Untitled document
Building Legislation Amendment (Consumer Protection) Act 2016
No. 15 of 2016
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Resolution of domestic building work disputes
Division 1—Amendments to Domestic Building Contracts Act 1995
3Definitions
4Building work to which Act does not apply
5New section 29A inserted
6Part 3A repealed and Part 4 substituted
7New section 56 inserted
8New section 57A inserted
9New Subdivision 3 inserted in Division 2 of Part 5
10References to Tribunal
11New section 136 inserted
12New Schedule 1 inserted
Division 2—Amendments to Victorian Civil and Administrative Tribunal Act 1998
13Definitions
14Tribunal may request information about domestic building dispute
15New clauses 12B to 12D inserted
Part 3—Regulation of building work and building practitioners
Division 1—Interpretation
16Definitions
Division 2—Abolition of Building Practitioners Board
17Repeal of Division 3 of Part 11
18Transfer of Building Practitioners Board functions to Victorian Building Authority
Division 3—Registration of building practitioners
19Application for registration
20Registration
21New section 170A inserted
22New section 171 substituted
23New sections 172AA, 172AAB and 172AAC inserted
24Offences
25New Divisions 2, 3 and 4 of Part 11 substituted for Divisions 2 and 2A
26Regulation-making powers
Division 4—Regulation of owner-builders
27Restrictions on owner-builder
28Further restrictions on owner-builders
29Application for owner-builder certificate of consent
30Decision on application for certificate of consent
31Certificate of consent
32Register of certificates
33Repeal of section 25I
34New section 227AA inserted
35Functions of performance auditors
36Powers of performance auditors
Division 5—Regulation of building surveyors
37New Division 1 heading inserted in Part 6
38When may a private building surveyor be appointed?
39Circumstances in which private building surveyor may not act
40New Division 2 inserted in Part 6
41New Division 3 inserted in Part 6
42Directions and recommendations in relation to building surveyors
43Role of municipal building surveyor outside municipal district
Division 6—Regulation of building work
44Section 16 substituted
45Costs of building work
46Further limitations on issue of building permit
47New sections 30A and 30B inserted
48New Division 1 heading inserted in Part 4
49New Division 2 of Part 4 substituted for section 37
50New Division 3 heading inserted in Part 4
51New section 118A inserted
52Offence to work as building practitioner without required insurance
53New section 138A inserted
Division 7—Enforcement
54New Division 2A inserted in Part 13
Division 8—General
55Section 199 substituted
56Statute law revision
Division 9—Transitional provisions
57New section 273 inserted
58New Schedule 8 inserted
Division 10—Amendments relating to dispute resolution
59Definitions of dispute resolution order and domestic building work dispute
60New section 37HA inserted
61Directions may be revoked
62Requirement to give copies of directions
63Grounds for disciplinary action
64Applying for internal review
65Internal review
66Application for review by VCAT of reviewable decision
67Proceedings and decision
68Repeal of section 241B
Division 11—Amendments to Victorian Civil and Administrative Tribunal Act 1998
69New Part 2B inserted in Schedule 1
70Amendments to Part 6 of Schedule 1
Division 12—Amendments to Domestic Building Contracts Act 1995
71General contents etc. of a contract
72Domestic Builders Fund
Part 4—Repeal of amending Act
73Repeal of amending Act
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Endnotes
1 General information
Building Legislation Amendment (Consumer Protection) Act 2016
No. 15 of 2016
[Assented to 19 April 2016]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The main purposes of this Act are—
(a)to amend the Domestic Building Contracts Act 1995—
(i)to enhance consumer protection in relation to domestic building work by providing for new processes for the resolution of domestic building disputes; and
(ii)to improve generally the operation of that Act; and
(b)to amend the Building Act 1993—
(i)to enhance consumer protection in relation to domestic building work by improving the regulation of building practitioners, particularly builders carrying out domestic building work and building surveyors; and
(ii)to provide for further regulation of owner-builders; and
(iii)to abolish the Building Practitioners Board and provide for its functions to be carried out by the Victorian Building Authority; and
(iv)to improve generally the operation and enforcement of that Act; and
(c)to make consequential amendments to the Victorian Civil and Administrative Tribunal Act 1998.
2Commencement
(1)This Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 1 July 2017, it comes into operation on that day.
Part 2—Resolution of domestic building work disputes
Division 1—Amendments to Domestic Building Contracts Act 1995
3Definitions
(1)In section 3(1) of the Domestic Building Contracts Act 1995 insert the following definitions—
"assessor means an assessor appointed under section 48;
breach of dispute resolution order notice means a notice issued under section 49U;
certificate of conciliation means a certificate of conciliation issued by the chief dispute resolution officer under section 45F or 46E;
chief dispute resolution officer means the chief dispute resolution officer appointed under Division 9 of Part 4;
conciliation includes a conciliation conference;
conciliation officer means—
(a)the chief dispute resolution officer; or
(b)a person appointed as a conciliation officer under Division 9 of Part 4;
dispute resolution order means a dispute resolution order issued under Division 6 of Part 4, or that order as amended under this Act;
Domestic Builders Fund means the Domestic Builders Fund established under section 124;
domestic building dispute account means the domestic building dispute account in the Building account within the meaning of the Building Act 1993;
Domestic Building Dispute Resolution Victoria Trust Fund means the trust fund established under section 51;
domestic building work dispute has the meaning set out in section 44;
Victorian Managed Insurance Authority means the Victorian Managed Insurance Authority established under the Victorian Managed Insurance Authority Act 1996.".
(2)In section 3(1) of the Domestic Building Contracts Act 1995, the definitions of determination and Tribunal are repealed.
4Building work to which Act does not apply
(1)Section 6(a) of the Domestic Building Contracts Act 1995 is repealed.
(2)At the end of section 6 of the Domestic Building Contracts Act 1995 insert—
"(2)This Act or a provision of this Act does not apply to any work that the regulations state is not building work to which this Act or that provision (as the case requires) applies.".
5New section 29A inserted
After section 29 of the Domestic Building Contracts Act 1995 insert—
"29A Contract information statement
(1)A builder must not enter into a major domestic building contract unless the builder has first given the building owner a contract
information statement in a form approved by the Director under this section.
Penalty:60 penalty units.
(2)The Director, after consulting with the Authority, must approve the form of a contract information statement for the purposes of this section.".
6Part 3A repealed and Part 4 substituted
For Parts 3A and 4 of the Domestic Building Contracts Act 1995 substitute—
"Part 4—Domestic building work disputes
Division 1—Preliminary
44What is a domestic building work dispute?
(1)In this Part, a domestic building work dispute is a domestic building dispute arising between a building owner and—
(a)a builder; or
(b)a building practitioner (as defined in the Building Act 1993); or
(c)a sub-contractor; or
(d)an architect—
in relation to a domestic building work matter.
(2)In this Part, domestic building work matter means any matter relating to a domestic building contract or the carrying out of domestic building work, including any of the following—
(a)an alleged breach of a warranty set out in section 8;
(b)an alleged failure to maintain the standard or quality of building work specified in a domestic building contract;
(c)an alleged failure to complete the domestic building work required by a domestic building contract;
(d)an alleged failure to complete the domestic building work required by a domestic building contract within the times specified in the contract;
(e)an alleged failure to pay money for domestic building work performed under the contract.
(3)A reference to a building owner in this section includes a reference to any person who is the owner for the time being of the building or land in respect of which a domestic building contract was made or domestic building work was carried out.
Division 2—Referral of domestic building work disputes
45Referral of domestic building work dispute to chief dispute resolution officer
(1)A party to a domestic building work dispute (the referring party) may refer the dispute to the chief dispute resolution officer.
(2)A referral of a domestic building work dispute must—
(a)be in writing in a form (if any) approved by the Director; and
(b)be signed by the referring party or the referring party's representative; and
(c)identify any other party to the dispute and that party's contact details (if known); and
(d)identify the relevant domestic building contract; and
(e)specify the particulars of the dispute.
(3)A domestic building work dispute must be referred to the chief dispute resolution officer within—
(a)10 years after the date of issue under the Building Act 1993 of the occupancy permit in relation to the domestic building work (whether or not the occupancy permit is subsequently cancelled or varied); or
(b)if an occupancy permit is not issued, 10 years after the date of issue under Part 4 of the Building Act 1993 of the certificate of final inspection for the domestic building work; or
(c)if neither an occupancy permit nor a certificate of final inspection is issued or required in relation to the domestic building work, 10 years after the date of practical completion of the domestic building work; or
(d)if neither an occupancy permit nor a certificate of final inspection is issued or required in relation to the domestic building work and a date of practical completion cannot be ascertained, 10 years after the domestic building contract was entered into.
(4)It is to be presumed (unless an earlier date of practical completion can be ascertained) that the date of practical completion of domestic building work was the earlier of the following dates that can be ascertained for the work—
(a)the date on which the builder handed over possession of the work to the building owner;
(b)the date on which the builder last attended the building site to carry out work (other than work to remedy any defect that does not affect practical completion).
(5)A party may not refer a domestic building work dispute under this section if proceedings in relation to the matter in dispute have commenced in VCAT or in a court.
(6)In this section—
date of practical completion, in relation to domestic building work, means the date when the domestic building work is completed except for any omissions or defects that do not prevent the domestic building work from being reasonably capable of being used for its intended purpose.
45A Initial assessment of referral
On a referral being made under section 45, a conciliation officer nominated by the chief dispute resolution officer must make an initial assessment to determine whether—
(a)the dispute referred is a domestic building work dispute; and
(b)the referral was made within the required time; and
(c)at least one of the parties to the dispute appears willing to participate in conciliation in good faith; and
(d)proceedings in relation to the matter in dispute have commenced in VCAT or in a court.
45BPowers of conciliation officer in making assessment
(1)For the purpose of making an initial assessment of a referral, a conciliation officer may—
(a)make any inquiries or obtain any information the conciliation officer considers necessary; and
(b)ask the referring party to provide further information or documents relating to the dispute; and
(c)require the referring party to provide evidence that the referring party has taken reasonable steps to resolve the dispute with the other parties to the dispute.
(2)A conciliation officer may fix a time for compliance with a request or requirement under subsection (1) and may extend that time at the request of the referring party.
