIH) Indemnity Fund and claims on those Funds, to provide for the transfer of the property, rights and liabilities of Housing Guarantee Fund Limited to the State, to amend the Victorian Managed Insurance Authority Act 1996 and other Acts and for other purposes."
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