Division 1Division 1 Contracting for work
(1) A person must not contract to do:(a) any residential building work, or(b) any specialist work,except as or on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work.Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.
(2) The holder of a contractor licence who has contracted to do any residential building work must not contract with another person for the other person to do the work (or any part of the work) for the holder unless the other person is the holder of a contractor licence to do work of that kind.Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.
(3) The holder of a contractor licence must not contract with another person for the other person to do any work (or part of any work) for the holder for which insurance is required under this Act unless the other person is the holder of a contractor licence to do work of that kind.Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.
(4) A developer must not contract with another person for the other person to do any residential building work on behalf of the developer in the circumstances set out in section 3A (2) unless the other person is the holder of a contractor licence authorising the other person to do work of that kind.Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.
(5) A person is not guilty of an offence against subsection (2), (3) or (4) if the person establishes that the person did all that could reasonably be required to prevent the contravention of the subsection.
5 Seeking work by or for unlicensed person
(1) An individual, a member of a partnership, an officer of a corporation or a corporation must not represent that the individual, partnership or corporation is prepared to do:(a) any residential building work, or(b) any specialist work,if the individual, partnership or corporation is not the holder of a contractor licence authorising its holder to contract to do that work.(2) A person must not represent that an individual, partnership or corporation is prepared to do:(a) any residential building work, or(b) any specialist work,if the person knows that the individual, partnership or corporation is not the holder of a contractor licence authorising its holder to contract to do that work.Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.
6 Application of requirements for contracts
(1) Sections 7–7E apply to a contract under which the holder of a contractor licence undertakes:(a) to do, in person, or by others, any residential building work or any specialist work, or(b) to vary any such undertaking to do residential building work or any specialist work or the way in which any such work is to be done.(2) However, sections 7, 7A and 7B do not apply to a contract to do residential building work or specialist work in such circumstances that:(a) if the work were not to be done promptly, there is likely to be a hazard to the health or safety of any person or to the public or to be damage to property, and(b) the work could not be done promptly if the requirements of sections 7, 7A and 7B were to be complied with before commencing the work.(3) Section 7 (2) (f) and (5) do not apply to a contract referred to in subsection (1) (b).
(1) A contract must be in writing and be dated and signed by or on behalf of each of the parties to it.(2) A contract must contain:(a) the names of the parties, including the name of the holder of the contractor licence shown on the contractor licence, and(b) the number of the contractor licence, and(c) a sufficient description of the work to which the contract relates, and(d) any plans and specifications for the work, and(e) the contract price if known, and(f) any statutory warranties applicable to the work, and(g) in the case of a contract to do residential building work—a conspicuous statement setting out the cooling-off period that applies to the contract because of section 7BA.(3) The contract must comply with any requirements of the regulations.(4) If the contract price is known, it must be stated in a prominent position on the first page of the contract.(5) If the contract price is not known or may be varied under the contract, the contract must contain a warning to that effect and an explanation of the effect of the provision allowing variation of the price. The warning and explanation must be placed next to the price if the price is known.(6) A contract must not include in the contract the name of any person other than the holder of a contractor licence as, or so it may reasonably be mistaken to be, the holder’s name.(7) This section does not prevent the holder of a contractor licence with a business name registered under the Business Names Act 2002 from also referring in such a contract to the business name.
(1) A holder of a contractor licence must, before entering into a contract that the holder is authorised by this Act to enter, give to the other party to the contract information, in a form approved by the Director-General, that explains the operation of this Act and the procedure for the resolution of disputes under the contract and for the resolution of disputes relating to insurance.Maximum penalty: 40 penalty units in the case of a corporation and 20 penalty units in any other case.
(2) This section does not apply to contracts of a class prescribed by the regulations.
A person must not contract to do work under a contract unless the requirements of section 7 in relation to the contract are complied with.Maximum penalty: 80 penalty units in the case of a corporation and 40 penalty units in any other case.
A holder of a contractor licence must, not later than 5 clear business days after entering into a contract, give the other party to the contract a signed copy of the contract in the form in which it was made.Maximum penalty: 80 penalty units in the case of a corporation and 40 penalty units in any other case.