(3)A conciliation officer may ask any other party to the domestic building work dispute to participate in a conciliation of the dispute if the conciliation officer considers it appropriate to do so.
45CAcceptance or rejection of referral
(1)After making an initial assessment of a referral under section 45A, the conciliation officer must recommend to the chief dispute resolution officer to accept or reject the referral.
(2)After considering the recommendation made by the conciliation officer, the chief dispute resolution officer may—
(a)accept the referral; or
(b)reject the referral if the chief dispute resolution officer assesses that the dispute is not suitable for conciliation.
(3)The chief dispute resolution officer may assess a referred dispute as not suitable for conciliation if—
(a)the referral does not comply with section 45(2); or
(b)the referral was not made within the required time; or
(c)the referring party has not provided any information, documents or evidence requested or required under section 45B or has not provided them within the time required by the conciliation officer; or
(d)the referring party has failed without reasonable excuse to take reasonable steps to resolve the dispute before the referral; or
(e)all issues arising out of the dispute have been or are the subject of proceedings before VCAT or a court; or
(f)there is no reasonable likelihood of the dispute being settled by conciliation for any reason other than because no other party is willing to engage in the conciliation; or
(g)the referral—
(i)is frivolous or otherwise lacking in substance; or
(ii)is vexatious; or
(iii)was not made in good faith; or
(h)the dispute has been resolved.
45DWhere more than one matter referred
(1)If more than one matter in dispute is referred, the chief dispute resolution officer may sever from the referral any matter that the chief dispute resolution officer would reject under section 45C if it were the only matter referred.
(2)If a referral relates to more than one matter or the matter referred relates to more than one circumstance, the chief dispute resolution officer may separate the referral into 2 or more referrals if—
(a)a conciliation officer's inquiries into some of the matters have not been completed and it is convenient to separate them; or
(b)it is in the public interest to do so.
(3)If the chief dispute resolution officer accepts more than one referral in relation to the same or related domestic building work, the chief dispute resolution officer may decide to deal with the referrals together as if they were one referral.
45ENotice of decision
(1)The chief dispute resolution officer must give written notice of a decision under section 45C or 45D to each party to a referred dispute within 10 business days after making the decision.
(2)If the chief dispute resolution officer decides to accept a referral, the notice must—
(a)include an outline of the referring party's stated reasons for the dispute; and
(b)state that the dispute has been referred to a conciliation officer.
(3)If the chief dispute resolution officer decides to reject the referral or any matter referred, the notice must include the reasons for the decision.
(4)If the chief dispute resolution officer decides to sever any matter from a referral or to separate or combine referrals, the notice must include the reasons for the decision.
45FCertificate of conciliation—dispute not suitable for conciliation
(1)If the chief dispute resolution officer assesses a domestic building work dispute or a matter as not suitable for conciliation, the officer must issue a certificate of conciliation certifying that—
(a)the dispute or matter was referred under section 45; and
(b)the chief dispute resolution officer has assessed the dispute or matter as not suitable for conciliation.
(2)The certificate of conciliation must be issued within 10 business days after written notice of the decision to reject the referral is given to each party under section 45E.
(3)The certificate of conciliation must specify the chief dispute resolution officer's reasons for assessing the domestic building work dispute or matter as not suitable for conciliation.
(4)The chief dispute resolution officer must give a copy of the certificate of conciliation as soon as practicable to each party to the dispute.
(5)A party to a domestic building work dispute may apply to VCAT for review of a failure by the chief dispute resolution officer to issue a certificate of conciliation under this section.
45GWithdrawal of referral or matter referred
(1)A party who referred a domestic building work dispute to the chief dispute resolution officer may seek to withdraw the referral or any matter referred by giving notice to the chief dispute resolution officer before the dispute is finally dealt with under this Part.
(2)The chief dispute resolution officer may—
(a)accept the withdrawal; or
(b)refuse to accept the withdrawal.
(3)Without limiting subsection (2), the chief dispute resolution officer may refuse to accept a withdrawal if the chief dispute resolution officer considers that the dispute has disclosed evidence of a contravention of—
(a)this Act or the regulations; or
(b)the Building Act 1993 or the regulations under that Act.
(4)The chief dispute resolution officer must give written notice to each party to a referred dispute of a decision accepting or refusing a withdrawal under this section within 10 business days after receiving the notice under subsection (1).
(5)A certificate of conciliation cannot be issued in respect of a dispute or matter if the chief dispute resolution officer has accepted the withdrawal of the referral of that dispute or matter under this section.
Division 3—Conciliation of domestic building work disputes
46Referral of dispute to conciliation officer
If the chief dispute resolution officer accepts a domestic building work dispute for conciliation, the chief dispute resolution officer must refer the dispute to a conciliation officer for conciliation under this Division.
46AHow may conciliation be conducted?
(1)This section applies if a conciliation officer decides to conduct a conciliation conference.
(2)The conciliation conference may be conducted—
(a)by attendance of the parties in person at a place that is reasonably convenient for the parties, which may be the building site at which the domestic building work that is the subject of the dispute is being or was carried out or elsewhere; or
(b)by post or by teleconference or other electronic communication; or
(c)by a combination of the methods in paragraphs (a) and (b).
(3)The conciliation officer must give written notice of the conciliation conference to each party to the dispute.
(4)The notice must specify—
(a)the date and time of the conference; and
(b)if the conference is to be conducted at a particular place, that place; and
(c)if the conference is to be held by post, the address or addresses to which written communications are to be sent; and
(d)if the conference is to be held by electronic communication, the method by which participation in the conference is to be effected.
(5)The notice must also include a statement advising the parties to the dispute that the chief dispute resolution officer may take the actions set out in sections 46E, 48B and 49 (and specified in the statement) if—
(a)the parties do not participate in the conciliation at the date, time and place and in the manner specified in the notice; and
(b)the matter in dispute concerns defective building work or an alleged failure to complete domestic building work.
46BConciliation rules
(1)A conciliation officer must conduct a conciliation in accordance with the conciliation rules.
(2)A conciliation officer may issue directions to the parties to a dispute in accordance with the conciliation rules.
(3)The Director may approve conciliation rules for the conduct of conciliations under this Part.
(4)The Director must publish approved conciliation rules on the Consumer Affairs Victoria website.
46CStatements made during conciliation
(1)Evidence of anything said or done by the parties or the conciliation officer during conciliation under this Division is not admissible in any proceeding before VCAT under Part 5 or in any other legal proceeding unless all the parties to the dispute agree in writing to the giving of the evidence.
(2)Subsection (1) does not apply to—
(a)any written communication from the conciliation officer to any of the parties to the dispute; or
(b)anything said or done by an assessor appointed under Division 5; or
(c)any report produced for the purpose of the conciliation by an assessor appointed under Division 5.
(3)Nothing in this section prevents the use of any information or document disclosed in a conciliation for the purposes of—
(a)determining whether to make a dispute resolution order under this Part; or
(b)any disciplinary proceedings under Part 11 of the Building Act 1993 in relation to a contravention of—
(i)this Act or the regulations; or
(ii)the Building Act 1993 or the regulations under that Act.
Note
Clause 12A(3) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 places limits on the power of VCAT to request information that is inadmissible because of section 46C.
46DNotice if dispute not resolved by conciliation
(1)This section applies if the chief dispute resolution officer has accepted a domestic building work dispute for conciliation and the dispute is not resolved.
(2)The chief dispute resolution officer must give each party to the dispute written notice that the chief dispute resolution officer proposes to issue a certificate of conciliation in relation to the dispute.
(3)The notice must include a copy of the proposed certificate of conciliation that must state—
(a)that the dispute was not resolved by conciliation; and
(b)the reasons why the dispute was not resolved.
(4)The notice must state that each party may make submissions to the chief dispute resolution officer in relation to the contents of the proposed certificate within the period (not being less than 10 business days) specified in the notice.
46ECertificate of conciliation—dispute accepted for conciliation
(1)The chief dispute resolution officer must issue a certificate of conciliation in relation to the domestic building work dispute after considering any submissions received within the time required under section 46D if the chief dispute resolution officer is satisfied that the dispute has not been resolved.
(2)The certificate of conciliation must state that—
(a)the chief dispute resolution officer had received a referral of a domestic building work dispute; and
(b)the chief dispute resolution officer had accepted the dispute for conciliation; and
(c)the dispute was not resolved by conciliation.
(3)The certificate of conciliation must include a statement of the reasons why the dispute was not resolved which may include a statement by the chief dispute resolution officer that in the chief dispute resolution officer's opinion an identified party did not participate in the conciliation or did not participate in good faith.
(4)The chief dispute resolution officer must give a copy of the certificate of conciliation as soon as practicable to each party to the domestic building work dispute.
(5)A party to a domestic building work dispute may apply to VCAT for review of a failure by the chief dispute resolution officer to issue a certificate of conciliation under this section if a certificate of conciliation is not issued within the period of 20 business days after the end of the period specified in the notice under section 46D(4).
46FRecord of agreement if dispute resolved by conciliation
(1)This section applies if the domestic building work dispute is resolved by conciliation under this Division.
(2)The conciliation officer must prepare a written record of agreement setting out the terms of the agreement for the resolution of the dispute, including—
(a)the action, if any, to be taken by each party to the dispute, which may include the making of a payment; and
(b)the time within which the action is to be taken.
(3)The chief dispute resolution officer must—
(a)keep the record of agreement; and
(b)give a copy of the record of agreement to each party to the dispute.
(4)A party to the dispute may give written notice to the chief dispute resolution officer of any error or omission at any time before the end of the time specified in the record of agreement for taking action.
(5)The chief dispute resolution officer—
(a)may make any corrections to the record of agreement the chief dispute resolution officer considers appropriate to rectify an error or omission; and
(b)must give written notice to each party to the dispute of each correction made under paragraph (a).
(6)A record of agreement is evidence of the terms of the agreement for the resolution of the domestic building work dispute to which it relates.
46GNotice of failure to comply with conciliated agreement
(1)A party to a domestic building work dispute may give written notice to the chief dispute resolution officer if an action recorded in a record of agreement for the dispute has not been taken within the time specified in the record of agreement.
(2)The notice must state the extent of any partial compliance with the required action.
46HNotice of non-compliance with conciliated agreement
(1)If, on receiving a notice under section 46G, the chief dispute resolution officer determines that the action was not taken within the specified time—
(a)the record of agreement ceases to have effect; and
(b)the chief dispute resolution officer must give written notice of that non‑compliance to each party to the domestic building work dispute.
(2)The notice must state the extent of any partial compliance with the required action.
Division 4—Requirement to stop domestic building work
47Application of Division
This Division applies if a domestic building work dispute is referred to the chief dispute resolution officer under Division 2.
47ARequirement to stop domestic building work
(1)At any time after the referral, the chief dispute resolution officer may, by written notice given to the builder, require the builder to stop—
(a)all domestic building work under the domestic building contract; or
(b)the domestic building work under the domestic building contract that is specified in the notice.
(2)The notice (a stop work notice) may be given if the chief dispute resolution officer considers that—
(a)there is a reasonable possibility that evidence relevant to the matters in dispute may be lost or become impractical to obtain if the domestic building work were to continue; or
(b)it is appropriate for any other reason to give the notice.
(3)A stop work notice has effect for the period, not exceeding 30 days, specified in the notice.
47BExtension or cancellation of stop work notice
(1)If the chief dispute resolution officer considers that it is appropriate to do so, the chief dispute resolution officer may, by written notice given to the builder, extend the period that a stop work notice has effect for a further period not exceeding 30 days.
(2)A notice under subsection (1) may vary the requirements in the stop work notice.
(3)The chief dispute resolution officer may cancel a stop work notice at any time by written notice given to the builder.
47CEffect of stop work notice
(1)The chief dispute resolution officer must give a copy of each stop work notice to all parties to the domestic building work dispute.
(2)A stop work notice takes effect on the notice being given to the builder.
(3)The stop work notice ceases to have effect on the issuing of a certificate of conciliation under section 45F in relation to the domestic building work dispute.
(4)If a stop work notice is given in relation to domestic building work, the period during which the notice is in effect is not to be counted in any period within which the domestic building work must be completed under the domestic building contract.
47DBuilder must comply with stop work notice
(1)A builder must comply with a stop work notice given to the builder under this Division.
Penalty:60 penalty units.
(2)Subsection (1) does not apply if the building work carried out after the receipt of the stop work notice was reasonably necessary to protect the safety of any person or property.
Division 5—Assessment of domestic building work
48Who may be appointed as an assessor?
(1)The Director, on the recommendation of the chief dispute resolution officer, may appoint as an assessor—
(a)an architect registered under the Architects Act 1991;
(b)a building practitioner registered under the Building Act 1993 in a prescribed category or class;
(c)a person in a prescribed class of persons.
(2)A person appointed under subsection (1) may be—
(a)a person employed under Part 3 of the Public Administration Act 2004; or
(b)a person engaged for that purpose by the Director.
48AFunctions of assessor
An assessor has the following functions—
(a)to assess whether domestic building work is defective or incomplete where required under this Act;
(b)to carry out any other function conferred on an assessor under this Act or the regulations or any other Act or the regulations under that Act.
48BDirections to assessor
(1)The chief dispute resolution officer may direct an assessor to inquire into a domestic building work dispute.
(2)The direction must be in writing and may require the assessor—
(a)to examine the domestic building work to determine whether the domestic building work performed by the builder is defective or incomplete; and
(b)if the assessor believes that the domestic building work is defective or incomplete, to estimate the number of business days required to rectify or complete the work.
48CRequest to chief dispute resolution officer for assessor
(1)This section applies if a dispute was referred to the chief dispute resolution officer under Division 2 and—
(a)the referral was rejected by the chief dispute resolution officer; or
(b)the referral was accepted for conciliation but was not resolved by conciliation and an assessor has not already been directed by the chief dispute resolution officer to inquire into the dispute.
(2)A party to the domestic building contract may ask the chief dispute resolution officer to direct an assessor to inquire into whether work performed under the contract is defective or incomplete.
(3)A request under subsection (2) must be accompanied by the prescribed fee (if any).
(4)On receiving that request and any prescribed fee, the chief dispute resolution officer may direct an assessor to inquire into the domestic building work.
48DAssessor may enter building site
(1)An assessor who is directed under section 48B to inquire into a domestic building work dispute may at any reasonable time enter and examine any relevant part of the building site at which the work that is the subject of the dispute is being, or has been, carried out.
(2)However, if the relevant part of the building site where the work is being carried out is being used as a residence, an assessor may only enter and examine that part of the building site with the consent of the occupier.
(3)An assessor who is seeking to enter a part of a building site that is being used as a residence must inform the occupier—
(a)that the consent of the occupier is required before the assessor may enter that part of the site; and
(b)that the failure of the occupier to provide the consent may be a ground for the issue of a certificate of conciliation that the dispute was not resolved by conciliation; and
(c)if the occupier is the owner, that the certificate of conciliation referred to in paragraph (b) may include a statement that the owner did not participate in the conciliation in good faith.
(4)A failure by the occupier of a residence on a building site to provide consent under this section is a ground for—
(a)the issue of a certificate of conciliation stating that the dispute was not resolved by conciliation; and
(b)if the occupier is also the owner, the inclusion in the certificate of conciliation of a statement that the owner did not participate in the conciliation in good faith.
48EPowers in relation to examination of work
(1)An assessor may cause any domestic building work to be demolished, opened or cut into if this is reasonably required to facilitate an examination of the work.
(2)An assessor may take photographs (including video recordings) or make sketches of the building site or the domestic building work being examined.
48FPower to require production of documents
(1)An assessor who enters a building site under section 48D may, to the extent that it is reasonably necessary to determine whether domestic building work is defective or incomplete, require a person at the building site—
(a)to give information to the assessor, orally or in writing; and
(b)to produce documents to the assessor; and
(c)to give reasonable assistance to the assessor.
(2)If a person produces a document to an assessor in accordance with a requirement under this section, the assessor may make copies of, or take extracts from, the document.
48GRefusal or failure to comply with requirement
A person must not, without reasonable excuse, refuse or fail to comply with a requirement of an assessor under this Division.
Penalty:60 penalty units.
48HProtection against self-incrimination
(1)It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under this Division, if the giving of the information or the doing of that other thing would tend to incriminate the person.
(2)Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this Division, if the production of the document would tend to incriminate the person.
48IOffence to hinder or obstruct assessor
A person must not, without reasonable excuse, hinder or obstruct an assessor exercising any power conferred by this Division.
Penalty:60 penalty units.
48JAssessor may conduct tests and obtain expert advice
(1)This section is subject to sections 48K and 48M.
(2)In carrying out an examination of domestic building work, the assessor may—
(a)conduct any test authorised by the regulations; and
(b)obtain expert advice.
(3)No costs are payable by a party for the conduct of a test or for obtaining expert advice.
48KCosts to be paid by non-participating party
The costs of the preparation of a report (including any examination, test or advice obtained) by an assessor in relation to domestic building work are payable by a party to a domestic building work dispute that was subject to conciliation if—
(a)written notice of a conciliation conference was given to the party; and
(b)the party, without reasonable excuse, failed to participate in the conciliation conference; and
(c)a dispute resolution order is issued against the party because the building work was defective or incomplete.
48LAgreement of requesting party required for test or expert advice
(1)This section applies if an assessor is directed to inquire into domestic building work at the request of a party to a domestic building contract under section 48C.
(2)The assessor must give written notice to the party if the assessor considers a test or expert advice is needed for the purpose of an examination of domestic building work, and ask the party to agree to the conduct of the test or the obtaining of the expert advice.
(3)The assessor may discontinue the examination if the party does not agree to the conduct of the test or the obtaining of the expert advice.
48MRequesting party liable for costs
The requesting party referred to in section 48L is liable for the costs of—
(a)any tests conducted, or the obtaining of any expert advice, under section 48J that are agreed to by the party; and
(b)making good any damage caused by any tests conducted under section 48J that are agreed to by the party.
48NRecovery of costs
(1)The Director may recover any costs payable by a party under this Division in any court of competent jurisdiction as a debt due to the State.
(2)The Director must pay any costs recovered under this section into the Domestic Builders Fund.
48OReporting the results of an examination
(1)After conducting an examination of domestic building work, the assessor must give a report of the results of the examination to—
(a)each party to the dispute; and
(b)the chief dispute resolution officer.
(2)The report must be in writing in a form approved by the Director.
(3)Subject to subsection (4), the assessor is not required to give a report under this section if—
(a)the examination was for the purposes of a conciliation conference; and
(b)a record of agreement was made as a result of the conciliation conference.
(4)The chief dispute resolution officer may direct an assessor to prepare a report under this section if the chief dispute resolution officer has been given notice under section 46G of non-compliance with an action required in a record of agreement.
(5)On being given a direction under subsection (4), the assessor must—
(a)prepare the report within the time required in the direction; and
(b)give a copy of the report, without delay, to—
(i)each party to the dispute; and
(ii)the chief dispute resolution officer.
(6)A party to a dispute may make a written submission to the chief dispute resolution officer in relation to a report within the prescribed period after the report is given to the party under this section.
(7)In this section—
prescribed period means the longer of—
(a)the period prescribed by the regulations (if any); or
(b)5 business days.
48PReport if building work not defective or incomplete
If, as a result of an examination, the assessor considers that the domestic building work examined is not defective or incomplete, the report under section 48O must include a statement to that effect.
48QReport if building work defective or incomplete
(1)This section applies if, as a result of an examination, the assessor considers that the domestic building work examined is defective or incomplete.
(2)The report under section 48O must—
(a)specify the building work that is defective or incomplete, including—
(i)any defects that may adversely affect—
(A)the health or safety of people who may use the building to which the work relates; or
(B)the amenity of the building; and
(ii)any other defects in the building work that are incidental to, but not the subject of, the dispute; and
(b)if required by the chief dispute resolution officer under section 48B, include an estimate of the number of business days required to rectify or complete the building work.
(3)In the report the assessor may—
(a)specify the cause of the defective or incomplete building work; and
(b)recommend a preferred method by which the defective or incomplete work may be rectified or completed.