7BA Cooling-off period: person may rescind a contract for residential building work within 5 days without penalty
(1) A person who contracts with the holder of a contractor licence for residential building work to be done by the holder of the contractor licence may, by notice in writing, rescind the contract:(a) in the case of a person who has been given a copy of the signed contract—at any time before the expiration of 5 clear business days after the person is given a copy of the contract, or(b) in the case of a person who has not been given a copy of the signed contract within 5 days after the contract has been signed—at any time before the expiration of 5 clear business days after the person becomes aware that he or she is entitled to be given a copy of the signed contract.(2) The notice must state that the person rescinds the contract and must be given:(a) to the holder of the contractor licence personally, or(b) by leaving it at the address shown in the contract as the address of the holder of the contractor licence, or(c) by serving it on the holder of the contractor licence in accordance with any notice or service provision in the contract.(3) If a notice is given in accordance with this section:(a) the contract is taken to be rescinded from the time it was signed, but subject to the rights and obligations conferred by this section, and(b) the holder of the contractor licence may retain out of any money already paid to the holder the amount of any reasonable out-of-pocket expenses the holder incurred before the rescission, and(c) the holder of the contractor licence must refund all other money paid to the holder under the contract by (or on behalf of) the party who rescinded the contract at or since the time the contract was made, and(d) the party who rescinded the contract is not liable to the holder of the contractor licence in any way for rescinding the contract.(4) The cooling-off period may be shortened or avoided by a provision in the contract, but the provision does not take effect unless and until the other party to the contract gives the holder of the contractor licence (or the holder’s legal practitioner) a certificate that complies with subsection (5).(5) A certificate complies with this subsection if it:(a) is in writing, and(b) is signed by a legal practitioner, other than:(i) a legal practitioner acting for the holder of the contractor licence, or(ii) any other legal practitioner employed in the legal practice of a legal practitioner acting for the holder of the contractor licence, or(iii) any other legal practitioner who is a member or employee of a firm in which a legal practitioner acting for the holder of the contractor licence is a member or employee, and(c) indicates the purpose for which the certificate is given, and(d) contains a statement to the effect that the legal practitioner explained to the other party to the contract the effect of the contract, the nature of the certificate and the effect of giving the certificate to the holder of the contractor licence.(6) A contract can be rescinded under this section even if work has been done under the contract at the time of rescission.(7) If a contract is rescinded under this section, the holder of the contractor licence is entitled to a reasonable price for the work carried out under the contract to the date the contract is rescinded.(8) This section does not apply to a contract of a class specified in the regulations.
7BB Person may rescind a residential building work contract if cooling-off warning not given
(1) This section applies to a contract for residential building work to which section 7BA applies.(2) If a contract does not contain a statement relating to the cooling-off period and a person’s rights under section 7BA (as required by section 7 (2) (g)), a person (other than the holder of a contractor licence) may, by notice in writing, rescind the contract within 7 days of becoming aware that the contract should have contained such a notice.(3) The notice must state that the person rescinds the contract and must be given:(a) to the holder of the contractor licence personally, or(b) by leaving it at the address shown in the contract as the address of the holder of the contractor licence, or(c) by serving it on the holder of the contractor licence in accordance with any notice or service provision in the contract.(4) The notice must be given in a form prescribed by the regulations, if any form is prescribed.(5) If a notice is given in accordance with this section the contract is taken to be rescinded from the time it was signed, but subject to the rights and obligations conferred by this section.(6) A contract can be rescinded under this section even if work has been done under the contract at the time of rescission.(7) If a contract is rescinded under this section, the holder of the contractor licence is entitled to a reasonable price for the work carried out under the contract to the date the contract is rescinded.(8) However, a holder of a contractor licence may not recover under subsection (7) more than the holder would have been entitled to recover under the contract.
7C Arbitration clause prohibited
A provision in a contract or other agreement that requires a dispute under the contract to be referred to arbitration is void.