(4)In making a recommendation under subsection (3), the assessor must have regard to—
(a)the relevant domestic building contract, including the plans and specifications set out in that contract; and
(b)any other matters the assessor considers relevant.
(5)If the assessor is of the opinion that the building work is so defective that it would not be appropriate to allow the builder to rectify or complete the work, the report may include a statement to that effect.
48RReport of non-compliance with building legislation
(1)If, as a result of an examination, the assessor is of the opinion that there has been a contravention of the Building Act 1993 or any regulations made under that Act in relation to any domestic building work, the assessor must—
(a)state that opinion in a written report; and
(b)provide a copy of the report to the Authority within 5 business days after preparing that report.
(2)The Authority may refer details of the alleged contravention to—
(a)the relevant council; and
(b)the relevant building surveyor in relation to the building work.
48SEffect of complying with assessor's recommendations
The carrying out by a builder of the recommendations contained in a report pursuant to section 48Q(3) does not absolve the builder from completing the domestic building contract in accordance with the plans and specifications set out in the contract.
48TAssessor's report admissible in evidence
A report of an assessor under section 48O is admissible in evidence in proceedings before VCAT or any other legal proceedings.
Division 6—Dispute resolution orders
Subdivision 1—Issue of dispute resolution orders
49When can a dispute resolution order be issued?
(1)The chief dispute resolution officer may issue a dispute resolution order to a builder or building owner who is a party to a domestic building work dispute if—
(a)the dispute was referred to the chief dispute resolution officer under Division 2 for conciliation; and
(b)the chief dispute resolution officer is satisfied that the parties have not resolved the dispute; and
(c)the dispute relates to one or more of the following—
(i)an alleged breach of a warranty set out in section 8;
(ii)an alleged failure to maintain the standard or quality of building work specified in a domestic building contract;
(iii)an alleged failure to complete the domestic building work required by a domestic building contract;
(iv)an alleged failure to complete the domestic building work required by a domestic building contract within the times specified in the contract;
(v)an alleged failure to pay money for domestic building work performed under the contract;
(vi)any other prescribed matter.
(2)If the chief dispute resolution officer receives a copy of an assessor's report under Division 5 in relation to a domestic building work dispute, the chief dispute resolution officer must not issue a dispute resolution order earlier than 10 business days after the last of the parties to the dispute is given a copy of the assessor's report in relation to that dispute.
(3)Despite subsection (1), the chief dispute resolution officer may issue a dispute resolution order even if a record of agreement exists in relation to the domestic building work dispute if the assessor's report states that there has been a contravention of—
(a)this Act or the regulations; or
(b)the Building Act 1993 or the regulations under that Act.
(4)Subject to subsections (5) and (6), a dispute resolution order takes effect immediately on being served on the person to whom it is issued.
(5)Subsection (4) does not apply to a dispute resolution order referred to in section 49D.
(6)If an application for review is made under section 63 within the period set out in that section, the dispute resolution order is stayed pending the outcome of the review.
49AMatters to be considered by chief dispute resolution officer before issuing dispute resolution order
(1)In determining whether to issue a dispute resolution order, the chief dispute resolution officer may consider the following matters—
(a)any change in the nature of the domestic building work dispute or the circumstances of the parties since the copy of the assessor's report was given to the chief dispute resolution officer under Division 5, including the extent of any partial performance of an action specified in a record of agreement;
(b)the conduct of the parties during the conciliation (if applicable);
(c)any direction to fix building work given under Division 2 of Part 4 of the Building Act 1993 in relation to the building work that is the subject of the dispute;
(d)any other matter the chief dispute resolution officer considers relevant.
(2)In addition to the matters in subsection (1), the chief dispute resolution officer may consider whether the issuing of a dispute resolution order to a person would be unfair or unreasonable in the circumstances.
49BWhat can a dispute resolution order require?
(1)A dispute resolution order may require a builder to whom it is issued to take any action or the action specified in the order to do one or more of the following—
(a)rectify any defective domestic building work;
(b)rectify any damage caused in the carrying out of the domestic building work or by the defective domestic building work;
(c)complete the domestic building work under the domestic building contract.
(2)A dispute resolution order may require a building owner to whom it is issued to comply with specified conditions if the builder is required to comply with a dispute resolution order.
(3)Without limiting subsection (2), the conditions may include the following—
(a)a condition to refrain from doing anything that would prevent or restrict the builder from satisfying a term or condition of the domestic building contract or carrying out domestic building work to meet the requirements of a warranty set out in section 8;
(b)a condition requiring a building owner to pay money into the Domestic Building Dispute Resolution Victoria Trust Fund.
(4)A dispute resolution order under subsection (1) must specify a reasonable period within which the requirements for the rectification or completion of work must be complied with.
(5)A person required to comply with a dispute resolution order issued under subsection (1) must—
(a)carry out the work, if the person is a registered building practitioner under the Building Act 1993 whose registration authorises the person to carry out that work; or
(b)cause the work to be carried out by a person who is a registered building practitioner under the Building Act 1993 whose registration authorises the person to carry out that work.
49CRequirements for the payment of money
(1)A dispute resolution order may require—
(a)a building owner to pay an amount to the builder for completion of the domestic building work under the contract or any part of the contract; or
(b)a building owner to pay an amount of money into the Domestic Building Dispute Resolution Victoria Trust Fund to be paid to the builder on completion of the domestic building work under the contract or any part of the contract; or
(c)the builder to pay the reasonable cost of domestic building work to be carried out by another builder appointed by the building owner if a dispute resolution order—
(i)requires a builder to rectify or complete the domestic building work; and
(ii)includes a finding that the domestic building work carried out by the builder is so defective that it would not be appropriate to allow the builder to rectify or complete the work.
(2)A dispute resolution order issued under this section may impose conditions that must be met by another party to the domestic building work dispute before the requirement to pay money takes effect.
49DDispute resolution order may include findings
(1)A dispute resolution order may include a finding by the chief dispute resolution officer that the domestic building work that is the subject of the domestic building work dispute is not incomplete or defective.
(2)A dispute resolution order may include a finding that the domestic building work is so defective that it would not be appropriate to allow the builder to rectify or complete the work.
(3)A finding referred to in subsection (1) or (2) in a dispute resolution order—
(a)is evidence in any proceedings by the builder for the recovery of money from a party to the domestic building work dispute; and
(b)may be taken into account in any proceedings in VCAT or a court in determining costs or damages.
49EEffect of complying with dispute resolution order
The rectification or completion of domestic building work in compliance with a dispute resolution order does not absolve the builder from completing the domestic building contract in accordance with the plans and specifications set out in the contract.
49FNotice to insurer
(1)If a dispute resolution order is issued to a builder, the chief dispute resolution officer must notify the insurer who provided the builder with the required insurance under the Building Act 1993 of—
(a)the dispute resolution order; and
(b)the builder's compliance with or failure to comply with the dispute resolution order.
(2)The notice must be given after the time for the builder to comply with the dispute resolution order has expired.
49GPayment out of Domestic Building Dispute Resolution Victoria Trust Fund
(1)The Director may pay out of the Domestic Building Dispute Resolution Victoria Trust Fund an amount paid into the Fund in compliance with a dispute resolution order.
(2)In determining whether a dispute resolution order or part of an order has been complied with, the Director may rely on a statement by the party who paid the amount into the Fund that the dispute resolution order or the part of the order has been complied with.
(3)If the Director proposes to pay an amount out of the Fund in accordance with subsection (1), the Director must give written notice to the parties to the domestic building work dispute of the intention to pay the amount out of the Fund.
(4)The notice must state that a party to the domestic building work dispute may apply to VCAT within 10 business days after receiving the notice for review of the decision to pay the amount out of the Fund.
(5)The party to the dispute who paid the money into the Fund may give written consent to the payment of the amount out of the Fund to the other party to the dispute or a person authorised by the other party.
(6)The Director must pay the amount out of the Fund on the first of the following to occur—
(a)the receipt by the Director of the written consent under subsection (5);
(b)the end of the prescribed period.
(7)In this section—
prescribed period means the later of—
(a)the period for making an application for review of the decision to pay the amount from the Fund; or
(b)if an application for review is made, the period until a determination is made affirming that decision.
Subdivision 2—Amendment or cancellation of dispute resolution order
49HDecision by chief dispute resolution officer on own volition
(1)The chief dispute resolution officer may at any time, of the chief dispute resolution officer's own volition, amend or cancel a dispute resolution order.
(2)In making a decision under subsection (1), the chief dispute resolution officer may consider any of the following—
(a)any change in the nature of the dispute or the circumstances of the parties since the dispute was referred under Division 2;
(b)the conduct of the parties;
(c)any other matter the chief dispute resolution officer considers relevant.
49ICancellation of dispute resolution order on failure to comply with order
The chief dispute resolution officer may cancel a dispute resolution order if a condition of that order is not complied with.
49JRequest to amend or cancel dispute resolution order
(1)A party to a domestic building work dispute may, in writing, ask the chief dispute resolution officer to amend or cancel a dispute resolution order relating to the domestic building work that is the subject of the dispute.
(2)A request may only be made on the ground that there has been a substantial change in the nature of the dispute or the circumstances of the parties since the assessor gave a copy of the assessor's report to the chief dispute resolution officer under Division 5.
(3)A request must be made within 10 business days after the dispute resolution order is served on the party.
(4)The party making the request must give written notice of the request to each other party to the dispute within 2 business days after making the request.
49KPowers of chief dispute resolution officer in considering amending or cancelling dispute resolution order
(1)For the purpose of deciding whether to amend or cancel a dispute resolution order, the chief dispute resolution officer may—
(a)make any inquiries or obtain any information the chief dispute resolution officer considers necessary; and
(b)ask any party to the dispute to provide any information or documents the chief dispute resolution officer considers necessary.
(2)The chief dispute resolution officer may fix a period for compliance with a request or requirement under subsection (1) and may extend that period at the request of any party.
(3)Any period fixed under section 49L for determining a request under section 49J ceases to run during the period for compliance fixed under this section.
49LDecision of chief dispute resolution officer on request
(1)The chief dispute resolution officer must consider a request under section 49J and, within 5 business days after receiving the request, decide—
(a)to amend or cancel the dispute resolution order; or
(b)to refuse to amend or cancel the dispute resolution order.
(2)The chief dispute resolution officer is taken to have refused the request if the chief dispute resolution officer does not make a decision within 5 business days after the request.
49MMatters to be considered in deciding on request
(1)In making a decision on a request under section 49J, the chief dispute resolution officer—
(a)must consider—
(i)the extent to which any defective or incomplete domestic building work specified in the dispute resolution order has been rectified or completed; and
(ii)any change in the nature of the dispute or the circumstances of the parties since the assessor gave a copy of the assessor's report to the chief dispute resolution officer under Division 5; and
(b)may consider—
(i)the conduct of the parties; and
(ii)any other matter the chief dispute resolution officer considers relevant.
49NAmendment or cancellation of other relevant dispute resolution orders
(1)This section applies if the chief dispute resolution officer decides to amend or cancel a dispute resolution order under section 49L.
(2)The chief dispute resolution officer may also amend or cancel a dispute resolution order issued to any other party to the domestic building work dispute after giving 5 business days notice to the parties to the dispute.
49ONotice of decision of chief dispute resolution officer
(1)The chief dispute resolution officer must give written notice of a decision under section 49L or 49N to the parties to the domestic building work dispute within 2 business days after making the decision.
(2)If the chief dispute resolution officer amends a dispute resolution order under section 49L, 49N, or 49T, the chief dispute resolution officer must give a copy of the amended order to each party to the domestic building work dispute without delay.
Subdivision 3—Compliance with a dispute resolution order
49PNotice of compliance with work under dispute resolution order
(1)A builder who has rectified or completed domestic building work in accordance with a dispute resolution order must give written notice to—
(a)the chief dispute resolution officer; and
(b)the building owner.
(2)The notice must be given within 2 business days after the domestic building work is carried out.
(3)The chief dispute resolution officer may direct an assessor to examine the domestic building work for which notice has been given under this section to confirm whether it complies with the dispute resolution order.
49QNotice of compliance with payment under dispute resolution order
(1)A person who has paid money in accordance with a dispute resolution order must give written notice to the chief dispute resolution officer and the builder or the building owner (as the case requires).
(2)The notice must be given within 2 business days after the payment is made.
49RNotice of failure to rectify or complete work
(1)A building owner may give written notice to the chief dispute resolution officer that the builder has failed to rectify defective domestic building work or complete domestic building work in accordance with a dispute resolution order.
(2)A notice under subsection (1) must be given—
(a)within 5 business days after the building owner is given notice under section 49P in relation to the domestic building work; or
(b)if no notice is received under section 49P, within 5 business days after the end of the period specified in the dispute resolution order for the carrying out of the rectification or completion work.
49SChief dispute resolution officer to direct assessor to examine work
(1)If a building owner gives notice to the chief dispute resolution officer under section 49R, the chief dispute resolution officer must direct an assessor to examine the work required to be carried out under the dispute resolution order.
(2)The assessor must prepare a written report stating whether or not the dispute resolution order has been complied with.
(3)The assessor must give a copy of the written report to the chief dispute resolution officer and each party to the domestic building work dispute.
49TChief dispute resolution officer may extend period for compliance
On receiving a report under section 49S, the chief dispute resolution officer may amend the dispute resolution order to extend the period for compliance with the order if the chief dispute resolution officer is satisfied that the failure to comply with the dispute resolution order was due to factors outside the control of the party required to comply with the order.
49UBreach of dispute resolution order notice
(1)Subject to section 49T, the chief dispute resolution officer must issue a breach of dispute resolution order notice if the chief dispute resolution officer receives an assessor's report under section 49S that states that the builder has failed to comply with a dispute resolution order.
(2)The chief dispute resolution officer must serve a copy of the notice on each party to the domestic building work dispute without delay after it is issued.
(3)A breach of dispute resolution order notice must state that the builder may apply to VCAT for a review of the decision to issue the notice and the time within which the application may be made.
(4)A breach of dispute resolution order notice takes effect in relation to the builder immediately on being served on the builder.
(5)The chief dispute resolution officer must given written notice to the Authority of the issue of a breach of dispute resolution order notice at the end of the prescribed period.
(6)The chief dispute resolution officer may recover the costs of an examination and report by an assessor under section 49S from the builder in any court of competent jurisdiction as a debt due to the State.
(7)Any amount recovered under subsection (6) must be paid into the Domestic Builders Fund.
(8)In this section—
prescribed period means the later of—
(a)the period for making an application for review of the decision to issue the breach of dispute resolution order notice; or
(b)if an application for review is made, the period until a determination is made affirming that decision.
49VCancellation of breach of dispute resolution order notice
(1)The chief dispute resolution officer may cancel a breach of dispute resolution order notice if the parties to the domestic building work dispute to which the dispute resolution order applies have notified the officer of the settlement of the dispute.
(2)The notice to the chief dispute resolution officer must be signed by each party to the dispute.
(3)The chief dispute resolution officer must give each party to the domestic building work dispute written notice of the cancellation of the breach of dispute resolution order notice.
49WRight of building owner to end domestic building contract
(1)A building owner may, by written notice to the chief dispute resolution officer and the builder, end a domestic building contract for domestic building work that is the subject of a dispute resolution order if—
(a)a copy of a breach of dispute resolution order notice has been served on the building owner and the builder in relation to a failure by the builder; and
(b)either—
(i)the period within which the builder could apply to VCAT for review of the decision to issue the notice has ended and an application for review has not been made; or
(ii)the builder has applied to VCAT for review of the decision to issue the notice and the decision has been affirmed; and
(c)the building owner has complied with any dispute resolution order issued to the building owner in relation to the domestic building work dispute; and
(d)the building owner has complied with any conditions required to be complied with by the building owner before the builder is required to comply with the dispute resolution order.
(2)If a building owner ends a domestic building contract under this section, the building owner is released from any further performance of the contract.
(3)If a contract is ended under this section, the builder is entitled to a reasonable price for the work carried out under the contract to the date the contract is ended.
(4)However, a builder may not recover under subsection (3) more than the builder would have been entitled to recover under the contract.
49XRight of builder to end domestic building contract
(1)A builder may, by written notice to the chief dispute resolution officer and the building owner, end a domestic building contract for domestic building work that is the subject of a dispute resolution order issued to the building owner if—
(a)the period within which the building owner could apply to VCAT for a review of the decision to issue the dispute resolution order has ended without an application for review being made; and
(b)the date by which the dispute resolution order was required to be complied with has passed and the building owner has failed to comply with the order; and
(c)the builder has complied with any conditions required to be complied with by the builder before the building owner is required to comply with the order; and
(d)the dispute resolution order included a finding that the building work was not defective or incomplete; and
(e)the builder has complied with any dispute resolution order issued to the builder in relation to the domestic building work dispute.
(2)If a builder ends a domestic building contract under this section, the builder is released from any further performance of the contract.
Division 7—Powers of Director in relation to domestic building work dispute proceedings
50Powers of Director to institute and defend proceedings
(1)If a building owner is involved in a domestic building work dispute, the Director may 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.
(2)The Director must not institute or defend proceedings on behalf of a building owner unless that building owner has given written consent.
(3)After consent has been given under subsection (2), the Director may institute or continue with a proceeding or defence on behalf of a building owner even if the building owner revokes the consent.
50AProceedings and costs
(1)If the Director institutes or defends proceedings on behalf of a building owner under section 50—
(a)the Director may settle the proceedings either with or without obtaining judgment in the proceedings; and
(b)if a judgment is obtained in the proceedings in favour of the building owner, the Director may take any steps that are necessary to enforce the judgment; and
(c)subject to subsections (2) and (3), 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)subject to subsection (2), the building owner is liable to pay an amount (not being an amount of costs) awarded against the building owner in the proceedings; and
(f)the Director is liable to pay the costs of, or incidental to, the proceedings that are payable by the building owner.
(2)If the Director institutes, defends or continues proceedings on behalf of a building owner after the building owner withdraws the consent to the proceedings—
(a)the Director must compensate the building owner for—
(i)any loss suffered as the result of the loss of any settlement offer made to the building owner; and
(ii)out-of-pocket expenses incurred by the building owner during the proceedings after the withdrawal of consent; and
(b)the Director is liable to pay any amount awarded against the building owner in the proceedings.
(3)If the Director institutes, defends or continues proceedings on behalf of a building owner after the building owner withdraws the consent to the proceedings or defence, any amount recovered in the proceedings (including any amount for costs) that exceeds the amount payable to the building owner under subsection (2) may be applied to the payment of the costs of and incidental to the proceedings for which the Director is liable or that are incurred by the Director in relation to the proceedings.
(4)If, in proceedings instituted or defended on behalf of a building owner under section 50—
(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 related to the proceedings and to the interests of the building owner in the dispute, the Director may apply to the court hearing the proceedings or to VCAT for an order that the counterclaim not be heard in the course of those proceedings.
(5)If the court or VCAT makes an order under subsection (4), the court or VCAT may make any ancillary or consequential orders that it considers fair.
Division 8—Domestic Building Dispute Resolution Victoria Trust Fund
51Establishment of Domestic Building Dispute Resolution Victoria Trust Fund
(1)The Director must establish and maintain a trust fund to be called the Domestic Building Dispute Resolution Victoria Trust Fund.
(2)The Director must establish an account with an ADI for the investment of the Fund.
(3)There may be paid into the Fund all amounts required or permitted to be paid into the Fund under this Act.
(4)There may be paid out of the Fund all amounts required or permitted to be paid from the Fund under this Act.
(5)The proceeds of the investment of the Fund are to be paid into the Domestic Builders Fund.
51AParties may agree to pay amounts into and out of Domestic Building Dispute Resolution Victoria Trust Fund
(1)The parties to a domestic building work dispute may agree that a party is to pay an amount into the Domestic Building Dispute Resolution Victoria Trust Fund.
(2)The agreement must—
(a)be in writing; and
(b)set out the conditions for payment of the amount into and out of the Fund.
(3)The agreement must not—
(a)be inconsistent with any dispute resolution order issued in relation to the work that is the subject of the dispute; or
(b)relate to money paid into the Fund in compliance with a dispute resolution order.
(4)If a party to a domestic building work dispute has paid money into the Fund under this section, the parties to the dispute may by agreement give written notice to the Director to pay some or all of that money out of the Fund.