7D Interests in land under contract
(1) A contract does not give the holder of a contractor licence or any other person a legal or equitable estate or interest in any land, and a provision in a contract or other agreement is void to the extent that it purports to create such an estate or interest.(2) Accordingly, the holder of a contractor licence or any other person may not lodge a caveat under the Real Property Act 1900 in respect of an estate or interest prohibited by subsection (1).(3) However, subsection (1) does not apply to a provision in a contract that creates a charge over land if:(a) the land the subject of the charge is land on which the contract work is, or is to be, carried out, and(b) the charge is in favour of the holder of a contractor licence who is a party to the contract, and(c) the charge is created to secure the payment to the holder of the contractor licence by another party to the contract of money due under the contract, but only if a court or tribunal has made an order or judgment that such payment be made, and(d) in the case of a charge over land under the Real Property Act 1900—the party to the contract against whom the judgment or order is made is the registered proprietor of the land.(4) A charge referred to in subsection (3) over land under the Real Property Act 1900 ceases to operate if the party to the contract against whom the judgment or order is made ceases to be the registered proprietor of the land so charged.
7E Regulations concerning contracts
(1) The regulations may make provision for or with respect to:(a) clauses or matter that must be included in a contract or a class of contracts, or(b) clauses or matter that must not be included in a contract or a class of contracts.(2) If the regulations require a contract or class of contracts to contain a clause in prescribed terms, a contract of the kind to which the prescription relates is taken to include the clause in the terms prescribed. A contract that contains a term that is inconsistent with any such clause is unenforceable to the extent of the inconsistency.(3) If the regulations provide that any matter must not be included in a contract or a class of contracts any contract that contains that matter is unenforceable to the extent that it includes or applies to that matter.(4) Any regulations made under this section do not apply to a contract in force at the time that the regulations commence.(5) This section does not limit section 7 (3).
(1) A person must not:(a) demand or receive a payment on account before work is commenced under a contract to do residential building work, or(b) enter into a contract under which the person is entitled to demand or receive a payment on account before residential building work is commenced,if the amount of the payment is prohibited by this section.Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.
(2) The amount of the payment is prohibited if:(a) the contract price is more than $20,000 and the payment is more than 5% of the contract price (or, where another percentage is prescribed by the regulations in respect of a particular kind of work, the percentage so prescribed), or(b) the contract price is $20,000 or less and the payment is more than 10% of the contract price (or, where another percentage is prescribed by the regulations in respect of a particular kind of work, the percentage so prescribed).(3) The regulations may make provision concerning how a contract price is to be determined for the purposes of this section.
(1) In this section, exhibition home means a dwelling made available for inspection to persons who are invited, expressly or impliedly, to enter into a contract for the construction of a similar dwelling.(2) A person who makes an exhibition home available for inspection or who advertises that an exhibition home is so available is guilty of an offence if, at any time it is available for inspection, there is not prominently displayed at the home:(a) a copy of the plans and specifications relating to its construction, and(b) if the person is aware that persons are to be invited to enter into building contracts for the construction of similar dwellings by use of a standard form of building contract, a copy of that form of contract.Maximum penalty: 80 penalty units in the case of a corporation and 40 penalty units in any other case.
(3) If:(a) a contract is entered into with the holder of a contractor licence for the construction of a dwelling that is similar to an exhibition home, and(b) the holder knows that it was entered into after the other party to the contract had inspected the home, and(c) the contract in any way identifies the dwelling to be built by reference to the home,the contract is to be taken to contain a provision that the dwelling will be constructed according to the same plans and specifications, standards of workmanship and quality of materials as the exhibition home, except to the extent (if any) that the contract and its accompanying plans and specifications provide for any departure from them.
10 Enforceability of contracts and other rights
(1) A person who contracts to do any residential building work, or any specialist work, and who so contracts:(a) in contravention of section 4 (Unlicensed contracting), or(b) under a contract to which the requirements of section 7 apply that is not in writing or that does not have sufficient description of the work to which it relates (not being a contract entered into in the circumstances described in section 6 (2)), or(c) in contravention of any other provision of this Act or the regulations that is prescribed for the purposes of this paragraph,is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, and the contract is unenforceable by the person who contracted to do the work. However, the person is liable for damages and subject to any other remedy in respect of a breach of the contract committed by the person.(2), (3) (Repealed)(4) This section does not affect the liability of the person for an offence against a provision of or made under this or any other Act.
This Division does not affect any right or remedy that a person (other than the person who contracts to do the work) may have apart from this Act.