(5)The Director may pay money out of the Fund in accordance with the directions in the notice.
Division 9—Domestic Building Dispute Resolution Victoria
52Domestic Building Dispute Resolution Victoria
Domestic Building Dispute Resolution Victoria is established.
52AComposition
Domestic Building Dispute Resolution Victoria consists of—
(a)the chief dispute resolution officer appointed under section 52C; and
(b)the conciliation officers appointed under section 52E; and
(c)the assessors appointed under section 48.
52BFunctions of Domestic Building Dispute Resolution Victoria
The functions of Domestic Building Dispute Resolution Victoria are—
(a)to administer the scheme under this Part for the resolution of domestic building work disputes; and
(b)any other functions conferred on Domestic Building Dispute Resolution Victoria by or under this Act.
52CAppointment of chief dispute resolution officer
The Director must appoint a person employed under Part 3 of the Public Administration Act 2004 as the chief dispute resolution officer.
52DFunctions of chief dispute resolution officer
The functions of the chief dispute resolution officer are—
(a)to perform the functions of Domestic Building Dispute Resolution Victoria; and
(b)to assess referrals of domestic building work disputes for conciliation; and
(c)to assess and inquire into domestic building work disputes; and
(d)to conduct the conciliation of domestic building work disputes; and
(e)to issue dispute resolution orders; and
(f)any other function conferred on the chief dispute resolution officer by or under this Act.
52EAppointment of conciliation officers
The Director may appoint as a conciliation officer—
(a)any person employed under Part 3 of the Public Administration Act 2004; or
(b)any other person.
52FDelegation
The chief dispute resolution officer may by instrument delegate any of the chief dispute resolution officer's powers and functions under this Act to another conciliation officer.
52GConciliation officers not subject to direction of Director
A conciliation officer is not subject to the direction of the Director in relation to any decision that may be made or discretion that may be exercised by the conciliation officer in relation to a particular domestic building work dispute.
52HProtection against liability for conciliation officers
(1)A conciliation officer is not personally liable for anything done or omitted to be done in good faith—
(a)in the exercise of a power or the discharge of a duty under this Act; or
(b)in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under this Act.
(2)Any liability resulting from an act or omission that, but for subsection (1), would attach to a conciliation officer attaches instead to the State.
52IConfidentiality
(1)Subject to this Part, a conciliation officer or an assessor must not disclose to any person any information obtained in the course of carrying out any function under this Part.
Penalty:60 penalty units.
(2)A conciliation officer may disclose information obtained in the course of carrying out a function under this Part if the disclosure is made—
(a)for the purpose of carrying out that function; or
(b)to the Director; or
(c)to the Authority; or
(d)to the Victorian Managed Insurance Authority; or
(e)with the written consent of each person to whom the information relates.".
7New section 56 inserted
After section 55 of the Domestic Building Contracts Act 1995 insert—
"56 Certificate of conciliation required to bring proceeding in VCAT to resolve domestic building work dispute
(1)A party to a domestic building work dispute must not make an application to VCAT in relation to the dispute unless the chief dispute resolution officer has issued a certificate of conciliation to the party certifying that the dispute—
(a)was not suitable for conciliation; or
(b)was not resolved by conciliation.
(2)An application to VCAT to commence proceedings in relation to a domestic building work dispute must be accompanied by a copy of the certificate of conciliation.
(3)This section does not apply to proceedings for an order in the nature of an injunction.".
8New section 57A inserted
After section 57 of the Domestic Building Contracts Act 1995 insert—
"57A Certain actions not to proceed in a court without certificate of conciliation or leave
(1)A party to a domestic building work dispute may not commence an action in a court arising wholly or predominantly from the dispute unless—
(a)the chief dispute resolution officer has issued a certificate of conciliation to the party certifying that the dispute—
(i)was not suitable for conciliation; or
(ii)was not resolved by conciliation; or
(b)the party has been granted leave by the court to bring the proceedings.
(2)This section does not apply to proceedings for an order in the nature of an injunction.".
9New Subdivision 3 inserted in Division 2 of Part 5
After Subdivision 2 of Division 2 of Part 5 of the Domestic Building Contracts Act 1995 insert—
"Subdivision 3—Matters relating to dispute resolution orders
63Application for review of decision to issue or amend dispute resolution order
(1)A person who is required to comply with a dispute resolution order may apply to VCAT for review of the decision to issue or amend the dispute resolution order.
(2)An application under subsection (1) must be made within 20 business days after the later of—
(a)the day on which the applicant was given a copy of the dispute resolution order or the amendment to the dispute resolution order (as the case requires); or
(b)if under the Victorian Civil and Administrative Tribunal Act 1998 the applicant requests a statement of reasons, the day on which the applicant receives that statement of reasons or the applicant is informed under section 46(5) of that Act that a statement of reasons will not be given.
(3)An application under subsection (1) must be made on the ground that—
(a)the description in the dispute resolution order of the domestic building work that is defective or incomplete is incorrect; or
(b)the period specified in the dispute resolution order for carrying out the rectification or completion work is not reasonable; or
(c)a requirement in the dispute resolution order to take a specific action or to refrain from taking action is not necessary or is not reasonable.
(4)In determining an application for review of a dispute resolution order, VCAT may also make any order it considers fair in relation to the domestic building contract to which the dispute relates.
(5)Without limiting subsection (4), VCAT may do one or more of the following—
(a)vary any term of the domestic building contract (including the completion date, the contract price, a provisional sum or the amount to be paid for a prime cost item);
(2)After section 24A(3) of the Building Act 1993 insert—
"(4)In this section—
prescribed amount means—
(a)the amount prescribed by the regulations (if any); or
(b)if an amount is not prescribed, $16 000.".
46Further limitations on issue of building permit
(1)For section 24A(1) and (2) of the Building Act 1993 substitute—
"(1)The relevant building surveyor may consider an application for a building permit for building work (other than domestic building work) where the cost of the work (estimated under Subdivision 4 of Division 2 of Part 12) is more than the prescribed amount but must not issue the permit unless the relevant building surveyor is satisfied that—
(a)the building work is to be carried out by a builder—
(i)who is registered under Part 11; and
(ii)who is to be specified as the builder in the building permit; and
(b)each architect to be engaged in the building work is an insured architect.
(2)The relevant building surveyor may consider an application for a building permit for domestic building work that is to be carried out under a major domestic building contract but must not issue the permit unless the relevant building surveyor is satisfied that—
(a)the building work is to be carried out by a builder—
(i)who is registered under Part 11 and whose registration authorises the carrying out of the building work; and
(ii)who is covered by the required insurance in relation to the building work; and
(iii)who is to be specified as the builder in the building permit; and
(b)the name and registration number of the builder who is to carry out the building work specified in the major domestic building contract is identical to the name and registration number of the builder specified in a certificate of insurance from the insurer providing the required insurance in relation to the building work; and
(c)each architect to be engaged in the building work is an insured architect; and
(d)the major domestic building contract was entered into by a person entitled to do so under section 29 of the Domestic Building Contracts Act 1995.".
(2)In section 24A(3) of the Building Act 1993, for paragraph (a)(i) substitute—
"(i)a builder who is registered under Part 11 and whose registration authorises the carrying out of that work; or".
(3)For section 24A(4) of the Building Act 1993 substitute—
"(4)In this section—
prescribed amount means—
(a)in relation to subsection (1)—
(i)the amount prescribed by the regulations (if any); or
(ii)if an amount is not prescribed, $5000; or
(b)in relation to subsection (3)—
(i)the amount prescribed by the regulations (if any); or
(ii)if an amount is not prescribed, $16 000.".
47New sections 30A and 30B inserted
After section 30 of the Building Act 1993 insert—
"30A Authority may approve checklist of documents to be certified
(1)The Authority may approve a checklist of all documents required under section 30 to be given to the relevant council by the relevant building surveyor.
(2)The Authority must publish the approved checklist on the Authority's website.
30BRelevant building surveyor must certify that documents given to council
The relevant building surveyor must—
(a)certify on the approved checklist that—
(i)all documents required under section 30 to be given to the relevant council have been given to that council; and
(ii)any lodgement fee required under section 30(2) has been paid.
(b)give the certified checklist to the relevant council at the same time as the documents required under section 30.
Penalty:10 penalty units.".
48New Division 1 heading inserted in Part 4
In Part 4 of the Building Act 1993, before section 33, insert the following heading—
"Division 1—Inspections".
49New Division 2 of Part 4 substituted for section 37
For section 37 of the Building Act 1993 substitute—
"Division 2—Directions to fix building work
37Definitions
In this Division—
authorised person means—
(a)the Authority; or
(b)a person authorised by the Authority under section 228(2); or
(c)a performance auditor appointed under section 227A;
builder in relation to building work, means the person who is specified as the builder in the building permit issued in relation to that building work;
direction to fix building work means a direction to fix building work given under this Division;
relevant owner, in relation to building work, means the owner of the building or land in or on which the building work is being carried out;
relevant person means a person referred to in section 37C who can be, or has been, given a direction to fix building work.
37ADirection by relevant building surveyor to fix building work
(1)This section applies if, after the inspection of building work, the relevant building surveyor believes on reasonable grounds that the building work fails to comply with this Act, the building regulations or the building permit issued in relation to the building work.
(2)The relevant building surveyor must give a direction to fix the building work to a relevant person in accordance with this Division.
(3)The relevant building surveyor may authorise a building surveyor or a building inspector whose registration under Part 11 authorises the inspection of that building work to give an oral direction to fix the building work to the relevant person on behalf of the relevant building surveyor in accordance with this Division.
37BDirection by authorised person to fix building work
(1)This section applies if, after the inspection of building work, an authorised person believes on reasonable grounds that the building work fails to comply with this Act, the building regulations or the building permit issued in relation to the building work.
(2)The authorised person may give a direction to fix the building work to a relevant person in accordance with this Division.
(3)If, under this section, an authorised person gives a person a direction to to fix building work, any direction to fix that work given by or on behalf of a relevant building surveyor under section 37A ceases to have effect.
37CMethod of giving directions
A direction to fix building work may be given as—
(a)an oral direction to either or both of the following persons—
(i)the builder;
(ii)the person who is apparently in charge of the site on which the building work is being carried out; or
(b)a written direction to the builder.
37DWritten direction if oral direction not complied with
(1)This section applies if an oral direction to fix building work has been given under this Division.
(2)The relevant building surveyor or authorised person must give the builder a written direction to fix building work if the relevant building surveyor or authorised person is not satisfied at the end of the prescribed period after the oral direction was given that the building work complies with this Act, the building regulations or the building permit issued in relation to the building work.
(3)In this section—
prescribed period means—
(a)the period prescribed by the regulations (if any); or
(b)if a period is not prescribed, 7 days.
37ERequirements of directions to fix building work
A direction to fix building work may require the relevant person to do all or any of the following—
(a)carry out work so that the building work complies wholly or substantially with this Act, the building regulations and the building permit issued in relation to the building work;
(b)stop any further building work that may prevent the building work to which the direction applies from being adequately inspected, until the relevant building surveyor or authorised person is satisfied that a requirement under paragraph (a) has been complied with.
37FWritten directions to fix building work
(1)A written direction to fix building work must be given in a form (if any) approved by the Authority.
(2)A written direction to fix building work must specify a period within which the direction must be complied with.
(3)A written direction to fix building work must state the following—
(a)that the builder has a right to appeal the decision to give the direction to the Building Appeals Board within a prescribed period; and
(b)that the builder may ask the relevant building surveyor or authorised person to extend the period within which the direction must be complied with.
37GExtension of time to comply with direction
(1)A builder who is subject to a written direction to fix building work may ask the relevant building surveyor or authorised person to extend the period for compliance with the direction.
(2)A request under subsection (1) must be made before the end of the specified period for compliance with the direction.
(3)On a request under subsection (1), the relevant building surveyor or authorised person may grant an extension of the period for compliance with the direction to fix building work if the relevant building surveyor or authorised person considers it appropriate to do so in the circumstances.
(4)The relevant building surveyor or authorised person must give written notice of the extension to the builder.
37HOffences relating to compliance with direction
(1)A builder must comply with a written direction to fix building work within the period for compliance specified in the direction.
Penalty:500 penalty units.
(2)A builder to whom a direction to fix building work is given must not request or receive from the person for whom the building work was originally carried out (or any agent of that person) any payment for or in respect of any costs arising from anything done for the purpose of complying with the direction.
Penalty:50 penalty units.
37IDirection may be revoked
(1)The relevant building surveyor or authorised person may revoke a direction to fix building work given to a relevant person if the relevant building surveyor or authorised person considers that the relevant person is not able to comply with the direction.
(2)The relevant building surveyor or authorised person must give written notice of the revocation of a written direction to fix building work to the relevant person.
37JRelevant building surveyor or authorised person must give copies of directions and other notices to owner
The relevant building surveyor or authorised person must give the following documents to the relevant owner and any other prescribed person in relation to a written direction to fix building work—
(a)a copy of the direction;
(b)a written notice of any extension of the period for compliance granted under section 37G;
(c)a written notice of the revocation of the direction under section 37I.
37KNotice to owner and Authority of non‑compliance with direction
(1)If a builder fails to comply with a direction to fix building work within the required period for compliance, the relevant building surveyor or authorised person must give written notice of that failure to the Authority and the relevant owner.
(2)The relevant building surveyor or authorised person must comply with subsection (1) within 7 days after the end of the required period for compliance.".
50New Division 3 heading inserted in Part 4
In Part 4 of the Building Act 1993, before section 38, insert—
"Division 3—Certificates of final inspection".
51New section 118A inserted
After section 118 of the Building Act 1993 insert—
"118A Building notices and building orders to be last resort
A municipal building surveyor or private building surveyor must not cause a building notice to be served on an owner or make a building order in relation to the carrying out of building work unless—
(a)a direction to fix the building work was given under Division 2 of Part 4 and it is clear that the direction will not be complied with; or
(b)the municipal building surveyor or private building surveyor is satisfied that it is either not possible or not appropriate to give a direction to fix the building work under that Division.".
52Offence to work as building practitioner without required insurance
After section 136(2) of the Building Act 1993 insert—
"(3)Despite section 135(6), a builder referred to in subsection (2) is taken not to be covered by the required insurance if the name and registration number of that builder specified in the major domestic building contract is not identical to the name and registration number of the builder specified in the certificate of insurance from the insurer providing the required insurance in relation to the building work.".
53New section 138A inserted
After section 138 of the Building Act 1993 insert—
"138A Directions to fix building work
A person may appeal to the Building Appeals Board against a decision to give that person a written direction to fix building work under Division 2 of Part 4.".
Division 7—Enforcement
54New Division 2A inserted in Part 13
After Division 2 of Part 13 of the Building Act 1993 insert—
"Division 2A—Remedies
234BUndertakings
(1)The Authority may accept a written undertaking given by a person in connection with a matter in relation to which the Authority has a power or function under this Act.
(2)The person may withdraw or vary an undertaking at any time, if the person has first obtained the consent of the Authority.
(3)If the Authority considers that the person who gave the undertaking has failed to comply with any of its terms, the Authority may apply to a court for an order under subsection (4).
(4)If a court is satisfied that the person has failed to comply with a term of the undertaking, the court may make all or any of the following orders—
(a)an order directing the person to comply with that term of the undertaking;
(b)an order directing the person to carry out building work or protection work;
(c)an order directing the person to pay to the State an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the failure to comply;
(d)any order that the court considers appropriate directing the person to compensate any other person who has suffered loss, injury or damage as a result of the failure to comply;
(e)any other order that the court considers appropriate.
(5)If a body corporate is found to have failed to comply with an undertaking, each officer of the body corporate is taken to have so failed to comply with the undertaking if the officer knowingly authorised or permitted the failure and the court may, against the officer, make all or any of the orders set out in subsection (4) that the court thinks appropriate.
234CCopy of undertaking
The Authority must give a copy of an undertaking under section 234B to the person who made the undertaking.
234DRegister of undertakings
(1)The Authority must—
(a)maintain a register of undertakings; and
(b)register each undertaking given under section 234B in the register of undertakings.
(2)The register of undertakings must include the following—
(a)the name and address of the person who gave the undertaking;
(b)the date of the undertaking;
(c)a copy of the undertaking.
(3)The register of undertakings may be inspected by any person at any reasonable time, without charge.".
Division 8—General
55Section 199 substituted
For section 199 of the Building Act 1993 substitute—
"199 Delegation by the Authority
(1)The Authority may by instrument delegate to any person any of its functions except a function under section 205M.
(2)The Authority may by instrument delegate a function under section 205M to the chief executive officer of the Authority.".
56Statute law revision
In section 146(2) of the Building Act 1993 for ", 139, 174A or 178" substitute "or 139".
Division 9—Transitional provisions
57New section 273 inserted
After section 272 of the Building Act 1993 insert—
"273 Transitional and savings provisions—Building Legislation Amendment (Consumer Protection) Act 2016
Schedule 8 has effect.".
58New Schedule 8 inserted
After Schedule 7 to the Building Act 1993 insert—
"Schedule 8—Transitional and savings provisions relating to the Building Legislation Amendment (Consumer Protection) Act 2016
Section 273
Part 1—Preliminary
1Definitions
In this Schedule—
amending Act means the Building Legislation Amendment (Consumer Protection) Act 2016;
new provision means a provision of this Act as in force on or after the relevant commencement day;
old provision means a provision of this Act as in force before the relevant commencement day;
relevant commencement day means—
(a)in relation to Part 2, the day on which Division 2 of Part 3 of the Building Legislation Amendment (Consumer Protection) Act 2016 comes into operation; and
(b)in relation to Part 3, the day on which section 22 of the Building Legislation Amendment (Consumer Protection) Act 2016 comes into operation.
2General transitional provisions
(1)This Schedule does not affect or take away from the Interpretation of Legislation Act 1984.
(2)If this Part provides that an old provision continues to apply to any matter or thing, then any regulation or other instrument having effect for the purposes of that provision also continues to apply to that matter or thing.
(3)This Schedule applies despite anything to the contrary in this Act.
Part 2—Building Practitioners Board
3Abolition of Building Practitioners Board
(1)On the relevant commencement day—
(a)the Building Practitioners Board is abolished and its members go out of office; and
(b)any subcommittee of the Building Practitioners Board is abolished and its members go out of office.
(2)Subclause (1) does not affect any other provisions of this Part—
(a)dealing with proceedings before the Building Practitioners Board; or
(b)providing for the Building Practitioners Board to continue for certain purposes.
(3)If, under this Part, the Building Practitioners Board continues for certain purposes, the old provisions relating to the membership and procedure of the Board continue to apply for those purposes.
4Proceedings—Building Practitioners Board
(1)If, before the relevant commencement day, the Building Practitioners Board had commenced an inquiry into the conduct of a building practitioner but the Board had not determined the inquiry, the Board may continue and determine the inquiry in accordance with the old provisions.
(2)A determination of the Building Practitioners Board referred to in subclause (1) is taken—
(a)in the case of a decision under section 179 of the old provisions, to be a decision of the Authority under section 182E of the new provisions; or
(b)in the case of a decision under section 180 of the old provisions, to be a decision of the Authority under section 181 of the new provisions.
(3)An application for a review that has been made under section 182A of the old provisions but not determined before the relevant commencement day may be continued and completed in accordance with the old provisions.
(4)If the time within which an application for review could be made under section 182A of the old provisions had not expired before the relevant commencement day, the application may be made and dealt with in accordance with the old provisions.
(5)Any costs incurred by the Authority in administering this Part, including the remuneration and allowances of members of the Building Practitioners Board continuing and completing an inquiry or proceedings under this Part, must be paid out of the Building account.
5Proceedings against the members of the Building Practitioners Board
On the relevant commencement day, the Authority is substituted for the members of the Building Practitioners Board as a party in any proceedings against the Board or its members in their capacity as such.
6Decisions and actions of Building Practitioners Board
On the relevant commencement day, all decisions and actions taken by the Building Practitioners Board under this Act before the relevant commencement day are taken to be decisions and actions taken by the Authority in relation to any period on or after the relevant commencement day.
7Certificates of consent
Without limiting clause 6, a certificate of consent issued by the Building Practitioners Board under Division 3A of Part 3 and existing immediately before the relevant commencement day is taken on and after that day to be a certificate of consent issued by the Authority under that Division.
8Register of certificates of consent
The register of certificates of consent kept under section 25H immediately before the relevant commencement day is taken on and after that day to form part of the register of certificates of consent required to be kept by the Authority under that section.
9References to Building Practitioners Board
On and from the relevant commencement day, in any Act (other than this Act or an old provision continued by this Part) or in any instrument made under any Act or in any other document of any kind, a reference to the Building Practitioners Board is taken to be a reference to the Authority in relation to any period on or after that day unless a contrary intention appears.
Part 3—Building practitioners
10Expiry of existing registration
(1)This clause applies to a person who was registered under Part 11 as a building practitioner immediately before the relevant commencement day.
(2)The registration of the registered building practitioner (unless cancelled sooner) expires on the anniversary of that registration that occurs in the financial year set out in column 2 of the Table opposite the class of practitioner in column 1 of the Table to which the practitioner belongs.
(3)The registered building practitioner may apply under Part 11 for the renewal of the registration and for that purpose the practitioner is taken to hold the prescribed qualifications for the registration.
(4)If the registered building practitioner was taken by clause 19 of Schedule 4 to be registered, a reference in this clause to the anniversary of the registration of the practitioner is taken to be a reference to the anniversary of the date of issue of the building practitioner's certificate under clause 19(6) of Schedule 4 unless the registration currently held by the building practitioner was granted after the date of issue of that certificate.
Class of building practitioner Financial year Practitioners first registered in a year ending in zero or 5 Financial year commencing 1 July 2017 Practitioners first registered in a year ending in 1 or 6 Financial year commencing 1 July 2018 Practitioners first registered in a year ending in 2 or 7 Financial year commencing 1 July 2019 Practitioners first registered in a year ending in 3 or 8 Financial year commencing 1 July 2020 Practitioners first registered in a year ending in 4 or 9 Financial year commencing 1 July 2021 Part 4—Building surveyors
11Circumstances in which private building surveyor may not act
(1)The amendments made to section 79(1) by section 39(1) of the amending Act apply only in relation to a matter referred to in section 79(1)(a) to (d) that occurs on or after the commencement of that section 39.
(2)The amendment made to section 79 by section 39(2) of the amending Act apply only in relation to a conflict of interest that arises on or after the commencement of that section 39.
12Recovery of money from private building surveyor
Section 83V as inserted by section 41 of the amending Act applies in relation to money paid to a private building surveyor appointed under Part 6 before, on or after the commencement of that section 41.
13Further limitations on issue of building permit
(1)The amendments made to section 24A by section 45 of the amending Act apply only in relation to an application for a building permit accepted by the relevant building surveyor on or after the commencement of that section 45.
(2)The amendments made to section 24A by section 46 of the amending Act apply only in relation to an application for a building permit accepted by the relevant building surveyor on or after the commencement of that section 46.
14Certifying of documents given to relevant council
Section 30B as inserted by section 47 of the amending Act applies only in relation to a building permit issued by the relevant building surveyor on or after the commencement of that section 47.
15Directions under section 37
Section 37 as in force immediately before the commencement of section 49 of the amending Act continues to apply in relation to any direction given before the commencement of that section 49.
Part 5—Dispute resolution
16Reports of inspectors
Despite the repeal of section 241B by section 68 of the amending Act, section 241B continues to apply to any report of an inspector given to the Authority before the commencement of that section 68.
Part 6—General
17Regulations dealing with transitional matters
(1)The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of the amending Act, including any repeals and amendments made as a result of the enactment of that Act.
(2)Regulations made under this clause may have a retrospective effect to a day on or from a date not earlier than the date on which the amending Act receives the Royal Assent.
(3)Regulations made under this clause have effect despite anything to the contrary in any Act (other than this Act or the Charter of Human Rights and Responsibilities) or in any subordinate instrument.
(4)Sections 6 and 7 of the Subordinate Legislation Act 1994 do not apply to regulations made under this clause that expire on or before 1 July 2017.
(5)This clause is repealed on 1 July 2019.".
Division 10—Amendments relating to dispute resolution
59Definitions of dispute resolution order and domestic building work dispute
In section 3(1) of the Building Act 1993, insert the following definitions—
"dispute resolution order has the same meaning as it has in the Domestic Building Contracts Act 1995;
domestic building work dispute has the same meaning as it has in the Domestic Building Contracts Act 1995;".
60New section 37HA inserted
After section 37H of the Building Act 1993 insert—
"37HA Operation of direction may be stayed
The relevant building surveyor or the authorised person may stay the operation of a direction to fix building work if—
(a)the building work is the subject of a domestic building work dispute; and
(b)the domestic building work dispute has been accepted for conciliation under Part 4 of the Domestic Building Contracts Act 1995.".
61Directions may be revoked
For section 37I(1) of the Building Act 1993 substitute—
"(1)The relevant building surveyor or authorised person may revoke a direction to fix building work given to the relevant person if—
(a)the relevant building surveyor or authorised person considers that the relevant person is not able to comply with the direction; or
(b)the building work is the subject of a domestic building work dispute and—
(i)a dispute resolution order has been issued in relation to the building work; or
(ii)the dispute has been resolved by conciliation under Part 4 of the Domestic Building Contracts Act 1995; or
(iii)the dispute has been determined by VCAT under the Domestic Building Contracts Act 1995.".
62Requirement to give copies of directions
In section 37J(c) of the Building Act 1993 after "written notice" insert "of the stay of the direction under section 37HA or".
63Grounds for disciplinary action
(1)After section 179(1)(d) of the Building Act 1993 insert—
"(da)the practitioner has failed to comply with a dispute resolution order under the Domestic Building Contracts Act 1995; or".
(2)After section 179(2) of the Building Act 1993 insert—
"(3)Without limiting its powers to consider information, the Authority may have regard to a report of an assessor under section 48R of the Domestic Building Contracts Act 1995 where relevant to any matter beingdealt with under this Division.".
64Applying for internal review
(1)In section 185(3) of the Building Act 1993, for "subsection (4)" substitute "subsections (3A) and (4)".
(2)After section 185(3) of the Building Act 1993 insert—
"(3A)An application for an internal review of a reviewable decision imposed for a failure by a builder to comply with a dispute resolution order may be made at any time before any disciplinary action imposed by the reviewable decision ceases to have effect.".
65Internal review
(1)In section 185B(1) of the Building Act 1993 for "The reviewer must" substitute "Subject to subsection (1A), the reviewer must".
(2)After section 185B(1) of the Building Act 1993 insert—
"(1A)In the case of an application referred to in section 185(3A), the reviewer may have regard to whether the affected person has done all or any of the following—
(a)rectified or completed, or arranged for the rectification or completion of, the work specified in the dispute resolution order;
(b)paid compensation to the building owner, or entered into an agreement to pay compensation to the building owner or satisfied any other arrangement agreed with the building owner;
(c)reimbursed an insurer, or entered into an agreement to reimburse an insurer, for the costs (including administrative and legal costs) of the rectification or completion work paid for by the insurer or satisfied any other arrangement agreed with the insurer.".
66Application for review by VCAT of reviewable decision
(1)In section 186(4) of the Building Act 1993 for "An application" substitute "Subject to subsection (5), an application".
(2)After section 186(4) of the Building Act 1993 insert—
"(5)An application for review of a reviewable decision imposed for a failure to comply with a dispute resolution order may be made at any time before any disciplinary action imposed by the reviewable decision ceases to have effect.".
67Proceedings and decision
After section 187(1) of the Building Act 1993 insert—
"(1A)In considering an application for review
of a reviewable decision or review decision imposed for a failure to comply with a dispute resolution order, VCAT may have regard to the matters set out in section 185B(1A).".68Repeal of section 241B
Section 241B of the Building Act 1993 is repealed.
Division 11—Amendments to Victorian Civil and Administrative Tribunal Act 1998
69New Part 2B inserted in Schedule 1
After Part 2AB of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 insert—
"Part 2B—Building Act 1993
4KOrder to stay operation of decision
Despite section 50(4)(b), the Tribunal must give the Victorian Building Authority an opportunity to be heard if the order relates to a decision by the Authority under section 180A of the Building Act 1993 to immediately suspend the registration of a building practitioner.
4LCosts
Despite section 109, the Tribunal may award costs against a building practitioner in a proceeding under Subdivision 3 of Division 4 of Part 11 of the Building Act1993 if the building practitioner relied on evidence that was available but not provided to the Victorian Building Authority under that Part.".
70Amendments to Part 6 of Schedule 1
(1)In clause 11K of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, the definition of Building Practitioners Board is repealed.
(2)In clause 12 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998—
(a)for the heading to that clause substitute "Referral to Director or Victorian Building Authority";
(b)in subclause (1) for ", the Victorian Building Authority or the Building Practitioners Board" substitute "or the Victorian Building Authority";
(c)in subclause (2) for ", Authority or Board" (where twice occurring) substitute
"or the Authority".
Division 12—Amendments to Domestic Building Contracts Act 1995
71General contents etc. of a contract
(1)After section 31(1)(e) of the Domestic Building Contracts Act 1995 insert—
"(ea)states the name and address of the builder who is to carry out the work if the builder is not a party to the contract; and".
(2)In section 31(1)(f)(i) of the Domestic Building Contracts Act 1995, after "builder" insert "who is to carry out the work".
72Domestic Builders Fund
After section 124(3)(c) of the Domestic Building Contracts Act 1995 insert—
"(ca)amounts determined by the Director for the purpose of providing advocacy services in relation to domestic building contracts and domestic building disputes; and".
Part 4—Repeal of amending Act
73Repeal of amending Act
This Act is repealed on 1 July 2018.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 10 December 2015
Legislative Council: 11 February 2016
The long title for the Bill for this Act was "A Bill for an Act to amend the Domestic Building Contracts Act 1995 and the Building Act 1993 to enhance consumer protection in relation to domestic building work and to otherwise improve the operation of those Acts, to make consequential amendments to the Victorian Civil and Administrative Tribunal Act 1998 and for other purposes."
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